Free Motion in Limine - District Court of Delaware - Delaware

Case 1 :04-cv-01380-GMS Document 58 Filed 08/29/2005 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
) Chapter 11
. )
I“ "°‘ ) Case Ne. 00-1982 (civis)
)
GST TELECOM INC·= E! 25 ) Jeiimy Administered
Debtors. )
)
)

)
GST TELECOM INC., gg _a_L, )
) Civil Docket N0. 04—CV—1380
Counterplaintiffs, )
)
v. )
)
JOHN WARTA, )
)
Counterdefendant. )
GST’S MOTION IN LIMINE REGARDING STATEMENTS OR OPINIONS IN
UNRELATED LITIGATION
GST Telecom Inc. and the other debtors and debtors—in~possession in the above-
captioned cases (collectively, "GST"), by their attorneys, hereby submit this motion in limine for
an order barring claimant John Warta from presenting any evidence or argument regarding
statements or mlings by Hon. Milton Pollack in GST T eleconzznnnications, Inc. v. Step/ien Irwnz,
98 Civ. 8865 (MP) (SDNY). That evidence is entirely irrelevant to any issue in this case, and its
value » if any — is vastly outweighed by the unfairly prejudicial effect. It must, therefore, be
precluded under Fed. R. Evid. 40l and 403.
Central to Waita’s "Bad Faith/Detrimental Reliance" claim is the notion that GST
brought meritless litigation against him in a bad faith attempt to avoid its purported contractual
liability to him. In support of this claim, Warta has taken the position that the litigation that GST
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Case 1:04-cv-01380—Gl\/IS Document 58 Filed 08/29/2005 Page 2 of 4
brought against him was without merit, as supposedly evidenced by certain statements of the
Honorable Milton Pollack of the United States District Court for the Southern District of New
York in connection with a malpractice action between GST and its former attorney, Stephen
Irwin. In his deposition, Irwin- who is listed as a potential trial witness for Warta - claimed that
Judge P0llacl<’s opinion was somehow relevant to show that GST’s claims against Warta lacked
merit.
Judge Pollacl<’s statements are, ofcourse, inadmissible hearsay, and may be
excluded in their entirety on that basis. Moreover, nothing relating to the case that was presented
to Judge Pollack is relevant to the claims made in the current litigation, however, and any
reference to that litigation by Warta or any of his witnesses would be highly misleading and
prejudicial to GST in the instant, unrelated litigation.
First, Warta was not even a party to the litigation before Judge Pollack. That
litigation did not purport to raise the question whether Warta breached his fiduciary duties to
GST in connection with any transaction.
Second, the litigation between GST and Irwin related to whether Irwin and his
firm breached their duties as GST’s attorneys, not whether Warta or anyone else breached duties
as directors of GST.
Third, the malpractice issues raised in the Irwin litigation related to Iiwin`s advice
regarding various transactions, not whether those transactions were themselves appropriate, and
still less whether Wa1ta’s personal involvement in those transactions was appropriate.
That is, anything that Judge Pollack may have said with respect to GST’s
malpractice claims against Irwin are entirely irrelevant to the only question at issue in this case:
Warta’s breach of fiduciary duties owed to GST. Warta has not claimed —— because he cannot-

Case 1:04-cv-01380—Gl\/IS Document 58 Filed 08/29/2005 Page 3 of 4
that anything Judge Pollack may have said about GST’s claims against Irwin had any preclusive
effect on the current, unrelated litigation. Nor can such inadmissible hearsay be "evidence" of
any factual matter here. It is, in a word, irrelevant.
In addition to being irrelevant, any such evidence or argument would be highly
prejudicial to GST. Coming from a respected federal judge, anything Judge Pollack might have
said could have undue influence over a _jury. These are not the mere comments of another
witness, but the pronouncements of a federal judge, for whom the _jury will undoubtedly have a
great deal of respect, even if those statements were made in a context entirely inapposite to the
issues in this case. Indeed, if any of this evidence or argument is allowed in, it would require a
trial within the trial to educate the _jury as to the differences between the issues that Judge Pollack
was addressing and the issues in this case. As such, this evidence would be an entirely
unnecessary distraction that, if presented to the jury without explanation, would mislead and
confuse the jury to GST’s prejudice.
This evidence must be excluded to avoid prejudice to GST and distraction to the
jury, as required by Fed. R. Evid. 40l and 403.
Wilmington, Delaware
Date: August 29, 2005
Steven M. M er (No. 3885)
Christopher A. Ward (No. 3877)
THE BAYARD FIRM
222 Delaware Avenue, Suite 900
P.O. Box 25130
Wilmington, Delaware 19899
(302) 655-5000
-and-
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Case 1:04-cv-01380—G|\/IS Document 58 Filed 08/29/2005 Page 4 of 4
David S. Heller
William J. Gibbons
Josef S. Athanas
Michael J. Faris
Danielle S. Kemp
LATHAM & WATKINS LLP
Suite 5800 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
(312) 876—770O
Attorneys for the Debtors
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