Preview
FILED: ALBANY COUNTY CLERK 03/15/2023 04:14 PM INDEX NO. 908063-22
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 03/15/2023
EXHIBIT 6 - HEARING TRANSCRIPT 8/19/20
FILED: ALBANY COUNTY CLERK 03/15/2023 04:14 PM INDEX NO. 908063-22
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 03/15/2023
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1 THE COURT: I've never seen anything to
2 suggest that a subpoenaed witness is taking a role. Do
3 you have -- do you have support for argument?
that
4 MR. POLIrRTJ.T: I think it's axianatic.
5 THE COURT: Axiomatic that --
6 MR. POLICELLI: Yes, yes.
7 THE COURT: If you don't have a case to
8 support that position, I'm not buying it. It doesn't
9 make -- it doesn't make logical sense.
10 If you force a witness to appear by subpoena,
11 that person is taking no role in the case. They're
12 merely there by canpulsion.
13 MR. POLICELLI: Then what does it mean, any
14 role in this litigation, to your Hanor?
15 THE COURT: It doesn't matter -- What it does
16 not mean is that a subpoenaed witness is taking a role.
17 MR. POLI RTJ.T: Well, I respectfully
18 disagree.
19 THE COURT: You may respectfully disagree,
20 but unless you've got same case law support for your
21 position, it's not going to make sense.
22 MR. POLICEFI-I: Well, here's the practical
If '
23 effect, then. he s supposed to show up for a
24 deposition, and we interpret this court order to say
25 that his role in the litigation as a witness is a
Nicola Fartelli,Sr.CourtReporter
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1 violation of this order, we need to get this cleared up
2 in federal court.
3 THE COURT: No.
4 MR. POLICELLI: Because this order's on
5 appeal to Judge Hurd.
6 THE COURT: You can't that -- that it's
say
7 -- that it's not nighttime just because don't --
you it
8 doesn't agree with what you want it to mean.
9 It -- I'm you right there is
telling now,
10 -- I have never seen support for the
absolutely any
11 notion that a -- that a subpoenaed witness is a
taking
12 role. They are cmpelled by the subpoena to appear.
13 MR. Pnt.T RrI.T: Yes. And for what purpose?
14 To give evidence, right?
15 THE COURT: They are cmpelled to appear.
16 MR. POLI RF.T.T: To give evidence?
17 THE COURT: Not to -- No --
18 MR. POLIrgr.T.T: Why else are you copelling
19 them for?
20 THE COURT: He's there to -- he was
21 subpoenaed to testify.
22 MR. POLIcRrr.T: Right. And what's testimony?
23 It's evidence, right?
24 THE COURT: It's not the role in litigation.
25 MR. POLIcRr.T.T: Sure it is.
NicolaFanelli,Sr. CowtReporter
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1 THE COURT: The role in litigation is by the
2 parties. He's not a party.
3 MR. POLICELLI: You don't have to be a party
4 to take a role.
5 THE COURT: Mr. Policelli, I'm not buying
6 that argument.
7 MR. POLICELLI: Well, don't buy it, then.
8 But what I'm trying to tell you is that this is the
9 order fran a federal judge that's on appeal to another
10 federal judge as to what this means. And that's going
11 to be dependent on what the Second Circuit says.
12 THE COURT: Okay. Let's -- let's remember
13 that -- that you're about what's on in
talking going
14 the federal action, having to do nothing with what I've
15 got before me.
16 MR. POLICELLI: I disagree.
17 THE COURT: Well, you can disagree all you
18 want, but this is a state court proceeding, and he's
19 been in a state court prowirwy. He's --
subpoenaed
20 the -- the -- the -- I have -- I just don't know where
21 you're going with this argument.
22 MR. POLIrRr.T.T: Well, if he's subpoenaed and
23 he's asked questions about this, he's going to plead
24 attorney/client privilege, he's going to plead work
25 product, and he's going to plead his right against self
NicofaFanelli,Sr.CourtReporter
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1 incrimination.
2 THE COURT: I don't know what he's going to
3 do. All I know is that you've got --you've got a
4 subpoena that he's required to show up for. He's
5 required by the subpoena to appear. He's not taking a
6 role. I'm telling you right now, he's not taking a
7 role.
