United Realty Advisors, LP v. Verschleiser

Background

The court considered plaintiffs’ motion for permission to introduce the deposition testimony of Alexander Veen at trial. Plaintiffs described Veen as a third-party witness who used technical expertise to create websites, blogs, and other internet postings at Defendant Eli Verschleiser’s direction. Veen was deposed on September 14, 2016, with both sides present.

Defendants previously moved to exclude Veen’s deposition testimony. They argued that plaintiffs and their counsel ended the deposition about 40 minutes early, depriving the Verschleiser parties of additional questioning. Defendants also argued that plaintiffs’ counsel obstructed defense counsel’s attempt to serve Veen with a subpoena for a later deposition, physically blocked the attempted service, escorted Veen away, and kept him somewhere defense counsel could not reach him. Plaintiffs did not address those arguments in their response to the earlier motion.

In an October 3, 2019, order, the court ruled that Veen could testify at trial only if he was made available for a renewed deposition limited to two hours in New York by the end of October. The court stated that, unless Veen testified at that deposition, his trial testimony would be excluded.

Plaintiffs’ request

Plaintiffs asked the court to waive those conditions. They said Veen refused to return to New York from Ukraine because of the passage of time and fear of Verschleiser. Plaintiffs also cited the COVID-19 pandemic, Russia’s invasion of Ukraine, unsuccessful efforts to locate Veen, and uncertainty about whether a remote deposition could occur. Plaintiffs argued that excluding Veen’s testimony would cause substantial prejudice and that defendants would not be unfairly harmed because defendants had themselves sought to use portions of the deposition.

Court’s reasoning

Judge Friedman applied the law-of-the-case doctrine, which generally means that a court’s ruling on a legal issue continues to govern later stages of the same case. The court explained that reconsideration may be justified by an intervening change in controlling law, new evidence, a clear error, or the need to prevent manifest injustice.

The court found that plaintiffs had not shown any of those circumstances. Although the pandemic and war in Ukraine were extraordinary events, plaintiffs had repeatedly failed to address defendants’ allegations concerning obstruction of cross-examination and the renewed deposition. Plaintiffs also had not complied with the 2019 order requiring Veen to be available for that renewed deposition.

The court further relied on the rule governing deposition testimony as an exception to the general ban on hearsay. Under that rule, the opposing party must have had a full, substantial, and meaningful opportunity to question the witness. The court concluded that the alleged obstruction, plaintiffs’ failure to address the allegations, and failure to comply with the earlier order meant that Veen’s testimony had not been subjected to the required meaningful questioning.

Disposition

The court denied plaintiffs’ motion for leave to introduce Alexander Veen’s deposition testimony. It also ordered that both parties were precluded from introducing that testimony at trial.