[00:00:00] Speaker 03:
Good morning, Your Honors.

[00:00:01] Speaker 03:
Zing Lee for Appellants Luis Ramos and Gudele Sandoval.

[00:00:05] Speaker 03:
If it pleases the Court, I'd like to reserve two minutes of my time for rebuttal.

[00:00:08] Speaker 01:
Two?

[00:00:08] Speaker 01:
Yes.

[00:00:09] Speaker 01:
Okay, keep an eye on the clerk.

[00:00:09] Speaker 01:
We'll try to help you.

[00:00:10] Speaker 01:
And hopefully the clerk will work.

[00:00:12] Speaker 03:
Thank you.

[00:00:13] Speaker 03:
Your Honors, the first point for reversal of judgment below is that the district court excluded the FCMAT report and its authenticating witness.

[00:00:21] Speaker 03:
And it did so without applying the correct legal standard.

[00:00:23] Speaker 01:
Maybe you should understand.

[00:00:25] Speaker 01:
I thought the report was not excluded.

[00:00:28] Speaker 01:
I thought it was just Mr. Yovino's

[00:00:30] Speaker 01:
if you will, foundational testimony that was excluded.

[00:00:33] Speaker 01:
Did I miss something?

[00:00:35] Speaker 03:
It absolutely was excluded, Your Honor.

[00:00:38] Speaker 03:
If I could direct your attention to the district court's ruling on the motion for new trial, it stated that the FCMAT report

[00:00:47] Speaker 03:
and the witness was not disclosed.

[00:00:48] Speaker 01:
I'm referring to the FCMAT report.

[00:00:52] Speaker 01:
Correct.

[00:00:52] Speaker 01:
Is that the same thing you're talking about?

[00:00:54] Speaker 03:
Yeah, the FCMAT report and the witness that would lay the evidentiary foundation, both were excluded because they were not disclosed.

[00:01:04] Speaker 04:
Typically, in my trial court experience, exclusion requires someone to offer something.

[00:01:14] Speaker 04:
Here is exhibit 27, objection sustained.

[00:01:19] Speaker 04:
What do you say, FCMAT?

[00:01:23] Speaker 04:
FCMAT.

[00:01:24] Speaker 04:
Did the plaintiffs ever mark the FCMAT as an exhibit and present it to the district judge and offer it into evidence?

[00:01:33] Speaker 03:
I believe the record shows that she attempted to offer a portion of the FCMAT report.

[00:01:40] Speaker 03:
But there were several revisions of trial exhibit lists.

[00:01:43] Speaker 03:
And I think in the final one, that was not.

[00:01:45] Speaker 04:
Yes, because I don't see anywhere in the record that somebody said, here's the FCMAT.

[00:01:50] Speaker 04:
We're offering it.

[00:01:51] Speaker 04:
And the court said, sustained.

[00:01:53] Speaker 04:
I mean, there was an objection and sustained.

[00:01:55] Speaker 04:
I don't see that anybody ever offered the FCMAT report.

[00:01:59] Speaker 04:
So I don't see how.

[00:02:01] Speaker 04:
the district judge excluded it if the district judge never saw it and said, like for example, at ER 1164, I'm just commenting that if you can't get the report in itself, I'd allow you to ask questions about it.

[00:02:18] Speaker 04:
I've made a ruling about the witnesses who weren't disclosed, but I don't see anywhere where the judge said, you've offered it, I reject it.

[00:02:26] Speaker 03:
Well, Your Honor, authentication is a legal basis for every piece of evidence.

[00:02:30] Speaker 03:
If you can't authenticate a piece of documentary evidence, you cannot get it in.

[00:02:35] Speaker 01:
Let me ask you this, following up on my colleague.

[00:02:38] Speaker 01:
It's just an evidentiary matter.

[00:02:39] Speaker 01:
If the report was not offered and it wasn't excluded, is this even a final order?

[00:02:48] Speaker 01:
Can we even consider what you call the exclusion of the FCMAT report?

[00:02:54] Speaker 03:
Well, several pieces point to the fact that it was, Your Honor, particularly when the parties discussed offering testimony about the contents of the FCMAT report.

[00:03:08] Speaker 03:
This report gave very specific instructions.

[00:03:11] Speaker 03:
If you cannot authenticate the report, you can't even talk about, ask about any of the contents of that report.

[00:03:17] Speaker 01:
But again, my recollection is that

[00:03:20] Speaker 01:
what was in the report was discussed at some length by the other people over there.

