Free Transcript - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF DELAWARE TESLA INDUSTRIES, INC., a Delaware corporation, Plaintiff, : : : : : : : : : : Civil Action

6 v. 7 DAVID C. WALDMANN, 8 Defendant. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BEFORE:

No. 06-55-GMS

Wilmington, Delaware Tuesday, May 27, 2008 10:30 a.m. CONFERENCE -

HONORABLE GREGORY M. SLEET, Chief Judge

APPEARANCES: LOUIS J. RIZZO, JR., ESQ., and JASON S. GARBER, ESQ. (Baltimore, MD) Reger Rizzo & Darnall LLP Counsel for Plaintiff JOHN D. DEMMY, ESQ. Stevens & Lee -andJOHN A. ADAMS, ESQ. Susanin, Widman & Brennan, P.C. (King of Prussia, PA) Counsel for Defendant Waldmann

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THE COURT:

Good morning. What is it that causes this

Gentlemen, why are here again?

action to seem to not want to die? Let's start with introductions. MR. RIZZO: Who is plaintiff? Louis

Good morning, Your Honor.

I represent Tesla.

This is my partner, Jason

Garber, who has been admitted pro hac vice in the case. MR. ADAMS: John Adams from Susanin Widman &

We represent Mr. Waldmann. MR. DEMMY: John Demmy from Stevens & Lee, also

for Mr. Waldmann. THE COURT: I could be getting cases confused.

We have enough of them that that would be understandable. Did I not make a personal effort to settle this case? MR. ADAMS: THE COURT: No, sir. If it was that one, I was going to

be real annoyed with you guys. MR. ADAMS: This is the case that got assigned

to the Magistrate -- I can't recall her name right now -then all of a sudden some shifting of cases went around and she was unable to do it, and it never went to mediation. THE COURT: principle in this case? MR. GARBER: Among several of the parties, Your Was there ever a settlement in

Honor, original parties, defendants, there was a settlement

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reached between the plaintiff and those three defendants. And they have been removed from the case. an order. Settlement discussions did continue with the remaining defendant Waldmann, but unsuccessfully. It was That's subject to

around that time that we stepped in as replacement counsel for the plaintiff. THE COURT: MR. RIZZO: MR. ADAMS: MR. DEMMY: MR. GARBER: Who was in? Werb & Sullivan. Paul Crawford. Connolly Bove. As plaintiff, we picked up sort of

where they left off, in terms of trying to see whether settlement could happen. We spent some time trying to do

that, as well as getting the file itself sort of transferred. We ultimately reported to the Court that we

could not get it settled, then the dates were set. THE COURT: have to give me numbers. MR. GARBER: How wide is the gulf? You don't

Is it the Grand Canyon? A lot of the components there, a

lot of non-monetary components seem to have been hashed out and worked out. It was the monetary component that has been It's the difference between zero and a

the sticking point. number.

THE COURT:

If you don't mind -- we can do this

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off the record. (Discussion off the record.) THE COURT: These are more -- I put them in the

category of administrative or housekeeping -- do's and don'ts for me. I would certainly be willing to entertain

any questions that you might have. I take it, to the extent there were any motions in limine filed, we disposed of those motions. MR. GARBER: There were a few that decision was

reserved until the time of trial. THE COURT: check the docket. Do you happen to recall -- we can

This is the time of trial, you said? I believe so. We will check the docket and see

MR. GARBER: THE COURT: what's been reserved.

Did we, do you recall, counsel, whether you submitted voir dire, proposed voir dire? MR. GARBER: MR. ADAMS: Your Honor. THE COURT: We will pull out the old, Ms. You ruled on those. I believe our voir dire was mutual,

McDavid -- I didn't see it in this. MR. RIZZO: Exhibit K. MR. ADAMS: I believe it was substantially the It is, Your Honor. I think it's

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same as the last time. MR. RIZZO: MR. GARBER: MR. RIZZO: bound volumes. I believe that to be the case. Part 2 of the second bound volume. It appears you only have one of the

There is a Part 1 and 2. Ms. McDavid, I only have the

THE COURT:

document that appears at 225. MS. McDAVID: order. THE COURT: docket numbers? Let's work from this. MR. RIZZO: entries. THE COURT: You know what? It's part of all of It is reflected on the docket I need the volumes. Do you have the That is the supplemental pretrial

the same docket, probably, 225, but I don't have Part 1 and Part 2. MR. ADAMS: THE COURT: You just have Part 1. I just have the pretrial order.

