A while back, I wrote about the Shanus v. Robert Edwards Auctions, et al. action. Basically, this is the case where Corey Shanus sued Robert Edwards Auctions, LLC (“REA") and Robert Lifson (Owner and Managing Member of REA) for selling him sports memorabilia that was allegedly not authentic.
I've been silent on this case for some time because it entered the boring "discovery" phase. Sure, lots of documents are (allegedly) being passed back and forth between the parties, and a lot of depositions are (allegedly) occurring. However, all of this alleged action takes place between the parties and not in court, so the public doesn't get to see anything until a skirmish breaks out.
A skirmish finally broke out, so we get a peek at what's happening.
It appears that prior to filing the lawsuit, Shanus had Steven Grad, PSA's lead authenticator, inspect the items he purchased. Grad determined the items were allegedly not authentic.
Given this, Grad is a pretty important witness for the plaintiff.
In response to requests from both sides, Grad voluntarily agreed to provide deposition testimony, and it appears he testified for nearly 14 hours.
Now, under the Federal Rules of Civil Procedure, there's a seven-hour time limitation on depositions. So, Grad agreed to testify for twice the required amount, which I think shows either 1) he was really trying to be helpful or 2) he's a glutton for punishment because seven hours of questions form an attorney is not fun. Doubling it is even less so.
It appears that as day two of the deposition ended, the issue of continuing for a third day arose. Grad's attorney objected, arguing that both sides already had their opportunity to question Grad and that a third day would be an undue burden. As the lead authenticator for PSA, every day he provided testimony, PSA lost out on thousands of dollars in revenue.
Plaintiff's counsel agreed. Then there was an argument on the record, and the deposition ended.
Attorney arguments on the record are fun to read. Imagine a room with multiple attorneys -- attorneys representing the plaintiff, attorneys representing the defendant and, sometimes (like here) attorneys representing the witness. Given so many parties with differing agendas, heated arguments are always fun.
For example, here the defense attorney argued that if he didn’t get one more day of deposition testimony, he was going to move to exclude all of Grad's testimony from the case. Plaintiff's attorney, however, suggested this was the defense attorney's plan all along:
"I think that's your game plan from the start, is to try to keep Mr. Grad's testimony out. So I think it's fairly transparent that you will do what you need to do and try to do to try to claim that you didn't have an opportunity to cross-examine Mr. Grad. But you had more than time allotted under the federal rules."
And while this citation from the transcript sounds like it's chock full of typos, remember there's a another person in the room, the court reporter. It's his or her job to type every word said. And when people argue, they speak fast. So errors happen.
Anyway, there was also a fight on the record about what time the deposition was supposed to start too, and this is amusing because the witness got involved also:
THE WITNESS: You arrived late, too.
MR. KOZYRA: Excuse me?
THE WITNESS: You arrived late.
MR. KOZYRA: Incorrect.
THE WITNESS; No.
MR. KOZYRA: This deposition was scheduled for 9:30, Mr. Grad.
THE WITNESS: 9:00.
MR. KOZYRA: I don't know what you were told by whoever. And I don't really care what you have to say.
Looks like court reporter nailed that one.
Unsolicited practice pointer for attorneys: Please don't end an argument with "I don't really care what you have to say." Sure, think it all you want. I do all the time, especially when opposing counsel is talking. Just don't say it. And if you do say it,just not on the record.
After the deposition ended, the defendants pursued a third deposition by issuing a subpoena to Grad.
Legal translation: Now, a subpoena is not just a legal term that sounds like a punch line to a dirty joke. It's a legal document that allows parties to a lawsuit to get documents and sworn testimony from non-parties.
However, subpoenas have limits. If a witness believes a subpoena is subjecting him or her to an undue burden, the witness can move to quash the subpoena, or for a protective order. Both of these seek the same thing: an order from the judge squashing the subpoena like a bug, or modifying it somehow.
That's what Grad did. This week, his attorney filed a motion to quash and asked for a hearing date on the issue in October.
Now, we haven't heard the defendants' side yet (or really the plaintiff's either), so before you guess who should win and lose, you might want to listen to both sides.
From past experience, I bet the court will require more deposition testimony, but will probably limit it to two or three more hours.
Legal translation: Yeah, that seven-hour time limit from the Federal Rules? It's rarely enforced for important witnesses.
However, the judge may insert the following condition: since PSA is allegedly losing thousands of dollars when Grad testifies, the defendants need to pay some hourly fee for Grad's time.
Surely if Mr. Kozyra has to pay for Grad’s time, he might actually care this time about what he has to say.
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