Including information about his associates
page 539
1 COURT OF APPEAL OF THE STATE OF CALIFORNIA
2 FOURTH APPELLATE DISTRICT
3 DIVISION ONE
4 ______________________________
)
5 LEGION FOR THE SURVIVAL OF )
FREEDOM, INC., ) DCA. NO. DO27959
6 )
PLAINTIFF AND ) FROM SAN DIEGO COUNTY
7 RESPONDENT, )
) HON. RUNSTON G. MAINO
8 VS. )
)
9 WILLIS CARTO, HENRY FISCHER, )
VIBET, INC., LIBERTY LOBBY, )
10 INC., ET. AL., )
)
11 DEFENDANTS AND )
APPELLANTS. )
12 ______________________________)
13
REPORTER’s APPEAL TRANSCRIPT
14
NOVEMBER 6, 1996
15
VOLUME 5
16
PAGES 539-611
17
18
APPEARANCES:
19
FOR THE PLAINTIFF AND JACQUES BEUGELMANS AND
20 RESPONDENT: THOMAS MUSSELMAN
1901 AVENUE OF THE STARS
21 CENTURY CITY, CA 90067
22 FOR THE DEFENDANTS AND PETER J. PFUND
APPELLANTS: 2382 S.E. BRISTOL
23 SUITE A
NEWPORT BEACH, CA 92660
24
25
26
BARBARA J. SCHULTZ, CSR, RPR
27 CSR NO. 8021
OFFICIAL REPORTER
28 VISTA, CALIFORNIA
page 540
1 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
2 IN AND FOR THE COUNTY OF SAN DIEGO
3 DEPARTMENT 11 HON. RUNSTON G. MAINO
4
_____________________________
5 )
LEGION FOR THE SURVIVAL OF )
6 FREEDOM, INC., )
)
7 PLAINTIFF, ) NO. N64584
)
8 VS. )
)
9 WILLIS CARTO, HENRY FISCHER, )
VIBET, INC., LIBERTY LOBBY )
10 INC., ET. AL., )
)
11 DEFENDANTS. )
_____________________________)
12
13 REPORTER’s TRANSCRIPT
14 NOVEMBER 6, 1996
15
APPEARANCES:
16
FOR THE PLAINTIFF: JACQUES BEUGELMANS AND
17 THOMAS MUSSELMAN
1901 AVENUE OF THE STARS
18 CENTURY CITY, CA 90067
19
20 FOR THE DEFENDANTS: WAIER AND URTNOWSKI
BY: RANDALL S. WAIER
21 1301 DOVE STREET
NEWPORT BEACH, CA 92660
22
23
FOR THE DEFENDANT MARK LANE
24 LIBERTY LOBBY, INC.: 300 INDEPENDENCE AVENUE, S.E.
WASHINGTON, D.C. 20003
25
26
BARBARA J. SCHULTZ, CSR, RPR
27 CSR NO. 8021
OFFICIAL REPORTER
28 VISTA, CALIFORNIA
page 541 1 VISTA, CALIFORNIA, NOVEMBER 6, 1996, DEPARTMENT 11: 2 3 THE COURT: ON THE RECORD. MR. WAIER IS NOT PRESENT. 4 WE CAN PROCEED WITHOUT HIM BECAUSE MR. LANE IS HERE. 5 MR. LANE: I AM HERE. I DON'T THINK WE CAN PROCEED 6 WITHOUT HIM. I'M HERE PRO HAC VICE, ONLY ON BEHALF OF 7 LIBERTY LOBBY. I HAVE TO BE HERE WITH LOCAL COUNSEL. 8 THAT’s ONLY FOR ONE CLIENT. 9 THE COURT: YOU ARE A SMART MAN. YOU ARE RIGHT. 10 MR. WAIER’s SECRETARY SAID WE COULD START WITHOUT 11 HIM. I GUESS SHE CAN'T CONTROL. 12 MR. LANE: I DOUBT THAT’s WHAT HE — I DON'T DOUBT 13 THAT’s WHAT HE SAID, BUT I DON'T THINK THAT’s THE LAW. 14 MR. BEUGELMANS: 10 MORE MINUTES. 15 THE COURT: COUNSEL, HE’s RIGHT. GO OFF THE RECORD. 16 (PROCEEDINGS RECESSED.) 17 THE COURT: ON THE RECORD. BACK IN SESSION. ALL 18 PARTIES ARE PRESENT. 19 WOULD PLAINTIFF LIKE TO CALL A WITNESS? 20 MR. BEUGELMANS: YES. THE PLAINTIFF CALLS MR. HARVEY 21 TAYLOR TO THE STAND. 22 23 HARVEY TAYLOR, 24 CALLED AS A WITNESS ON BEHALF OF THE PLAINTIFF, HAVING BEEN 25 FIRST DULY SWORN, TESTIFIED AS FOLLOWS: 26 DIRECT EXAMINATION 27 THE CLERK: WOULD YOU PLEASE STATE YOUR FULL NAME AND 28 SPELL YOUR LAST NAME.
page 542 1 THE WITNESS: HARVEY TAYLOR. T-A-Y-L-O-R. 2 3 BY MR. BEUGELMANS: 4 Q MR. TAYLOR, WHERE DO YOU RESIDE? 5 A EAST NICOLAUS, CALIFORNIA. 6 Q AND IS THAT IN NORTHERN CALIFORNIA? 7 A YES, SIR. 8 Q WHAT IS YOUR AGE, SIR? 9 A 62. 10 Q ARE YOU CURRENTLY EMPLOYED? 11 A RETIRED. 12 Q AND WHAT WAS YOUR LAST EMPLOYMENT BEFORE YOU 13 RETIRED? 14 A I'M A COMMERCIAL PILOT. 15 Q FOR WHICH COMPANY? 16 A UNITED AIRLINES. 17 Q MR. TAYLOR, ARE YOU CURRENTLY ON THE BOARD OF 18 DIRECTORS OF THE LEGION FOR THE SURVIVAL OF FREEDOM, INC.? 19 A I AM. 20 Q AND SINCE WHAT DATE HAVE YOU BEEN A DIRECTOR OF 21 THE LEGION, SIR? 22 A I FUNCTIONED AS A DIRECTOR SINCE THE RETIREMENT OF 23 MR. CARTO. 24 Q WAS THAT SOMETIME SUBSEQUENT TO SEPTEMBER, 1993? 25 A YES, SIR. 26 Q PRIOR TO THAT DATE DO YOU — DID YOU BELIEVE THAT 27 YOU WERE A DIRECTOR OF PRIOR TO THAT DATE? 28 A I HAD BEEN REQUESTED TO FUNCTION AS A DIRECTOR BY
page 543 1 MR. CARTO PRIOR TO THAT DATE, HOWEVER, I HAD NEVER BEEN 2 CONTACTED OR PROVIDED WITH ANY INFORMATION. 3 MR. WAIER: OBJECTION. MOVE TO STRIKE. 4 NONRESPONSIVE. 5 THE COURT: SUSTAINED. 6 7 BY MR. BEUGELMANS: 8 Q WHEN WERE YOU FIRST CONTACTED BY MR. CARTO 9 CONCERNING BECOMING A DIRECTOR OF THE LEGION? 10 A AT THE CONCLUSION OF AN I.H.R. CONFERENCE SEVERAL 11 YEARS AGO. 12 Q WHEN YOU SAYSEVERAL,MORE THAN FIVE? MORE THAN 13 TEN? 14 A PROBABLY MORE THAN 5 YEARS AGO. 15 Q DID YOU AGREE TO BECOME A DIRECTOR WHEN MR. CARTO 16 ASKED YOU BACK MORE THAN FIVE YEARS AGO WHETHER OR NOT YOU 17 WOULD? 18 A I AGREED TO BECOME A DIRECTOR AT THAT TIME. I 19 DID. 20 Q SUBSEQUENT TO YOUR AGREEING TO BECOME A DIRECTOR 21 AT MR. Carto’s REQUEST, AND PRIOR TO SEPTEMBER 1993, DID YOU 22 EVER ATTEND ANY MEETINGS WITH THE BOARD OF DIRECTORS OF THE 23 LEGION, EITHER IN PERSON, OR IN A TELEPHONE CONFERENCE CALL? 24 A I DID NOT. 25 Q PRIOR TO SEPTEMBER 1993 WERE YOU EVER PROVIDED 26 WITH MINUTES OF ALLEGED MEETINGS OF THE BOARD OF DIRECTORS 27 FOR THE LEGION OF THE SURVIVAL OF FREEDOM, INC.? 28 A I WAS NOT.
page 544 1 Q PRIOR TO SEPTEMBER 1993 HAD YOU EVER HEARD OF THE 2 FARREL BEQUEATH? 3 A I HAD NEVER HEARD OF THE FARREL BEQUEST PRIOR TO 4 1993, SEPTEMBER 1993. 5 Q SIR, ON OR ABOUT MARCH 5, 1991, DID YOU ATTEND A 6 MEETING OF THE BOARD OF DIRECTORS TOGETHER WITH MR. AND 7 MRS. FURR, MR. KERR, AND ANYBODY ELSE? 8 A I DID NOT. 9 Q PRIOR TO 1993 WERE YOU ADVISED THAT THE LEGION FOR 10 THE SURVIVAL OF FREEDOM, INC. HAD ALLEGEDLY VOTED AND 11 RESOLVED THROUGH ITS DIRECTORS NOT TO ACCEPT THE FARREL 12 BEQUEST? 13 A NO. I HAD — I WAS NOT AWARE OF THAT. 14 MR. BEUGELMANS: NOTHING FURTHER. THANK YOU, SIR. 15 THE COURT: YOU MAY CROSS. 16 MR. LANE: MAY WE HAVE A MOMENT? 17 THE COURT: YES. WE'RE OFF THE RECORD. 18 19 (MR. LANE AND MR. AND MRS. CARTO LEFT AND 20 SUBSEQUENTLY RETURNED. ) 21 22 CROSS-EXAMINATION 23 BY MR. WAIER: 24 Q GOOD MORNING, MR. TAYLOR. 25 A GOOD MORNING, SIR. 26 Q I'M RANDALL WAIER. 27 A HOW DO YOU DO, SIR. 28 Q I REPRESENT THE DEFENDANTS IN THIS MATTER, AS WELL
page 545 1 AS MARK LANE. 2 NOW SIR, IT IS YOUR TESTIMONY THAT YOU NEVER 3 DISCUSSED WITH EITHER ELISABETH OR WILLIS CARTO ANYTHING 4 CONCERNING THE RECOVERY OF ASSETS FROM THE FARREL-EDISON 5 ESTATE? 6 A PRIOR TO 1993 WHEN MR. CARTO WAS DEPOSED? 7 Q YES. 8 A I RECEIVED NO INFORMATION ABOUT THE FARREL 9 BEQUEST. 10 Q HAVE YOU EVER STAYED AT THE HACIENDA HOTEL IN 11 LOS ANGELES? 12 A I HAVE, SIR. 13 Q ISN'T THAT WHERE YOU AS A PILOT YOU HAVE LAYOVERS? 14 A THAT’s CORRECT. 15 Q ISN'T IT TRUE THAT YOU MET WITH ELISABETH AND 16 WILLIS CARTO SOMETIME IN LATE 1989 OR EARLY 1990 AT THE 17 HACIENDA HOTEL? 18 A I MET ELISABETH CARTO ONE TIME, YES. 19 Q FOR ABOUT AN HOUR? 20 A YES. WE HAD EITHER LUNCH OR DINNER TOGETHER. 21 Q IN FACT, DIDN'T SHE TELL YOU AT THAT TIME THE 22 REASON SHE WAS IN L.A. SHE JUST ARRIVED FROM SWITZERLAND BY 23 AIRPLANE? 24 A SHE MAY HAVE SAID SO AT THAT TIME. 25 Q DIDN'T SHE TELL YOU SHE WAS IN SWITZERLAND BECAUSE 26 THE FARREL-EDISON ESTATE, AND THERE’s A POSSIBILITY THAT 27 THERE WOULD BE SOME MONEY COMING? 28 A NO.
page 546 1 Q YOU DON'T RECALL THAT OR YOU SPECIFICALLY 2 RECOLLECT THAT IT DID NOT RECALL? 3 A NO, I SPECIFICALLY RECOLLECT NEVER HEARD OF A 4 FARREL BEQUEST PRIOR TO '93. 5 Q DID YOU HEAR ABOUT ANY MONEY COMING FROM OVERSEAS 6 FROM ELISABETH DURING THAT MEETING? 7 A NO, I DID NOT. 8 Q WHAT WAS DISCUSSED BETWEEN THE TWO OF YOU AT THAT 9 MEETING THEN? 10 A I RECALL IT BEING A CASUAL CONVERSATION. 11 Q WAS ANYTHING DISCUSSED ABOUT THE LEGION? 12 A I DON'T BELIEVE THERE WAS. 13 Q BUT YOU DON'T KNOW FOR SURE? 14 A NO. 15 Q AND IN FACT, ISN'T IT TRUE THAT WHILE YOU WERE AT 16 THE HACIENDA HOTEL AT THAT TIME THAT YOU RECEIVED A 17 TELEPHONE CALL FROM WILLIS CARTO? 18 A I DON'T RECALL HAVING RECEIVED A TELEPHONE CALL 19 FROM CARTO AT THIS POINT. 20 Q THAT MEANS YOU COULD HAVE BUT YOU CAN'T RECALL IT 21 NOW? 22 A HAD I RECEIVED IT, I PROBABLY WOULD HAVE 23 REMEMBERED IT. 24 Q IN FACT, DIDN'T THAT TELEPHONE CALL GET YOU OUT OF 25 BED? WEREN'T YOU SLEEPING WHEN HE CALLED? 26 A I DON'T RECALL HAVING BEEN AROUSED FROM A SLEEP 27 WITH A TELEPHONE CALL FROM MR. CARTO, NO. 28 Q DURING — PRIOR TO 1993, BESIDES MR. CARTO
page 547 1 REQUESTING AND YOU AGREEING TO BECOME A BOARD MEMBER FOR THE 2 LEGION — THAT’s YOUR TESTIMONY, ISN'T IT? 3 A I TESTIFIED THAT PRIOR TO 1993 AT THE CONCLUSION 4 OF AN I.H.R. CONFERENCE MR. CARTO REQUESTED THAT I SERVE AS 5 A MEMBER OF THE BOARD OF DIRECTORS, AND I CONSENTED. THAT'S 6 MY TESTIMONY. 7 Q AND SO YOU CONSENTED TO BECOME A BOARD MEMBER; 8 ISN'T THAT CORRECT? 9 A THAT’s CORRECT. 10 Q THAT APPROXIMATELY HAPPENED SOMEWHERE AROUND 7 11 YEARS AGO, 1989 OR SO? 12 A I'M NOT POSITIVE. I SAID IN EXCESS — POSSIBLY IN 13 EXCESS OF 5 YEARS. 14 Q WELL, IN FACT, DIDN'T YOU TELL MR. WEBER ON 15 SEPTEMBER 27 IN A TELEPHONE CONVERSATION WITH MR. WEBER ON 16 SEPTEMBER 27, 1993, THAT IT HAPPENED WITHIN THE LAST 7 YEARS 17 FROM THAT DATE? 18 A I STATE SPECIFICALLY NOW I DO NOT RECALL WHETHER 19 IT WAS WITHIN 5 YEARS. IT’s BEEN MORE THAN 5 YEARS. MAY 20 HAVE BEEN PRETTY CLOSE TO 10 YEARS. I'VE BEEN ACTIVE WITH 21 THIS PARTICULAR ORGANIZATION SINCE 1979. 22 Q THE I.H.R. CONFERENCE YOU ATTENDED DID YOU ATTEND 23 ONE EACH YEAR? 24 A I ATTENDED ALL OF THE I.H.R. CONFERENCES. 25 Q THAT’s AN ANNUAL CONFERENCE? 26 A IT HAS — THERE HAVE BEEN YEARS SKIPPED. THAT'S 27 CORRECT. 28 Q YOU ARE FAMILIAR WITH LAVONNE AND LEWIS FURR?
page 548 1 A I DON'T BELIEVE THAT I EVER MET THEM PERSONALLY. 2 I CAN'T RECALL FOR SURE. 3 Q YOU HAVE SPOKEN TO THEM ON THE TELEPHONE, HAVEN'T 4 YOU? 5 A I DON'T BELIEVE I HAVE. 6 Q NOW, SIR, ISN'T IT TRUE THAT YOU HAVE GIVEN A 7 LARGE DONATION TO ATTORNEYS REPRESENTING THE LEGION AGAINST 8 WILLIS CARTO IN TEXAS? 9 MR. BEUGELMANS: OBJECTION. RELEVANCE. 10 MR. WAIER: BIAS. 11 THE COURT: WHY DON'T WE WAIT, COUNSEL, UNTIL I ASK YOU 12 IF I NEED YOUR ASSISTANCE. 13 MR. WAIER: I'M SORRY. 14 THE COURT: OVERRULED. 15 THE WITNESS: WOULD YOU REPEAT THE QUESTION? 16 17 BY MR. WAIER: 18 Q ISN'T IT TRUE THAT YOU HAVE PAID FOR SOME OF THE 19 ATTORNEYS' SERVICES ON BEHALF OF THE LEGION FOR ATTORNEYS IN 20 TEXAS IN A LITIGATION WHERE THE LEGION IS A PARTY AGAINST 21 WILLIS CARTO? 22 A THAT’s CORRECT, SIR. YES, SIR. 23 Q ISN'T IT TRUE IT’s ABOUT $10,000? 24 A NO, SIR. IT’s $5,000 TO BE SPECIFIC. 25 Q HAVE YOU CONTRIBUTED ANY MONEY TOWARDS THE 26 ATTORNEYS IN THIS LITIGATION? 27 A NO, I HAVE NOT. 28 Q NOW YOU INDICATED THAT YOU ARE A DIRECTOR OF THE
page 549 1 LEGION PRESENTLY? 2 A THAT’s CORRECT, SIR. 3 Q AND YOU HAVE BEEN ELECTED EACH AND EVERY YEAR? 4 A THAT’s CORRECT. 5 Q HOW MANY ACTUAL MEETINGS OF THE BOARD OF DIRECTORS 6 HAVE YOU ATTENDED SINCE 1993? 7 A ALL OF THEM. 8 Q HAVE YOU ATTENDED THEM IN PERSON? 9 A THEY HAVE BEEN TELECONFERENCED BOARD OF DIRECTORS 10 MEETINGS. 11 Q IN OTHER WORDS, THEY WOULD — SOMEONE WOULD CALL 12 YOU UP AND TELL YOU WHAT WAS HAPPENING; IS THAT CORRECT? 13 A THAT IS NOT CORRECT. NO, SIR. I WOULD RECEIVE 14 NOTIFICATION THAT WE WOULD HAVE A TELEPHONE CONFERENCE 15 MEETING ON SUCH AND SUCH A DATE AT SUCH AND SUCH A TIME. I 16 WOULD BE BY THE TELEPHONE. WE WOULD ALL PARTICIPATE IN THE 17 CONFERENCE. 18 Q WHO ISWE ALL? 19 A ALL MEMBERS OF THE BOARD OF DIRECTORS. 20 Q WHO ARE THE PRESENT BOARD OF DIRECTORS OF THE 21 LEGION? 22 A THEY'RE ON FILE, SIR. 23 Q SIR, WHO ARE THE PRESENT BOARD OF DIRECTORS OF THE 24 LEGION? 25 A THEY'RE ON FILE, SIR. 26 Q I'M ASKING YOU, PLEASE. YOU ARE A BOARD OF 27 DIRECTOR WHO HAS KNOWLEDGE OF THE OTHER DIRECTORS. WHO ARE 28 THE NAMES OF THE OTHERS?