[00:03:26] Speaker 01:
Was that wrong?

[00:03:27] Speaker 03:
I believe that is wrong, Your Honor.

[00:03:29] Speaker 03:
It was the existence and the response to that report.

[00:03:33] Speaker 03:
The report, Your Honor, is 108 pages.

[00:03:35] Speaker 03:
There was barely, there was maybe a one sentence summary of the purpose of that report, which was an investigation happened.

[00:03:44] Speaker 03:
And it existed and it was presented.

[00:03:47] Speaker 03:
And there were responses taken by the school district to that report.

[00:03:51] Speaker 03:
That was the extent of the testimony.

[00:03:53] Speaker 04:
You know, Counsel, I'm still having trouble with the

[00:03:57] Speaker 04:
the basic premise of your argument.

[00:03:59] Speaker 04:
Mr. Iovino was not disclosed.

[00:04:02] Speaker 04:
Correct.

[00:04:04] Speaker 04:
The judge said, show me good cause if you have it.

[00:04:09] Speaker 04:
There was never any good clause shown, and the judge said, I'm not going to let him testify.

[00:04:13] Speaker 04:
And again, the judge, as I see it, didn't keep out the report, but it was your client's problem if they didn't have anybody else who they disclosed who could authenticate it.

[00:04:28] Speaker 04:
I just don't see that the same as someone offering the report and the judge keeping it out.

[00:04:34] Speaker 04:
I just don't think you've laid the building blocks to be able to challenge an exclusion, which I don't see ever occurred.

[00:04:46] Speaker 03:
When a witness, an authenticating witness, there were two actually in there, Jimmy Avino and Anthony Bridges, both of whom were undisclosed and both of them were excluded.

[00:04:56] Speaker 03:
Child council had no way to present this evidence.

[00:04:59] Speaker 03:
The immediate response upon presenting this piece of evidence would have been an objection that it can't not be authenticated.

[00:05:07] Speaker 03:
And the trial court, the district court, would have excluded.

[00:05:10] Speaker 02:
Mr. Lee, in these questions of admission of evidence, we like to, in fact, we require the trial counsel to give the district court the opportunity to respond and provide grounds for exclusion, which can't happen if trial counsel never moves the admission of the exhibit, which is what happened here, right?

[00:05:34] Speaker 03:
Even if the particular document itself was not attempted to have been offered at trial, certainly the contents of that report, trial counsel did attempt to introduce it.

[00:05:46] Speaker 04:
So where in the record was trial counsel attempting to offer portions of the report and the judge not allowing it?

[00:05:54] Speaker 03:
I believe it was when trial counsel was asking specific questions of a witness about the presentation of the report in a board meeting.

[00:06:04] Speaker 02:
But Mr. Lee, so I'm looking at, for example, ER 1158, where trial counsel says, I'm not planning on introducing anything in evidence.

[00:06:12] Speaker 02:
That's not listed as evidence.

[00:06:15] Speaker 03:
Your Honor, that was in response to the trial court already giving her instructions that she could only ask about certain things regarding the report, only about the existence and the response to.

[00:06:26] Speaker 03:
Those were the guidelines for her questioning of these witnesses.

[00:06:31] Speaker 01:
What in the report

[00:06:34] Speaker 01:
as opposed to the document itself did not get admitted that you feel was essential.

[00:06:45] Speaker 03:
all parts of the report having to do with the employment practices of the Parlier Unified School District.

[00:06:51] Speaker 04:
And is there a place where, to follow up on Judge Smith's question, is there a place where, for the exact things you're talking about, there was an offer of proof made?

[00:07:02] Speaker 04:
Judge, here are the exact parts of the report

[00:07:05] Speaker 04:
that I would prove up so that we could determine even if we agreed with you that theoretically this exclusion if it was one was improper where we could judge by the offer of proof what would have come in exactly to make a determination of whether even if there were an improper exclusion it was prejudicial.

[00:07:27] Speaker 03:
No, Your Honor, I would concede that trial counsel did not make that particular offer.

[00:07:32] Speaker 04:
Did the trial counsel make any offer of proof as to the FCMAT report?

[00:07:39] Speaker 04:
Not based on the record, Your Honor.

[00:07:41] Speaker 02:
So for the authenticating witness, I think Mr. Iovino is the focus of your arguments here.

[00:07:48] Speaker 02:
Again, whether or not the trial court was required to put on the record good cause, did trial counsel give the district court anything to work with there?