While you are getting it, I will work from counsel's copy. I am going to look through real quick. look at No. 12. military?" "Do you hold any opinions about the Why do you think that's Let's

Let me ask you this:

important to query the panel? MR. GARBER: There are several reasons. First

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of all, most of the client contact that's at issue in the case involves the military. actually military personnel. THE COURT: How about any opinions, words to Several of the witnesses are

this effect, "that would make it difficult for you or impossible for you to be a fair and impartial juror"? MR. ADAMS: THE COURT: That is fine, Your Honor. I gather they are going to hear Or is it just

military witnesses on both sides of the case. one? MR. ADAMS: THE COURT:

It could be both sides, Your Honor. Basically, what we are trying to get

at is, is there any opinion held by any putative juror about the military or military service, any aspect of the military, that would make their service problematic from the standpoint of both sides. Okay.

13 -- let me just give you my general philosophy about jury selection. questioning. I don't permit unduly intrusive

The idea is to empanel an impartial jury, not

a jury that is shaped to one party's or the other's view. With that in mind, 13, why do you need to know whether any juror or immediate family member has had a security clearance? MR. GARBER: Part of the issues in the case

involves contact with and discussion about military design

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information, the sensitive nature of the information that's been exchanged between my client and the military. the witnesses will speak to that. THE COURT: has a clearance? MR. GARBER: Well, I don't know if -- this may What does it matter whether a juror Some of

be one that actually defendant may have pushed for. MR. ADAMS: MR. GARBER: We didn't push it. I think one of the concerns is, are

they going to bring their own experience or knowledge to bear about what may be sensitive or secret or classified information and the disclosure of that by the defendant. THE COURT: I will ask the question. I don't

see it as terribly potentially revealing. and ask the question. MR. ADAMS: I don't care.

I will go ahead

The individual juror's background as an electrician or engineer? MR. GARBER: There are a lot of electrical

components here that we are dealing with, that primarily assembles mobile power devices and the connecting components to those. Much of the discussion, particularly in terms of

establishing it as a trade secret, we will talk about the components, specific components to that and what makes it a trade secret.

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THE COURT: MR. GARBER:

All right. Once again, it's sort of along the

same lines, whether they are bringing their own information to bear or can they sort of fairly listen to the testimony of the witnesses and experts about those electrical components and the trade secret nature of them. THE COURT: of this type. I generally don't permit questions

I can tell you, we get a lot of this because I just don't see it as really If

of the patent work we do.

necessary to the job of picking a jury that's impartial. you do... MR. GARBER: I guess I would say this, Your

If we are going to have a sort of general statement

of the nature of the case that can in part talk about the electrical components, you know, that are at issue here, in other words, this is a claim for trade secrets that involves mobile ground power units sold primarily to the military and their electrical components, then I would think any juror who had a potential concern about their own background would bring that to our attention and we wouldn't need that specific question. THE COURT: MR. GARBER: minutes to chat. There is a description. Judge, we just took a couple

And one suggestion that we thought we

might propose is, if we put a little bit more detail in the

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description of the case about the products at issue, then I think Questions 13 through 20 can be done away with, because I think, then, if it raised flags in anyone's minds, we would hear from them and it would accomplish the same result. THE COURT: That is fine.

When do you think you can have those to me, those revisions to proposed voir dire? MR. RIZZO: THE COURT: By the end of the week. That is fine.

Now, are there still patent issues involved in this case? MR. GARBER: Well, to the extent that -- that is

a piece of the case in that one of the things that was done with the information that was sent out was, it was used by the NMT principals to file a provisional patent. We wanted

them, need to demonstrate that as part of this trade secret appropriation and the intent of the parties. THE COURT: Okay. So you want me to inquire,

then, 21 asks do you or a member of your immediate family own any patent or copyright or trade secret. MR. GARBER: THE COURT: that? MR. ADAMS: No, Your Honor. I think so, Your Honor. The defendant has no problem with

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THE COURT:

22 asks whether you have ever been And

involved in a patent, copyright, or trademark dispute.