page 550 1 A MARK WEBER IS ONE. 2 Q WHO ELSE? 3 A I'M ANOTHER. 4 Q WHO ELSE? 5 A GENTLEMAN FROM MONTGOMERY, ALABAMA IS ANOTHER. 6 Q WHAT’s HIS NAME? 7 A BOB. I DON'T HAVE HIS LAST NAME ON THE TIP OF MY 8 TONGUE. IT’s A QUESTION OF — IT’s — THE NAMES OF THE 9 BOARD OF DIRECTORS ARE ON THE TIP OF MY TONGUE. IT IS NOT 10 RELEVANT AT THIS PARTICULAR POINT. I DON'T SEE THE 11 RELEVANCY OF IT. 12 Q WELL, SIR -- 13 A WHAT IS THE RELEVANCY OF IT? I KNOW THEY — I GOT 14 THEIR NAMES ON A PIECE OF PAPER AT MY HOME. I DON'T HAVE 15 THEIR TELEPHONE NUMBERS IN MY HEAD EITHER. 16 Q SIR, WHEN IS THE LAST TIME YOU ATTENDED A MEETING 17 WITH THESE NO NAME DIRECTORS? 18 MR. BEUGELMANS: OBJECTION. ARGUMENTATIVE, YOUR 19 HONOR. 20 THE WITNESS: I DIDN'T SAY NO NAME. 21 22 BY MR. WAIER: 23 Q WELL, TO THOSE DIRECTORS? 24 THE COURT: MAYBE WE CAN WAIT UNTIL I RULE. I DON'T 25 THINK YOU NEED ME IF YOU WANT TO SIT AND CHAT. 26 OVERRULE THE OBJECTION. 27 BY MR. WAIER: 28 Q WHEN IS THE LAST TIME YOU HAD A MEETING WITH THE
page 551 1 NAMED DIRECTORS? 2 A RECENTLY. I DON'T HAVE THE DATE HERE. JUST 3 RECENTLY. NOT TOO LONG AGO WE HAD A BOARD OF DIRECTORS 4 MEETING. 5 Q YOU CAN'T RECALL WHO YOU SPOKE WITH DURING THAT 6 CONVERSATION? 7 A WELL, ALL THE DIRECTORS — ALL THE DIRECTORS WERE 8 PRESENT. I WAS PRESENT. MR. MARK WEBER WAS PRESENT. WE 9 ALL PARTICIPATED IN THE MEETING, AND IT WAS A VERY 10 PRODUCTIVE MEETING. 11 Q DID YOU EVER SEE ANY MINUTES OF THE MEETING? 12 A THE MINUTES? WE HAD PUBLISHED MINUTES OF EVERY 13 MEETING. 14 Q SIR, THAT’s NOT MY QUESTION. DID YOU SEE ANY 15 MINUTES OF THIS MEETING THAT YOU RECENTLY HAD? 16 A I CAN'T RECALL WHETHER I RECEIVED THE MINUTES OF 17 THE LAST MEETING OR NOT. 18 Q HOW MANY DIRECTORS WERE THERE THAT YOU HAD THE 19 LAST TELEPHONE CONFERENCE WITH, THE NUMBER? 20 A I BELIEVE THAT WE HAVE ABOUT 5 ACTIVE DIRECTORS. 21 Q DO YOU BELIEVE OR DO YOU KNOW? 22 A I'M NOT POSITIVE. I'M NOT PREPARED TO ANSWER 23 THESE PARTICULAR QUESTIONS HERE. I AM PREPARED TO ANSWER 24 QUESTIONS RELATIVE TO THE OPERATION OF THE LEGION FOR 25 SURVIVAL OF FREEDOM PRIOR TO 1993, FALL OF 1993. I GOT THE 26 NAMES OF THE BOARD OF DIRECTORS AT MY HOME, THEIR TELEPHONE 27 NUMBERS AND ADDRESSES AND MINUTES OF THE PAST MEETINGS. 28 Q ARE YOU AWARE OF THE INCORPORATORS OF THE LEGION?
page 552 1 A I HEARD THE TERM USED BEFORE, YES, SIR. 2 Q AND ARE YOU AWARE THAT LAVONNE FURR IS AN 3 INCORPORATOR? 4 A I HEARD OF THIS. 5 MR. BEUGELMANS: OBJECTION. 6 THE COURT: OVERRULED BECAUSE OF THE ARGUMENT YOU MADE, 7 WHICH YOU HAVEN'T GIVEN ME ANY LEGAL AUTHORITY FOR, THAT THE 8 INCORPORATORS HAVE THE AUTHORITY OVER THE BOARD OF 9 DIRECTORS. ASSUMING YOU ARE GOING TO DEVELOP THIS IN A 10 LEGAL ARGUMENT, I'LL LET YOU ASK THE QUESTION. 11 12 BY MR. WAIER: 13 Q YOU ARE AWARE THAT LAVONNE FURR IS AN INCORPORATOR 14 OF THE LEGION? 15 A NOT SPECIFICALLY, REALLY. NO. 16 Q YOU DON'T KNOW THAT OR YOU HEARD THAT? 17 A I DON'T KNOW THAT FOR SURE. 18 Q HAVE YOU HEARD WILLIS CARTO WAS AN INCORPORATOR? 19 A I HEARD THE TERM USED BEFORE, YES. 20 Q WHEN YOU WERE APPOINTED TO THE BOARD OF DIRECTORS 21 IN SEPTEMBER OF 1993, TELL ME WHO ELSE WAS APPOINTED WITH 22 YOU? 23 A SIR, I HAVE ALL THAT INFORMATION AT HOME. I DON'T 24 HAVE IT WITH ME NOW. 25 Q WHEN YOU SAID YOU WERE APPOINTED IN 1993, WHAT 26 DATE WERE YOU APPOINTED IN 1993, AS BEST YOU CAN RECALL? 27 A I DON'T HAVE THAT WITH ME. 28 Q WERE YOU THE FIRST DIRECTOR, ONE OF THE FIRST
page 553 1 DIRECTORS APPOINTED AFTER WILLIS CARTO WAS AS YOU CALLED THE 2 DEPOSED? 3 A YES. I WOULD IMAGINE SO. I'M NOT POSITIVE ABOUT 4 THAT EITHER. 5 Q HAVE YOU SEEN ANY MINUTES REFERENCING THAT? 6 A I PROBABLY HAVE THOSE MINUTES AT MY HOME. 7 Q SO IS IT YOUR TESTIMONY THAT AFTER LEWIS AND 8 LAVONNE FURR RESIGNED YOU BECAME A DIRECTOR? 9 A I DON'T KNOW WHAT THE PURPOSE OF YOUR QUESTION IS, 10 SIR. I REALLY DON'T UNDERSTAND THE PURPOSE OF THE 11 QUESTION. ALL I KNOW IS I WAS ASKED TO BE A DIRECTOR OF 12 I.H.R. BY WILLIS CARTO YEARS AGO. I ACCEPTED. I RECEIVED 13 NO COMMUNICATIONS FROM MR. CARTO ABOUT ANY BOARD MEETINGS. 14 NO MINUTES FROM MR. CARTO ABOUT BOARD MEETINGS. I WAS NOT 15 ADVISED AS TO — WHETHER ABOUT ANY FINANCIAL -- 16 MR. WAIER: MOVE TO STRIKE AS NONRESPONSIVE. 17 THE COURT: OVERRULED. 18 19 BY MR. WAIER: 20 Q SIR, MY QUESTION WAS -- 21 MR. WAIER: COULD YOU READ BACK THE QUESTION, PLEASE? 22 (RECORD WAS READ.) 23 THE WITNESS: MY TESTIMONY IS THAT I WAS APPOINTED A 24 DIRECTOR BY WILLIS CARTO YEARS AGO. THAT I RECEIVED NO 25 COMMUNICATION FROM MR. CARTO PRIOR TO 1993. 26 27 BY MR. WAIER: 28 Q DID YOU BELIEVE YOU WERE A DIRECTOR?
page 554 1 A I WASN'T EVEN POSITIVE ABOUT THAT AT THAT 2 PARTICULAR TIME, NO. 3 Q WELL, IN FACT, DIDN'T AT THE POINT IN TIME WHEN 4 WILLIS AND ELISABETH CARTO OR WHEN WILLIS CARTO, AS YOU PUT 5 IT, WAS DEPOSED FROM THE LEGION, DIDN'T MARK WEBER TELEPHONE 6 YOU AND TELL YOU THAT YOU WERE A DIRECTOR? 7 A THIS I DON'T RECALL THAT AT ALL. MANY 8 COMMUNICATIONS BETWEEN — OVER THE YEARS, LAST FEW YEARS 9 ABOUT THIS SUBJECT, BUT I DON'T RECALL IT. 10 Q IT’s DIFFICULT FOR YOU TO RECALL ANY OF THOSE 11 CONVERSATIONS, ISN'T IT? 12 A I RECALL QUITE A FEW. I'LL RECALL THE ONE I'M 13 HAVING RIGHT NOW. 14 Q SIR, DURING A PERIOD OF TIME AFTER YOU AGREED AND 15 ACCEPTED TO BECOME A DIRECTOR, YOU HAD MANY CONVERSATIONS 16 WITH WILLIS CARTO AFTER THAT POINT IN TIME, DIDN'T YOU? 17 A I HAD TWO OR THREE CONVERSATIONS WITH WILLIS CARTO 18 AFTER THE 1993 DEPOSITION AFTER THE TIME WHEN HE WAS 19 DEPOSED, YES. 20 Q PRIOR TO THAT TIME AND AFTER HE HAD ASKED YOU TO 21 BECOME A DIRECTOR SOME 5 YEARS AGO OR 7 YEARS AGO, WHATEVER 22 THE CASE MAY BE, YOU HAD CONVERSATIONS WITH LEWIS CARTO ON A 23 NUMBER OF OCCASIONS, DIDN'T YOU? 24 A I USUALLY SPOKE WITH MR. CARTO WHEN WE HAD AN 25 I.H.R. CONFERENCE, YES, BUT WE HAD NO COMMUNICATION OTHER 26 THAN THAT. 27 Q YOU NEVER HAD TELEPHONE CONVERSATIONS WITH 28 MR. CARTO?
page 555 1 A I DON'T RECALL ANY. 2 Q DOES THAT MEAN YOU COULD BUT YOU DON'T RECALL THEM 3 NOW? 4 A I RECALL SIGNIFICANT TELEPHONE CONVERSATIONS. I 5 WOULD DEFINITELY RECALL A CONVERSATION WHICH INDICATED THAT 6 I HAD — THAT THE LEGION HAD COME INTO SOME SEVEN AND A HALF 7 MILLION DOLLARS. 8 Q WOULD YOU RECALL WHAT WAS DISCUSSED IN YOUR 9 CONFERENCE CALL — WHAT WAS THE AGENDA THAT WAS DISCUSSED AT 10 THE RECENT BOARD OF DIRECTORS MEETINGS WHERE YOU 11 TELECONFERENCED? 12 A OH, WE HAD A NUMBER OF ITEMS TO BE DISCUSSED. 13 Q TELL US TODAY WHAT THE ITEMS WERE. 14 MR. BEUGELMANS: OBJECTION. RELEVANCE. 15 THE COURT: SUSTAINED. 16 MR. WAIER: YOUR HONOR, IT GOES TO — MAY I BE HEARD? 17 IT GOES TO THE MEMORY. 18 THE COURT: YES, MEMORY ONLY AS TO THE LAST MEETING. 19 MR. WAIER: THAT’s WHAT I ASKED HIM. 20 THE COURT: I KNOW THAT. I JUST DON'T THINK IT'S 21 RELEVANT. HE SAYS HE WOULD REMEMBER A CONVERSATION ABOUT 22 SEVEN AND A HALF MILLION DOLLARS MAKES SENSE TO ME. WHETHER 23 HE CAN REMEMBER OR NOT REMEMBER WHAT THEY TALKED ABOUT AT 24 THE LAST BOARD MEETING DOESN'T MAKE ANY DIFFERENCE TO ME 25 WHETHER HE REMEMBERS OR DOESN'T REMEMBER. THAT I DON'T 26 CARE. 27 MR. WAIER: NOTHING FURTHER. 28 THE COURT: ANY REDIRECT?
page 556 1 REDIRECT EXAMINATION 2 BY MR. BEUGELMANS: 3 Q MR. TAYLOR, DO YOU PERSONALLY HAVE ANY FINANCIAL 4 INTEREST IN THE OUTCOME OF THIS LITIGATION? 5 A NONE. ALL IT HAS DONE IS COST ME MONEY. 6 MR. BEUGELMANS: THANK YOU, SIR. 7 THE COURT: RECROSS? 8 9 RECROSS EXAMINATION 10 BY MR. WAIER: 11 Q HOW HAS IT COST YOU MONEY, MR. TAYLOR? 12 A YOU BROUGHT IT UP. I PAID $5,000 TO SUPPORT LEGAL 13 ACTIVITY AND USED IN TEXAS IN SUPPORT OF IT. 14 Q DO YOU CONSIDER THE MONEY YOU PAID OVER THERE TO 15 BE SUPPORTIVE OF THIS LITIGATION? 16 A NO. NO. SEPARATE. 17 MR. WAIER: NOTHING FURTHER. 18 19 REDIRECT EXAMINATION 20 BY MR. BEUGELMANS: 21 Q THE LITIGATION USED IN TEXAS IS LITIGATION BROUGHT 22 BY WILLIS CARTO AND ELISABETH CARTO AGAINST THE SUBSEQUENT 23 DIRECTORS OF THE LEGION AFTER 1993, CORRECT? 24 A THAT’s CORRECT. 25 MR. BEUGELMANS: NOTHING FURTHER. 26 THE COURT: ANYTHING ELSE? 27 MR. WAIER: NO. 28 THE COURT: MR. LANE, ANY QUESTIONS?
page 557 1 MR. LANE: NO. 2 THE COURT: THANK YOU, MR. TAYLOR, FOR YOUR TESTIMONY. 3 THERE’s A STEP THERE. BE CAREFUL. YOU ARE WELCOME TO STAY 4 OR LEAVE. 5 THE WITNESS: THANK YOU. 6 THE COURT: ANY OTHER WITNESSES? 7 MR. BEUGELMANS: NO LIVE WITNESSES UNLESS LAVONNE AND 8 LEWIS FURR ARE OUTSIDE. 9 THE COURT: UNLESS WHO? 10 MR. BEUGELMANS: LEWIS AND LAVONNE FURR ARE WAITING 11 OUTSIDE. THERE ARE NO OTHER LIVE WITNESSES. 12 THE COURT: IF YOU WANT TO CHECK. I DON'T THINK 13 THEY'RE THERE. 14 MR. MUSSELMAN: I'LL CHECK FOR THE RECORD. 15 THE COURT: WE'RE OFF THE RECORD. (PAUSE) GO ON THE 16 RECORD. THE FURRS ARE NOT THERE. 17 MR. MUSSELMAN: JUST I DON'T KNOW WHAT THE FURRS LOOK 18 LIKE. THERE’s ONE MAN UNDER AGE 40 OUT THERE. TESTIMONY 19 WAS THE FURRS WERE ELDERLY. THAT’s SAFE TO SAY. 20 MR. WAIER: MR. BEUGELMANS WILL KNOW. HE WAS IN 21 ARKANSAS AT THE TIME THE DEPOSITION WAS TAKEN. 22 THE COURT: TO KEEP THE CASE MOVING ALONG, I WOULD LIKE 23 TO PROCEED. PLAINTIFF WANT TO PRESENT ANY EVIDENCE? ANY 24 WITNESSES? 25 MR. WAIER: WELL, IS HE RESTING? 26 THE COURT: YES. 27 MR. BEUGELMANS: YOUR HONOR — WELL, WE'RE NOT RESTING, 28 YOUR HONOR.
page 558 1 THE PLAINTIFF RENEWS ITS REQUEST TO BE PERMITTED 2 TO READ INTO EVIDENCE PORTIONS OF THE DEPOSITION OF LAVONNE 3 FURR AND LEWIS FURR. 4 WE ALSO LIKE TO MARK A FEW EXHIBITS AND THEN LIKE 5 TO HAVE AN OPPORTUNITY TO MOVE THE EXHIBITS, WHICH I HAVE 6 BEEN MARKED INTO EVIDENCE. SO BEFORE WE REST, THAT'S 7 TECHNICALITY. 8 THE COURT: MR. WAIER, WHILE YOU WERE IN TRAFFIC WE 9 DISCUSSED A NUMBER OF ISSUES. ONE OF THE ISSUES WAS TAKING 10 JUDICIAL NOTICE OF THINGS. THERE WERE TWO THINGS THAT THE 11 PLAINTIFF WOULD TAKE JUDICIAL NOTICE OF, REQUESTING THAT IT 12 BE DONE. ONE WAS A LETTER TO THE ATTORNEY FROM THE ATTORNEY 13 GENERAL SAYING THAT A RECORD DOES NOT EXIST. THEY HAVE THAT 14 HERE. 15 MR. WAIER: MAY I SEE THAT? I NEVER SEEN THAT 16 DOCUMENT. 17 THE COURT: AND THEN A COPY OF AN OPINION, WHICH IS 18 UNPUBLISHED, FROM THE 4TH APPELLATE DISTRICT, DIVISION 3. 19 MR. WAIER: UNPUBLISHED OPINIONS CANNOT BE USED FOR ANY 20 PURPOSE, YOUR HONOR. 21 THE COURT: THEY WANTED ME TO TAKE JUDICIAL NOTICE OF 22 THOSE TWO THINGS. 23 MR. WAIER: YOU CAN'T TAKE JUDICIAL NOTICE OF AN 24 UNPUBLISHED OPINION. THAT’s THE LAW. 25 THE COURT: IT CAN'T BE USED FOR ANY PURPOSE. THAT'S 26 TRUE UNDER RULES OF COURT 944. 27 WHAT ABOUT THE ATTORNEY GENERAL’s THING? DO YOU 28 WANT TO LOOK AT THAT?