[00:08:01] Speaker 02:
I don't think we have yet an explanation from counsel as to why they did not disclose Mr. Iovino.

[00:08:08] Speaker 03:
Well, Your Honor, why the particular witness was not disclosed was not argued by trial counsel, but she did argue that there was no prejudice or the lack of disclosure was harmless.

[00:08:23] Speaker 02:
Why isn't it?

[00:08:25] Speaker 02:
Why don't the cases you cite require trial counsel to provide that good cause?

[00:08:32] Speaker 03:
Or I believe the District Court, Your Honor, required an explanation as to why, not why he wasn't disclosed, but why he should let this witness testify, I believe is the record.

[00:08:43] Speaker 03:
And the explanation was that under the four-part test, the first factor was there was a lack of prejudice to the other party, or this was harmless.

[00:08:53] Speaker 03:
Or if there was any prejudice, it could have been cured.

[00:08:56] Speaker 01:
What's your best argument?

[00:08:58] Speaker 01:
that in light of the way the trial went down, that it was somehow fundamentally unfair, which I think is what you have to show.

[00:09:06] Speaker 01:
My reading in the record is that essentially everything that you would have said in the report got in.

[00:09:14] Speaker 01:
Why would that be fundamentally unfair?

[00:09:17] Speaker 03:
Well, Your Honor, key witnesses for Pelley's testimony

[00:09:23] Speaker 03:
No, for the appellees.

[00:09:26] Speaker 03:
For example, Mr. Alvarez, Mr. Lucero, and Mr. Maldonado testified about the practices, their employment practices of PUSD.

[00:09:34] Speaker 03:
And they testified that everything was done legally and with transparency.

[00:09:39] Speaker 03:
Every employment action they took, they referred to counsel, and they received a recommendation, and they did this via the school district's policies and pursuant to applicable law.

[00:09:50] Speaker 01:
And you had an opportunity to rebut that.

[00:09:52] Speaker 03:
Well, the report would have been the upjury.

[00:09:54] Speaker 01:
But I mean, beside the report, you could have rebutted it through testimony, right?

[00:10:00] Speaker 03:
Well, Your Honor, I was not the trial counsel for the- No, I understand.

[00:10:06] Speaker 01:
Why didn't counsel for appellant in this case have every opportunity to rebut what the school district said?

[00:10:16] Speaker 03:
Well, without the investigation evidence, she had no other way to get this evidence in to rebut this testimony.

[00:10:25] Speaker 01:
I don't understand that.

[00:10:27] Speaker 01:
I mean, there are all kinds of things that could have been said without getting the actual report in.

[00:10:33] Speaker 01:
You have an individual testifying.

[00:10:36] Speaker 01:
You could cross-examine that individual and show that that was not the practice.

[00:10:40] Speaker 01:
That wasn't done, I don't think.

[00:10:42] Speaker 01:
But the opportunity was there.

[00:10:44] Speaker 01:
What I'm struggling with, where's the fundamental unfairness?

[00:10:48] Speaker 01:
That's what you've got to show.

[00:10:49] Speaker 03:
Well, the fundamental unfairness is that appellees put on witnesses that testify to their habits, to their policies.

[00:10:57] Speaker 03:
Appellants were missing this smoking gun document that applied directly on those policies.

[00:11:05] Speaker 03:
So I'm looking.

[00:11:07] Speaker 04:
And if I'm pronouncing the name right, acting superintendent Lucero was testifying.

[00:11:15] Speaker 04:
Correct.

[00:11:16] Speaker 04:
And Mr. Padrone is saying, you mentioned earlier there was a FCMAT report, and there were recommendations that the board take actions.

[00:11:27] Speaker 04:
And that's when the CBO, the Chief Business Officer, was more involved.

[00:11:30] Speaker 04:
Do you recall that?

[00:11:33] Speaker 04:
I'm not sure that was my exact words, but that was I intended to say.

[00:11:36] Speaker 04:
And the Council didn't ask additional questions as to the substance of the report, although Council could have, right?

[00:11:48] Speaker 03:
Well, Your Honor, the district court specifically instructed that she limit her questions.

[00:11:54] Speaker 03:
I believe Mr. Pedro was in pro-per, but the instructions to trial counsel was that she must limit her questions to the existence of this report and the response of the district to this particular report.

[00:12:11] Speaker 01:
someone testified for the district, that that person couldn't be cross-examined based upon what had been found in the report?

[00:12:20] Speaker 01:
Is that what you're saying?

[00:12:21] Speaker 03:
Yes, Your Honor.