23, have you ever been involved as a party or witness in patent or copyright litigation. I am going ask a general question that will cover that -- so I will not ask 23 -- that will generally get at whether they have been involved in any kind of litigation, as a witness, juror, defendant, plaintiff. 24 I will not ask. attended law school? 25 is good. 26 is what I was alluding to earlier. 27 an 28 are fine. Actually, the last paragraph That is: Have you ever

will end up being a numbered question, 29. I will send over to you several days in advance of the 17th, you will get from my chief deputy an e-mail that will set out exactly what the voir is going to look like, give you an opportunity to offer any comment, give you an opportunity to review the comment and see if I am going to accept any of the suggestions that are made, and you will get an e-mail back. Are preliminary jury instructions in here? MR. RIZZO: THE COURT: MR. RIZZO: Yes. Letter J.

Are they agreed to? There are objections to a number of

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them, though. MR. ADAMS: MR. RIZZO: MR. ADAMS: Honor. THE COURT: there. We will discuss the final at an appropriate time. I will look through them when I get a chance. You will probably not go wrong Not the preliminary ones. I am sorry, not to the preliminary. Most of them we took from you, Your

Obviously, I haven't had a chance. Am I correct in assuming there are competing verdict forms that have been submitted? MR. RIZZO: THE COURT: Yes. What will happen, what I will tell

you right now is, because I know that at this stage of the process counsel really haven't focused on final jury instructions and the verdict form the you way you might have otherwise, because you have begun your trial preparations, you need to begin to focus on them, and to begin to negotiate in earnest those differences, as to the finals and the verdict form. Then and only then will I step in, after

I am satisfied that a full effort has been made to resolve your differences and resolve the remaining ones for you. We will look, I will look to see the status of the reserved rulings.

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Let me go through -- is there anything else in Part 2 that you can think of that we need to talk about, anything you have tabbed or marked in any way? MR. ADAMS: Nothing in here. But I do have an

issue that needs to be addressed. THE COURT: MR. GARBER: Let me go through my issues first. The only item that we have,

defendant had talked about there is falsifying documentary exhibit on the part of the plaintiff. that references or refers to. THE COURT: mention in Part 2. MR. GARBER: It is. It is referenced, yes, in Let's finds out. That's made I don't know what

the trial brief of plaintiff -- I am sorry, under defendant's trial brief, at Page 6 of the trial brief. THE COURT: MR. ADAMS: Counsel? Two things in that regard, Your

Number one, as I assume they are well-aware of this,

but there is a videotape where my client tells Mr. Masilotti -- Mr. Masilotti is the president of Tesla -- what he is doing with these guys over at NMT. My client knew of this because he knew the videotape was running at the time. actually building something. Mr. Masilotti was

He was videoing the building I

of it so people would see in a factory how to build this.

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think it was a battery, if I remember correctly. When this case started, my client said, look, John, there is a video of this. videotape. We got a videotape. So we asked for the But part was cut off

because of this conversation. Tesla denied there was any other videotape. When Mr. Talbot was deposed, Mr. Talbot testified that, oh, yeah, I edited that videotape. THE COURT: MR. ADAMS: I cut that part out.

That part covered a conversation? Mr. Waldmann says, look, there are

these guys, they are building this piece of equipment, I am helping them out. I want to get sales out of this. He is

telling Mr. Masilotti what he is doing with these guys. THE COURT: the issues, the claims. MR. ADAMS: Absolutely, Your Honor. What is They It bears directly on one or more of

important from our perspective, they cut out evidence. cut out evidence. we -THE COURT: MR. ADAMS: They gave it to us cut out.

Only after

This was after the suit was filed? Yes, Your Honor. We finally got

what they claim now to be an edited version of this tape, which doesn't have the conversation in there. checked the videos, Your Honor. that are not in Video 2. I have

There is parts in Video 1

There is parts in Video 2 that are

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not in Video 1.

I still don't have the unedited video. Was the conversation restored,

THE COURT: though? MR. ADAMS: missing.

We don't know exactly what is

At least part of the conversation is there, and at

least enough that we show the jury, we will be able to show the jury that Tesla was well-aware of what he was doing. And then we want them to also know about the tampering of evidence. Also, Your Honor, we have a number of documents -THE COURT: MR. ADAMS: That fall into this same category? -- where they whited stuff out of We have the documents where they

the documents, Your Honor. are not whited out. trial.

