for graphics versus news america may need please a court good morning my name is tom beemer ny representative talent for graphics i'd like to reserve three minutes of my time for the bottle series we're here on a little sixty motion requisite issue in the case that's inconsistent with his sworn deposition testimony what was directly at issue in the case that the just displayed you wanted just focusing on the two thousand and two carlucci video and if you could tag onto that how was directly inconsistent yes your honor i will in the two thousand and two video for mr carlucci you have to put the video in the context of the claims that are being made in the case this was a claim for anti competitive behavior between news america and floor drop under state law under state law and the computer fraud and abuse actor on which is federal law this was a claim for anti competitive behavior one of the central themes in the complaint was that when news american floor graphics bumped into each other in the marketplace it was a meeting in new york city at the meeting in new york city mr carlucci was present with the principles of my client at that meeting my clients allege that mr carlucci said if you compete with news america we will destroy the that was a hotly contested issue in the case in fact it was so hotly contested that in the opening statement of news jurors statement was if you can compete with my client we will destroy you and he say it was he captured saying that in this video no your honor he was also asked at his deposition if he ever discuss reasonable inference from what he said but you've got to remember that we're entitled to inferences from that communication too and let me let me just sort of go through the rest of it and i think you'll see the connection or leave the question your honor of well i'm what i'm trying to do references to contracts to customers kroger and safeway specific allegations in the complaint was that they tortious lee interfered with our contract with kroger and our contract with safeway those conversations are specifically referenced in the video which hunter says he's talking about news america defeating floor graphics for the kroger contract and for the safeway contract and he also says something else or rather that's nearly as well a bit i'm sorry did he say the feeding floor graphics with respect to those your honor was that it's his words what he said specifically he said on kroger as marty talked about yesterday marty is mardi gras follow another senior executive vice president discuss f b i going out of business now after me says the loss of kroger was overwhelming he says specifically they had gone out and sold it to their investment bankers and we have them on the rock then he says  not me it's an account of the how the competition is perceived right now and now trying to put on the head of a trial judge before whom you're going to offer the seventh before who want to offer this evidence as i assume in that proffer i ask who are that it's to demonstrate inconsistency no your honor it's to demonstrate it's discoverable don't forget we're talking about a document or a sir if it's if it's discoverable at particularly at this stage of the game judgment you better be showing us that you intend to use it for some purpose that's not correct your honor in office plain while under rule sixty three it's clear that under be too however which you've also argued you would have to demonstrate absolutely your honor under b two we have to show which result but under b three all we have to show is it affected our ability to fully and fairly present our case the third circuit has recognized that it's enough to show that up on the video and we show where we ask him specifically did you ever discuss floor graphics going out of business then we put up the testimony on the video that shows him saying that we have them on the run they face in their appetite the cell under what absolutely your honor this is the chairman and c e o of the company who was alleged to have said he's going to drive our company out of business who's talking in front of the senior executives of the company who's talking about having us on the run but then he says you says i'm glad the lawyers are here because he didn't really say it and then in his deposition when we asked him did you ever discuss it you ever discuss them going out of business he said no all right apparently some of which is the conversation you alluded to that did occur between the principals was some substantial evidence and was but she didn't seem to think that what you wanted to add to it really contributed three says that we can schiff we can show that it would lead to other meaningful discovery requests that's sufficient to show that it interfered with our ability to fully and fairly present our case as a trial attorney there's no trial an attorney in the world who when they saw that videotape would have asked about that previous conversation with mr croft law that deals with one of the contracts that was directly at issue in the case the kroger contract no trial lawyer in the world would have said i want to know if there's a video of that conversation we still don't know to this day if there's a video of that conversation we asked the trial court let us see the videos we were denied the opportunity to see the video there was and now with some of those videos we're beyond the the discovery cut off we were also able to ascertain from the trial exhibit list in michigan that there were a number of other videos that mentioned f b i that were produced what was sought in the request for production number twenty case that that request encompasses the video in fact at the district court level right so how did news america respond to number twenty news america gave a objection to the extent documents that were covered by the privilege or work product they have been alleged at the carlucci videos covered by privilege work product then they objected that it was over brought because they said sometimes they mention f b i in a way completely unrelated and you were not response they said they will produce documents under this request to the extent related