page 559 1 MR. WAIER: I'M NOT SURE WHAT THIS SAYS. I DON'T SEE A 2 DECLARATION. I'M SORRY. 3 MR. BEUGELMANS: YOUR HONOR, ON THE ISSUE OF THE USE OF 4 THE UNPUBLISHED OPINION OF THE COURT OF APPEAL, THE FOURTH 5 DISTRICT, DIVISION 3, I BELIEVE THAT THE COURT CAN 6 NONETHELESS TAKE JUDICIAL NOTICE OF THE OPINION. AND 7 INSOFAR AS SOME ISSUES THAT HAVE BEEN RAISED BY THE DEFENSE 8 IN THIS MATTER HAVE BEEN DECIDED BY THE COURT OF APPEAL, I 9 BELIEVE THEY WOULD BE THE LAW OF THE CASE. 10 MR. WAIER: THAT’s NOT CORRECT. AN UNPUBLISHED OPINION 11 ONE MORE TIME CANNOT BE USED FOR ANY OPINION. THAT’s WHY 12 IT’s UNPUBLISHED. 13 MR. BEUGELMANS: I BELIEVE THAT’s INCORRECT. THE 14 DOCTRINE OF RES JUDICATA DOES APPLY WHETHER OR NOT AN 15 OPINION IS PUBLISHED. OTHERWISE THERE WOULD BE NO RES 16 JUDICATA. COUNSEL CAN LITIGATE IT. SINCE THE FINAL OPINION 17 IS NOT PUBLISHED, IT’s RES JUDICATA. THAT’s NONSENSICAL 18 WHAT COUNSEL IS SAYING. A PUBLISHED AS OPPOSED TO AN 19 UNPUBLISHED OPINION IS VASTLY OVERBROAD. 20 IT’s THE POSITION OF THE PLAINTIFFS THIS 21 UNPUBLISHED OPINION IS RES JUDICATA TO ALL THE ISSUES THAT 22 WERE BEFORE THE COURT, BOTH THE TRIAL COURT AND THE COURT OF 23 APPEAL. HOWEVER, IT CANNOT BE CITED AS LEGAL PRECEDENT IN 24 ANOTHER PROCEEDING. 25 THE COURT: WHAT ABOUT THE ATTORNEY GENERAL'S? 26 MR. WAIER: I DON'T BELIEVE THAT THE COURT CAN TAKE 27 JUDICIAL NOTICE OF A DECLARATION OF A PARTY NO MATTER WHO IT 28 IS. FOR PURPOSES OF THIS WE WERE GIVEN NO OPPORTUNITY TO
page 560 1 CROSS-EXAMINE THIS WITNESS. YOU MAY TAKE JUDICIAL NOTICE OF 2 OFFICIAL ACTS CERTAINLY, BUT THIS IS NOT IN THE CAPACITY OF 3 AN OFFICIAL ACT. THERE’s NO FOUNDATION LAID. 4 EVEN IN THIS PARTICULAR DECLARATION THAT I SEE 5 THAT IT IS AN OFFICIAL ACT OF ANYBODY. IN OTHER WORDS, THE 6 OFFICIAL ACTS THAT YOU CAN TAKE, FOR EXAMPLE, SECRETARY OF 7 STATE. FILE STAMP, FOR EXAMPLE, IT HAS TO BE FILE-STAMPED 8 TO — FOR EXAMPLE, FILE-STAMPED COPY OF ARTICLES OF 9 INCORPORATION. OFFICIAL ACTS OF THAT NATURE CAN BE DONE, 10 BUT A DECLARATION BROUGHT INTO EVIDENCE IS NOT PROPER UNLESS 11 YOU CONTACT THIS PERSON. 12 THIS IS NOT ONE OF THE OFFICIAL ACTS YOU CAN TAKE 13 JUDICIAL NOTICE OF IT. 14 THE COURT: WHAT WERE THE OTHER ISSUES? THE IDEA OF 15 THE SPOUSAL PRIVILEGE? IT’s UNFORTUNATE I'M NOT PROVIDED 16 WITH LOTS OF THINGS I HAVE IN A NORMAL COURTROOM, BUT I DO 17 HAVE A COPY OF JEFFERSON. THIS EXCEPTION UNDER EVIDENCE 18 CODE 981 I DON'T THINK THAT THAT ALLOWS — EVEN THAT 19 EXCEPTION ALLOWS MRS. CARTO TO BE ASKED ABOUT SOMETHING THAT 20 MR. CARTO HAS DONE. IF YOU GO DOWN IN THE SECTIONS YOU WILL 21 SEE THAT IF MR. CARTO WOULD HIT MRS. CARTO THERE WOULD BE NO 22 SUCH EXCEPTION. THE ONLY DISCUSSION BY JEFFERSON SAYS THE 23 ONE PURPOSE OF THE COMMUNICATION IS TO HELP SOMEONE. WHAT 24 HE MEANS BY THAT I DON'T KNOW. IT WOULD SEEM TO WRITE 25 OUT THE — IF I EXPAND IT THAT WAY, IT WRITES OUT THE 26 FOLLOWING EXCEPTIONS. THAT DOESN'T MAKE SENSE TO ME. 27 MR. LANE: YOUR HONOR, I HAVEN'T READ THE CASE EITHER. 28 I HAVE SEEN THIS. I HAVE SEEN ALREADY SIMILAR STATUTES IN
page 561 1 OTHER STATES. THIS STATUTE SEEMS TO ME IS TALKING ABOUT A 2 PLAN TO COMMIT A CRIME OR PLAN TO THE OBLIGATION AT THAT 3 POINT BEFORE ANYTHING HAPPENS. I BELIEVE THAT’s WHAT THE 4 STATUTE IS REFERRING TO. 5 THE COURT: I THINK IT DOES TOO. UNLESS I FIND A CASE 6 RIGHT ON POINT THAT SAYS THAT MRS. CARTO CAN BE COMPELLED TO 7 TESTIFY AGAINST HER HUSBAND, I'M GOING TO SUSTAIN THE 8 PRIVILEGE. 9 WHAT OTHER ISSUES DID WE TALK ABOUT? 10 MR. BEUGELMANS: JUST ON THE RECORD, IF I COULD, I 11 WOULD LIKE TO CITE EVIDENCE CODE SECTION 1284, 1284. 12 IT’s VERY CLEAR, YOUR HONOR, THAT EVIDENCE OF A 13 SEARCH OF PUBLIC RECORDS AND THE FAILURE TO FIND A RECORD IS 14 AN EXCEPTION TO THE HEARSAY RULE. 15 WE HAVE A CERTIFIED COPY, A DECLARATION OF A 16 PUBLIC ENTITY — I BELIEVE THE DECLARATION OF THE ATTORNEY 17 GENERAL BEFORE THE COURT, WHICH I WOULD ASK THE COURT TO 18 KINDLY MARK AS EXHIBIT 200. IT DOES COME WITHIN 1284. 19 THE COURT: LET’s MARK IT 200. WE CAN ACCOMPLISH THAT 20 TASK. 21 MR. BEUGELMANS: CAN WE ALSO MARK THE APPELLATE OPINION 22 IN KERR VERSUS LEGION CASE, G.O. 16137, AS EXHIBIT 201. 23 MARK IT UNTIL YOUR HONOR HAS RULED. 24 THE COURT: THEN I THINK THE -- 25 MR. BEUGELMANS: ALSO, JUST AS A POINT OF HOUSEKEEPING, 26 IF WE COULD MARK THE REMITTITUR THAT ACCOMPANIES EXHIBIT 201 27 AS EXHIBIT 202. 28 MR. LANE: I'M HAVING DIFFICULTY FINDING SOME OF THE
page 562 1 SECTIONS MR. BEUGELMANS HAS MADE REFERENCE TO, ESPECIALLY 2 C.C.P. 18, PARAGRAPH 6. THE ONLY VOLUME I HAVE IS A 1993 3 VOLUME, WHICH IS UP-TO-DATE. THERE’s AN 18 BUT NO 4 SUBDIVISIONS, CERTAINLY NOT PARAGRAPH 6 I CAN FIND. 5 YOU ARE TALKING ABOUT 17. NOW HE’s TALKING ABOUT 6 17, AND HE MADE A CROSS ON THE BOOK. 7 MR. BEUGELMANS: I APOLOGIZE. SECTION 17. 8 MR. LANE: I DON'T THINK YOU SHOULD WRITE ON THE BOOK. 9 MR. BEUGELMANS: IT’s MY BOOK. 10 THE COURT: SPEAKING OF SECTIONS IN THE COMPLAINT 11 THERE. 12 MR. LANE: I'LL LOOK AT 17. 13 THE COURT: SPEAKING OF SECTIONS, THERE’s — IN THE 14 COMPLAINT THERE’s A SECTION CITED 6517 OF THE CIVIL CODE, OR 15 SOMETHING LIKE THAT. ONE OF THE CAUSES OF ACTION I COULDN'T 16 FIND THAT. WHAT IS THAT ALL ABOUT? 17 MR. WAIER: THAT’s GOING TO BE PART OF THE NONSUIT 18 MOTION I BROUGHT WITH US OR MOTION FOR JUDGMENT UNDER 631.8 19 I BROUGHT WITH US TODAY. THERE’s NO SUCH SECTION. THAT'S 20 ONE OF THE EIGHTH CAUSES OF ACTION. 21 MR. BEUGELMANS: YOUR HONOR, IF THERE’s A MISCITE, 22 DURING LUNCH TIME I'LL MOVE TO AMEND THE COMPLAINT TO 23 CONFORM TO PROOF. 24 THE COURT: HERE IS WHAT I THINK I WILL HAVE YOU DO. I 25 GOT SOME THINGS I GOT TO LOOK UP. YOU CAN TALK TO EACH 26 OTHER. I KNOW THAT YOU CAN AND TRY TO RESOLVE WHAT YOU 27 THINK SHOULD COME INTO EVIDENCE; WHAT YOU HAVE A 28 DISAGREEMENT ABOUT. THEN IF YOU AGREE, I'LL BRING IT IN.
page 563 1 IF YOU DON'T AGREE, I'LL MAKE A RULING ON IT. 2 THEN IF YOU HAVE SOME PAPERS THAT YOU FILED FOR 3 THE MOTION FOR NONSUIT UNDER 631.8 I'LL BE GLAD TO READ 4 THOSE. 5 I ALREADY TOLD YOUR MR. LANE THAT I AM INCLINED TO 6 USE MY DISCRETION UNDER THAT SECTION AND WAIT UNTIL ALL THE 7 EVIDENCE COMES IN BEFORE I RULE. 8 MR. WAIER: THIS IS NOT — ARE YOU TALKING ABOUT -- 9 IT’s ACTUALLY A MOTION FOR JUDGMENT. SINCE IT’s NOT A JURY 10 TRIAL, A MOTION, YOU KNOW, HAS BEEN DRAFTED BY THE 11 LEGISLATURE FOR BENCH TRIALS. AND I'M NOT SURE — BASED ON 12 MY UNDERSTANDING OF THE STATUTE, I'M NOT QUITE SURE OF THE 13 DISCRETIONARY ASPECT — THERE IS A DISCRETIONARY ASPECT IN 14 THE COURT TO ALLOW THE PLAINTIFF TO REOPEN IF IN FACT 15 ADDITIONAL TESTIMONY IS NECESSARY WITH RESPECT TO ANY ISSUE 16 RAISED BY THE MOTION. I'M NOT SURE OF THAT. 17 THE COURT: HERE IS THE SECTION. I'M READING FROM 18 631.8:THE COURT AS TRIER OF THE FACTS SHALL WEIGH THE 19 EVIDENCE AND MAY RENDER A JUDGMENT IN FAVOR OF THE MOVING 20 PARTY, IN WHICH CASE THE COURT SHALL MAKE A STATEMENT OF 21 DECISION AS PROVIDED FOR IN SECTION 632 AND 634, OR MAY 22 DECLINE TO RENDER ANY JUDGMENT UNTIL THE CLOSE OF ALL THE 23 EVIDENCE.24 MR. WAIER: THAT IS CORRECT. 25 THE COURT: THAT’s WHERE I SAID I WAS LIKELY TO FOLLOW 26 THEORPART OF THE SECTION. 27 MR. WAIER: THE ONLY REASON WHY I — IF I MAY ADDRESS 28 THE COURT BRIEFLY ON THIS. THE ONLY REASON WHY I WOULD LIKE
page 564 1 THE COURT TO CONSIDER IT AS OPPOSED TO EXERCISING ITS 2 DISCRETION AND NOT TO HEAR IT UNTIL ALL THE EVIDENCE IS IN 3 IS WE NOW ARE LEFT WITHOUT SOME SORT OF TENTATIVE FROM YOU, 4 YOUR HONOR, LEFT WITH PUTTING ON EVIDENCE WHICH MAY 5 ESTABLISH SOME EVIDENCE ON THE PART OF THE PLAINTIFF, WHICH 6 I DON'T BELIEVE THEY HAVE SHOWN IN THE CASE IN CHIEF. 7 THE BURDEN IS ON THEM UNDER THE COMPLAINT, AND 8 THAT’s THE REASON WHY WE'RE LEFT IN A DILEMMA TO WHETHER WE 9 SHOULD CALL SOMEBODY WITHOUT SOME SORT OF A TENTATIVE 10 FEELING. I SPENT ALL NIGHT WORKING ON THIS THING. 11 THE COURT: THAT CERTAINLY IS A REASON FOR ME TO GRANT 12 IT. WHY DON'T I READ IT. 13 MR. WAIER: CAN WE LOOK THIS OVER? I HAVEN'T SHOWN THE 14 CLIENTS AND GIVE US 15 MINUTES. I'LL SIGN IT AND FILE IT. 15 THE COURT: SURE. MAKE SURE THEY SEE A COPY OF IT. 16 17 (PROCEEDINGS RECESSED.) 18 19 THE COURT: BRIEFLY ON THE RECORD. MR. WAIER IS NOT 20 PRESENT. ALL THE OTHER ATTORNEYS ARE. YOU WANT TO TRAIL TO 21 1:30, IT’s FINE. IT’s 10 TO 12. I DID GIVE OPPOSING COUNSEL 22 C.C.P. 2025, WHICH MAYBE ANSWERS QUESTIONS AS TO WHETHER OR 23 NOT THE FURR DEPOSITION CAN BE READ. 24 I GAVE YOU ALSO THE RULE OF COURT 977, I BELIEVE, 25 RELATIVE TO UNPUBLISHED OPINIONS. THERE ARE FEW CASES UNDER 26 THAT. I AM LOOKING AT THE OPINION THAT THE PLAINTIFF WAS 27 TRYING TO GET IN. IT’s TITLED TOM KERR, ET AL. VERSUS 28 LEGION FOR THE SURVIVAL OF FREEDOM. THE ONLY THING I CAN
page 565 1 FIND FROM THAT OPINION IS THAT MRS. CARTO IS NOT MENTIONED. 2 I DON'T KNOW IF MR. KERR WAS A PLAINTIFF IN THAT ONE OR NOT. 3 MR. BEUGELMANS: YES, HE WAS THE PLAINTIFF. HE DID 4 RESIGN FROM THE BOARD BEFORE THE NOTICE OF APPEAL BEING 5 FILED. 6 THE COURT: I MIGHT BE ABLE TO TAKE JUDICIAL NOTICE OF 7 THIS OPINION ONLY AS TO MR. KERR, BUT NOT AS TO MRS. KERR 8 BECAUSE THE APPELLATE OPINION SAYS SHE’s ABANDONED THE 9 ISSUE. IF SHE’s ABANDONED IT, I THINK PERHAPS YOU CAN'T USE 10 IT AGAINST HER. 11 MR. BEUGELMANS: WE DO HAVE THE TRIAL COURT RULING 12 THOUGH IN WHICH THERE WAS A FINAL DECISION. IT WAS NOT 13 APPEALED. THEREFORE, WHATEVER JUDGE POLIS FOUND AT TRIAL IS 14 RES JUDICATA TO HER. SHE CHOSE NOT TO APPEAL IT. MR. KERR 15 DID APPEAL, AND WE HAVE A FINAL COURT OF APPEAL BEFORE THE 16 COURT AS TO MR. KERR. I BELIEVE BOTH AS TO MRS. CARTO AND 17 KERR WE HAVE THE FINAL DECISIONS. 18 MR. LANE: THIS IS THE ONE AREA I'M NOT FAMILIAR WITH. 19 THE COURT: WE DIDN'T WANT TO ARGUE IT. I WANT TO TELL 20 YOU WHAT I HAD DONE. THEN TALK ABOUT THE RIGHT OF THE 21 MARITAL PRIVILEGE. YOU CAN LOOK, BUT I HAVE HERE JEFFERSON 22 AND WITKIN, AND I LOOKED UP THE ANNOTATIONS UNDER 981 OF THE 23 EVIDENCE CODE. I DON'T THINK THIS CAN COME IN. THE 24 LEGISLATIVE NOTES ON THE SECTION WAS YOU HAVE TO READ THAT 25 SECTION IN A LIMITED FASHION. THAT ONE I'M — I DON'T THINK 26 I'M GOING TO ALLOW HER TO BE QUESTIONED AS TO MR. CARTO AND 27 WHAT HE SAID TO HER, IF SHE DOESN'T WISH TO, AND I KNOW SHE 28 DOESN'T WISH TO.
page 566 1 MR. BEUGELMANS: PLAINTIFF WILL SUBMIT TO THE COURT'S 2 RULING ON THAT ISSUE. 3 THE COURT: SEE YOU AT 1:30 THEN. I WAS TOLD THAT 4 THERE’s SOME PAPERS FILED ON THE NONSUIT UNDER 631.8. IF 5 EVERYONE HAS A COPY, I WOULD LIKE A COPY TOO. 6 MR. LANE: I WOULD LIKE ONE TOO. WE'LL DO THAT OVER 7 LUNCH. 8 THE COURT: OKAY. 9 MR. BEUGELMANS: I HAVE PREPARED OR MR. MUSSELMAN 10 PREPARED A MEMO OF LAW GIVING MR. LANE A COPY. IF I COULD 11 GIVE THE COURT AN ORIGINAL. 12 THERE’s A COUPLE OF CASES, YOUR HONOR, WE PULLED 13 ON THE STATUTE OF LIMITATIONS. I APOLOGIZE. WE'VE WRITTEN 14 ON THEM. 15 THE COURT: THAT’s ALL RIGHT. DON'T NEED IT. SEE YOU 16 AT 1:30. 17 MR. BEUGELMANS: WOULD THE COURT OPEN AT 1 SO COUNSEL 18 CAN LOOK AT THE EXHIBITS TOGETHER? IT MIGHT BE EASIER. 19 THE COURT: I HAVE TO GET THE STAFF TO DO THAT. I LIKE 20 TO GIVE THEM LUNCH. SEE YOU AT 1:30. BESIDES, YOU HAVE A 21 LOT OF WORK TO DO. 22 23 (PROCEEDINGS RECESSED.) 24 25 THE COURT: BACK IN SESSION. WHAT IS THE STATUS OF THE 26 CASE, AS FAR AS THE PLAINTIFF IS CONCERNED? 27 MR. BEUGELMANS: YOUR HONOR, IT DEPENDS ON THE COURT'S 28 INTENTION WITH RESPECT TO THE DEPOSITIONS OF THE FURRS.