So we are going to present them at You can look through

It's all in the evidence.

them, spend time looking through it, but it's all there. MR. GARBER: First, as to the video, my

understanding is what was produced originally was the training video. In other words, counsel correctly pointed

out this was done to prepare a training video to show people how to assemble this battery. was showing them. And my client as the inventor

What was produced was the training video,

which is edited footage from the raw footage. Then subsequently, the raw footage was produced.

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And that conversation, I know, I have seen it as well, and I know it's been produced. I don't know what to make of the falsifying documentary evidence, especially because this was all produced long before my involvement in the case, both edited and raw. THE COURT: So this was not the subject of any Was it the

motion, just mentioned in the trial brief?

subject of any requests for a jury instruction or spoliation or anything like that? MR. ADAMS: end of the evidence. at the time. THE COURT: MR. GARBER: Okay. That is what I am -- then the We will ask for spoliation at the

We will see how the evidence comes out

comment I heard just now as well about documents, that there is white-out, there are definitely redacted documents that we received from the government where they redacted sensitive information. For example, if you request information about contracts that a company has with the military, they will redact certain information about materials and things like that for sensitivity reasons. So, you know, when I hear a comment that there is whited-out portions and go find it in the records, I am

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not pleased to hear that. dealing with.

I would like to know what we are I

I don't want to deal with trial by ambush.

want to know what I am dealing with. MR. ADAMS: Your Honor, these are Tesla's The documents actually

documents, not government documents.

are again pertinent to the case in which they are exculpatory pieces of things that were whited out. one of them is grossly whited out. In fact,

You can look and see one Again, Your Honor,

of the letters before it was whited out. I don't have to do their work for them.

The documents, they have all these documents, they have both versions of them. And if they want to find We will

them they can, but I can tell you there are. present them at trial. THE COURT:

The purpose of a pretrial conference

is to try to eliminate as many evidentiary issues as we can. This is going to be a timed trial. You are only going to We have

get a limited number of hours in front of the jury. it down for four days.

So each side is going to be afforded

an equal amount of time based on a five-and-a-half-hour trial day. We are pretty secure in that calculation.

That's about how it works out in terms of the jury, the time you will get in front of the jury is about five and a half hours of the days. So your multiplier is five and a half This is an aside.

times four divided by two.

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You will keep your own time.

That is, Tesla We

will keep Waldmann's, Waldmann will keep Tesla's time. will back that up. timekeepers.

But I find that you are your own best

So I don't want to spend time at sidebar or on breaks trying to work through evidentiary issues of the type that are being previewed for me right now. It seems to

me -- this was not the subject of a motion of some type by either party? MR. ADAMS: MR. GARBER: THE COURT: MR. DEMMY: No, Your Honor. No. Do you want to say something? It is on procedure. Yes, I would. Not directly on

the substance of this point. THE COURT:

So what you need to do is, in

advance, you are going to have to have a further meet-and-confer and identify these documents that are referenced in the trial brief, videotapes, whatever the case may be, and discuss these evidentiary issues. So within the next several days you will need to gather together and discuss these. To the extent that you

are not able to work out issues, you will need to notify us, and we will get on the phone together. That should be

sooner rather than later, the notification that there are issues.

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Counsel. MR. DEMMY: Yes, Your Honor. In terms of Eleven hours each

calculating the time, I did quick math. side.

If one side uses eight, does the other side get 14? THE COURT: MR. DEMMY: No. You got your 11.

It's 11 each no matter whether you

use it or not. THE COURT: MR. DEMMY: That's right. You are not going to extend the

THE COURT:

No.

I am not extending the trial,

Quite frankly, I think probably that's more time than That's at least as much time as you will There won't be any more beyond those

you will need. have.

And that's it.

parameters that I have just described for you. So you need to adjust your evidentiary presentations and your closing speeches accordingly. I will not time your closing speeches and your openings and that kind of thing. That will be left to you

to decide how much, because that counts on your time. As to these evidentiary matters, to the extent there are still some looming out there that we haven't addressed at some point in discussion previous or today, you need to tee them up with one another for resolution among yourselves or between yourselves, and if not with me.