[00:12:22] Speaker 03:
The limit of the questions were the existence of that particular report and the response of the district there too.

[00:12:31] Speaker 01:
Well, I didn't read the record that way at all.

[00:12:34] Speaker 01:
I thought there was a full opportunity to cross-examine.

[00:12:39] Speaker 01:
they couldn't put in the report because of what my colleague mentioned in terms of the timing and so on.

[00:12:43] Speaker 01:
You got to go Beano's foundational evidence and so on, but the actual content of the report could be used in the sense of what was in there to cross examine.

[00:12:55] Speaker 01:
Isn't that correct?

[00:12:57] Speaker 03:
Your honor, the report could not be presented in front of these witnesses.

[00:13:01] Speaker 01:
I said the report, but the report contains

[00:13:04] Speaker 01:
evidentiary claims that could have been referred to, right, without getting the actual report in.

[00:13:10] Speaker 03:
Your Honor, if you're referring to the specific instances contained within the report, and the trial counsel to ask about that, she could have made certain questions about them, but without the evidentiary backup, these are presumably irrelevant questions, because there's no evidence that these... The district testifies X, and counsel said a tax

[00:13:34] Speaker 01:
the veracity of X, that's OK, but you're saying that's not enough?

[00:13:41] Speaker 03:
Without the evidence of these other acts, which the report found, which it did so by reviewing employment records.

[00:13:52] Speaker 03:
It did so by interviewing anonymous witnesses who are identified by their occupation.

[00:13:57] Speaker 01:
You're down to about one minute.

[00:13:59] Speaker 01:
You want to say the balance of your time?

[00:14:00] Speaker 01:
I will, Your Honor.

[00:14:01] Speaker 01:
Thank you.

[00:14:01] Speaker 01:
Very well.

[00:14:04] Speaker 00:
So Mr. Baxter.

[00:14:08] Speaker 00:
Correct, your honor.

[00:14:10] Speaker 00:
If it may please the court, Todd Baxter on behalf of the appellees, Parler Unified School District and Gerardo Alvarez.

[00:14:17] Speaker 00:
Talk up a little bit, if you will.

[00:14:19] Speaker 00:
Pardon?

[00:14:19] Speaker 01:
You're on TV.

[00:14:20] Speaker 01:
You need to talk up a little bit.

[00:14:21] Speaker 01:
You're famous.

[00:14:21] Speaker 00:
Oh, OK.

[00:14:22] Speaker 00:
I'm sorry.

[00:14:22] Speaker 00:
You're famous.

[00:14:24] Speaker 00:
As to the FICMAT report, which is how it was being pronounced at trial,

[00:14:32] Speaker 00:
The report itself, as the court has observed, really never came into evidence.

[00:14:38] Speaker 01:
It's part of our actually- Was it offered in evidence?

[00:14:41] Speaker 00:
It was never offered into evidence.

[00:14:43] Speaker 00:
It was talked about at different points, obviously.

[00:14:46] Speaker 00:
But there's testimony.

[00:14:48] Speaker 00:
Well, the court actually observed the fact when they were talking about the FICMAT report.

[00:14:53] Speaker 00:
The court actually said at one point, I don't know.

[00:14:56] Speaker 00:
You guys had me have a disadvantage.

[00:14:59] Speaker 00:
I don't know what you're talking about because I've never seen this report.

[00:15:03] Speaker 01:
If the report was never offered in evidence and the judge never ruled on it, can we rule on it?

[00:15:10] Speaker 01:
Is there a final ruling?

[00:15:12] Speaker 00:
There isn't a final ruling.

[00:15:14] Speaker 00:
Is or is not?

[00:15:14] Speaker 00:
No, there isn't one on the FICMAT report.

[00:15:16] Speaker 00:
And in fact, the court specifically said to counsel, look, I want to make myself perfectly clear.

[00:15:22] Speaker 00:
I'm not telling you you can't get it in.

[00:15:25] Speaker 00:
you can go ahead and try and get it in.

[00:15:28] Speaker 04:
But the court also did say, given that there was no authenticator, if you try to ask somebody about what's in the report for the truth of the matters asserted, I'm probably going to sustain an objection on hearsay grounds, right?

[00:15:49] Speaker 00:
Correct.

[00:15:49] Speaker 00:
And that was one of the objections that

[00:15:52] Speaker 00:
the appellees had it that would be hearsay.

[00:15:54] Speaker 04:
So did your clients ever proffer to the court what the prejudice to them would be from allowing Mr. Yovino to be a late-named witness?