page 567 1 THE COURT: I GAVE YOU A CODE SECTION. SINCE THE 2 PLAINTIFF IS THE ONE TRYING TO GET THIS IN, I THINK IT'S 3 YOUR BURDEN TO SHOW IT SHOULD COME IN. DOES THE CODE 4 SECTION APPLY? 5 MR. BEUGELMANS: CCP SECTION 2025(U)(3)(A)IS THE 6 APPROPRIATE CODE SECTION. 7 BOTH MR. AND MRS. FURR’s DEPOSITION WERE TAKEN IN 8 THE STATE OF ARKANSAS IN THIS ACTION. BOTH MR. AND 9 MRS. FURR RESIDE IN THE STATE OF ARKANSAS. THE DEPOSITION 10 OF MR. AND MRS. FURR WAS ESTABLISHED BY RANDALL WAIER, 11 COUNSEL FOR THE DEFENDANTS IN THIS ACTION. 12 THE COURT: WHAT IS THE POSITION OF THE DEFENSE ON 13 ADMITTING THE FURR DEPOSITION? 14 MR. WAIER: YOUR HONOR, FIRST OF ALL, THERE’s A 15 THRESHOLD ISSUE. I DO AGREE WITH THE COURT IN ITS 16 RECITATION OF CCP 2025(U) AS BEING THE EFFECTIVE STATUTE IN 17 THIS AREA. HOWEVER, THERE HAS TO BE A THRESHOLD SHOWING BY 18 THE PLAINTIFF, WHICH HAVE NOT BEEN SHOWN BY ANY EVIDENCE, 19 ONE: THE VERY FIRST THING IS THAT THERE’s A CONDITION BEFORE 20 YOU GET INTO THIS 150 MILE RADIUS, AND THAT IS THAT ALL 21 PARTIES WERE EITHER PRESENT AND/OR REPRESENTED AT THE 22 PARTICULAR DEPOSITION. 23 THERE’s BEEN NO EVIDENCE PLACED BEFORE THIS COURT 24 THAT ALL PARTIES WERE REPRESENTED. I WILL ADMIT TO THIS 25 COURT THAT I WAS THERE, BUT I WAS APPEARING ON BEHALF OF THE 26 FURRS, AS WELL WITH RESPECT TO A SPECIAL PROCEEDING IN WHICH 27 WE'RE TRYING TO SET ASIDE A MOTION, OR WE'RE TRYING TO SET 28 ASIDE A DEFAULT WE FELT WAS IMPROPERLY TAKEN AGAINST THEM.
page 568 1 THERE’s A THRESHOLD ISSUE. 2 THE SECOND THRESHOLD ISSUE IS THAT THERE’s BEEN NO 3 EVIDENCE PER SE THAT THEY ACTUALLY RESIDE IN ARKANSAS; AND 4 ALTHOUGH THAT MAY BE FORM OVER SUBSTANCE, BEFORE YOU CAN 5 READ A DEPOSITION, YOU MUST SHOW THAT THEY ACTUALLY RESIDED 6 IN THAT STATE. 7 THE COURT: HOW WOULD YOU PROVE THAT UNLESS YOU GOT 8 THEM IN HERE? THERE’s NO SUCH THING AS A NATIONAL I.D. CARD 9 WHERE IT SHOWS WHERE YOU LIVE. 10 MR. WAIER: RESIDENCE IS A LEGAL DEFINITION. THERE’s A 11 DEFINITION OF RESIDENCE. FOR EXAMPLE, I CAN BE IN ARKANSAS 12 AND RESIDE IN CALIFORNIA. IN FACT, I MAY EVEN HAVE A HOUSE 13 IN ARKANSAS AND STILL RESIDE AND HAVE MY RESIDENCE IN 14 CALIFORNIA. THAT MEANS I HAVE TWO RESIDENCES. AND IF IN 15 FACT MY RESIDENCE HERE IN CALIFORNIA HAPPENS TO BE WITHIN 16 THE 150 MILE RADIUS OF THIS COURT, I SUSPECT THIS COURT 17 WOULD HAVE — CAN COMPEL ME BY PROCESS BECAUSE OF A 18 RESIDENCE HERE. THE MERE FACT I'M OUT OF STATE, WHETHER I'M 19 TEMPORARILY OR FROM ONE POINT OF VIEW EVEN PERMANENT, 20 DOESN'T NECESSARILY TAKE AWAY THE RESIDENCE. THAT BURDEN 21 HAS NOT BEEN MET BY THE PLAINTIFF. 22 FINALLY, UNLESS THEY CAN LODGE THE ORIGINAL OF THE 23 DEPOSITION TRANSCRIPT, AND THEY HAVE NOT REQUESTED THE 24 ORIGINAL TO BE LODGED WITH THIS COURT, A COPY CANNOT BE 25 USED, AND THEY HAVE A BURDEN OF SHOWING THAT AN ORIGINAL -- 26 THEY WENT AND SOUGHT AN ORIGINAL TO BE LODGED AND READ FROM, 27 AND THAT ORIGINAL WAS MADE UNAVAILABLE. THEY HAVEN'T DONE 28 THAT. THAT’s A WHOLE DIFFERENT BALL GAME BEFORE YOU GET
page 569 1 UNDER — THE ISSUES UNDER CCP 2052. YOU HAVE THE THRESHOLD 2 REQUIREMENT OF THE ORIGINAL DEPOSITION TRANSCRIPT. THERE'S 3 BEEN NO EVIDENCE NOR HAS THERE BEEN ANY TESTIMONY THEY MADE 4 A DEMAND FOR THE ORIGINAL. THERE’s NOTHING IN WRITING FOR 5 THE DEMAND FOR THE ORIGINAL. 6 INDEED I MIGHT ADD THERE’s BEEN NO EFFORT OR 7 DILIGENCE ON THEIR PART TO GET THE ORIGINAL. THE ORIGINAL 8 WAS PLACED ON — THE STIPULATION OF THE PARTIES WERE TO BE 9 HELD BY THE COURT REPORTER. THERE’s NO INDICATION BY 10 MR. BEUGELMANS THAT HE ACTUALLY WROTE TO THAT COURT REPORTER 11 TO ASK FOR THOSE ORIGINALS OR THAT HE SOUGHT TO GET THE 12 ORIGINALS FROM THE COURT REPORTER. 13 THE COURT: MR. BEUGELMANS. 14 MR. BEUGELMANS: I BELIEVE, YOUR HONOR, IT WILL BE 20 15 YEARS AGO TOMORROW THAT I WAS SWORN IN AS A MEMBER OF THE 16 BAR OF CALIFORNIA. AND IN THE 20 YEARS I NEVER BEEN 17 CONFRONTED WITH THE CHICANERY OF THE TYPE MR. WAIER 18 PROPOUNDED BEFORE THE COURT. 19 IF I MAY MAKE THE FOLLOWING OFFER OF PROOF. THE 20 DEPOSITIONS OF MR. AND MRS. FURR WERE TAKEN IN THE ACTION 21 MARCH 22, 1996. THE DEPOSITIONS WERE NOTICED BY RANDALL 22 WAIER, ESQUIRE, OF THE LAW FIRM OF WAIER AND URTNOWSKI. 23 ATTACHED AS EXHIBIT 1 TO THE DEPOSITION TRANSCRIPT 24 IS THE NOTICE OF TAKING DEPOSITION. THE NOTICE WAS NOT 25 SERVED UPON MR. LANE OR ANYBODY ALSO OTHER THAN MYSELF AND 26 MR. MUSSELMAN. AT THE DEPOSITION, YOUR HONOR, MR. WAIER 27 STATED HE WAS APPEARING ON BEHALF OF ALL DEFENDANTS. IN 28 FACT, THE CAPTION OF BOTH DEPOSITIONS OF MR. AND MRS. FURR
page 570 1 SHOWED HIM APPEARING ON BEHALF OF THE DEFENDANTS. 2 IN THE PAST, YOUR HONOR, THE COURT WILL NOTE FROM 3 LOOKING AT THE 8 VOLUMES MR. WAIER HAS APPEARED EXCLUSIVELY 4 ON BEHALF OF ALL THE DEFENDANTS WITH THE EXCEPTION OF 5 MR. LANE APPEARING TODAY — MR. LANE — EXCUSE ME, 6 MR. URTNOWSKI AND WAIER HAVE APPEARED CONSISTENTLY ON BEHALF 7 OF ALL DEFENDANTS, INCLUDING THE LAST PARTIES BEFORE JUDGE 8 MURPHY IN THE MATTER. 9 YOUR HONOR, THE VERY FIRST PAGE OF THE DEPOSITION 10 OF MRS. FURR UNDER QUESTIONING BY MR. — MY ESTEEM 11 COLLEAGUE, MR. WAIER: 12QUESTION: WHERE DO YOU RESIDE?13ANSWER: 260 MORPHEW ROAD, HOT SPRINGS, 14 ARKANSAS.15 LAST, I DON'T WANT TO BELABOR AND WASTE THE 16 COURT’s TIME, MR. WAIER HAS STATED IN OPEN COURT THAT HE IS 17 THE ATTORNEY FOR THE FURRS. HE WAS OUTRAGED THE OTHER DAY I 18 ATTEMPTED TO CONTACT THE FURRS. HE ALLEGED I ATTEMPTED TO 19 CONTACT THE FURRS, WHICH I HAVE NEVER DONE, EX PARTE. 20 I HAVE MADE REPEATED REQUESTS OF THIS COURT IN THE 21 PRESENCE OF THIS COURT THAT MR. WAIER LODGE MR. AND MRS. 22 FURR’s TRANSCRIPT, BECAUSE I WAS ANTICIPATING THE TYPE OF 23 NONSENSE THAT THE COURT IS CONFRONTED WITH NOW WHEN IT SAYS 24 THERE WAS NO LODGING OF THE TRANSCRIPT. 25 AS AN OFFICER OF THE COURT, LET ME REPRESENT TO 26 YOU THAT THERE IS A DEMAND FOR LODGMENT THAT WAS FILED IN 27 THE RECORDS OF THE COURT, ORIGINAL. I HAVE A DATE-STAMPED 28 COPY I CAN PRODUCE AT THE BREAK. AND FURTHERMORE, YOU WERE
page 571 1 PRESENT AS FAR BACK AS LAST WEDNESDAY, I BELIEVE, WHEN I 2 MADE A REQUEST TO THE COURT THAT MR. WAIER LODGE THESE 3 TRANSCRIPTS WITH THE COURT. 4 I DO HAVE CERTIFIED COPIES. I HAVE A LETTER, AS 5 MR. WAIER DOES, BECAUSE HE SENT IT TO ME FROM THE COURT 6 REPORTER CORROBORATING SIGNATURE AND CORRECTIONS TO BOTH 7 DEPOSITIONS, YOUR HONOR. 8 THE COURT: MR. WAIER, ANYTHING NEW? 9 MR. WAIER: WELL, FIRST OF ALL, I WOULD LIKE TO THIS 10 STATEMENT OF CHICANNERY I PERSONALLY DISLIKE ON THE COURT 11 RECORD. THAT IS IMPROPER FOR AN ATTORNEY TO MAKE STATEMENTS 12 LIKE THAT ABOUT ANOTHER ATTORNEY. BUT TALKING ABOUT 13 CHICANNERY, I DIDN'T SAY TO THIS COURT ABOUT 14 MR. BEUGELMANS’s ACTIVITIES AND CONTACT WITH THE FURRS. IT 15 HAD TO BE WITH TOM KERR. I NEVER MADE A STATEMENT WITH 16 RESPECT TO THE FURRS. MAYBE THAT WILL HELP REFRESH HIS 17 RECOLLECTION OR HIS FEEBLE RECOLLECTION OF EXACTLY WHAT TOOK 18 PLACE. 19 SECOND OF ALL, YOUR HONOR, THE DEPOSITIONS 20 PURSUANT TO COUNSEL REMAIN WITH THE COURT REPORTER AS SUCH 21 THE ORIGINAL, AND THAT WAS WITH RESPECT TO MR. BEUGELMANS 22 AND MYSELF WHEN WE WERE THERE, AND THE ORIGINAL MUST BE 23 PRODUCED. THERE HAS BEEN NO EFFORT TO SHOW IT'S 24 UNAVAILABLE. THERE’s NO EFFORT TO SHOW WHAT ACTIONS HE TOOK 25 TO GET IT. HE COULD HAVE CONTACTED THE COURT REPORTER, 26 WHICH WAS A RIGHT TO DO AND AT THAT POINT IN TIME IF SOMEONE 27 WAS REFUSED THE ORIGINAL, HE THEN AND THEREAFTER COULD 28 REQUEST THE COURT USE A CERTIFIED COPY. THAT’s NOT WHAT
page 572 1 OCCURRED HERE. 2 YOUR HONOR, RULINGS OF PROCEDURE AND RULES OF 3 EVIDENCE WERE ENACTED BY THE LEGISLATURE NOT FOR 4 MR. BEUGELMANS TO CHANGE, NOT FOR MR. BEUGELMANS TO SOMEHOW 5 BELIEVE HE CAN CHANGE HIS JUDGMENT OR YOURS AND/OR THE 6 LEGISLATURE. THEREFORE, YOUR HONOR HE HAS NOT MET THE 7 THRESHOLD WHY THE ORIGINAL IS NOT HERE. HE HAD TO GO TO THE 8 COURT REPORTER TO GET IT. HE HAS NOT SHOWN ANY DILIGENCE ON 9 THAT ASPECT. 10 THE COURT: ANYTHING ELSE? 11 MR. BEUGELMANS: NO. 12 THE COURT: THE DEPOSITION WILL BE ADMITTED OVER THE 13 DEFENSE OBJECTION. 14 WHAT IS THE NEXT ISSUE BEFORE YOU REST? 15 MR. LANE: IS THAT DEPOSITION FOR BOTH MR. AND MRS. 16 FURR? 17 THE COURT: YOU ONLY WANTED MRS. FURR, RIGHT? 18 MR. BEUGELMANS: ONE DEPOSITION. TWO VOLUMES AND ONE 19 VERY BRIEF DEPOSITION OF MR. FURR. 20 WHAT I WAS THINKING I WOULD DO IS I SELECTED WHAT 21 MR. MUSSELMAN AND I BELIEVE ARE THE SALIENT PORTIONS OF THE 22 DEPOSITION TO READ IN THE RECORD, IF THE COURT WOULD PERMIT 23 THAT. IT WOULD PROBABLY TAKE HALF AN HOUR, MAYBE 45 24 MINUTES. 25 THE COURT: I THINK IF I ADMIT IT YOU ADMIT THE WHOLE 26 THING. 27 MR. WAIER: THAT’s CORRECT. 28 MR. LANE: THAT’s WHAT WE PREFER, AND THE COURT CAN
page 573 1 READ IT WITHOUT US PRESENT. 2 MR. BEUGELMANS: I APOLOGIZE. I MADE NOTES, BUT I WILL 3 TAKE AWAY MY POST-ITS AND NOTES AND GIVE TO THE COURT FOR 4 FILING. 5 THE COURT: GO TO THE NEXT ISSUE. I LEFT MY NOTES IN 6 MY OFFICE. I WILL USE MY MEMORY HERE. 7 MR. LANE: SPOUSAL QUESTION. 8 MR. BEUGELMANS: YOUR HONOR, THE PLAINTIFF WILL SUBMIT 9 TO THE COURT’s JUDGMENT ON THAT ISSUE. 10 THE COURT: MRS. CARTO CAN BE EXAMINED TO WHAT 11 MR. CARTO SAID TO HER. WHAT SHE SAID TO HIM, AND LIKEWISE 12 WHAT MR. CARTO — WHAT HE SAID TO HER, AND SHE SAID TO HIM, 13 THAT’s ALL MARITAL PRIVILEGE AS I SEE IT. 14 MR. LANE: THE LAST MATTER WAS THE QUESTION OF JUDICIAL 15 MATTER REGARDING THE KERR SECTION. 16 THE COURT: I GAVE YOU SOME SECTIONS TO READ. MY 17 INCLINATION AS TO THAT I — THAT THE CITED OPINION COULD BE 18 USED ONLY FOR WHATEVER IT’s WORTH AS TO MR. CARTO NOT AS TO 19 MRS. CARTO. SHE GAVE UP HER APPEAL. I CAN TAKE JUDICIAL 20 NOTICE FOR THAT PURPOSE. 21 MR. LANE: YOUR HONOR, I DON'T BELIEVE THAT LIBERTY 22 LOBBY WAS A PARTY IN THAT MATTER. 23 THE COURT: I WAS WONDERING ABOUT THAT. 24 MR. LANE: IF NOT, I DON'T SEE HOW THAT CAN COME IN IN 25 THIS CASE. 26 MR. WAIER: NOR WAS HENRY FISCHER. 27 THE COURT: THEY WEREN'T. I SAID ONLY MR. CARTO COULD 28 HAVE THIS USED AGAINST HIM FOR WHATEVER IT’s WORTH.