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Anything else that you saw, counsel? MR. GARBER: Some of the issues we raised in our

pretrial brief do, I think, involve legal issues in the sense that plaintiff makes a claim, for example, under the whistle-blower statute, trying a sort of private cause of action when the statute provides for administrative remedies, not a private cause of action. There is similar claims involving the review of the -- a claim for reviewing the personnel file. He wanted

to review his personnel file after his suspension and be permitted to put comments in there. They are trying to make

an affirmative civil claim when that statute doesn't provide a private civil cause of action for that. So -THE COURT: Was there a motion for summary

judgment filed, motion to dismiss or not of any kind? MR. GARBER: No, Your Honor. Those deadlines

had passed by the time I was involved. THE COURT: To the extent there is a failure of But I am not going to get

proof, we will address a JMOL.

into resolving issues that should have been raised earlier. MR. ADAMS: involve the same thing. with them. Your Honor, two issues. They both

It is just a matter of how to deal

One of them is to deal with some things. Almost all the conduct alleged against Waldmann

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was also alleged against NMT. case with Tesla.

NMT has, in fact, settled the

So it would seem to me the best way to handle whether Tesla is getting double-compensated in this case would be after judgment, assuming they got a judgment against Waldmann, we could address that as a matter of remittitur. seems to me. That would be the most logical way to do it, it I would like to bring that up. If we are not, then I have to address it at trial. THE COURT: MR. GARBER: Your Honor. MR. ADAMS: going to prevail. The second issue has to do with the settlement agreement. Unfortunately, I don't have a copy of the They don't have a copy of the I am being led to believe that this Personally, I don't think they are Any difficulty with that? I don't have a problem with that,

settlement agreement. settlement agreement.

settlement agreement prohibits Mr. Hollingsworth and Mr. Minnick, the two people, other people, other two defendants in this case, from appearing at trial. I sent an e-mail --

I had spoken to Jason on Thursday -- to Brian Sullivan, former counsel, I got an e-mail back this morning saying that they would look for it, but it was filed here under

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seal.

I am told there is no confidentiality provision in

the settlement agreement. But, Your Honor, I would like to have you strike any provision that prevents these people from testifying at trial. MR. GARBER: My understanding is that there is a

clause in there where they agree not to assist him in his case, assist the defendant in his case. But that certainly

doesn't relieve them from complying with subpoenas, nor could it. MR. ADAMS: Your Honor. see. THE COURT: You could certainly go into the They are more than a hundred miles,

I think that is a fairly typical clause that we

district where they are situated. MR. ADAMS: I can't make them appear. They are

more than a hundred miles away. THE COURT: You could go to the district where

they reside, file a miscellaneous action. MR. ADAMS: I can make them appear at a I cannot make them

deposition within a hundred miles. appear in this Court. Your Honor.

They are willing to voluntarily come, But they can't come

They are willing to come.

because of the settlement agreement, which says two things, as I am being told. One, they can't assist him, and two,

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they can't appear voluntarily. Again, I don't have the agreement. I wish I I

did, because then I can tell you exactly what it says. don't know exactly what it says because I have never actually read the thing. THE COURT: number? MR. ADAMS: morning said.

It is filed under this civil action

That's what the e-mail I got this

It said it was attached as an exhibit. I think it is attached as Exhibit A I don't

MR. GARBER: to that order. have a copy. THE COURT: to the document? MS. McDAVID:

I have to confess, I don't have it.

Ms. McDavid, do you see a reference

I do see an exhibit to the joint But there is nothing filed

motion for permanent injunction. under seal. record. THE COURT: Okay.

I can go look at it and see if it's on the

Thank you.

The upshot of your request is to have them appear. This is Hollingsworth? MR. ADAMS: lives in Oregon. THE COURT: MR. ADAMS: And they are willing to appear? They are willing to appear, Your One lives in Texas and I think one

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Honor. THE COURT: witnesses? MR. GARBER: THE COURT: may eliminate the issue. MR. GARBER: cooperate with us. of them. I don't know if they are willing to That is possible, Your Honor. If you are going to have them, this Do you have plans to have them as

We have deposition transcripts from both

We had at a minimum planned on using deposition

transcripts. THE COURT: finds. MR. ADAMS: Those were the two issues. I wish I Okay. Let's see what Ms. McDavid

had a copy of the settlement agreement, then I could tell you exactly what it says. I am at a disadvantage. I don't

think they know what it says, either.