[00:16:07] Speaker 04:
Was there anything in the record as to what that prejudice would be?

[00:16:10] Speaker 00:
Well, yes, there was an argument made at that time.

[00:16:13] Speaker 04:
So what was the argument as to what the prejudice was to allowing Mr. Iovino to be late named to authenticate the report?

[00:16:22] Speaker 04:
I think they had said, Mr. Iovino is the one who gave the defendants the report.

[00:16:30] Speaker 04:
There's no prejudice.

[00:16:32] Speaker 04:
What did your client tell the district court was the prejudice?

[00:16:36] Speaker 00:
Well, it was not just the prejudice about Mr. Uvino.

[00:16:40] Speaker 00:
There is a prejudice, obviously, with the late disclosure of Mr. Uvino waiting until the pre-trial conference to do so, and that he was never disclosed.

[00:16:48] Speaker 00:
They admitted he was never disclosed.

[00:16:50] Speaker 00:
But the prejudice to my clients impacted not just the authentication of the report.

[00:16:55] Speaker 00:
Here's this huge report that might come in, even though it wasn't even offered that way.

[00:16:59] Speaker 00:
It was offered as excerpts of the record, and it was unsigned.

[00:17:02] Speaker 00:
But the prejudice to us was the

[00:17:04] Speaker 00:
the development that we did in terms of our discovery.

[00:17:08] Speaker 04:
But my question, and maybe you're answering it, but I'm not sure from the preamble that you're answering it, what did the defendants tell the district court the prejudice was?

[00:17:21] Speaker 04:
I'm not asking you to tell me de novo what the prejudice was.

[00:17:24] Speaker 04:
I'm asking what the district court was told.

[00:17:28] Speaker 04:
Here's the prejudice for Mr. Iovino.

[00:17:30] Speaker 04:
Here's the prejudice.

[00:17:32] Speaker 04:
from the report coming in to this trial?

[00:17:37] Speaker 00:
It's that we never really did discovery on any of those aspects of it.

[00:17:41] Speaker 04:
Is that what you told the district court?

[00:17:43] Speaker 00:
Yes, as I recall, that was what was told the district court.

[00:17:46] Speaker 00:
It wasn't a detailed discussion about what our prejudice would be, but part of it was prejudice at this point by having this witness come in.

[00:17:55] Speaker 00:
The FICMAT report, and one of the things that we brought issue to the trial court specifically,

[00:18:01] Speaker 00:
was it's just an excerpt of the report.

[00:18:04] Speaker 00:
It's not signed.

[00:18:05] Speaker 00:
I'm not sure who's going to authenticate it out of that.

[00:18:08] Speaker 00:
And on top of that, we didn't conduct any discovery, a chance to, because once the report comes in, Your Honor, and it's into the record, this huge report, you can ask any questions you want about it.

[00:18:19] Speaker 00:
But we never had a chance to depose anybody.

[00:18:20] Speaker 00:
You certainly had the report.

[00:18:22] Speaker 00:
Well, yeah, we had the report.

[00:18:26] Speaker 04:
You certainly could have conducted, if you'd wanted to, you could have conducted discovery vis-a-vis the report, because it's not like you didn't have it.

[00:18:33] Speaker 00:
No, we did have the report.

[00:18:35] Speaker 00:
There's no question.

[00:18:36] Speaker 00:
And if we knew this was going to be an exhibit, Mr. Uvino was going to be testifying about it, if we knew that in advance, when you're developing your discovery plan as to how you're going to conduct yourself throughout the discovery process, if you know this is going to be

[00:18:52] Speaker 00:
and exhibit and you know these individuals are going to be testifying about it, you would ask specific questions about to find out what they were going to testify about.

[00:19:01] Speaker 02:
Do we require the district court to, I mean, those are the arguments and reasons you might have had at trial for not wanting Mr. Iovino to testify.

[00:19:13] Speaker 02:
Do we require the district court to adopt some of those reasons for purposes of our review?

[00:19:20] Speaker 02:
There don't seem to be a lot of findings here.

[00:19:22] Speaker 02:
And one of the questions is whether we require the district court to speak to the prejudice, delay any of the other factors that we've established.

[00:19:31] Speaker 00:
I think with the Brodeur decision, I think the outline in that decision talking about the court kind of delving into those issues before it issues a sanction, I think that probably you're looking at prejudice, the impact of that prejudice.

[00:19:47] Speaker 00:
Is it going to delay the trial?