page 574 1 MR. WAIER: MR. CARTO WAS NEITHER A PARTY IN THAT 2 ACTION EITHER. 3 THE COURT: THAT’s WHAT I WAS — WHY I ASKED YOU. I 4 SAID THE OPINION. I HAVE SAID TOM KERR, ET AL. 5 MR. WAIER: THAT’s CORRECT. IT REFERS TO TOM KERR. 6 TOM KERR WAS THE PARTY IN THE ACTION, NOT WILLIS CARTO, NOT 7 ELISABETH CARTO, ELISABETH, NEITHER LIBERTY LOBBY OR HENRY 8 FISCHER OR VIBET OR ANY OTHER OTHER THAN MR. KERR. 9 MR. BEUGELMANS: IF I CAN GET TO THE HEART OF IT. THE 10 PLAINTIFF IS INTRODUCING THIS FOR THE SIMPLE PURPOSE OF 11 SHOWING AS A MATTER OF LAW IT’s BEEN ESTABLISH BY THE COURTS 12 AS OF SEPTEMBER 1993 THE ONLY DIRECTOR — AS OF SEPTEMBER, I 13 BELIEVE, 16, 1993, THE ONLY DIRECTOR OF THE CORPORATION WAS 14 MR. KERR. THAT’s THE GIST OF IT. AND THAT HE THEREAFTER, 15 AS TESTIFIED, THERE WERE NEW DIRECTORS APPOINTED THEREAFTER. 16 THE COURT: I KNOW THAT’s WHAT YOU WANT TO DO. THAT 17 MAY BE WHAT I FIND TO BE THE FACTS AFTER LISTENING TO THE 18 EVIDENCE; BUT YOU WANT ME TO SAY I'M BOUND BY THIS OPINION 19 BY TAKING JUDICIAL NOTICE OF IT. IT’s A FACTUAL QUESTION. 20 WAS MR. CARTO A PLAINTIFF IN THAT CASE OR NOT? 21 MR. WAIER: NO, HE WAS NOT. 22 MR. BEUGELMANS: HE WAS NOT. 23 THE COURT: THEN I WON'T TAKE JUDICIAL NOTICE. 24 MR. BEUGELMANS: THE RELEVANCE OF THE DOCUMENT IS AS A 25 MATTER OF LAW MRS. CARTO HAS NOT AND IS NOT LEGALLY A 26 DIRECTOR OF LEGION SINCE SEPTEMBER 1993. THANK YOU. 27 THE COURT: OVER THE PLAINTIFFS' OBJECTION, I WON'T 28 ADMIT EXHIBIT 201. THAT IS, I WON'T TAKE JUDICIAL NOTICE OF
page 575 1 THAT. I READ IT. I WON'T TAKE JUDICIAL NOTICE, THOUGH. 2 THE CLERK: IT’s ADMITTED? 3 THE COURT: IT’s NOT ADMITTED. I'M NOT GOING TO 4 CONSIDER IT. I WON'T TAKE JUDICIAL NOTICE OF THAT 5 PARTICULAR COURT OF APPEALS OPINION. 6 THE NEXT THING WAS JUDICIAL NOTICE AS TO THE LACK 7 OF A RECORD. THE OBJECTION TO THAT WAS WHAT? 8 MR. WAIER: FIRST OF ALL, THERE’s NO OFFICIAL SEAL ON 9 THAT PARTICULAR DOCUMENT. 10 SECOND OF YOU ALL, IT IS NOT AN OFFICIAL ACT THAT 11 HAS BEEN — AT LEAST THE BURDEN HAS NOT BEEN SHOWN THERE'S 12 AN OFFICIAL ACT. THE OFFICIAL ACT DOCTRINE TALKS ABOUT 13 SOMEBODY LIKE A CLERK STAMPING THINGS COMING INTO THE 14 SECRETARY OF STATE’s OFFICE. THIS IS NOT AN OFFICIAL ACT. 15 IF YOU TAKE A LOOK AT WHAT YOU MAY TAKE JUDICIAL NOTICE OF, 16 IT DOESN'T COME UNDER ANY OF THOSE CATEGORIES. AND THERE'S 17 BEEN NO EVIDENCE THAT THAT CONSTITUTES AN OFFICIAL ACT DONE 18 AT OR ABOUT THE TIME AND SO FORTH. THERE’s NO FOUNDATION 19 FOR THAT DOCUMENT. 20 THE COURT: ANY ARGUMENT BY THE PLAINTIFF ON THIS 21 ISSUE? 22 MR. BEUGELMANS: YOUR HONOR, THE DECLARATION OF THE 23 ATTORNEY GENERAL IN THIS MATTER COMES INTO EVIDENCE UNDER 24 EVIDENCE CODE SECTION 1284. IT’s AN OFFICIAL DOCUMENT. 25 CERTIFIES THERE’s NO RECORD. I BELIEVE THAT’s WHY THE 26 LEGISLATURE ENACTED SUCH TO PERMIT THIS EVIDENCE TO COME 27 IN. IF THE RECORD EXISTED, WE WOULD ADMIT THE RECORD. IN 28 THE ABSENCE OF A RECORD, WE HAVE TO GET SOME KIND OF AN
page 576 1 OFFICIAL CORROBORATION OF THAT IN THE FORM OF A 2 DECLARATION. 3 AND IT’s NOT HEARSAY. THIS WAS — THIS CODE 4 SECTION WAS ENACTED TO FACILITATE THE PROOF THAT SUCH 5 DOCUMENTS DO NOT EXIST IN THE PUBLIC RECORD. 6 THE COURT: HOLD ON A MINUTE. I'LL GET SOME STUFF. 7 (PAUSE) 8 THE COURT: WHY DOESN'T 1284 CONTROL IN THIS CASE? 9 MR. WAIER: BECAUSE, YOUR HONOR, SHE DOES NOT TESTIFY, 10 FIRST OF ALL, THAT SHE’s THE OFFICIAL CUSTODIAN OF THE 11 RECORDS. THAT’s THE FIRST INSTANCE. 12 AND IF YOU TAKE — YES, SHE DOES. I TAKE THAT 13 BACK. SHE DOES STATE THAT. I APOLOGIZE. 14 YOUR HONOR, I WOULD OBJECT ON ONE PORTION OF IT. 15 I HATE TO BE HYPERTECHNICAL. IF YOU LOOK AT PARAGRAPH 4, 16 PAGE 2, IT REFERS NOT ONLY TO THIS CASE DECLARANT. SHE IS 17 RECITING HEARSAY WHEN SHE SAYS THE RECORDS REFERRED TO ABOVE 18 WERE PREPARED BY PERSONNEL IN THE ABOVE-NAMED BUSINESS IN 19 THE ORDINARY COURSE OF BUSINESS AT OR NEAR THE TIME OF THE 20 CONDITIONS OR EVENTS WERE RECORDED. THAT’s HEARSAY. AND I 21 UNDERSTAND THIS MAY GET AROUND THE HEARSAY RULE IN AND OF 22 ITSELF. WHAT SHE SAYS IN THIS DECLARATION, WHAT SHE SAYS, 23 SHE SAYS SHE DOESN'T HAVE TO APPEAR AND TESTIFY. IF YOU ARE 24 SAYING THAT UNDER 1284 CERTAINLY SHE CAN NOT TESTIFY WITHIN 25 A DOCUMENT. THIS IS NOT AN OFFICIAL ACT. THE RECORDS 26 REFERRED TO ABOVE WERE REFERRED TO IN THE ABOVE-NAMED 27 BUSINESS. 28 THE COURT: ANYTHING BY THE PLAINTIFF OR DEFENSE?
page 577 1 MR. LANE: I HAVE SOMETHING. 2 MR. BEUGELMANS: NO. 3 MR. LANE: OBJECTION ON THE GROUNDS OF RELEVANCY. 4 THERE IS NO CLAIM THAT HE DISPOSED OF SUBSTANTIALLY ALL OF 5 THE ASSETS. THE CLAIM IS THAT THE AGREEMENT WAS MADE WHEN 6 THERE WERE NO ASSETS, MERELY A CLAIM. THE LEGION DID NOT 7 HAVE ASSETS. WHAT THE LEGION HAD AT BEST WAS A DOUBTFUL 8 CLAIM THAT SOMEONE WOULD HAVE TO INVEST SEVERAL HUNDRED 9 THOUSAND DOLLARS TO SEE IF THEY CAN SECURE SOMETHING. 10 THEREFORE, THERE WOULD BE NO NEED TO FILE A DOCUMENT SAYING 11 WE ARE DISPOSING OF OUR ASSETS. THERE WERE NO ASSETS. 12 THE COURT: WELL, ONE OF THE ARGUMENTS I HAVE HEARD, 13 EVEN IF THE ASSETS CAME INTO THE POSSESSION OF THE LEGION, 14 THE LEGION, I THINK THE MARCH 5TH MEETING, SAID THAT WE 15 DON'T WANT THE ASSETS, AND THEY CAN BE DISTRIBUTED 16 ELSEWHERE. AS I UNDERSTAND THE LAW, IN ORDER TO DO THAT YOU 17 HAVE TO FILE A STATEMENT WITH THE ATTORNEY GENERAL TO DO 18 THAT. 19 I THINK IT’s RELEVANT. I'LL OVERRULE THE 20 OBJECTION BY THE DEFENSE ON EXHIBIT NUMBER 200, AND THAT 21 WILL BE ADMITTED. 22 23 (COURT’s EXHIBIT NO. 200 RECEIVED IN EVIDENCE.) 24 25 MR. WAIER: YOUR HONOR, I ALSO — I UNDERSTAND YOU MADE 26 YOUR RULING, BUT I'M NOT CLEAR THAT THIS SECTION APPLIES TO 27 A FOREIGN NONPROFIT CORPORATION. THE EVIDENCE IS THAT THE 28 LEGION IS A FOREIGN NONPROFIT CORPORATION, A TEXAS NONPROFIT
page 578 1 CORPORATION. I'M NOT SURE THEY'RE REQUIRED UNDER CALIFORNIA 2 LAW TO DO THIS. I KNOW THAT CERTAIN SECTIONS OF THE 3 NONPROFIT PUBLIC BENEFIT CODE OR CORPORATIONS CODE DOES GO 4 TO CERTAIN THINGS THAT FOREIGN CORPORATIONS NONPROFIT MUST 5 NOT DO. I'M NOT SURE THIS IS ONE OF THEM. 6 I WOULD LIKE FURTHER ADDITIONAL — BE ABLE TO DO 7 FURTHER RESEARCH ON THAT ISSUE TO SHOW THE RELEVANCY WITH 8 THIS. 9 THE COURT: YOU COME UP WITH SOMETHING, BRING IT TO MY 10 ATTENTION. I DON'T WANT TO MAKE AN ERROR; BUT AS I 11 UNDERSTAND THE LAW, IF YOU DO BUSINESS IN THE STATE OF 12 CALIFORNIA, THE PRINCIPAL PLACE OF BUSINESS, YOU ARE 13 CONTROLLED BY THE LAWS OF THE STATE OF CALIFORNIA, EVEN IF 14 YOU ARE INCORPORATED OUTSIDE THE STATE OF CALIFORNIA. 15 MR. MUSSELMAN: LAW DIRECTLY ON POINT ON THAT, PAGE 2 16 OF THE BRIEF THAT WE SUBMITTED TO OPPOSE THE MOTION SEEKING 17 A JUDGMENT. 18 THE COURT: THERE’s A DISCUSSION OF THAT IN WITKIN 19 ALSO. GO TO THE WITKIN CORPORATIONS, AND THEY HAVE A WHOLE 20 SECTION ON THIS TYPE OF A CORPORATION. 21 OVERRULE THE OBJECTION. IF THERE’s SOMETHING I 22 MISSED, BRING IT TO MY ATTENTION. 23 I THINK THAT TAKES CARE OF THOSE MATTERS. HOW ARE 24 WE DOING ON THE EVIDENCE? 25 MR. BEUGELMANS: YOUR HONOR, THERE’s ONLY ONE OTHER 26 POINT. WITH RESPECT TO HENRY FISCHER, I WOULD LIKE — I ASK 27 THE COURT FOR PERMISSION TO RECALL MR. CARTO TO THE STAND 28 BRIEFLY ONLY TO ASK HIM HOW AND HOW MUCH MR. FISCHER WAS
page 579 1 COMPENSATED FROM THE FARREL ESTATE. I OMITTED THAT WHEN I 2 QUESTIONED HIM. I BELIEVE IT’s RELEVANT. AT THAT POINT WE 3 WOULD REST SUBJECT TO THE EXHIBITS. 4 THE COURT: ANY OBJECTION TO THAT? 5 MR. LANE: MAY WE HAVE A MOMENT? 6 THE COURT: SURE. IF IT HELPS AT ALL, I NORMALLY WILL 7 ALLOW PEOPLE TO REOPEN BECAUSE THEY JUST FORGOTTEN 8 SOMETHING. THE WHOLE IDEA IS -- 9 MR. LANE: THAT DOESN'T HELP US A LOT. 10 MR. WAIER: WE STILL HAVE TO PRESERVE A RECORD. 11 THE COURT: THAT’s TRUE. YOU DO. GO OFF THE RECORD 12 WHILE THEY TALK. 13 14 (MR. LANE, MR. WAIER AND MR. CARTO LEFT THE 15 COURTROOM AND SUBSEQUENTLY RETURNED.) 16 17 THE COURT: BACK ON THE RECORD. ANY OBJECTION TO 18 MR. CARTO TAKING THE STAND AGAIN? 19 MR. WAIER: YOUR HONOR, I HATE TO DO THIS. IF I CAN, 20 I'M GOING TO — ACTUALLY, I GOT A BUM LEG. I NEED TO GO OUT 21 TO THE CAR TO GET HIS DEPOSITION AND BRING IT BACK. CAN I 22 DO THAT? 23 THE COURT: WHOSE DEPOSITION? 24 MR. WAIER: WILLIS Carto’s. TAKE ME TWO SECONDS. 25 THE COURT: IT WON'T TAKE TWO SECONDS. 26 (PAUSE) 27 BACK ON THE RECORD. ANY OBJECTION TO MR. CARTO 28 TAKING THE STAND?
page 580 1 MR. WAIER: NO OBJECTION TO REOPENING, YOUR HONOR. 2 THE COURT: SIR, IF YOU WOULD HAVE A SEAT THERE, 3 PLEASE. 4 5 WILLIS CARTO, 6 CALLED AS A WITNESS ON BEHALF OF THE PLAINTIFF, HAVING BEEN 7 PREVIOUSLY SWORN, TESTIFIED AS FOLLOWS: 8 DIRECT EXAMINATION 9 BY MR. BEUGELMANS: 10 Q MR. CARTO, DO YOU UNDERSTAND THAT YOU ARE STILL 11 UNDER OATH, SIR? 12 A YES. 13 Q MR. CARTO, DID HENRY FISCHER ASSIST YOU IN THE 14 RECOVERY OF THE FARREL ASSETS — STRIKE THAT — OF THE NECA 15 ASSETS? 16 A I BELIEVE I TESTIFIED THAT HE HAS. 17 Q AND DID MR. FISCHER HAVE SIGNATURE POWER ON ONE OR 18 MORE ACCOUNTS OPENED BY EITHER VIBET, INC. OR THE 19 INTERNATIONAL LEGION FOR THE SURVIVAL OF FREEDOM, INC.? 20 A HE WAS ISSUED A POWER OF ATTORNEY BY THE BOARD AND 21 ENABLING HIM TO DO CERTAIN THINGS, TAKE CERTAIN ACTIONS. I 22 BELIEVE THAT OPENING UP A BANK ACCOUNT WAS INCLUDED WITHIN 23 THOSE POWERS. 24 Q AND WAS HE ALSO GIVEN PERMISSION TO SIGN CHECKS ON 25 ANY BANK ACCOUNTS THAT WERE OPENED IN CONNECTION WITH THE 26 FARREL RECOVERY? 27 A I'M NOT SURE HE WAS. I COULDN'T SAY FOR SURE. 28 Q DID MR. FISCHER ADVANCE ANY COSTS IN CONNECTION
page 581 1 WITH THE LITIGATION INVOLVING THE FARREL BEQUEST? 2 A CERTAINLY DID. 3 Q DID HE EVER PROVIDE YOU WITH AN ACCOUNTING OF THE 4 COSTS THAT HE ALLEGEDLY ADVANCED? 5 A NOT IN WRITING. 6 Q DID HE KEEP A RECORD OF HIS ALLEGED EXPENSES? 7 A I THINK SO. I COULDN'T TESTIFY DIRECTLY ON THAT 8 POINT. 9 Q I WOULD LIKE TO READ FROM THE DEPOSITION, SIR, 10 STARTING AT PAGE 152, LINE 8 THROUGH 14. 11 MR. WAIER: LINE 8? 12 MR. BEUGELMANS: THROUGH 14. 13 MR. WAIER: I'M GOING TO OBJECT AND MOVE TO STRIKE A 14 PORTION OF IT BASED ON HEARSAY. LACKS FOUNDATION. 15 THE COURT: I WON'T KNOW UNTIL I HEAR IT. THAT’s THE 16 PROBLEM. IF AFTER HEARING IT SHOULDN'T BE THERE, I WON'T 17 CONSIDER IT. 18 MR. WAIER: OKAY. I CAN SHOW YOU A COPY. MAY I SHOW 19 THE DEPOSITION TO MR. CARTO IF HE’s GOING TO BE READING IT? 20 THE COURT: THAT’s FINE. 21 22 BY MR. BEUGELMANS: 23 QQUESTION: WAS MR. FISCHER COMPENSATED FOR HIS 24 TIME? WAS IT SOME KIND OF AN AGREEMENT BASED ON RECORDS HE 25 KEPT OR A FLAT FEE FOR ALL THE HELP HE PUT INTO IT?26ANSWER: WELL, IT WAS JUST A — IT WAS A PAYMENT 27 TO REIMBURSE HIM FOR WHAT HE DID. IT WAS ROUGH. HE DID NOT 28 KEEP A RECORD OF HIS EXPENSES.
page 582 1 MR. WAIER: MY OBJECTION WAS I MOVE TO STRIKE AS BEING 2 NONRESPONSIVE. ALSO, IT LACKS FOUNDATION. 3 THE COURT: OVERRULED. I'M NOT SURE IT IMPEACHES HIM, 4 THOUGH. IN FACT, I DON'T THINK IT DOES. 5 THE WITNESS: I DON'T UNDERSTAND. WHAT I TESTIFIED 6 HERE SEEMS TO BE IN CONFORMITY WITH WHAT I JUST SAID. 7 8 BY MR. BEUGELMANS: 9 Q MR. CARTO, HOW MUCH DID MR. FISCHER RECEIVE FROM 10 THE MONIES THAT WENT INTO VIBET AND INTO THE INTERNATIONAL 11 LEGION ACCOUNTS FROM THE ESTATE OF JEAN FARREL? 12 A AS TO A SPECIFIC AMOUNT I CANNOT SAY. AS I 13 TESTIFIED IN THE DEPOSITION HERE THAT YOU CITED, HE ADVANCED 14 ALL OF THE MONEY NECESSARY TO KEEP — FOR HIM TO DO THE WORK 15 HE DID, WHICH WAS CONSIDERABLE. 16 DO YOU WANT ME TO EXPLAIN IT TO YOU, 17 MR. BEUGELMANS? 18 Q SIR, THE QUESTION IS — LET ME ASK THE QUESTION 19 THIS WAY. 20 MR. CARTO, YOU DON'T KNOW WHAT HIS EXPENSES WERE, 21 DO YOU? 22 A TO THE PENNY, OF COURSE NOT. 23 Q YOU NEVER SAW AN ACCOUNTING OF THE ALLEGED 24 EXPENSES, DID YOU? 25 A NO. 26 Q HIS EXPENSES WERE REIMBURSED FROM FUNDS THAT CAME 27 FROM THE FARREL RECOVERY, CORRECT? 28 A CORRECT.