I am just being told

that they are willing to come appear and testify but they are not allowed to do so. Since that settlement agreement

involves an order, I think you have the authority to say that is a misuse of justice. THE COURT: All right. housekeeping things. The first day of trial, you should expect the panel to be brought up at roughly 9:30. Three days in We will look at it. Then, let's just do some mundane

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advance of the first day of trial, you can get the jury list from Mr. Trickey. That list will change. On the morning of The

trial, Ms. Walker will have the final list for you.

reason that is important to know, the change, potential change, is because the numbering will change. Each juror will be assigned a number. They will respond during the general questions by number, not by name. number. They will rise and announce their I can't ever There will be

I think we will call roughly 50.

remember the number, of veniremen and women. roughly 50. We use the struck jury method. general questions.

I ask the

Each juror that responds affirmatively Those jurors,

to the question, we will make a note of that.

after I complete the questioning, will come to sidebar, where you will join me, on the record, and I will give you a limited opportunity to, after I ask some preliminary questions about their affirmative responses, to ask further questions of the putative juror. The juror will be dismissed. challenges for cause at that time. I will invite

I may initiate sua

sponte a dismissal for cause, child care issue, whatever the issue might be. I will rule on the motion. The juror will

remain in the well of the Court, even though the cause may

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have been granted or exercised, or ruled upon. We will get through all of the jurors that way. We will spend a few moments after that just to recapitulate to make sure, go back through all of the causes, so that we are sure that I have made no mistakes and that kind of thing. We will go back out. Ms. Walker will guide you

through the exercise of your peremptory challenges by passing a pad between the two parties. We will take a short break after the jury is sworn and come back and do your openings. Counsel, please keep in mind that openings are just that: they are guides to the evidence as you see it. I will not permit argument. I

They are not arguments.

emphasize that with counsel because I see the line pushed so often. I want to make it clear. You should object during any speech, whether opening or closing, in realtime. think you risk waiver. That is my preference. I

And as a practical matter, I think

if you wait till the end of the argument, it can become a problem from the standpoint of curing any damage that might have been done by way of a curative instruction. More often

than not it's my view, let's address the thing at the time that it occurs, the breach or whatever it may be. It may be

that after a sidebar discussion, counsel elects, the

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aggrieved party says, Judge, we don't want you to call additional attention to it, just leave it go. got your objection on the record in that way. That is my encouragement to you. MS. McDAVID: If there is a sealed document, if They But you have

we do have it, it is downstairs in the sealed vault. are searching right now for it. THE COURT: today.

I won't discuss that with you here

I will view that in camera. Objections. You simply rise, and state the I know the

nature of your objection, not the rule number. rules, as well as the number.

But if you want my attention

focused, you have got to get up and say, "Hearsay, relevance," whatever the case may be. promptly on the objection. You may not like the ruling. If you feel that I will rule pretty

it's important enough for us to get to sidebar, I may be a little irritable on the point, I don't enjoy sidebars mainly because our juries don't, but I do not prohibit sidebars. So you need to get me over to sidebar. We will discuss your -- I will hear argument and discussion at that time. Not in front of the jury. Don't

argue with me with about an objection in front of the jury. There is a podium in the courtroom. around. There is a mike at the podium. It moves

I would suggest you

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use it.

You do not question from counsel table.

You can

and shall use the podium. podium.

But you don't have to stay at the

If you want to move around, some lawyers feel more But you must keep a When you are less

comfortable moving about the courtroom. respectful distance from that jury box.

than a respectful distance, I will let you know. I am pretty formal -- not pretty, I am very formal. It is a federal courtroom. I expect it to be And so when When

treated with the appropriate level of decorum.

you want to move somewhere, you ask for permission.

you want to approach a witness, you ask me one time for that witness for leave to approach the witness. You will be

given leave automatically to approach that witness on a continuing basis. The next witness, ask for leave.