8 MR. POLIc'RT.T.T: Well, like I said, I disagree
9 with you.
10 THE COURT: Well, it doesn't matter if you
11 disagree with me, Mr. Policelli. You're wrong.
12 MR. POLICELLI: Well, I think you're wrong.
13 THE COURT: Well , you may think that I'm
14 wrong, Mr. Policelli, but I'm telling you right now,
15 but I'm you right now --
telling
16 MR. POLICELLI: We can go back to federal
17 court. It doesn't matter.
18 THE COURT: Mr. Policelli, I'm telling you
19 right now that you are wrong. And I didn't ask whether
20 you agreed with me or not. I'm telling you that in my
21 view, as the judge in this case, you are wrong.
22 Mr. -- Mr. Kernan is under subpoena to
Now,
23 appear for deposition. I suspect that he will appear
24 for that deposition and -- and act as he's
accordingly,
25 required, in that deposition.
NicolaFaneth,Sr. Cowt Reporter
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1 MR. POLIr'RTJ.T: And what do you mean by "act
2 accordingly"?
3 THE COURT: I -- I don't have issue in
any
4 front of me as to how he behaves in his deposition, so
5 I can't address that issue. But I'm telling you he's
6 under subpoena. Look up subpoena. Find out what a
7 subpoena is and what it requires a person to do.
8 MR. POLIPRFII: To partake in litigation.
9 Thank you.
10 THE COURT: Oh, for crying out loud, Mr.
11 Policelli. Get off of it. You are wrong. I don't
12 know how many times I have to tell you that.
13 Ms. would you like to --
Now, Sprague,
14 MS. SPRAGUE: Yes, your Honor. Good morning.
15 Your Honor, I'm here representing Oriska. As you know,
16 we filed an order to show cause asking for the relief
17 to stay this action pending the federal action that's
18 taking place, or, in the alternative, stay this action
19 while we wait the appeal that Mr. Kernan has filed.
20 We make this argument today because, as you
21 the -- the case in federal court aml« with the
know,
22 same issues that are here today. In the state court
23 action here we have breach of contract action that
24 we filed. In federal court it's Oriska and RICO
25 matter. The reason we filed the federal court secondly
NicolaFanelli,Sr.CourtReporter
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1 is because we discovered new evidence after this action
2 was already filed. We didn't want to dismiss this
3 action not knowing where the federal action was going.
4 We have here an order from you dated March
5 13, 2019, ordering Mr. Bagley to construct a Chinese
6 Wall with the non-witness, Mr. Ketnan. Oriska would
7 like to cceply with all the orders of this court and
8 federal court.
9 We have come into a tight spot where we're
10 trying to comply with your order and also provide Mr.
11 Kernan the documents he will need.
12 THE COURT: Why? Why would you provide him
13 with anything?
14 MS. SPRMUE: your based on --
Well, Honor,
15 THE COURT: The subpoena doesn't require you
16 to provide him with anything.
17 MS. SPRMOE: And that -- that's we're
why
18 here, your Honor, because we would like to clarify
19 where we stand with this, because Mr. Bagley is the
20 --
attorney
21 THE COURT: Why should there be any
22 clarification of the subpoena? The subpoena speaks for
23 itself. And, in fact, it only requires him to provide
24 documentation that is in his possession or is easily
25 accessible to him. It doesn't require Oriska to
NicolaFaneKi, Sr. CourEReporter
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NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 03/15/2023
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1 provide him with anything. It doesn't require him to
2 go to Oriska and ask for anything. It doesn't require
3 that Oriska co- -- involve itself with Mr. Kernan in --
4 in putting together whatever he would put together in
5 -- in to the subpoena. It requires
responding only
6 that he provide whatever he's got in his possession or
7 is easily accessible to him.
8 MS. SPRAGUE: Well, that does clarify things
9 for us, because many of the things are in Oriska's
10 possession. And Mr. Bagley's the attorney that's
11 handling the discovery aspects of this litigation.