page 583 1 Q NOW OVER AND ABOVE HIS ALLEGED EXPENSES, HOW MUCH 2 DID MR. FISCHER RECEIVE FROM THE MONIES THAT WERE PUT IN 3 EITHER THE VIBET ACCOUNTS OR THE INTERNATIONAL LEGION 4 ACCOUNTS OR ANY OTHER ACCOUNTS THAT CAME FROM THE FARREL 5 SETTLEMENT? 6 MR. WAIER: OBJECTION. ASSUMES FACTS. THERE’s NO 7 TESTIMONY THAT ANY MONEY WENT IN THE INTERNATIONAL LEGION. 8 THE COURT: OVERRULED. 9 THE WITNESS: HE WAS — AFTER REIMBURSEMENT FOR HIS 10 EXPENSES — MIND YOU THIS WAS FROM 1985 AFTER MISS FARREL 11 DIED THROUGH 1970 (SIC) HE LITERALLY TRAVELED AROUND THE 12 WORLD TALKING TO THE BANKS AND THE — AND THE LAWYERS, ETC. 13 HE WAS THE ONE RESPONSIBLE FOR PUTTING ME INTO TOUCH WITH 14 ALL OF THE ATTORNEYS THAT WE USED. 15 MR. BEUGELMANS: YOUR HONOR, MAY I INTERRUPT AND MOVE 16 TO STRIKE AS NONRESPONSIVE? 17 THE COURT: SUSTAINED. 18 THE WITNESS: WHAT IS THE QUESTION AGAIN, PLEASE? 19 MR. BEUGELMANS: WOULD YOU READ THE QUESTION BACK? 20 (THE RECORD WAS READ.) 21 THE WITNESS: HE WAS PAID SOMEWHERE IN THE 22 NEIGHBORHOOD, I WOULD SAY, PROBABLY ABOUT $200,000 FOR THE 7 23 YEARS THAT HE WORKED ON THIS WITH NO EXPECTATION OF REALLY 24 OF GETTING ANYTHING OUTSIDE OF IT IN ADDITION TO HIS 25 EXPENSES. BUT I CAN'T SAY THE FIGURE EXACTLY. IT COULD BE, 26 I WOULD SAY, IT’s AROUND 200,000, MAYBE 300. 27 28
page 584 1 BY MR. BEUGELMANS: 2 Q MR. FISCHER NEVER PRESENTED YOU WITH ANY TIME 3 SHEETS, DID HE? 4 A FOR THE THIRD TIME, SIR, NO. 5 MR. BEUGELMANS: THANK YOU, SIR. 6 THE WITNESS: I KNOW HIS EXPENSES. 7 8 BY MR. BEUGELMANS: 9 Q THE QUESTION WAS TIME SHEETS FOR THE TIME HE 10 SPENT? 11 A CERTAINLY NOT. 12 MR. BEUGELMANS: NO FURTHER QUESTIONS. 13 THE COURT: ANY CROSS-EXAMINATION? 14 MR. WAIER: WE WERE GOING TO RESERVE OUR 15 CROSS-EXAMINATION. 16 THE COURT: FINE. THANK YOU FOR YOUR TESTIMONY. 17 REMEMBER THE STEP. 18 DOES THE PLAINTIFF HAVE ANY OTHER EVIDENCE OR 19 WITNESSES? 20 MR. BEUGELMANS: NO. 21 THE COURT: WHAT ABOUT THE ITEMS OF EVIDENCE? HAVE YOU 22 BEEN ABLE TO RESOLVE THAT: WHAT COMES IN; WHAT DOES NOT? 23 MR. BEUGELMANS: WE'RE READY TO MEET WITH MR. WAIER AND 24 LANE. WE HAVE GONE THROUGH IT ALL. 25 THE COURT: YOU HAVE GONE THROUGH IT BUT NOT CONSULTED 26 WITH THEM? 27 MR. BEUGELMANS: HAVEN'T HAD A CHANCE. 28 THE COURT: I'LL LET YOU REST SUBJECT TO THE ADMISSION
page 585 1 OF EVIDENCE LATER ON IN THE TRIAL. LET’s PROCEED TO ANY 2 EVIDENCE THE DEFENSE WANTS TO PUT ON. 3 MR. WAIER: YOUR HONOR, AT THIS JUNCTURE WE WOULD 4 REQUEST, AND I UNDERSTAND THE COURT’s PREELECTION TO ALLOW 5 ALL THE EVIDENCE IN BEFORE IT DECIDES OUR MOTION FOR CODE OF 6 CIVIL PROCEDURE SECTION 631.8. I WOULD LIKE TO ARGUE IT. 7 THE REASON WE HAVEN'T PROVIDED THE COMPLETED 8 VERSION WAS BECAUSE OF THE — WE DON'T KNOW WHAT EVIDENCE IN 9 THE FORM OF DOCUMENTS ARE GOING TO COME IN. YOU RESERVED 10 THAT RIGHT UNTIL THE CONCLUSION OF THE PLAINTIFFS' CASE TO 11 DETERMINE WHAT DOCUMENTS WERE TO COME IN, WHETHER THEY LAID 12 FOUNDATION FOR IT. 13 IT IS CRITICAL AT THIS JUNCTURE WE ARE ENTITLED 14 UNDER THE CODE TO PRESENT THAT MOTION AT THIS POINT BASED ON 15 THE EVIDENCE THAT’s BEEN ADDUCED. 16 THE COURT: WELL, IN THAT CASE, I WOULD LET YOU DO 17 THIS. YOU TWO CAN TALK. THOSE ITEMS YOU AGREE WILL COME 18 INTO EVIDENCE. THOSE WILL COME IN. THOSE ITEMS YOU HAVE A 19 DISAGREEMENT ABOUT I WILL RULE ON, AND THEN WE'LL PROCEED ON 20 WITH ANY MOTION ITSELF THAT YOU WANT TO BRING. 21 DO YOU WANT ME TO GO OFF THE RECORD? 22 MR. WAIER: SURE. THEN I CAN FILL IN NUMBERS ON MY 23 TAGS. 24 MR. BEUGELMANS: A POINT OF HOUSEKEEPING. WE HAVEN'T 25 BEEN SERVED WITH A MOTION. HAS ONE BEEN FILED WITH THE 26 COURT? 27 MR. WAIER: NOTHING HAS BEEN FILED. I'M WAITING TO 28 FIND OUT WHICH EXHIBITS WILL GO IN. I DON'T WANT TO BRING
page 586 1 EVIDENCE TO THE COURT THAT DOESN'T COME INTO EVIDENCE. 2 THE COURT: OKAY. GO OFF THE RECORD THEN. 3 4 (PROCEEDINGS RECESSED.) 5 6 THE COURT: ON THE RECORD. THE PARTIES HAVE TRIED TO 7 RESOLVE THE ISSUE TO WHAT COMES INTO EVIDENCE AND WHAT DOES 8 NOT. I HAVE A STACK OF EXHIBITS THAT ARE COMING INTO 9 EVIDENCE. THE WAY I HAVE DONE THIS BEFORE IS TO HAVE ONE OF 10 THE PARTIES READ THEM OR I'LL READ THEM. 11 MR. MUSSELMAN: I WILL READ THEM. IT INCLUDES — THE 12 BLUE BINDER INCLUDES SOME THAT ARE OBJECTED TO AND SOME THAT 13 AREN'T. WE DIDN'T PULL THEM OUT. I'LL RUN THROUGH THEM. 14 THE DEFENDANTS CAN TELL ME. 15 THERE’s NO OBJECTION TO THE INTRODUCTION OF 16 EXHIBITS 1 AND 2. 17 DEFENDANTS ARE OBJECTING TO EXHIBIT 3. 18 THERE’s NO OBJECTION TO THE INTRODUCTION OF 4 19 THROUGH 11. 20 THE PARTIES ARE GOING TO STIPULATE THAT EXHIBIT 8 21 IS THE ENGLISH TRANSLATION OF EXHIBIT 7. 22 DEFENDANTS ARE OBJECTING TO THE INTRODUCTION OF 23 EXHIBIT 13. 24 NO ONE IS MOVING FOR THE INTRODUCTION OF 12. NO 25 ONE IS MOVING FOR THE INTRODUCTION OF 14. 26 15 AND 16 ARE DUPLICATES OF ANOTHER. NO ONE IS 27 MOVING FOR THEIR INTRODUCTION. 28 NO ONE IS MOVING FOR THE INTRODUCTION OF EXHIBITS
page 587 1 18 AND 19, WHICH MAY BE DUPLICATES AS WELL. 2 DEFENDANTS ARE OBJECTING TO THE INTRODUCTION OF 3 EXHIBIT 20. 4 NO OBJECTION TO THE INTRODUCTION OF EXHIBIT 21. 5 NO ONE IS MOVING FOR THE INTRODUCTION OF EXHIBIT 6 22. 7 DEFENDANT IS OBJECTING TO THE INTRODUCTION OF 8 EXHIBIT 23. 9 NO ONE IS MOVING FOR THE INTRODUCTION OF EXHIBIT 10 24. 11 DEFENDANTS ARE MOVING FOR THE INTRODUCTION OF 12 EXHIBIT 25 AND PLAINTIFFS ARE OBJECTING. 13 MR. LANE: 25, I DON'T THINK SO. 14 MR. MUSSELMAN: YOU DON'T THINK YOU ARE OBJECTING? 15 NO ONE IS MOVING FOR THE INTRODUCTION OF EXHIBIT 16 26. 17 MR. LANE: YOU DIDN'T SAY THAT. YOU ARE OBJECTING TO 18 25. 19 MR. MUSSELMAN: I STATED PLAINTIFF IS OBJECTING TO THE 20 INTRODUCTION OF EXHIBIT 25. 21 NO ONE IS MOVING FOR THE INTRODUCTION OF EXHIBIT 22 26. 23 NO OBJECTION TO THE INTRODUCTION OF EXHIBIT 27. 24 DEFENDANTS ARE OBJECTING TO THE INTRODUCTION OF 25 EXHIBIT 28, 29, I THINK, 30 AND 31. IS THAT CORRECT? YOU 26 ARE OBJECTING TO THOSE ALSO? 27 MR. WAIER: WHICH ONE? 28 MR. LANE: 29, 30 AND 31. THAT’s CORRECT. WE'RE
page 588 1 OBJECTING. 2 MR. MUSSELMAN: NO ONE MOVING PRESENTLY FOR THE 3 INTRODUCTION OF EXHIBITS 32, 33 OR 34. 4 THERE’s NO OBJECTION TO THE INTRODUCTION OF 5 EXHIBITS 35 AND 36. 6 DEFENDANTS ARE OBJECTING TO INTRODUCTION OF 7 EXHIBIT 37, ALSO TO 38, ALSO TO 39, AND ALSO TO 40. 8 THERE’s NO OBJECTION TO THE INTRODUCTION OF 9 EXHIBIT 41. 10 DEFENDANTS ARE OBJECTING TO THE INTRODUCTION OF 11 EXHIBIT 42. 12 NO ONE IS MOVING FOR THE INTRODUCTION OF 43. 13 THERE’s NO OBJECTION TO THE INTRODUCTION OF 14 EXHIBITS 44, 45, 46. 15 NO ONE IS MOVING FOR THE INTRODUCTION OF EXHIBIT 16 47. 17 DEFENDANTS ARE OBJECTING TO THE INTRODUCTION OF 18 48. 19 NO ONE IS OBJECTING TO 49. 20 NO ONE IS MOVING FOR INTRODUCTION OF EXHIBIT 50. 21 NO ONE IS OBJECTING TO 51. 22 DEFENDANT IS OBJECTING TO 52, 53, 54, 55, 56, 57, 23 58, 59, AND 60. 24 NO ONE IS MOVING FOR THE INTRODUCTION OF 25 EXHIBIT 61 OR 62. 26 DEFENDANT IS OBJECTING TO 63 AND 64. 27 NO ONE IS MOVING FOR 65 OR 66 OR 67. 28 DEFENDANTS ARE OBJECTING TO 68.
page 589 1 NO ONE IS MOVING FOR 69. 2 IT’s THE PLAINTIFFS' UNDERSTANDING THAT THE JUDGE 3 TOOK JUDICIAL NOTICE OF 70, THE POLIS JUDGMENT. IF THAT'S 4 NOT THE CASE, WE MOVE FOR THE INTRODUCTION. ASK FOR 5 CLARIFICATION ON THAT. 6 I THINK DEFENDANTS ARE MOVING FOR THE INTRODUCTION 7 OF 71; IS THAT RIGHT? IS THAT SOMETHING YOU WANTED? 8 MR. WAIER: WHICH ONE? NO. 9 MR. MUSSELMAN: NO ONE IS MOVING FOR 71, 72 OR 73. 10 DEFENDANT IS OBJECTING TO 74 AND 75. 11 NO ONE IS MOVING FOR 76, 77, 78, 79, 80, 81, 82 OR 12 83. 13 DEFENDANTS HAVE OBJECTED TO 84. 14 NO ONE MOVED FOR 85, 86, 87 OR 88. 15 DEFENDANTS ARE OBJECTING TO 89. 16 NO ONE IS MOVING FOR ANY EXHIBIT NUMBER 90, 91, 92 17 OR 93, NOR 94 OR 95, WHICH ARE PROBABLY DUPLICATES. 18 NO ONE IS MOVING FOR 96, WHICH IS PROBABLY 19 DUPLICATE, NOR 97, NOR 98, NOR 99, NOR 100. 20 THERE WERE SOME OTHERS BETWEEN 174 AND 180 THAT 21 MAY BE LISTED AS EXHIBITS. NO ONE IS MOVING FOR THE 22 INTRODUCTION OF THEM. 23 THE COURT: 174 AND WHAT? 24 MR. BEUGELMANS: TO AND INCLUDING 180. 25 MR. LANE: NO ONE IS MOVING FOR THEM. 26 MR. MUSSELMAN: THERE ARE NO SUCH EXHIBITS. 27 MR. LANE: DID WE SKIP 146? 28 MR. MUSSELMAN: I THINK YOUR FIRST EXHIBIT IS 146. NO
page 590 1 OBJECTION. 2 THE CLERK: NO OBJECTION? 3 MR. MUSSELMAN: DEFENDANT IS MOVING FOR THE ADMISSION 4 OF THAT EXHIBIT. DEFENDANT IS MOVING FOR THE ADMISSION OF 5 162. 6 THE CLERK: 147? COUNSEL, I'M SORRY. 7 MR. MUSSELMAN: I THINK THERE ARE OTHER EXHIBITS THEY 8 PUT ON THE EXHIBIT LIST THEY MAY USE LATER BUT HAVEN'T BEEN 9 IDENTIFIED. 10 THE CLERK: FROM 146? YOU ARE GOING -- 11 THE COURT: WHY DON'T WE WAIT FOR THE DEFENSE UNTIL 12 THEY COMPLETE THEIR CASE. THAT’s EASIER TO DO IT THAT WAY. 13 WE CAN STOP AT 180. 14 MR. MUSSELMAN: A COUPLE OF MORE PLAINTIFFS' EXHIBITS 15 HIGHER THAN NUMBER 180, 181, AND 182. THERE’s NO 16 OBJECTION. 17 183 IS THE NORTH CAROLINA FILINGS. I BELIEVE THE 18 COURT TOOK JUDICIAL NOTICE OF THAT. IF THAT WEREN'T THE 19 CASE, WE MOVE FOR THE INTRODUCTION OF THAT. 20 THAT’s IT FOR — I'M SORRY. SO THE RECORD IS 21 CLEAR, THERE WERE SOME EXHIBITS DEALING WITH MR. KERR. NO 22 ONE IS MOVING NOW FOR THEIR INTRODUCTION OR THE PLAINTIFF IS 23 NOT MOVING FOR THE INTRODUCTION. I THINK 187 THROUGH 193. 24 DEFENDANTS WILL PRESUMABLY BE MOVING LATER FOR 25 OTHER EXHIBITS BETWEEN THAT AND EXHIBIT 200, BUT EXHIBIT 200 26 HAS ALREADY BEEN ADMITTED, THE DECLARATION OF THE ATTORNEY 27 GENERAL. 28 EXHIBIT 201 WAS ALREADY NOT ADMITTED BY A COURT
page 591 1 RULING. 2 202 WAS A RELATED REMITTITUR, WHICH WAS WITHDRAWN 3 BY THE PLAINTIFF. 4 THE COURT: WE PROBABLY HAVE A RECORD OF THAT ALREADY. 5 MR. MUSSELMAN: 203 AND 204 ARE THE FURR DEPOSITION, 6 WHICH HAVE BEEN ADMITTED. 7 THE COURT: I'LL TAKE A BRIEF BREAK AND BE BACK. 8 9 (COURT’s EXHIBITS NOS. 1-2, 4-11, 21, 27, 35-36, 10 41, 44-46, 49, 51, 180-182 RECEIVED IN EVIDENCE.) 11 12 MR. LANE: YOUR HONOR, IF I CAN ADDRESS THE COURT. WE 13 HAD AN AGREEMENT AS TO WHAT WE HAD AGREED TO, AND 14 MR. MUSSELMAN THEN READ AN AGREEMENT, WHICH VIOLATED OUR 15 AGREEMENT. I WOULD LIKE TO SUPPLEMENT THIS. I THINK 16 MR. BEUGELMANS WILL AGREE THIS WAS OUR AGREEMENT. 17 IN ADDITION TO WHAT — LET ME FINISH, PLEASE. IN 18 ADDITION TO WHAT MR. MUSSELMAN READ TO THE COURT, WE AGREED, 19 AND I THINK THE CLERK HAS A STATEMENT, WHICH SAYS ALL 20 PARTIES AGREE TO ADMIT — THAT’s BECAUSE WE ALL AGREE -- 21 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182. 22 23 (COURT’s EXHIBITS NOS. 172-182 RECEIVED IN 24 EVIDENCE.) 25 26 MR. LANE: THERE WAS A QUESTION ABOUT 183, WHICH I 27 THINK IS A JUDGMENT. 184. 28 THE COURT: 182 AND 183 YOU SAY THERE’s A PROBLEM
page 592 1 WITH? 2 MR. LANE: I'M NOT SURE. THERE’s A QUESTION WHETHER 3 YOU HAD TAKEN JUDICIAL NOTICE OF IT. I HAVE A QUESTION 4 MARK. 5 THE COURT: ALL RIGHT. 6 MR. LANE: 184 WE AGREED TO. 185, 186, 194, 195, 7 196 -- 8 THE COURT: I LOST YOU IN THE 90'S. 9 MR. LANE: 194 THROUGH 199. 10 THE CLERK: THERE’s NO OBJECTION TO THOSE? 11 MR. BEUGELMANS: NO OBJECTION TO THOSE. 12 MR. LANE: THANK YOU. 13 14 (COURT’s EXHIBITS NOS. 184-186, 194-199 RECEIVED 15 IN EVIDENCE.) 16 17 THE COURT: LET ME GO BACK THEN AND TAKE CARE OF THE 18 EXHIBITS JUST IN ORDER. 19 HOW ABOUT THERE’s AN OBJECTION BY THE DEFENSE TO 20 NUMBER 3? NUMBER 3 IS A COPY OF THE BYLAWS SUPPOSEDLY 21 SIGNED BY MISS FURR, DATED 16 JUNE 1966. 22 WHAT IS THE BASIS FOR THE OBJECTION? 23 MR. WAIER: ACTUALLY, THREE BASES. FIRST OF ALL, IT'S 24 NOT BEEN PROPERLY AUTHENTICATED. IT HAS NOT BEEN 25 AUTHENTICATED AS A BUSINESS RECORD BY ANYONE. 26 THEN THE FOUNDATIONAL ASPECTS OF THE BUSINESS 27 RECORD HAVE BEEN LAID OUT. THE MERE FACT THAT SOMEBODY 28 RECOGNIZES A SIGNATURE DOESN'T MAKE IT SO. FOR PURPOSES OF
page 593 1 THE CORPORATION, THERE IS NO TESTIMONY OR FOUNDATION THAT 2 THESE CONSTITUTE THE PRESENT BYLAWS OR EVEN PAST BYLAWS OF 3 THE LEGION. THERE’s BEEN NO TESTIMONY TO THAT EFFECT, 4 MERELY AN IDENTIFICATION OF SIGNATURES. IDENTIFICATION WAS 5 MERELY SOMEBODY RECOGNIZES SOMEBODY’s SIGNATURE. 6 THE COURT: I DON'T NEED EVERYTHING REPEATED TWICE. 7 PLOW THE GROUND ONCE. I CAN LISTEN TO ARGUMENT. 8 MY NOTES INDICATE THAT MR. MARCELLUS SAW IT 1993. 9 IT WAS NOT THE LEGION FILES. HE HAD NO CONVERSATIONS WITH 10 CARTO ABOUT IT. 11 I THINK IT GOES TO THE WEIGHT YOU GIVE IT RATHER 12 THAN THE ADMISSIBILITY. 13 MR. BEUGELMANS: YES. I ALSO SAY THAT MR. CARTO 14 TESTIFIED THAT IT WAS HIS SIGNATURE. AND IN THE DEPOSITION 15 OF LAVONNE FURR SHE TESTIFIED THAT MR. CARTO DID PREPARE 16 EXHIBIT 3, AND SHE SIGNED IT. 17 AND UNDER 1237 OF THE EVIDENCE CODE A WRITING 18 PREVIOUSLY MADE BY A WITNESS IS HEARSAY — IS NOT HEARSAY. 19 IT’s ADMISSIBLE. 20 THE COURT: I KNOW NOTHING IN THE LAW SAYS IT HAS TO BE 21 AUTHENTICATED. 22 MR. WAIER: IT HAS TO BE PROPERLY AUTHENTICATED FOR 23 PURPOSES OF FOUNDATION. AND I MIGHT ADD THAT MR. MARCELLUS 24 TESTIFIED — I HAVE NO NOTES SPECIFICALLY — HE DOESN'T EVEN 25 RECALL WHERE THE DOCUMENT CAME FROM. SO IN AND OF ITSELF 26 THERE’s NO AUTHENTICATION OR RELEVANCY IN THAT REGARD WITH 27 RESPECT TO THE MINUTES. 28 THE COURT: MY JOB IS TO MAKE DECISIONS, NOT
page 594 1 NECESSARILY BE ALWAYS RIGHT. I'M GOING TO MOVE THROUGH THIS 2 PRETTY RAPIDLY. IF I'M HEARING AN OBJECTION, IT WILL BE 3 OVERRULED. OVER YOUR OBJECTION 3 WILL COME IN. 4 5 (COURT’s EXHIBIT NO. 3 RECEIVED IN EVIDENCE.) 6 7 THE COURT: HOW ABOUT 13? 13 IS A MARCH 4TH, 1986 8 STATEMENT ABOUT AN ANNUAL MEETING. 9 MR. WAIER: WE OBJECT TO THIS. THIS HAS NOT BEEN 10 PROPERLY AUTHENTICATED. THERE’s NO SIGNATURE ON THERE. 11 IT’s NEVER BEEN TESTIFIED THAT A SIGNATURE WAS ON THERE. 12 YOU DON'T HAVE LAVONNE FURR TESTIFYING. IT’s NOT 13 IN THE DEPOSITION. 14 THE COURT: AGAIN, I THINK IT GOES TO WEIGHT. I'M NOT 15 SO SURE HERE. WHAT IS THE POSITION OF THE PLAINTIFF ON THIS 16 ONE? 17 MR. BEUGELMANS: YOUR HONOR, THE PLAINTIFF WOULD 18 RESPECTFULLY CITE EVIDENCE CODE SECTION 662 — I'M SORRY 622 19 AND 623. THE FACTS RECITED IN THE WRITTEN INSTRUMENT ARE 20 CONCLUSIVELY PRESUMED TO BE TRUE AS BETWEEN THE PARTIES 21 THERETO. 22 THIS IS MINUTES OF THE LEGION THAT WERE DELIVERED 23 IN DISCOVERY TO THE PLAINTIFFS IN THIS ACTION. I BELIEVE 24 IT’s ALSO — STRIKE THAT. 25 YOUR HONOR, THERE’s BEEN A DEMAND MADE BY THE 26 PLAINTIFF UPON THE DEFENDANTS IN THIS ACTION TO PRODUCE 27 ORIGINAL DOCUMENTS THAT WERE PRODUCED IN DISCOVERY. WE 28 DON'T HAVE THE ORIGINALS TODAY. I WILL REPRESENT TO THE
page 595 1 COURT THIS DOCUMENT WAS OBTAINED THROUGH DISCOVERY. ALSO 2 MR. WEBER TESTIFIED TO THAT FACT. 3 THE COURT: DID ANYONE -- 4 MR. WAIER: I DON'T HAVE ANYBODY TESTIFYING TO THIS 5 DOCUMENT. 6 THE COURT: I DON'T THINK SO. OVER THE PLAINTIFF'S 7 OBJECTION, I WON'T ADMIT THIS. 8 LET ME GO TO NUMBER 20. 9 THE CLERK: WAS 13 RECEIVED? 10 THE COURT: 13 WAS NOT ADMITTED OVER THE PLAINTIFF'S 11 OBJECTION. 12 THIS IS ENTITLED DISTRIBUTION AGREEMENT. 13 MR. WAIER: WHICH ONE? 14 THE COURT: NUMBER 20 I HAVE AS BEING OBJECTED TO BY 15 THE DEFENSE. 16 MR. WAIER: YES, BECAUSE IT’s NOT BEEN AUTHENTICATED. 17 IN FACT TO THE CONTRARY, THE SIGNATURE OF MR. CARTO HAS 18 NEVER BEEN IDENTIFIED. IN FACT, IT EVEN SEEMS LIKE IT’s AN 19 ALTERED DOCUMENT. EVEN MR. WEBER TESTIFIED THAT IT WASN'T 20 MR. Carto’s SIGNATURE. MR. CARTO TESTIFIED TO IT. THERE IS 21 NO AUTHENTICATION FOR THIS DOCUMENT IN ANY WAY, SHAPE OR 22 FORM. IT LACKS FOUNDATION. 23 THE COURT: THE DEPOSITION I'M READING OF MISS FURR 24 SAYS THAT SHE DOESN'T SAY IT’s NOT HIS SIGNATURE. SHE SAYS 25 IT MAY BE HIS SIGNATURE. 26 MR. WAIER: WHAT SHE TESTIFIED TO — I RECALL THIS 27 SPECIFICALLY. I WAS THERE. THAT THAT WAS PROVIDED TO HER 28 BEFORE IT WAS SIGNED AND SHE APPROVED IT.