[00:19:49] Speaker 00:
Was it willful?

[00:19:50] Speaker 00:
Was there an intentional act in time waiting until the last minute to present this evidence?

[00:19:55] Speaker 00:
And I would say that that seems to be obviously what the Brodeur decision said out of this court.

[00:20:02] Speaker 00:
At the time though, you're talking three years earlier than that, and the actions of courts at that time were generally to, and it was the philosophy I think to, justify what you're going to do, why this person wasn't identified, or I'm not going to allow this person to testify.

[00:20:19] Speaker 00:
So there wasn't any specific findings on the record, and I don't know if they need specific findings now.

[00:20:25] Speaker 00:
But when the arguments were made by counsel for the school district about the prejudice, inferentially, I think when the court's looking at this, it can look at Mr. Uvino and say, well, you're not giving me any justification for why

[00:20:40] Speaker 02:
But did, I guess, the district court dealt with the undisclosed witnesses as a batch, as it appears in the record.

[00:20:49] Speaker 02:
So do we know that the district court made any of those findings, or had in mind some of those findings with respect to history?

[00:20:59] Speaker 00:
As to Sruvina?

[00:21:00] Speaker 00:
Yes.

[00:21:00] Speaker 00:
Just inferentially.

[00:21:01] Speaker 00:
I mean, that's the only thing I can think of, Your Honor.

[00:21:03] Speaker 00:
There isn't anything in the record where he said,

[00:21:06] Speaker 00:
You know, here's the four factors, here I find prejudice, here I find this is how, you know, you can't cure the prejudice, you can't get in and is this going to be impacting the trial, was it willful?

[00:21:18] Speaker 00:
Those were not specific findings that were found on the record and the court didn't necessarily do that.

[00:21:23] Speaker 02:
But I think... Did the district court need to do so for sanctions?

[00:21:27] Speaker 02:
I mean, we've been talking about the notice that they provided that they're trying to get the document in.

[00:21:31] Speaker 02:
Did they need something to grab onto in terms of reasons for the sanction?

[00:21:37] Speaker 00:
No, I don't think they did.

[00:21:40] Speaker 00:
So you're at a point in this case where it's just about to go to trial.

[00:21:45] Speaker 00:
You now present Mr. Uvino for the first time, along with some other witnesses for the first time, and want to get in the FICMAT report.

[00:21:51] Speaker 00:
And it's not actually the FICMAT report.

[00:21:53] Speaker 00:
It's just excerpts from it that's an unsigned version.

[00:21:56] Speaker 00:
So the court didn't even know what the FICMAT report was and expressed that to counsel.

[00:22:01] Speaker 00:
I'm not sure what this is.

[00:22:02] Speaker 00:
You guys have me at a disadvantage here as to what this document even is.

[00:22:06] Speaker 00:
And counsel for the plaintiff, your honor, decided, you know, I don't need the report in.

[00:22:12] Speaker 00:
I'm going to do it this way.

[00:22:14] Speaker 00:
And the court allowed them to do that that way.

[00:22:17] Speaker 00:
And what did they get from part of that testimony?

[00:22:19] Speaker 00:
Part of that testimony was the report was out fiscal mismanagement during a particular period of time.

[00:22:25] Speaker 00:
It involved the superintendent being placed on leave because of the fiscal mismanagement.

[00:22:33] Speaker 00:
There was discussion about what was in the report and I think it was up to the plaintiff's counsel to say how did you react to the report and what did you do.

[00:22:43] Speaker 00:
We did certain, took on certain tasks and decided to make some changes because the report indicated X, that we needed to make these changes.

[00:22:51] Speaker 02:
Mr. Lexer, I guess maybe you can help me understand the local practice or local rules in this instance, but is there any practice usually in terms of pretrial disclosures and pretrial orders to generically list any authenticating witness?

[00:23:07] Speaker 00:
Well, I think that the court's general order that comes out at the beginning of every case I've ever had in the Eastern District certainly details for the parties.

[00:23:20] Speaker 00:
Rule 26, this is what you have to produce.

[00:23:22] Speaker 00:
And if you need to supplement, supplement.

[00:23:26] Speaker 00:
And I can't tell you, I have one case where I've supplemented 10 times.

[00:23:29] Speaker 00:
because we get more information and we add people onto it.

[00:23:32] Speaker 00:
You have to keep supplementing these reports to let people know that you're going to rely on these witnesses, you're going to rely on certain documents when it comes time for trial.

[00:23:41] Speaker 00:
It's not a trial by ambush.