Juror books, notebooks, exhibit books, whatever you want to call them. There are two sets of books we

typically see over here in civil litigation, one that I more or less insist upon. equipment? MR. ADAMS: MR. GARBER: THE COURT: Yes. Yes, Your Honor. That is good only as far as it goes. Are you going to be using presentation

If you are flashing exhibits or deposition transcripts or you are playing back video deps, you know, these presentation tools can be great tools. But sometimes jurors

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can be left at sea a little bit and like to have a hard document in front of them that they can continuously refer to. Here is what you need to do. You need to agree

in advance on exhibits that will appear in your individual juror notebooks. You don't want to overwhelm them, but you

do want them to have documents that you think are going to come up time and again and you want them to be able to sit with and not have to try to remember from it being flashed on the screen. I think the number is 14 with books, individual books. We will seat eight jurors. alternates. All jurors will deliberate. I do not use Obviously, you

know that we can go down to the number of six, and below that with your permission. So the number 14 works out somehow. each juror, one for me, one for my clerk. number is 14. You can check on that. A book for

I think the

Is that it, Ms. McDavid? MS. McDAVID: can check with Ms. Walker. THE COURT: Ms. Walker, she is not here today, I am not really sure, Judge. I

April Walker, my chief deputy, will be your touchstone on these, access to the courtroom issues, that kind of thing.

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You should call her up. Witness binders. To the extent that your

witnesses, you have a number of documents that you want to work through with your witness, I would suggest you have binders for your witnesses. on you. that. So to the extent that you feel it prohibitive from an expense point of view and you want to begin to -litigating in federal court is awfully expensive. that. It really is. It's incredible. I know I am not going to impose this I understand

This is not Merck and Barr Labs.

I appreciate the But it is what it

dilemma that this presents for parties. is. The rules have reasons.

So I will permit you to not use a witness exhibit binder if you feel that you can get by without it because you are going to put it up for the witness. I

assume you will have a computer screen, your IT people will set a computer screen up at the witness station, one on the Bench, and one at each counsel table. I would suggest that

you have the Elmo, that you have an Elmo device in there as well as your projection device. MR. DEMMY: Your Honor, would it be Ms. Walker

to speak to about any preliminary work that needs to be done setting up a V -THE COURT: That's who you talk to. Yes.

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573-6471 is her direct dial. Ms. McDavid? MS. McDAVID: THE COURT: counsel, if any? MR. GARBER:

That's about it, I think.

I can't think of any. What other issues do you have,

I don't think so.

We are going to

try to continue to narrow issues, exhibits and witness objections. We will be ready to go on the 17th. THE COURT: Now that I have been delivered my

copy of Part 2, let me just take a look at your proposed preliminary instructions. MR. ADAMS: objections. MR. RIZZO: THE COURT: I don't recall any, either. Good. I see you picked up one of That's a good instruction, I don't think there were any

the Third Circuit instructions.

which I have not yesterday made a part of my general preliminary instructions. I am going to take another look. take another look at 1.9, note-taking. instruction. I am going to

I sort of like my

But there will be a note-taking instruction Either it will be this one that you

one way or the other.

proposed based on the Third Circuit's Model Civil or mine, that's also on the website that you have. And I will take a I see

look again at 1.10, the preponderance of evidence.

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that is based on the Third Circuit's Model as well 1.12, I will take a look at that, as well as 1.13, 1.4, 1.6, those are all I see based on the Federal Jury Practice Instructions, the Fifth Edition, I will take a look and see what I think about those, as well as 2.2, 2.3, 4, 5, 6, 7, 8, 1.01, 1.02 -- I will take a look at all of the proposed preliminary instructions that are based on some form instruction form other than my own. general subject matter. adequate. But they will cover the

I think they will be more than

I will let you know. Plaintiff carries the laboring oar, pulls the

laboring oar on all instructions. what needs to be changed. MR. GARBER: THE COURT: MR. GARBER: THE COURT:

So we will let you know

Very well. Counsel, anything else? No, Your Honor. What, as a practical matter, can you

lawyers do to reopen the issue of settlement in this case? (Discussion off the record.) MR. ADAMS: The part you are reading may be the

part that you signed, not the part they signed. THE COURT: I think it is, yes.

Rather than holding you here, because this goes on -- wait a second. The NMT parties were composed of?

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 appear. comments. company NMT.

