And have you reviewed the negative, the photographs regarding the issues that Mr. Groden raised?
I want to put on the record, he did this to Groden. I object to disrupting the examination.
Just do it up here, please. (The following proceedings were held at the bench, with the reporter.)
Your Honor, I'm going to object to any testimony that requires any testing or any examination that he did after his deposition. That is the rules. I mean, I don't know what else he'll go back and look at. I thought he did a thorough examination. Now he's gone back and he's looking at the photos again. I didn't have a chance to depose him on that.
This is nonsense. We asked for Groden's deposition for months and months; they never gave it to us. They chose to take this deposition, knowing he was rebutting Groden on his deposition.
Please let me finish. That his opinions are going to include rebuttal to Groden. Of course, they had not produced Groden for a deposition. We didn't have a chance. It's their problem.
That doesn't matter, what you do on the record in a deposition, what do you mean -- you're not a judge. The point is that, do we -- I thought there was a rule in California that it doesn't matter who goes first; each side is limited to the -- to the opinions that are put, that are expounded in the deposition and the work that was done. I thought that's what discovery was all about. So that puts us -- it becomes a game. I mean, then I wait until their guy goes, and then I can impeach him.
Designated as rebuttal, as you well know, and you refused to produce your expert. That's your problem.
On deposition, this guy, Groden -- they had another expert; they dumped him. This guy Groden wasn't retained until at the last minute, way after Richards. I was concerned that they insisted on Richards' deposition before Groden. I said, look, I'll give you Richards, but I'm specifically reserving Richards' right to rebut expressly to Groden, because that's the only reason I'm getting him, Richards. I'm not going to put him on in my case in chief if he rebuts their position. He is saying I can't review this trial testimony, and that's his whole function.
Where is the rule that you can call an expert and allow him to do additional work? I don't understand where that is in the code. How am I supposed to discover what the guy is saying? I don't understand that. I depose him, and then Groden is deposed. Now they can -- they can bring him in for --
I'll exercise my discretion and let Mr. Leonard depose him between now and Thursday. Okay.
It's a huge problem. I'm not sure he's available on Thursday, without checking with him.
THE COURT: Okay. (The following proceedings were held in open court, in the presence of the jury.)
THE COURT: Ten-minute recess, ladies and gentlemen. Don't talk about the case. Don't form or express any opinions about the case. (Recess.) (The following proceedings were held in open court outside the presence of the jury.)
Thank you, Your Honor. There really, as I see it, are three different issues here: One is whether the defense should be given an opportunity to take Mr. Bodziak's deposition; second, whether they should be able to take Mr. Richard's deposition with regard to the Flammer photos, and third, whether they should be able to take Mr. Richards' deposition in regard to his principal rebuttal testimony in response to Mr. Groden. As to the first two points, Mr. Bodziak's and Mr. Richards' analysis of the Flammer photos, we offered depositions at least a day ago; we're for sure on the record yesterday, and I haven't heard any word whether they want to take those depositions. They said they wanted to go to the Court of Appeals. These witnesses are in town for the next day or two and they are available to be deposed. I would propose that Mr. Richards be deposed after court today on the Flammer photos and that Mr. Bodziak be deposed tomorrow on his opinion that the shoes in the Flammer photos are Bruno Magli's. If they are indeed able to testify on Thursday, the depositions will be out of the way. We don't believe they should be entitled to break up our rebuttal case, which is only a couple of days, in any event. And I still haven't heard from them what they want to do in that regard. However, I don't believe it's fair to suspend Mr. Richards' deposition on Groden's testimony and give them a crack at his deposition -- taking his deposition before we continue our examination. They insisted on taking Richards' deposition in Washington, D.C. before Groden was made available to us. I told them you better wait until after we do Groden because Mr. Richards is going to respond to Groden, and they insisted on doing Richards first. The reason was they wanted to know what he was going to say so they could feed it to Mr. Groden so he could incorporate that into his analysis. They went ahead on September 6 in Washington, D.C. I flew all the way out there. Mr. Leonard took a deposition by telephone because of the rain, and after he took Mr. Richards' deposition, at the end I said to him -- on page 43: (Mr. Petrocelli read from a portion of the deposition transcript of Mr. Richards.) Let me state for the record, Mr. Leonard, that in addition to rendering this opinion, Mr. Richards will testify in rebuttal to Mr. Groden, but since Mr. Groden has not yet given his opinion or given a deposition we are going to have to reserve further testimony by Mr. Richards until such time as Groden is made available.
Groden is, of course, the defense witness. Then on the next page he asked Mr. Richards if he had any other opinions he's testified to, and he said no. And I said, plus the rebuttal, and Mr. Leonard said, right. And by the way, in response to my reservation, Mr. Leonard said okay. So he acknowledged my position and agreed with it. And then at the very end, he didn't object, he didn't state anything for the record, he said okay, and he said right. He could have said anything he wanted. And then finally, Your Honor, on this point, at the very end of the deposition I said: (Mr. Petrocelli read from a portion of the deposition transcript of Mr. Richards.) Look, we have been asking for some time, Dan, to get the deposition of Robert Groden, your photographic guy. Mr. Leonard: Better check with Phil on that one.