page 596 1 THE COURT: WHAT IS THE POSITION OF THE PLAINTIFF? 2 MR. BEUGELMANS: YOUR HONOR, THE PLAINTIFF’s POSITION 3 IS THAT IN TESTIMONY IN COURT MR. CARTO STATED THAT HE 4 AUTHORIZED WHOEVER SIGNED TO SIGN ON HIS BEHALF. HE DOESN'T 5 KNOW WHO SIGNED, BUT IT WAS SIGNED ON HIS BEHALF. 6 LAVONNE FURR STATED IN THE DEPOSITION SHE WAS 7 PRESENTED A COPY OF THIS BY MR. CARTO WHO TOLD YOU IT HAD 8 BEEN SIGNED ON HIS BEHALF. AND I THINK, YOUR HONOR, THAT 9 AGAIN THIS IS A STATEMENT, WHICH HAS BEEN — THE DEFENDANTS 10 HAVE MANIFESTED THEY HAVE ADOPTED THE STATEMENT BY THE 11 CONDUCT. THEY COME TO COURT NOW AND SAY THIS IS NOT — THAT 12 THE CONTENTS OF THIS DOCUMENT ARE NOT TRUE AND CORRECT. I 13 BELIEVE IT WOULD VIOLATE THE INTENT OF EVIDENCE CODE SECTION 14 1221. IT’s BASICALLY BY CONDUCT THE PARTIES ESTOPPED FROM 15 DENYING THE TRUTH OF THE DOCUMENT. 16 THE COURT: OVER THE DEFENSE OBJECTION, 20 WILL BE 17 ADMITTED. 18 19 (COURT’s EXHIBIT NO. 20 RECEIVED IN EVIDENCE.) 20 21 THE COURT: GO TO 23. 23 IS A MARCH 1, 1988 -- 22 MR. WAIER: OBJECTION. THIS ONE HAS NOT BEEN 23 AUTHENTICATED BY ANYONE. IT’s NOT BEEN PROPERLY 24 AUTHENTICATED. IT’s NOT A BUSINESS RECORD. IT’s NEVER BEEN 25 IDENTIFIED AS A BUSINESS RECORD. 26 AND FURTHER GROUND, RELEVANCY. 27 THE COURT: I WAS WONDERING ABOUT THE RELEVANCY OF IT. 28 MR. BEUGELMANS: WELL, IT’s RELEVANT. IT SHOWS THE
page 597 1 MULTIPLE DIRECTORS AT THE TIME IN THE PAST BEFORE THE 2 REPRESENTATIVES OF THE LEGION WHO CURRENTLY ARE CONTROL IN 3 THE LEGION HAD SUCH CONTROL. 4 I BELIEVE, YOUR HONOR, THAT AGAIN THIS IS A 5 STATEMENT BY A PARTY, LAVONNE FURR. 6 THE COURT: THE ONLY RELEVANCY I CAN SEE IS A DIRECTOR 7 LISTED AS MR. HARVEY TAYLOR. HE’s OF COURSE TESTIFIED HE 8 WASN'T A DIRECTOR IN 1988. 9 MR. BEUGELMANS: I BELIEVE IT IS RELEVANT. IT SHOULD 10 COME IN. AND MR. WEBER AGAIN TESTIFIED THAT IT WAS PRODUCED 11 TO THE PLAINTIFF DURING THE COURSE OF DISCOVERY IN THIS 12 ACTION. 13 MR. WAIER: UNFORTUNATELY THAT DOES NOT AUTHENTICATE 14 ANYTHING WHETHER IT WAS PRODUCED THROUGH DISCOVERY. 15 THE COURT: I'M GOING TO, OVER THE PLAINTIFF'S 16 OBJECTION, NOT ADMIT 23. 17 28 IS THE NEXT ONE. THAT’s A MARCH 6, 1990 18 MEETING. 19 THE CLERK: I ALSO SHOW 25. I'M NOT SURE. 20 MR. BEUGELMANS: 25 HAS BEEN WITHDRAWN. 21 THE COURT: WAIT A SECOND. 22 MR. WAIER: WE'RE ON 25. 23 THE COURT: WE HAVE TO KEEP ORGANIZED A BIT. 25 I HAVE 24 IN A GROUP THAT THE PLAINTIFF WANTED IN BUT THE — OR THE 25 DEFENSE WANTED IN BUT THE PLAINTIFF WAS OBJECTING. 26 MR. LANE: IT HASN'T BEEN WITHDRAWN BY US. 27 THE COURT: AM I WRONG? 28 MR. BEUGELMANS: THAT’s CORRECT. THE PLAINTIFF IS
page 598 1 WITHDRAWING IT. THE DEFENDANT IS NOT MOVING TO HAVE IT 2 INTRODUCED, YOUR HONOR. 3 THE COURT: I'LL PUT IT IN THE WITHDRAWN CATEGORY. 4 DOES THE DEFENSE WISH TO HAVE IT IN? 5 MR. LANE: YES. 6 THE COURT: LET ME COVER IT RIGHT NOW THEN. WHAT IS 7 THE REASON FOR KEEPING IT OUT? 8 MR. BEUGELMANS: YOUR HONOR, IT’s HEARSAY. NO 9 AUTHENTICATION. NOT A CERTIFIED COPY, A DUPLICATE ORIGINAL. 10 THE COURT: I HEARD THAT ARGUMENT BEFORE. WHAT DOES 11 THE DEFENSE SAY? WHY DO THEY WANT THIS IN FOR AND HAS IT 12 BEEN AUTHENTICATED? 13 MR. WAIER: ARE YOU GOING TO GIVE HIM MORE WEIGHT THAN 14 YOU HAVE GIVEN MY ARGUMENT AND I WILL ARGUE IT. 15 THE PURPOSE OF THIS IS TO SHOW THAT THE LEGION 16 DIRECTORS MADE — EVEN MR. MARCELLUS TESTIFIED TO THIS 17 DOCUMENT THAT HE COULD HAVE VERY WELL BEEN AWARE OF THE 18 DIRECTORS AT THE POINT IN TIME IT WAS BEING FILED BY THE 19 STATEMENT AS A STATEMENT OF FOREIGN CORPORATION. IT GOES TO 20 CONSTRUCTIVE NOTICE AMONG OTHER ISSUES. 21 THE COURT: OVER THE PLAINTIFF’s OBJECTION, I WILL 22 ADMIT IT. 23 24 (COURT’s EXHIBIT NO. 25 RECEIVED IN EVIDENCE.) 25 26 THE COURT: GO TO 28, THE NEXT ONE. 27 MR. WAIER: FOR SOME REASON I DON'T HAVE 28. 28 THE COURT: A MARCH 6, 1990 MEETING.
page 599 1 MR. WAIER: WE OBJECT TO THIS BECAUSE IT HAS NOT BEEN 2 AUTHENTICATED. THERE IS NO SIGNATURE ON THIS DOCUMENT, AND 3 THIS DOESN'T GO TO A HEARSAY RULE, YOUR HONOR. THERE’s NO 4 SIGNATURE ON THIS DOCUMENT. IT’s NOT BEEN AUTHENTICATED. 5 THERE’s NO FOUNDATION FOR THE DOCUMENT, AND IT’s NOT BEEN 6 AUTHENTICATED BY ANYBODY. 7 THE COURT: MR. MARCELLUS TALKED ABOUT THIS ONE. HE 8 SAW IT. 9 MR. WAIER: MR. MARCELLUS SAID HE SAW THIS DOCUMENT 10 SOMETIME IN 1994, BUT THAT DOESN'T AUTHENTICATE A DOCUMENT. 11 I COULD GIVE HIM A PIECE OF FLY PAPER AND SAY, HERE. THAT 12 DOESN'T NECESSARILY MEAN I MANUFACTURE THAT FLY PAPER; THAT 13 I'M THE PATENTEE OF THE FLY PAPER. THAT DOESN'T MEAN 14 ANYTHING THAT HE SAW IT. YOU STILL HAVE TO AUTHENTICATE 15 IT. YOU CAN'T BY JUST SAYING I SEEN THE DOCUMENT. 16 THE COURT: WHAT IS THE POSITION OF THE PLAINTIFF ON 17 THIS ONE? 18 MR. BEUGELMANS: WELL, AGAIN, THIS IS A DOCUMENT THAT 19 WAS PRODUCED BY THE DEFENDANTS DURING THE COURSE OF 20 DISCOVERY IN THIS ACTION. I WOULD BE MORE THAN HAPPY TO 21 TAKE THE STAND AND TESTIFY TO THAT MYSELF. WE HAD NO ACCESS 22 TO THE DOCUMENTS OTHER THAN THROUGH DISCOVERY. 23 MR. MARCELLUS — MR. WEBER TESTIFIED THAT THE TIME 24 SEPTEMBER 1993 WHEN THEY TOOK OVER AS DIRECTORS THERE ARE 25 ONE OR TWO MINUTES IN THEIR POSSESSION. 26 IN TERMS OF AUTHENTICATION, THE 1500 SECTIONS OF 27 THE EVIDENCE CODE TALK ABOUT AUTHENTICATION COPIES ARE NOT 28 PROCURABLE BY A PARTY ATTEMPTING TO ADMIT THEM. COPIES OF
page 600 1 WRITINGS THAT ARE PROPERLY IN THE POSSESSION OF THE ADVERSE 2 PARTY WHO HAD NOTICE. THEY BROUGHT THE ORIGINALS TO TRY. 3 WE DON'T HAVE THE ORIGINALS. WE ONLY HAVE THE DOCUMENT 4 OBTAINED DURING DISCOVERY. 5 THE COURT: OVER THE PLAINTIFF’s OBJECTION, I WON'T 6 ADMIT 29. 7 HOW ABOUT 30? 8 MR. LANE: I THINK IT WAS 28. 9 THE COURT: I'M SORRY. 28. 10 29 IS THE SETTLEMENT AGREEMENT. 11 MR. WAIER: THE SAME INFIRMITIES WITH THIS AGREEMENT. 12 I DON'T BELIEVE THIS AGREEMENT WAS EVEN TESTIFIED TO LET 13 ALONE BEEN AUTHENTICATED. AND IN FACT, TO THE CONTRARY IT 14 WAS AGAIN POINTED OUT THAT THIS IS NOT EVEN MR. Carto’s 15 SIGNATURE ON HERE. IT SEEMS TO BE AN ALTERED DOCUMENT. 16 THERE’s NO AUTHENTICATION FOR IT. NO FOUNDATION FOR THE 17 DOCUMENT. IT HAS TO BE MORE THAN THAT. IT DOESN'T GO TO 18 HEARSAY. IT GOES TO THE ACTUAL AGREEMENT. IT’s NOT A 19 HEARSAY QUESTION. 20 THE COURT: THE POSITION OF THE PLAINTIFF ON THIS ONE 21 IS WHAT? 22 MR. BEUGELMANS: YOUR HONOR, MR. CARTO AUTHENTICATED. 23 HE RECOGNIZED THIS DOCUMENT. 24 THE COURT: OVER THE DEFENSE OBJECTION, I WILL ADMIT 25 29. 26 27 (COURT’s EXHIBIT NO. 29 RECEIVED IN EVIDENCE.) 28
page 601 1 THE COURT: NUMBER 30 IS THE MANDATE AGREEMENT. IF THE 2 ARGUMENTS ARE THE SAME. 3 MR. WAIER: I DON'T THINK ANYBODY HAS BEEN SHOWN THIS 4 DOCUMENT. 5 THE COURT: WHAT IS THE POSITION OF THE PLAINTIFF? 6 MR. BEUGELMANS: YOUR HONOR, I DON'T BELIEVE ANYBODY 7 TESTIFIED TO THIS. 8 THE COURT: VERY WELL. I THINK I WILL NOT ADMIT IT AT 9 THIS TIME OVER THE PLAINTIFF’s OBJECTION. 10 31. 11 MR. BEUGELMANS: THIS WAS TESTIFIED TO BY MR. CARTO. 12 THE COURT: I BELIEVE IT WAS. OVER THE DEFENSE 13 OBJECTION, I'LL ADMIT 31. 14 15 (COURT’s EXHIBIT NO. 31 RECEIVED IN EVIDENCE.) 16 17 THE COURT: 37. 18 MR. BEUGELMANS: NUMBER 37 WAS AUTHENTICATED BY LAVONNE 19 FURR IN THE DEPOSITION, EXHIBIT J. TO THE DEPOSITION. 20 MR. WAIER: WE WILL WITHDRAW OUR OBJECTION. 21 THE COURT: OKAY. 37 WILL GO IN THE NO OBJECTION 22 COLUMN. 23 24 (COURT’s EXHIBIT NO. 37 RECEIVED IN EVIDENCE.) 25 26 THE COURT: HOW ABOUT 38? 27 MR. BEUGELMANS: MR. CARTO TESTIFIED THAT HE RECOGNIZED 28 THIS DOCUMENT AS HAVING BEEN A DOCUMENT THAT WAS SENT TO
page 602 1 HIM. 2 MR. WAIER: THAT STILL DOESN'T GET AROUND THE 3 INFIRMITIES OF THE HEARSAY RULE. IT HASN'T BEEN LAID AS A 4 BUSINESS RECORD. THERE’s NO EXCEPTION TO THIS AND NO 5 FOUNDATION WAS LAID FOR AN EXCEPTION WITH RESPECT TO THIS 6 DOCUMENT. 7 THE COURT: OBJECTION WILL BE OVERRULED ON THE DEFENSE 8 ON 38. 9 10 (COURT’s EXHIBIT NO. 38 RECEIVED IN EVIDENCE.) 11 12 THE COURT: 39. 13 MR. WAIER: THE SAME, YOUR HONOR. MY SAME OBJECTIONS, 14 YOUR HONOR. THERE’s BEEN NO AUTHENTICATION FOR THIS. 15 AGAIN, IT CONTAINS HEARSAY WITH NO EXCEPTION. 16 THE COURT: 39 WILL BE ADMITTED OVER DEFENSE 17 OBJECTION. 18 19 (COURT’s EXHIBIT NO. 39 RECEIVED IN EVIDENCE.) 20 21 THE COURT: 40. 22 MR. BEUGELMANS: I BELIEVE THE SAME THING. A DOCUMENT 23 THAT MR. CARTO RECOGNIZED AS HAVING BEEN RECEIVED. 24 MR. WAIER: I DON'T BELIEVE THAT HE TESTIFIED TO THAT, 25 YOUR HONOR. I DON'T BELIEVE THAT WAS TESTIFIED TO AT ALL. 26 MR. BEUGELMANS: ACTUALLY, I BELIEVE THAT’s A 27 MISSTATEMENT. I DON'T BELIEVE WE WENT OVER THIS EXHIBIT. 28 THE COURT: I DON'T THINK YOU DID EITHER. I CAN'T FIND
page 603 1 IT LISTED AS ONE OF THE ONES THAT WAS TALKED ABOUT. 2 MR. BEUGELMANS: PLAINTIFF WILL WITHDRAW. 3 THE COURT: PUT THAT IN THE WITHDRAWN CATEGORY AT THIS 4 TIME. 5 42. 6 THE CLERK: 42 I SHOW RECEIVED. 7 THE COURT: I HAVE THAT THE DEFENSE IS OBJECTING TO 8 42. 9 MR. BEUGELMANS: THIS ALSO IS AN EXHIBIT TO LAVONNE 10 FURR’s DEPOSITION AND ALSO LEWIS FURR’s DEPOSITION. 11 MR. WAIER: THAT DOESN'T GET IT IN. THIS IS FROM LEWIS 12 FURR, YOUR HONOR, AND I WOULD LIKE TO — LEWIS FURR'S 13 DEPOSITION I DO NOT BELIEVE WAS LODGED WITH THIS COURT. I 14 THOUGHT LAVONNE FURR'S. 15 THE COURT: BOTH WERE. 16 MR. WAIER: THEN I STAND CORRECTED. I WOULD LIKE TO -- 17 I WAS UNDER THE MISUNDERSTANDING. 18 MR. BEUGELMANS: THIS IS THE LAST EXHIBIT TO THE 19 DEPOSITION. HE RECOGNIZED IT AND SAID THAT’s HIS SIGNATURE 20 TO IT. 21 THE COURT: ONE AT A TIME. 22 MR. WAIER: I WILL NOT TAKE THAT REPRESENTATION AT FACE 23 VALUE. LET ME TAKE A LOOK. LET ME SEE WHAT AUTHENTICATION 24 THERE WAS. IT WILL TAKE ME TWO SECONDS OR LONGER THAN TWO 25 SECONDS. 26 MR. BEUGELMANS: EXHIBITBTO MR. LEWIS FURR'S 27 DEPOSITION. 28 MR. WAIER: NO OBJECTION TO IT.