to the allegation so what did your predecessor representing a cio do they say you wanted they relied on that representation from news america what representations that they would produce documents to lead to some point in time surely they realized that nothing had been produced what action was that's not true your honor they produced a million pages of documents what we didn't know was that they didn't forcing over that line to unfair competition and tortious interference with respect to the safeway contract in the kroger contract or ana they ate what was alleged in the complaint was sought to be proved is that they were lying about the number  us about your slides conceal your honor under new jersey and new york law one of which is going to apply to that release in order for release to be exculpatory to get you out of your own warmth of conduct that has to be extremely specific and we cited cases to the district court that explain the difference between a specific release and a general release the language that's used in this particular release is very general it is not specific her discretion she made factual findings with respect to the relevance and materiality of this video which mr beamer played for her in the over their injury hearing last may she watched the whole video and if you read the entire transcript of the proceedings last may on the rule sixty b motions she said i've been involved in this case for a long time i watched these w i don't think they were encompassed by the discovery as we object to your honor we objected and said and well the magistrate judge had a cutoff for production in the discovery of the videos but there were items that were  generated before the cutoff date yes some of those videos fit into some of them do in indeed the carlucci video which we've encouraged the court to watch it's only a minute long and we quoted it in total at documents number twenty why did it not come under it came under the request judge smith but it did not come under the response well mr didn't didn't news respond that it would produce non privileged response documents related to for graphics allegation relating to the allegations your honor that is the distinction we drew in ms green kelly and i drew that distinction expressly because we said we've got millions and millions of communications in this day of e mail within the company that mention our competitor merely mentioning the name of a competitor doesn't make it  doesn't it because you have carlucci talking about f g i's contracts with kroger and safeway that's the context in which you always mention your competitors you say they beat us on this contract we beat them on that contract there's millions of pages of that the allegations in the complaint were relating to misconduct tortious interference  defamation pushes interference with contracts with yes and there's nothing in this video that has anything to do with tortious interference with those contracts in safeway for four years floor graphics a an exclusive contract with safeway they beat us then at the end of that contract there was another competition and we beat them and the garofalo speech to the same sales conference was also discussed in four graphics brief kara follow said we're very happy we won the safeway contract whether it jerry had the benefit of seeing that video if it had been produced could it not infer based on this the mystery of the show made that is america interfered with its caught with its safeway and kroger contract on the contrary your honor i don't think there's anything in that video that suggests anything or unfair about the competitive process that related to either the safeway contract or the kroger contract we competed against them in on these two we won and that's good and he also testified in his deposition which mr beamer didn't mention he testified about how the floor graphics executives with their investment banker came to news corp said will you buy us here is our presentation that's of pages one twelve to one fourteen of the same deposition where mr bremer says he concealed the fact that they were looking to sell their business he didn't conceal it he testified about it we produce documents about it it was no secret the floor graphics was trying to get news to buy its business that had nothing to do with the question of anti competitive conduct that was alleged in the complaint there is simply a mention in these various videos there is a mention of floor graphics and in our objections we said we're not producing every piece of videos or tapes or documents which were graphics was discussed i think not your honor of our quest was it that was within the request but as we objected we said we're not producing every piece of paper that mentions them and every video burdensome so what if anything did f g i do between your objection and the close of discovery or for that matter  prior to trial to seek a court ruling or otherwise get you to produce that which you had objected on that one they did nothing further and many others they moved to compel on some of those motions to compel judge hughes ruled in their favor and we then produced what he ordered us to produce and others he denied their motions and we didn't produce them there were eight sets of document requests there war twenty odd depositions including depositions of the safeway person and of mr garofalo about the competition for the safeway contract all of this was explored in painstaking detail between two thousand and four when the case was filed in two thousand and eight when we went to trial there was unbelievable quantities of material produced and what we have here in this proceeding for graphics says we would like not just to have the judgement set aside we'd like to reopen discovery the motion before judge thompson said we'd like to get the five and a half million pages of paper that you produced in discovery in the last and rule sixty b says to reopen a judgment upon the showings that are articulated in sixty b two material that could have been obtained by the exercise of reasonable diligence and would be outcome changing a game changer judge thompson who was very familiar with this case