12 THE COURT: I guess I'm baffled at this time,
13 because the subpoena -- I I -- I'm
mean, doing nothing
14 but to the -- to the exact language of the
referring
15 and I'm -- and at the last motion Mr.
subpoena, also,
16 Policelli and I had a conversation on the record about
17 the subpoena. Mr. Policelli said: Well, what about
18 the -- he doesn't have access to some I
any mail,
19 think it was, or something. And my response was, if he
20 doesn't have it, he doesn't need to provide it. So
21 that --
22 MS. SPRAGUE: Well, that helps my client,
23 because we are concerned how are we going to cmply and
24 provide documents that are being asked of when
25 they're in the possession and control of Oriska.
NicolaFanelli,Sr.CourtReporter
FILED: ALBANY COUNTY CLERK 03/15/2023 04:14 PM INDEX NO. 908063-22
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 03/15/2023
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NYSCEF DOC. NO. 35A
Preview
FILED: ALBANY COUNTY CLERK 03/15/2023 04:14 PM INDEX NO. 908063-22 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 03/15/2023 EXHIBIT 6 - HEARING TRANSCRIPT 8/19/20 FILED: ALBANY COUNTY CLERK 03/15/2023 04:14 PM INDEX NO. 908063-22 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 03/15/2023 140 ONEIDA INDEX NO. EFCA2017-002154 |FILED: COUNTY CLERK 08/19/2020 03:24 PB$ NYSCEF DOC. NO. 3SA RECEIVED NYSCEF: 08/19/2(20 15 1 THE COURT: I've never seen anything to 2 suggest that a subpoenaed witness is taking a role. Do 3 you have -- do you have support for argument? that 4 MR. POLIrRTJ.T: I think it's axianatic. 5 THE COURT: Axiomatic that -- 6 MR. POLICELLI: Yes, yes. 7 THE COURT: If you don't have a case to 8 support that position, I'm not buying it. It doesn't 9 make -- it doesn't make logical sense. 10 If you force a witness to appear by subpoena, 11 that person is taking no role in the case. They're 12 merely there by canpulsion. 13 MR. POLICELLI: Then what does it mean, any 14 role in this litigation, to your Hanor? 15 THE COURT: It doesn't matter -- What it does 16 not mean is that a subpoenaed witness is taking a role. 17 MR. POLI RTJ.T: Well, I respectfully 18 disagree. 19 THE COURT: You may respectfully disagree, 20 but unless you've got same case law support for your 21 position, it's not going to make sense. 22 MR. POLICEFI-I: Well, here's the practical If ' 23 effect, then. he s supposed to show up for a 24 deposition, and we interpret this court order to say 25 that his role in the litigation as a witness is a Nicola Fartelli,Sr.CourtReporter FILED: ALBANY COUNTY CLERK 03/15/2023 04:14 PM INDEX NO. 908063-22 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 03/15/2023 141 |FILED: ONEIDA COUNTY CLERK INDEX NO. EFCA2017-OO2 54 08/19/2020 03:24 PM| NYSCEF DOC. NO. 354 RECEIVED NYSCEF: 08/19/2<20 16 1 violation of this order, we need to get this cleared up 2 in federal court. 3 THE COURT: No. 4 MR. POLICELLI: Because this order's on 5 appeal to Judge Hurd. 6 THE COURT: You can't that -- that it's say 7 -- that it's not nighttime just because don't -- you it 8 doesn't agree with what you want it to mean. 9 It -- I'm you right there is telling now, 10 -- I have never seen support for the absolutely any 11 notion that a -- that a subpoenaed witness is a taking 12 role. They are cmpelled by the subpoena to appear. 13 MR. Pnt.T RrI.T: Yes. And for what purpose? 14 To give evidence, right? 15 THE COURT: They are cmpelled to appear. 16 MR. POLI RF.T.T: To give evidence? 17 THE COURT: Not to -- No -- 18 MR. POLIrgr.T.T: Why else are you copelling 19 them for? 20 THE COURT: He's there to -- he was 21 subpoenaed to testify. 22 MR. POLIcRrr.T: Right. And what's testimony? 23 It's evidence, right? 24 THE COURT: It's not the role in litigation. 