page 604 1 THE COURT: 42 COMES IN WITHOUT OBJECTION. 2 3 (COURT’s EXHIBIT NO. 42 RECEIVED IN EVIDENCE.) 4 5 THE COURT: NUMBER 48. 6 MR. BEUGELMANS: 48 IS EXHIBITLTO THE DEPOSITION OF 7 LAVONNE FURR. SHE AUTHENTICATED IT AND RECOGNIZED HER 8 SIGNATURE. 9 MR. WAIER: WHICH ONE? 48? AGAIN, YOUR HONOR, WHICH 10 EXHIBIT IS THAT? IN LAVONNE FURR’s SAME EXHIBIT? YOUR 11 HONOR, I'M OBJECTING AS TO RELEVANCY. 12 THE COURT: I'M GOING TO OVERRULE IT. ONE OF THE 13 REASONS I THINK IT’s RELEVANT IS MR. HARVEY TAYLOR’s NAME 14 DOWN HERE, AND MR. TOM KERR’s NAME, AND THE FACT THIS ONE 15 SAYS THEY'RE ALL WITH — THEY'RE PRESENT. MR. KERR WAS 16 PRESENT. MR. KERR’s TESTIMONY WAS HE WAS NOT PRESENT. OVER 17 OBJECTION, 48 WILL BE ADMITTED. 18 19 (COURT’s EXHIBIT NO. 48 RECEIVED IN EVIDENCE.) 20 21 THE COURT: 52. THESE ARE — THIS IS A MEMO BY 22 MR. MARCELLUS, WHICH IS HIS OPINION MEMORIALIZING SOME 23 CONVERSATIONS THAT HE HAD. 24 MR. BEUGELMANS: PAST RECOLLECTION, YOUR HONOR. 25 MR. WAIER: OBJECTION. MY OBJECTION IS THAT HIS 26 RECOLLECTION DIDN'T NEED TO BE REFRESHED. HE TESTIFIED TO 27 WHAT HE DID. IT CONTAINS MULTIPLE HEARSAY, SELF-SERVING AND 28 IMPROPER OPINION.
page 605 1 THE COURT: IT’s PAST RECOLLECTION RECORDED. I REALIZE 2 THAT THAT DOESN'T NECESSARILY BRING IT IN. IT’s ONLY IF A 3 PERSON HAS NO PRESENT RECOLLECTION OF SOMETHING DO YOU BRING 4 IN THIS SORT OF A THING. HE CAN USE IT, OF COURSE, AND HE 5 DID USE IT TO REFRESH HIS RECOLLECTION; BUT NORMALLY THE 6 PARTY THAT IS PROPOUNDING THE EVIDENCE DOESN'T GET A PAST 7 RECOLLECTION — I MEAN, A REFRESHING THE RECOLLECTION. IF 8 THE DEFENSE WANTS IT IN, THEY GET IT. I THINK IF THE 9 PLAINTIFF WANTS IT IN, I DON'T THINK THEY DO. 10 MR. BEUGELMANS: PLAINTIFF SUBMITS. 11 THE COURT: I WON'T ADMIT. I WILL NOT ADMIT 52. 12 53 IS PROBABLY — THAT’s THE, I THINK, THE SAME 13 TYPE OF THING. SAME RULING. NOT IN. 54, I THINK THAT'S 14 THE SAME RULING. 55, SAME RULING. 56, SAME RULING. 15 57 IS A — WHAT IS THE OBJECTION BY THE DEFENSE TO 16 57? 17 MR. WAIER: THERE’s BEEN NO AUTHENTICATION WITH RESPECT 18 TO THIS DOCUMENT. IN FACT, THERE’s NO AUTHENTICATION TO 19 THIS DOCUMENT WHATSOEVER. 20 MR. BEUGELMANS: MR. MARCELLUS TESTIFIED HE FOUND THIS 21 IN THE RECORD. IT’s A BUSINESS RECORD OF THE LEGION. 22 MR. WAIER: THAT DOESN'T GET YOU OVER THE BUSINESS 23 RECORD EXCEPTION. THERE’s MORE FOUNDATION THAN THAT TO 24 BRING A BUSINESS IN THAN JUST STATING HE SEEN IT IN SOME 25 FILES. THAT DOESN'T GET YOU THERE. HE HAS TO TALK ABOUT 26 THE MODE OF PREPARATION. HE HAS TO TALK ABOUT THE 27 CIRCUMSTANCES. 28 THE COURT: CALM DOWN.
page 606 1 MR. WAIER: THERE’s BEEN NO FOUNDATION FOR THE 2 DOCUMENT. 3 MR. BEUGELMANS: I THINK THE PLAINTIFF WOULD RELY ON 4 EVIDENCE CODE SECTION 1502. THIS IS A DOCUMENT NOT 5 PROCURABLE BY THE PLAINTIFF. I DON'T THINK THERE’s ANY 6 QUESTION THAT THE PLAINTIFF WAS FORCED. IT’s NOT AUTHENTIC 7 OR A TRUE COPY OF THE DOCUMENT. 8 MR. WAIER: THAT’s WHY WE HAVE RULES OF EVIDENCE. AND 9 THEY DID NOT EVEN PROVIDE THIS COURT WITH THAT FOUNDATION. 10 THE COURT: OVER THE PLAINTIFF’s OBJECTION, I WON'T 11 ADMIT THIS. I WILL NOT. 12 58, NOT ADMITTED. 13 59. 14 MR. BEUGELMANS: MR. MARCELLUS TESTIFIED HE RECEIVED 15 THESE FROM THE FURRS. 16 MR. WAIER: MY OBJECTION IS RELEVANCY. 17 THE COURT: OVERRULED. ADMITTED OVER THE DEFENSE 18 OBJECTION. 19 20 (COURT’s EXHIBIT NO. 59 RECEIVED IN EVIDENCE.) 21 22 THE COURT: NUMBER 60. WHAT’s THE OBJECTION BY THE 23 DEFENSE? 24 MR. WAIER: MY OBJECTION, YOUR HONOR, IS FIRST, I DON'T 25 BELIEVE THIS HAS BEEN AUTHENTICATED BY ANYONE, AND IT LACKS 26 FOUNDATION. 27 THE COURT: ANYTHING ELSE BY THE PLAINTIFF? 28 MR. BEUGELMANS: NO.
page 607 1 THE COURT: NOT ADMITTED THEN. 2 63, MR. CARTO BEEN ASKED ABOUT THAT ONE. 3 MR. BEUGELMANS: NO. WE WERE RESERVING THAT FOR 4 REDIRECT OR CROSS-EXAMINATION. 5 THE COURT: SO RIGHT NOW IT SHOULD NOT BE ADMITTED? 6 MR. BEUGELMANS: CORRECT. WE'LL RESERVE IT FOR A LATER 7 TIME. 8 THE COURT: RIGHT NOW I'LL SHOW IT’s NOT ADMITTED. YOU 9 CAN MAKE A MOTION LATER ON. I'M TALKING ABOUT 63. 10 MR. WAIER: I'M SORRY. OKAY. 11 THE COURT: NUMBER 64. 12 MR. WAIER: WHAT IS 64? 13 THE COURT: A LETTER, DATED 1 OCTOBER 1993, SIGNED BY 14 MR. MARCELLUS, MR. RAVEN AND MR. WEBER AND MR. O’Keefe 15 TELLING MR. AND MRS. CARTO THAT THEIR CONTINUED RELATIONSHIP 16 IS NO LONGER REQUIRED IN THE LEGION’s AFFAIRS. 17 MR. WAIER: TO THE EXTENT THAT YOU LIMIT IT TO RESTRICT 18 IT TO WHAT MR. MARCELLUS TESTIFIED TO AS TO HIS OWN — WHAT 19 HE GENERATED. I DON'T BELIEVE YOU CAN TESTIFY AS TO 20 MR. RAVEN OR ANY OF THE OTHERS THAT ARE LISTED ON THAT OTHER 21 THAN MR. WEBER WHO I DID BELIEVE DID TESTIFY TO THE LETTER. 22 THE COURT: OVER THE DEFENSE OBJECTION I WILL ADMIT 23 64. 24 25 (COURT’s EXHIBIT NO. 64 RECEIVED IN EVIDENCE.) 26 27 THE COURT: 68, I BELIEVE MR. MARCELLUS TESTIFIED THEY 28 GOT THIS OVER THE FAX MACHINE. AM I RIGHT ON THAT? YEAH,
page 608 1 CAME THROUGH THE FAX MACHINE. 2 MR. WAIER: AGAIN, YOUR HONOR, THAT STILL DOESN'T 3 AUTHENTICATE THE DOCUMENT. WE'LL WITHDRAW THE OBJECTION. 4 THE COURT: OKAY. I THOUGHT YOU PROBABLY WOULD. 68 5 WILL COME IN WITHOUT OBJECTION. 6 7 (COURT’s EXHIBIT NO. 68 RECEIVED IN EVIDENCE.) 8 9 THE COURT: 74. 10 MR. WAIER: YOUR HONOR, THERE’s — WHAT I SEE HERE, 11 THERE’s NO RELEVANCY. IT CONTAINS HEARSAY, SELF-SERVING 12 STATEMENT, AND IT’s NOT SIGNED. BUT MR. WEBER DID TESTIFY 13 TO IT, BUT THERE’s NO RELEVANCY IN MY OPINION TO THIS 14 LETTER. 15 THE COURT: USUALLY I DON'T LET A WITNESS PUT THEIR 16 TESTIMONY IN A WRITTEN FORM AND THEN SUBMIT IT AS AN ITEM OF 17 EVIDENCE. HE TESTIFIED THAT MANY OF THE THINGS IN HERE -- 18 HE, MEANING MR. TAYLOR AND MR. WEBER. MR. TAYLOR IS 19 MENTIONED TOO. I DON'T THINK IT SHOULD PROBABLY COME IN. 20 ANY COMMENTS BY THE PLAINTIFF? 21 MR. BEUGELMANS: YOUR HONOR, THE RELEVANCE OF THIS IS 22 NOT FOR THE TRUTH OF THE MATTER ASSERTED BUT FOR THE FACT 23 THAT NOTICE WAS GIVEN TO THE PARTY TO WHOM THE 24 CORRESPONDENCE WAS ADDRESSED. 25 MR. WAIER: HE TESTIFIED TO THAT, YOUR HONOR. 26 THE COURT: OVER THE DEFENSE OBJECTION — I MEAN, 27 PLAINTIFF’s OBJECTION, I WON'T ADMIT 74. 28 HOW ABOUT 75?
page 609 1 MR. WAIER: SAME OBJECTIONS. 2 MR. BEUGELMANS: SAME, YOUR HONOR. 3 THE COURT: SAME RULING, NOT ADMITTED OVER PLAINTIFF'S 4 OBJECTION. NUMBER 84. 5 MR. WAIER: YOUR HONOR, WE OBJECT TO THIS. THIS IS A 6 DOCUMENT THAT IS A LETTER FROM MY PARTNER. THERE’s NO 7 FOUNDATION FOR THE LETTER. WHAT MR. BEUGELMANS MY 8 UNDERSTANDING WANTS TO DO IS BRING IN ALL THE DOCUMENTS 9 BECAUSE MY PARTNER PRODUCED THEM PURSUANT TO A DOCUMENT 10 REQUEST. THAT DOESN'T LAY A FOUNDATION FOR ANY OF THE 11 DOCUMENTS. 12 THE COURT: WHAT IS 84? IT’s NOT IN MY BOOK. HERE IT 13 IS. 14 I THINK HE’s RIGHT SO FAR. ANY COMMENT WHY 15 THIS — ON THIS BY THE PLAINTIFF? 16 MR. BEUGELMANS: YES. FIRST OF ALL IN TOTO THIS IS AN 17 ADMISSION BY A PARTY THAT WAS PRODUCED IN DISCOVERY. 18 SECOND, A NUMBER OF THE DOCUMENTS WITHIN THIS WE 19 REFER TO IN THE EXAMINATION OF MR. CARTO, SPECIFICALLY 20 WITHIN — THERE’s PAGE 1, PAGE 2, PAGE 3, PAGE 4, 5, 6, 7, 21 8, 9, 10, 13, 14, 15, 16, 17, 18, 19, WHICH I ASKED 22 MR. CARTO IF THEY WERE TRUE COPIES OF THE ORIGINAL DOCUMENTS 23 IN THE POSSESSION OF LIBERTY LOBBY, WHICH HE AGREED THEY 24 WERE AND HAD SEEN THEM BEFORE. THEN SKIP TO -- 25 THE COURT: HERE IS WHAT WE SHOULD DO WITH THIS 26 EXHIBIT. IT’s — THIS EXHIBIT IS SUCH A BIG GENERAL 27 EXHIBIT. SOME THINGS ARE ADMISSIBLE AND SOME ARE NOT. SO I 28 THINK I'LL RESERVE ON 84, AND THOSE THINGS MR. CARTO
page 610 1 TESTIFIED TO I THINK CAN BE ADMITTED. THOSE THINGS IN THE 2 PACKET THAT HE’s NOT TESTIFIED TO I DON'T THINK CAN BE. 3 MR. WAIER: AGAIN, I'M NOT PREPARED BECAUSE HE ASKED 4 FOR THE ENTIRE DOCUMENT BASED ON -- 5 THE COURT: I WOULD BE ADMITTING THE VARIOUS CHECKS 6 THAT MR. Carto’s IDENTIFIED. I HAVEN'T ADDED THEM UP. 7 THERE ARE LOTS OF CHECKS AND AUTHENTICATED THEM. IF YOU 8 WANT TO PUT 84 ASIDE, WE'LL COVER THAT SOME OTHER TIME. 9 I WANT TO GET THIS DONE BY 4:30 AND GET OUT OF 10 HERE AT 4:30 TODAY. 11 89, I DON'T HAVE THAT EXHIBIT IN MY BOOK. WHAT IS 12 IT? 13 MR. BEUGELMANS: MR. MARCELLUS’s AFFIDAVIT OF AUGUST 14 21, 1986. 15 MR. WAIER: THE AFFIDAVIT THAT HE MADE. I'M NOT SURE 16 WHAT CONNECTION HE MADE THAT AFFIDAVIT, BUT AGAIN, HE 17 TESTIFIED TO ITS CONTENT. IT WOULD BE CUMULATIVE AT BEST 18 AND SELF-SERVING. 19 THE COURT: I USUALLY WON'T ADMIT THAT. ANY COMMENT BY 20 THE PLAINTIFF? 21 MR. BEUGELMANS: NO. 22 THE COURT: NOT ADMITTED THEN. I THINK THAT TAKES CARE 23 OF IT. 24 MR. LANE: I THINK THERE WAS A REFERENCE TO 200 THROUGH 25 204. I DON'T KNOW WHAT THE STATUS IS. THAT WE WEREN'T 26 SHOWN THE DOCUMENT. 27 THE COURT: WHAT I DID IS I STOPPED COUNSEL AT THAT 28 TIME SAYING THOSE WERE YOUR EXHIBITS. I WOULD WAIT UNTIL
page 611 1 YOU FINISHED, AND WE WOULD GO THROUGH THE SAME PROCESS WITH 2 YOUR EXHIBITS. 3 MR. WAIER: SO WE'RE CLEAR, THOUGH, EXHIBIT — I 4 BELIEVE IT IS — MAYBE YOU HAVE IT. YOU DIDN'T DISAGREE 5 WITH IT. I WANT TO MAKE SURE THE NUMBER IS IN THERE. THAT 6 IS EXHIBIT 146. 146 IS A DOCUMENT THAT MR. MARCELLUS 7 TESTIFIED TO. 8 MR. BEUGELMANS: AGAIN, WHAT IS GOOD FOR THE GOOSE IS 9 GOOD FOR THE GANDER. IF THE OTHER LETTER DON'T COME IN, 10 THIS SHOULDN'T EITHER. 11 THE COURT: I DON'T HAVE IN MY LIST 146 AT ALL. 12 MR. LANE: WE DID AGREE: 13 MR. WAIER: I CAN SHOW THIS. IT’s THE SAME DOCUMENT I 14 RAISED ON THAT. 15 THE COURT: WHO IS PROPOSING 146? 16 MR. BEUGELMANS: NOT PLAINTIFF. 17 THE COURT: THEN WAIT UNTIL YOUR CASE IS DONE. WE'LL 18 DO ALL OF YOUR EXHIBITS AT ONE TIME. 19 MR. WAIER: I DO KNOW THIS EXHIBIT WAS INTRODUCED TO 20 MR. MARCELLUS. I DON'T KNOW IF IT’s 146 BUT VERY SIMILAR. 21 THE COURT: I DON'T KNOW. I'M GOING TO WAIT UNTIL YOU 22 HAVE CONCLUDED YOUR CASE BEFORE I GO THROUGH THE PROCEDURE 23 WITH YOUR EXHIBITS. 24 ANYTHING ELSE ON THE EXHIBITS THAT THE PLAINTIFF 25 WANTED IN? 26 MR. BEUGELMANS: NO. 27 THE COURT: THANK YOU. OFF THE RECORD. 28 (PROCEEDINGS RECESSED.)