[00:23:43] Speaker 00:
And that's what I think rule 26, the whole focus of rule 26 is.

[00:23:48] Speaker 04:
Putting aside Mr. Yavino for the minute, was the report itself by acronym or in any other way,

[00:23:54] Speaker 04:
ever mentioned in the plaintiff's initial disclosures or any supplements?

[00:24:01] Speaker 04:
Was there any reference to the report?

[00:24:03] Speaker 00:
The FICMAT report?

[00:24:03] Speaker 00:
Yes.

[00:24:04] Speaker 00:
No.

[00:24:06] Speaker 00:
Not that I remember.

[00:24:07] Speaker 01:
Following up on that, though, you apparently at some point got a copy of the report.

[00:24:12] Speaker 01:
Is that correct?

[00:24:14] Speaker 00:
Yes.

[00:24:14] Speaker 00:
At the time it was issued, we would have gotten a copy of the report.

[00:24:17] Speaker 01:
OK.

[00:24:17] Speaker 01:
And so you had that.

[00:24:18] Speaker 01:
So if you had wanted to, you could have said,

[00:24:24] Speaker 01:
make available for deposition, the author of the report, and then gone through and asked questions about the report if you had wanted to do that, right?

[00:24:34] Speaker 00:
Well, if we wanted to move forward in that way, it was certainly going to disrupt the trial.

[00:24:39] Speaker 01:
No, I understand what you're saying.

[00:24:40] Speaker 01:
It could have been done, but my impression is what you're saying is the other side just didn't emphasize that.

[00:24:46] Speaker 01:
They didn't talk about it.

[00:24:47] Speaker 01:
They wanted to go a different way, and so you went where they were going.

[00:24:50] Speaker 01:
Is that right?

[00:24:51] Speaker 00:
Essentially, yes.

[00:24:53] Speaker 00:
You know, you're going in the direction of you've got a Fourth Amendment complaint.

[00:24:56] Speaker 00:
It has all sorts of causes in it.

[00:24:58] Speaker 00:
You're moving in that direction with what they're doing.

[00:25:00] Speaker 00:
That's how you're doing your discovery.

[00:25:02] Speaker 00:
And then at the pre-child conference, you pull out the FICMAT report.

[00:25:06] Speaker 00:
Of course, the district knew about it because it's folks put it together.

[00:25:10] Speaker 01:
Like you said, the trial by ambush from your perspective, because you thought that they're going to go a different way.

[00:25:15] Speaker 00:
Yeah.

[00:25:16] Speaker 00:
Yeah, it's exactly what I would say, Your Honor, is that it was our intent or our view that

[00:25:20] Speaker 00:
We were prepared for trial, we were prepared for certain documents that had been identified.

[00:25:24] Speaker 00:
We had to post people about those documents and talk with the different witnesses that we thought they were going to have, and they went in a completely different direction, emphasizing the FICMAT report.

[00:25:33] Speaker 00:
And the FICMAT report was never introduced into evidence at any point in time.

[00:25:41] Speaker 00:
Not even the exhibit that they had put together, that the excerpted part of it,

[00:25:46] Speaker 00:
was never introduced into evidence, never presented to the trial court, it was never part of the record, and we do have our motion to strike that we want the FICMAT report, the entirety of it stricken from the record because that was never presented at any point in time to the district court, and the district court never even had a chance to consider it.

[00:26:04] Speaker 02:
Mr. Baxter, why shouldn't the district court have intervened at the end of the closing arguments with respect to the statements as to the wealth status of the plaintiffs?

[00:26:16] Speaker 00:
Well, first of all, there was no objection to it.

[00:26:19] Speaker 00:
And as a matter of fact, they kind of built on the theme that counsel was using, this entitlement theme.

[00:26:29] Speaker 00:
One of the parties actually built on that and talked about the entitlement to your constitutional rights.

[00:26:35] Speaker 00:
So there wasn't any objection to it.

[00:26:37] Speaker 00:
There was nothing that was raised for the trial court to consider even at that time, because they never raised any objection to it.

[00:26:44] Speaker 00:
It's not an issue of when you look at counsel's comments, the law is such that it has to basically permeate the whole case.

[00:26:52] Speaker 00:
This is just a statement at the end.

[00:26:54] Speaker 00:
It had nothing to do with race.

[00:26:55] Speaker 00:
It was basically argument of counsel that don't give them a big award of damages because it's not warranted under these circumstances.

[00:27:04] Speaker 00:
That's all the statement was.