watched the video and that was the one there were a dozen videos that were referred to in the floor graphics motion that was the prime poster child that mr beamer chose to put on the screen for judge thompson to watch and  testimony that mr carlucci gave in his deposition that your graphics relies on as allegedly inconsistent and quoted the entire video at pages thirty five and thirty six and i  it there's not any inconsistency there's not any evidence of perjury and here we have recall a stipulated judgment of the smiths and the lawyers who participated in all of that discovery and in all of that proceeding had not come forth to say gee we were duped in the discovery process they hoodwinked magistrate judge used all of this stuff was really important it isn't remotely important going off under the cases in the circuit particularly the talk about the extremely high burden to set aside a judgment in this case stipulated judgment of the special there are some videos that haven't been disclosed yet for which there has been a request of those lives in the comment on the i understand they have to do with it the last asleep geisha and they're not to the extent that they only relate to the last is they don't have anything to do with this case but they don't know that well they asked for every piece of paper and every video that was produced in discovery in the last is case we objected to that and said that's ridiculous that's a different case involving different lines of business it involves and i trust claim is that was that subject to lay further motion to compel it is it was not your honor the the mere fact that certain documents and videos were covered by different discovery requests in a different litigation involving different statutes in a different industry doesn't make them relevant here when you say a different industry does the lasses offer it exhibit a news america marketing and floor graphics compete in the in store business shelf advertising coupon dispensers decals on the floors in supermarkets and chain drug stores and stores like k mart but not this sunday supplement coupon to which you're on a record that's a different industry so the fact that different discovery occurred in a different case doesn't make those materials relevant here but i come back to the proposition that the most exciting thing that mr beamer showed to judge thompson doesn't prove anything in the way of an inconsistent statement or perjury or misconduct but was the most had a week of trial your honor and then floor graphics decided it wanted to sell its business the news america marketing and as judge thompson observed during the train the transcript from last year they got a very good price for their business and it was negotiated between the exceptional consul who represented ford graphics at that time and the mere fact the vul ass is subtle for more was not a reason to set aside this judgment it at  i'm the guy who made the opening statement to which mr bremer refer in which i said they claimed that at a restaurant in two thousand or thereabouts mr r because only part of the plaintiff's case came in before for graphics decided so that's the only thing the jury had at that point the jury heard was your opening statement on that issue no they heard mr rebs testimony that it occurred all right and they heard the testimony of gary henderson so is that at least in part which judge thompson was referring to during the rule sixty hearing  don't recall her exact words but as a reason for why she wasn't overwhelmed by what she heard and heard and saw in the carluccio that trial tha these significant threats if you will or allegations of threats and that do i recall her suggesting that this didn't really add much to the evidentiary scheme that point yes i think her conclusion was this didn't change anything that she had heard previously but mr carlucci did not testify in the trial before again that he was going to and it was on that basis that i had made the remarks like that his deposition was inconsistent with what he said on the videotape particularly in light of the fact that he said he was going to deny it and he was glad the lawyers were in the room you know there was a difference in their group rose but case it was perjury in your case you're talking about a consistency so that the the two instances are a little different but in its inconsistent statements under oath at his deposition iraq at his deposition he said he never even discussed f b i going out of business never even discussed this is him in front of the empire senior executives of the company saying we have them on the run hasten their appetite to sell and i'm glad the lawyers are here because he really didn't like and the problem with this or so news america is going to spin this videotape their way if they had done the right thing if they had given it we would have had the opportunity to use the video to create our own set of that's the way it's supposed to work they're not supposed to make a unilateral determination that this video is not material to our case so they don't have to give it to us we asked for communications laid it f d r they said  give us those documents related to the claims if any this court over in over and over again and bob and morales and park at the words were late to work to be improper that we had a right to from and when they didn't give us that they undermined the in payment of the process and they did more than that because that document specifically references another and that's and that really would fit ence that no reasonable juror could believe that mr carlucci is deposition testimony where he denied ever discussing f b i going out of business was inconsistent with his video testimony would be ok where he said we have them on the run and we hasten their appetite to sell i believe that is a reasonable inference from that particularly when he says that are glad the lawyers are here because we're going to deny we said it i believe that's a reasonable inference under those circumstances and what i really believe is that we were entitle to that document so we could have made that order thank you very careless of the thank you very much