United Realty Advisors, LP v. Verschleiser
1:14-cv-05903
S.D.N.Y.Oct 3, 2019Background
- Plaintiffs United Realty Advisors, LP and others and defendants (including Verschleiser) litigated multiple in limine disputes before trial; the Court resolves all defendant motions in limine.
- Plaintiffs sought to strike defendants' witness list for being produced two weeks after the Joint Pre‑Trial Order deadline; plaintiffs did not show prejudice from the delay.
- Disputes over documentary evidence and recordings: plaintiffs produced some materials (e.g., a Caesar’s Palace videotape) but destroyed or failed to produce originals of certain recordings (notably Gould’s alleged call); audibility and foundation issues arose for other recordings (Veen–Verschleiser).
- Defendants sought exclusion of evidence and categories of impeachment (prior arrests/convictions/drug use), references to charitable entities (Our Place, Magenu), speculative lost‑profits testimony, and testimony/evidence tied to compensated witness Alex Veen.
- The Court generally denied broad exclusionary relief but (1) precluded the Gould transcript, (2) barred mention of arrests/convictions/drug history absent proper showing, (3) barred mention of Our Place/Magenu absent a prior proffer, and (4) conditioned Veen’s admissibility on a renewed deposition; other exclusions were left for trial rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Strike defendants' witness list for late production | Two‑week delay justified striking the list | Delay was harmless; no prejudice to plaintiffs | Denied — no prejudice shown |
| Exclude documents not produced or produced illegibly | Plaintiffs say they produced all materials promptly | Defendants seek exclusion of unproduced/illegible items | Denied without prejudice; plaintiffs must lay foundation; Rule 37(c)(1) principle acknowledged |
| Admit Gould phone transcript/recording | Transcript exists; Gould will testify making transcript unnecessary | Transcript unauthenticated, hearsay; original recording destroyed | Transcript precluded; plaintiffs must submit affidavits re: recording and produce any copy within 14 days |
| Permit impeachment with arrests/convictions/drug history | Plaintiffs claim relevance to Verschleiser's credibility | Defendants seek to preclude as unfair/prejudicial and legally improper | Granted (without prejudice): arrests generally inadmissible under Rule 609; drug history admissible only with showing of impact on perception/memory |
| Mention Our Place and Magenu charities | Plaintiffs seek cross‑examination to impeach credibility | Defendants say no good‑faith basis; prejudicial and extrinsic | Granted (without prejudice): no mention without prior court proffer/outside‑jury showing |
| Exclude speculative lost‑profits testimony | Plaintiffs rely on Frydman’s lay testimony and Rule 701 | Defendants say lost profits are speculative and insufficiently proven | Denied: plaintiffs may offer proof at trial; speculation about others’ motives excluded |
| Exclude topics covered by stricken expert reports | Plaintiffs contend experts were untimely; topics irrelevant without experts | Defendants seek to bar testimony on those subjects | Denied: fact witnesses may testify subject to Rules 401, 403, 602, 701 |
| Exclude Veen testimony/evidence from his paid arrangement | Plaintiffs produced Veen who received payment/contingency and consulted | Defendants argue bribery/ethics violations require exclusion | Denied: payments go to credibility and must be disclosed; Veen must submit to renewed 2‑hour NY deposition by end of October or be precluded |
| Admit Veen–Verschleiser recording (audibility) | Plaintiffs produced recording/transcript; may call Veen | Defendants say recording is largely inaudible/unauthenticated | Denied without prejudice: admissible only with clear and convincing foundation and possible audibility hearing |
Key Cases Cited
- Lujan v. Cabana Mgmt., Inc., 284 F.R.D. 50 (E.D.N.Y. 2012) (omission/delay in disclosure is harmless absent prejudice)
- Securitron Magnalock v. Schnabolk, 65 F.3d 256 (2d Cir. 1995) (company president may project lost profits when based on evidence)
- Furlong v. Circle Line Statue of Liberty Ferry, Inc., 902 F. Supp. 65 (S.D.N.Y. 1995) (prior drug use generally inadmissible for impeachment absent showing of effect on perception/memory)
- Thomas v. City of New York, 293 F.R.D. 498 (S.D.N.Y. 2013) (compensation arrangements for witnesses affect credibility; remedy is disclosure and jury consideration)
- Metso Minerals, Inc. v. Powerscreen Int'l Distribution Ltd., 833 F. Supp. 2d 282 (E.D.N.Y. 2011) (payments to a fact witness require disclosure; exclusion is rare)
- Golden Door Jewelry Creations, Inc. v. Lloyds Underwriters NonMarine Ass'n, 865 F. Supp. 1516 (S.D. Fla. 1994) (rare instance excluding compensated‑witness evidence)
- United States v. Condon, 170 F.3d 687 (7th Cir. 1999) (criminal statute addressing bribery is not a private right of action or evidentiary rule)
- Caldwell v. Cablevision Sys. Corp., 984 N.E.2d 909 (N.Y. 2013) (state court treated payment to fact witness as proper subject for cross‑examination and jury instruction)