United States District Court, D. Maine
DANIEL R. GOLDENSON, et al., Plaintiffs,
JOHN L. STEFFENS, et al., Defendants.
ORDER ON PLAINTIFFS' OBJECTIONS TO DEFENDANTS' DEPOSITION DESIGNATION
JOHN A. WOODCOCK, Jr., Chief District Judge.
Daniel and Suzanne Goldenson are locked in a rapidly approaching civil jury trial with John L. Steffens, Gregory Ho, and other entity Defendants over alleged financial services fraud. The Goldensons object to segments of the Defendants' designations of the deposition testimony of two witnesses: Brian Burns, the Goldensons' former broker at Merrill Lynch, and Arnold Mayberg, the Goldensons' accountant.
I. DEPOSITION OF BRIAN BURNS
The parties deposed Brian Burns on February 15, 2012. Defs.' Dep. Designations Attach. 1 Dep. of Brian Burns , at 6:9-10 (ECF No. 269) ( Burns Dep. ). On June 2, 2014, the Defendants designated thirty-three segments of this deposition as exhibits. Defs.' Dep. Designations at 1-2. On the same day, the Goldensons designated eleven segments; some overlap the Defendants' designations. Pls.' Dep. Designations at 2 (ECF No. 266). On June 25, 2014, the Goldensons objected to sixteen of the Defendants' thirty-three designations. Pls.' Objections to Defs.' Dep. Designation at 1-5 (ECF No. 277) ( Pls.' Objections ). The Defendants replied in opposition to these objections on July 3, 2014. Defs.' Resp. to Pls.' Objections to Dep. Designations by Defs. (ECF No. 285) ( Defs.' Resp. ).
A. Position of the Parties
1. The Goldensons
The Goldensons characterize certain segments of the deposition of Mr. Burns as being about an "alleged dispute between Mr. Goldenson and the ML Blackrock Municipal Multi-Strategy Fund, LLC." Pls.' Objections at 1. They argue that evidence of this dispute is irrelevant under Federal Rule of Evidence 401; unfairly prejudicial and confusing under Rule 403; inadmissible under Rule 404 for the purpose of proving Mr. Goldenson's character; and inadmissible under Rule 608(b) for the purpose of attacking Mr. Goldenson's character for truthfulness through a specific instance of conduct. Id. at 1-2.
The Goldensons next take issue with eighteen exhibits, identified as D-178 through D-195 and D-241 through D-245. Id. at 2. They characterize most of these exhibits are relating "only to the collateral Blackrock matter." Id. The remainder, they assert, relate to residential real estate litigation in which Mr. Goldenson was involved. Id.
The Goldensons also argue that if the Court permits the Defendants to introduce deposition testimony regarding Mr. Goldenson's dispute with Blackrock and the real estate litigation, they "must certainly be permitted" to examine the defendants on a civil complaint for fraud against Spring Mountain Capital, L.P. from the New York state courts and on the indictment of Spring Mountain's former managing director for conspiracy, wire fraud, tax evasion, and false statements. Id.
Finally, as to certain segments, the Goldensons raise form and hearsay objections. Id. at 2-5.
2. The Defendants
The Defendants argue that the disputed segments bear on "[Mr. Goldenson's] interactions with Mr. Steffens; his investment history and approach to investing; his heavy reliance on [Mr.] Burns for investment advice; and his history of depression and how it related to his investments." Defs.' Resp. at 3. The Defendants also argue that it would not be fair to permit the Goldensons to exclude the Defendants' segments because the Goldensons themselves designated sections of Mr. Burns' testimony in which he discusses his dispute with Merrill Lynch over the Blackrock investment. Id. The Defendants extend this argument to the exhibits to which the Goldensons object, characterizing them as necessary context for the evidence that the Goldensons plan to offer regarding the nature of Mr. Goldenson's relationship with Mr. Steffens. Id. at 3-4. They further argue that the disputed exhibits also show the nature and extent of Mr. Goldenson's relationship with Mr. Burns, which, in their view, relates to Mr. Goldenson's argument that Mr. Steffens, and not Mr. Burns, was Mr. Goldenson's primary investment advisor. Id. at 5. The Defendants also point out that some of the contested exhibits demonstrate Mr. Goldenson making references to his "mental and emotional problems in relation to his investment in the Blackrock hedge fund and securities investments in general." Id. at 6.
The Defendants next suggest that Mr. Goldenson's use of certain terms in his writings, such as "fiduciary" and "proprietary, " may demonstrate that he had an idiosyncratic understanding of their meanings. Id. at 7. This, in the Defendants' view, bears on the key disputed conversation among Mr. Goldenson, Mr. Steffens, and Mr. Merkin. Id. at 7-8.
Addressing the Goldensons' argument on Rule 608(b), the Defendants respond that some of the written statements to Merrill Lynch in 2004 go to Mr. Goldenson's credibility on key issues at this trial rather than collateral issues. Id. at 8. They argue that they are offering this extrinsic evidence for the permissible purpose of "impeachment by contradiction, " not on his character for truthfulness. Id. They further argue that Rule 404(b) does not bar the Burns testimony and documents because they are not being offered to show "bad character"; rather, in the ...