25 MR. POLIcRr.T.T: Sure it is. NicolaFanelli,Sr. CowtReporter FILED: ALBANY COUNTY CLERK 03/15/2023 04:14 PM INDEX NO. 908063-22 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 03/15/2023 142 INDEX NO. EFCA2017 -0023 54 |FILED: ONEIDA COUNTY CLERK 08/19/2020 03:24 P)$ NYSCEF DOC. NO. 35' . RECEIVED NYSCEF: 08 /19/20 20 17 1 THE COURT: The role in litigation is by the 2 parties. He's not a party. 3 MR. POLICELLI: You don't have to be a party 4 to take a role. 5 THE COURT: Mr. Policelli, I'm not buying 6 that argument. 7 MR. POLICELLI: Well, don't buy it, then. 8 But what I'm trying to tell you is that this is the 9 order fran a federal judge that's on appeal to another 10 federal judge as to what this means. And that's going 11 to be dependent on what the Second Circuit says. 12 THE COURT: Okay. Let's -- let's remember 13 that -- that you're about what's on in talking going 14 the federal action, having to do nothing with what I've 15 got before me. 16 MR. POLICELLI: I disagree. 17 THE COURT: Well, you can disagree all you 18 want, but this is a state court proceeding, and he's 19 been in a state court prowirwy. He's -- subpoenaed 20 the -- the -- the -- I have -- I just don't know where 21 you're going with this argument. 22 MR. POLIrRr.T.T: Well, if he's subpoenaed and 23 he's asked questions about this, he's going to plead 24 attorney/client privilege, he's going to plead work 25 product, and he's going to plead his right against self NicofaFanelli,Sr.CourtReporter FILED: ALBANY COUNTY CLERK 03/15/2023 04:14 PM INDEX NO. 908063-22 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 03/15/2023 143 INDEX NO. EFCA2017-002154 FILED: ONEIDA COUNTY CLERK 08/19/2020 03:24 PM| NYSCEF DOC. NO. 35' RECEIVED NYSCEF: 08/19/2( 20 18 1 incrimination. 2 THE COURT: I don't know what he's going to 3 do. All I know is that you've got --you've got a 4 subpoena that he's required to show up for. He's 5 required by the subpoena to appear. He's not taking a 6 role. I'm telling you right now, he's not taking a 7 role. 8 MR. POLIc'RT.T.T: Well, like I said, I disagree 9 with you. 10 THE COURT: Well, it doesn't matter if you 11 disagree with me, Mr. Policelli. You're wrong. 12 MR. POLICELLI: Well, I think you're wrong. 13 THE COURT: Well , you may think that I'm 14 wrong, Mr. Policelli, but I'm telling you right now, 15 but I'm you right now -- telling 16 MR. POLICELLI: We can go back to federal 17 court. It doesn't matter. 18 THE COURT: Mr. Policelli, I'm telling you 19 right now that you are wrong. And I didn't ask whether 20 you agreed with me or not. I'm telling you that in my 21 view, as the judge in this case, you are wrong. 22 Mr. -- Mr. Kernan is under subpoena to Now, 23 appear for deposition. I suspect that he will appear 24 for that deposition and -- and act as he's accordingly, 25 required, in that deposition. NicolaFaneth,Sr. Cowt Reporter FILED: ALBANY COUNTY CLERK 03/15/2023 04:14 PM INDEX NO. 908063-22 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 03/15/2023 144 |FILED: ONEIDA COUNTY CLERK INDEX NO. EFCA2017-002754 08/19/2020 03:24 P)4 NYSCEF DOC. NO. 354 RECEIVED NYSCEF: 08/19/2t20 19 1 MR. POLIr'RTJ.T: And what do you mean by "act 2 accordingly"? 3 THE COURT: I -- I don't have issue in any 4 front of me as to how he behaves in his deposition, so 5 I can't address that issue. But I'm telling you he's 6 under subpoena. Look up subpoena. Find out what a 7 subpoena is and what it requires a person to do. 8 MR. POLIPRFII: To partake in litigation. 9 Thank you. 10 THE COURT: Oh, for crying out loud, Mr. 11 Policelli. Get off of it. You are wrong. I don't 12 know how many times I have to tell you that. 13 Ms. would you like to -- Now, Sprague, 14 MS. SPRAGUE: Yes, your Honor. Good morning. 