[00:27:05] Speaker 04:
And the district court made a specific finding that it wasn't a racially charged comment, right?

[00:27:10] Speaker 00:
Yes.

[00:27:11] Speaker 00:
I believe so.

[00:27:13] Speaker 00:
I think in the order... In the order on denying the motion for new trial, correct, that the court said that it was not a racially charged comment.

[00:27:21] Speaker 00:
And it's not, it didn't have anything to do with race.

[00:27:26] Speaker 00:
Some people may not like the wording of it, but it was pretty much a straightforward, don't give them an award of damages under these circumstances, because it wasn't warranted.

[00:27:38] Speaker 00:
And that's really what the argument is.

[00:27:39] Speaker 00:
It's probably the type of argument that goes on a lot throughout the United States in every courtroom.

[00:27:44] Speaker 04:
It may, but I think there's some questionable wording in there.

[00:27:51] Speaker 04:
What they should do is go get a job like the rest of us.

[00:27:54] Speaker 00:
I understand.

[00:27:55] Speaker 00:
It's a little strong.

[00:27:58] Speaker 04:
That's not the word I would use.

[00:28:00] Speaker 00:
OK.

[00:28:01] Speaker 00:
I can report that back to my partner who is the one who tried the case and made the comment.

[00:28:06] Speaker 01:
Is there anything in the record other than the closing arguments that could be construed as racially stereotypical or inappropriate?

[00:28:18] Speaker 00:
No.

[00:28:20] Speaker 00:
No.

[00:28:20] Speaker 00:
It was simply that statement at the end of the closing argument.

[00:28:25] Speaker 00:
And again, there was no objection to that statement, nothing for the court to deal with.

[00:28:29] Speaker 00:
And in fact, one of the parties who's not appealing here got up immediately after, as part of his closing, his rebuttal, and simply said, arguments of counsel are not evidence.

[00:28:41] Speaker 00:
And wanted to dissuade the jury that anything that Mr. Aller said had any bearing on any of the evidence in the case, simply because those were just simply his arguments, Your Honor.

[00:28:53] Speaker 00:
I only have 30 seconds left unless the court has any.

[00:28:56] Speaker 01:
You can use it or not as you see fit.

[00:28:58] Speaker 00:
I will submit unless the court has any further questions.

[00:29:00] Speaker 01:
The court never objects to people that finish early.

[00:29:05] Speaker 01:
Thank you, Your Honor.

[00:29:05] Speaker 01:
Very well.

[00:29:06] Speaker 01:
Thank you very much.

[00:29:07] Speaker 01:
Mr. Lee, you have a little rebuttal time.

[00:29:12] Speaker 03:
Your Honor, on the issue of whether this was a trial by ambush or surprise, this witness was disclosed four months prior to trial.

[00:29:21] Speaker 03:
A simple order of a deposition of this authenticating witness would have had no disruption to trial.

[00:29:26] Speaker 03:
They could have deposed this person.

[00:29:28] Speaker 03:
He could have authenticated the witness.

[00:29:31] Speaker 01:
I'll get back to a question I asked earlier.

[00:29:34] Speaker 01:
It's been established by your admissions and what I understand in the record that

[00:29:39] Speaker 01:
The report was never offered in evidence.

[00:29:43] Speaker 01:
There was never a ruling that it was excluded.

[00:29:46] Speaker 01:
Therefore, my question is, how can we consider it?

[00:29:48] Speaker 01:
It's not a final ruling.

[00:29:50] Speaker 01:
How can we consider it at all?

[00:29:52] Speaker 03:
Well, it is final as to, at least, Jim Yovino as the authenticating witness.

[00:29:57] Speaker 03:
As to what?

[00:29:57] Speaker 03:
As to Mr. Yovino as the authenticating witness.

[00:30:00] Speaker 01:
OK, as to his being the authenticator, right?

[00:30:02] Speaker 03:
And also all non-disclosed witnesses for that matter, Your Honor.

[00:30:07] Speaker 03:
It was in a broad stroke.

[00:30:09] Speaker 03:
And as to counsel's position that the court need not make any findings on that basis, the liberty stands for the opposite of that, which is the- Time is up.

[00:30:19] Speaker 01:
May I ask my colleagues, does either of you have additional questions?

[00:30:22] Speaker 01:
I think not.

[00:30:22] Speaker 01:
Thanks to both counsel for your argument in the case.

[00:30:26] Speaker 01:
The case just argued is submitted.

[00:30:28] Speaker 01:
Thank you.