MR. ADAMS:

Hollingsworth, Minnick, and the

Hollingsworth and Minnick. THE COURT: Who were the subject of your earlier

MR. ADAMS: THE COURT:

Yes, Your Honor. I will report to you that there does

seem to be a provision that prohibits the voluntary, quote, provision of testimony by the NMT parties. voluntary. MR. ADAMS: Yes, Your Honor. But I cannot But that is

subpoena them because they are more than a hundred miles away. THE COURT: have a subpoena here. MR. ADAMS: a hundred miles. THE COURT: MR. ADAMS: Okay. We won't argue about it. I don't think that means you cannot Look at it again. I can't make a witness appear within

I think if you ordered they could

That solves my problem. THE COURT: MR. ADAMS: I will look at it. Okay.

And I would like a copy of the

settlement agreement, too, Your Honor. THE COURT: I am not going to give you a copy of Not until I look

the settlement agreement at this point. further at it.

There was a reason it was filed under seal.

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MR. ADAMS:

I believe Exhibit A is the reason I had a

it's under seal, which is the trade secrets.

similar version to that agreement which they had sent to me for my client and there was an exhibit to it, which was a list of confidential trade secrets, things like that. They

told me the thing would be filed under seal because of that. THE COURT: I have to look at the terms of the

consent decree and what is provided for by the consent decree before I start willy-nilly providing either side or both sides. MR. ADAMS: My client doesn't want to have NMT

somebody say they breached the settlement agreement.

doesn't want somebody saying they breached the settlement agreement. THE COURT: I am sure they don't.

Bear with me just a second. (Brief recess taken.) THE COURT: What is Tesla's position on any

That is, Tesla is a party to the sealed What is Tesla's position with regard Would it be a

settlement agreement.

to Minnick and Hollingsworth appearing? breach, in your view? MR. GARBER:

We do -- we would seek to uphold

all the provisions of the agreement in the consent decree. First of all, it doesn't prohibit the plaintiff from, as you

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say, issuing a subpoena even in a location where they reside and take a trial deposition. And second of all, we have

ample deposition testimony, a thorough record that can be used as well. MR. ADAMS: Your Honor, my view would be they

cannot use those things because they cannot create the unavailability and claim the witness is unavailable. are creating the unavailability by refusing to let the witness appear. So I don't believe that applies under 804. They

I don't believe they can create an unavailability and then claim he is unavailable. MR. GARBER: supposes. I don't think that is what the rule

It is simply by virtue of them being outside of

this Court's subpoena power, then unavailability is met. And depositions can be used for any purpose. THE COURT: 32. MR. ADAMS: THE COURT: 45? No. 32. We are talking about I will look at Rule 32, I think it's

45 deals with subpoenas. the use of depositions.

It's usually not a good idea on civil procedure to get into a joust with a federal judge. smart. It's not real

As knowledgeable as you may be, it's really more

annoying than not.

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MR. ADAMS: THE COURT:

I agree, Your Honor. I will come to a decision on this,

as to what I can do within the limits of my authority. Tesla is free to stand on its rights, as they perceive them. I will look at Rule 804 and see how that may impact things. And your contention that they have created the unavailability, I will look at that issue as well. Anything else, counsel? MR. ADAMS: Your Honor, I know they didn't

request it, I would request that they get a copy of the settlement agreement. At least then we know that somebody

has a copy of the actual settlement agreement. THE COURT: Do you know why you don't have a

MR. GARBER:

I have had difficulty, Your Honor, We have got about

getting materials from my prior counsel.

75 boxes they have come in over time, the last of which was a week ago. We don't see a signed copy of that agreement. And the last So we are in

We have requested it from prior counsel.

communication heard was they would look again. an awkward position there. THE COURT: electronically filed? MS. McDAVID:

Well, I take it this was

It was electronically filed. It was just

However, the settlement agreement was not.

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filed as a sealed document. THE COURT: Ms. McDavid, that's Exhibit 1. The mutual

Is that what you are talking about? general release and settlement agreement? MS. McDAVID: THE COURT: counterparts. Yes.

Which seems to be signed in

I will provide you with a copy. Thank you, Your Honor. Ms. McDavid will get that. Just one copy. They are

MR. GARBER: THE COURT:

a party to the agreement. MR. ADAMS:

I am under the understanding that I am not completely sure that

NMT doesn't have it, either. is exactly accurate.

But that's at least the implication

that I have been given, that they don't have it, either. It's very confusing. THE COURT: Anything else, counsel?

(Conference concluded at 11:05 a.m.) Reporter: Kevin Maurer -