And I then said: (Mr. Petrocelli read from a portion of the deposition transcript of Mr. Richards.) Let me indicate for the record we need to take the deposition in a week or so, otherwise we'll have to move to preclude him from testifying. We made clear to Mr. Baker in correspondence we want to know the position of this guy prior to opening statements, and certainly prior to jury selection. We have no idea whether you're going to have Mr. Groden, if so what he's going to say. We need to get word back on that right away.
Now, after Groden's deposition -- Richards' deposition was taken September 6 and Groden's deposition was taken September 27. It's now January. After Groden's deposition they never once asked us for the opportunity to take Mr. Richards' deposition again. Not once. After Mr. Groden testified in this court, they never asked to produce Richards' for deposition. Now we're in front of the jury and they want to stop him from testifying in response to their expert witness. There's no basis for it, Your Honor. I don't see why they should be able to interrupt our direct examination and take a deposition because they want to find out more information. They've been playing games with this situation since day one. They have no right to insist on a deposition now in the middle of our examination. He's a rebuttal witness. They had every opportunity to find out and they chose not to, and I don't think they should be rewarded for that. We're happy to make them available on the Flammer -- we'll make Bodziak available. We have to do that immediately. These witnesses are out-of-towners, time is of the essence.
Your Honor, I agree with what Mr. Petrocelli stated on the record completely. He says we are going to have to reserve further testimony. My interpretation of that is he was following the rule, which means if you're going to amend your declaration, under Rule 30 -- 2034 (k), you have to give notice. He says we never asked them. They never gave us any notice that this witness, as he just testified to, was going to give any additional -- was going to do additional testing and examination of the photo, which he did after Groden's deposition. So we're prejudiced. That's what the rule says. It says if you're going to go beyond what's given in the deposition, that you have to give some notice. He never gave us any notice.
The notice of our designation is rebuttal to Mr. Groden, anything Mr. Groden says. That's what a rebuttal expert is. This is sheer nonsense. They're playing games. They're trying to disrupt our case, Your Honor, and it's obvious. There have been six or seven outbursts from the other side of this table all week. You know, we're trying to keep our cool here and get to the end of this. They're just trying to muck it up as much as they can, and that's all this is and nothing more.
Your Honor, I took this man's deposition in good faith. Mr. Petrocelli said he's going to reserve testimony. I understood that he would proffer him for additional depositions, as he should have. He's now going to render additional opinions beyond his initial examination of the photos, which I relied on. I asked him, are you going to do anything further -- I mean, are you going to -- is that all the opinions that you have. The guy went back, he reexamined the photographs. I have no idea what he's going to say. I have a right to depose him as Your Honor suggested at the side bar. I'd like to do that.
Actually, he says this is in their -- it's general substance of testimony that this expert is suspected -- expected to give -- Mr. Richards will testify as to the authenticity of related matters concerning certain photographic evidence. I don't see anything about Groden in there --
I think the Court will not pursue this matter any further with regards to further rebuttal of Mr. Groden as far as these photographs are concerned. With regards to the testimony as to the Flammer photos, if the defense wants to take a deposition, they can. If they don't want to, they don't have to. The Court has indicated at sidebar and at this time that the Court is permitting the Flammer photographs as impeachment in and of themselves, and the plaintiffs are allowed to authenticate that photograph in however manner they wish to do, and I will permit it with this witness or any other witness they are offering to authenticate that photo.
I'd like know from the defense, do you want to take Mr. Richards' deposition today after court on the Flammer photographs? He's available now.
We can't do it tomorrow because we're in court tomorrow and Bodziak is available to you tomorrow for deposition.
We'll do them both tomorrow. You've got 14 lawyers over there. You can have one of them sit there.
Well, I don't -- we can't do them both tomorrow, Mr. Baker. We'll do one today and one tomorrow after court.
Mr. Leonard can take the deposition on the Flammer photographs. It will take half an hour right after court.
Excuse me. Mr. Leonard, you can take his deposition if you want, if you don't want to, you can forego it.
Mr. Richards, when we broke we were beginning to talk about the points Mr. Groden made when he was here on the witness stand. Did you review his testimony?
Let me state for the record, Mr. Leonard, that in addition to rendering this opinion, Mr. Richards will testify in rebuttal to Mr. Groden, but since Mr. Groden has not yet given his opinion or given a deposition we are going to have to reserve further testimony by Mr. Richards until such time as Groden is made available.
Then rest.
They're just trying to muck it up as much as they can, and that's all this is and nothing more.
The Court is permitting the Flammer photographs as impeachment in and of themselves, and the plaintiffs are allowed to authenticate that photograph in however manner they wish to do.