15 Your Honor, I'm here representing Oriska. As you know, 16 we filed an order to show cause asking for the relief 17 to stay this action pending the federal action that's 18 taking place, or, in the alternative, stay this action 19 while we wait the appeal that Mr. Kernan has filed. 20 We make this argument today because, as you 21 the -- the case in federal court aml« with the know, 22 same issues that are here today. In the state court 23 action here we have breach of contract action that 24 we filed. In federal court it's Oriska and RICO 25 matter. The reason we filed the federal court secondly NicolaFanelli,Sr.CourtReporter FILED: ALBANY COUNTY CLERK 03/15/2023 04:14 PM INDEX NO. 908063-22 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 03/15/2023 145 INDEX NO. EFCA2017-00235 4 |FILED: ONEIDA COUNTY CLERK 08/19/2020 03:24 PD NYS CEF DOC. NO. 35 # RECEIVED NYSCE F: 08/1 9/21 20 20 1 is because we discovered new evidence after this action 2 was already filed. We didn't want to dismiss this 3 action not knowing where the federal action was going. 4 We have here an order from you dated March 5 13, 2019, ordering Mr. Bagley to construct a Chinese 6 Wall with the non-witness, Mr. Ketnan. Oriska would 7 like to cceply with all the orders of this court and 8 federal court. 9 We have come into a tight spot where we're 10 trying to comply with your order and also provide Mr. 11 Kernan the documents he will need. 12 THE COURT: Why? Why would you provide him 13 with anything? 14 MS. SPRMUE: your based on -- Well, Honor, 15 THE COURT: The subpoena doesn't require you 16 to provide him with anything. 17 MS. SPRMOE: And that -- that's we're why 18 here, your Honor, because we would like to clarify 19 where we stand with this, because Mr. Bagley is the 20 -- attorney 21 THE COURT: Why should there be any 22 clarification of the subpoena? The subpoena speaks for 23 itself. And, in fact, it only requires him to provide 24 documentation that is in his possession or is easily 25 accessible to him. It doesn't require Oriska to NicolaFaneKi, Sr. CourEReporter FILED: ALBANY COUNTY CLERK 03/15/2023 04:14 PM INDEX NO. 908063-22 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 03/15/2023 146 INDEX NO. EF CA2 017 -002154 |FILED: ONEIDA COUNTY CLERK 08/19/2020 03:24 PM| NYSCEF DOC. NO. 354 RECE IVED NYSCE F: 08/19/2t20 21 1 provide him with anything. It doesn't require him to 2 go to Oriska and ask for anything. It doesn't require 3 that Oriska co- -- involve itself with Mr. Kernan in -- 4 in putting together whatever he would put together in 5 -- in to the subpoena. It requires responding only 6 that he provide whatever he's got in his possession or 7 is easily accessible to him. 8 MS. SPRAGUE: Well, that does clarify things 9 for us, because many of the things are in Oriska's 10 possession. And Mr. Bagley's the attorney that's 11 handling the discovery aspects of this litigation. 12 THE COURT: I guess I'm baffled at this time, 13 because the subpoena -- I I -- I'm mean, doing nothing 14 but to the -- to the exact language of the referring 15 and I'm -- and at the last motion Mr. subpoena, also, 16 Policelli and I had a conversation on the record about 17 the subpoena. Mr. Policelli said: Well, what about 18 the -- he doesn't have access to some I any mail, 19 think it was, or something. And my response was, if he 20 doesn't have it, he doesn't need to provide it. So 21 that -- 22 MS. SPRAGUE: Well, that helps my client, 23 because we are concerned how are we going to cmply and 24 provide documents that are being asked of when 25 they're in the possession and control of Oriska. NicolaFanelli,Sr.CourtReporter FILED: ALBANY COUNTY CLERK 03/15/2023 04:14 PM INDEX NO. 908063-22 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 03/15/2023 147 INDEX NO. EFCA2017-OO2754 FILED: ONEIDA COUNTY CLERK 08/19/2020 03:24 PN| NYSCEF DOC. NO. 35A