Preview
FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 12/28/2023
Exhibit 9
FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023
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Page 1
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE CITY AND COUNTY OF SAN FRANCISCO
FOX PAINE & COMPANY, LLC;
FOX PAINE CAPITAL FUND II
INTERNATIONAL, L.P.; FP
INTERNATIONAL LPH, L.P. FOR
PAINE INTERNATIONAL GP, LTD.;
and SAUL A FOX,
Plaintiffs,
vs. No. CGC-17-557275
TWIN CITY FIRE INSURANCE
COMPANY AND DOES 1-10,
INCLUSIVE,
Defendants.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
VIDEOCONFERENCED DEPOSITION OF
AMY GHISLETTA
Monday, November 13, 2023
1:01 P.M. - 3:49 P.M.
Remotely from
Lafayette, California
Nancy Collier Hamada, CSR No. 5819
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Page 2 Page 3
1 APPEARANCES OF COUNSEL 1 INDEX OF EXAMINATION
2 (ALL PRESENT VIA VIDEOCONFERENCING)
3 2
4 For Plaintiffs: 3 WITNESS: AMY GHISLETTA
5 MCKOOL SMITH, P.C.
BY: MAKENNA A. MILLER, ESQ. 4 EXAMINATION PAGE
6 300 S. Grand Avenue, Suite 2900 5
Los Angeles, California 90071
7 213.694.1200 6 BY MS. MILLER 8
mmiller@mckoolsmith.com 7 BY MR. FROST 89
8
For Defendants: 8
9 9
MAYNARD COOPER & GALE
10 BY: CHRISTOPHER C. FROST, ESQ. 10
1901 Sixth Avenue North, Suite 1700 11
11 Birmingham, Alabama 35203
205.254.1000 12 INFORMATION REQUESTED
12 cfrost@maynardcooper.com 13 (NONE)
13 For Witness Amy Ghisletta:
14 PAUL | WEISS 14
BY: T. PATRICK CORDOVA, ESQ. 15
15 JAREN JANGHORBANI, ESQ.
1285 Avenue of the Americas
16
16 New York, New York 10019-6064 17
212.373.3211
17 pcordova@paulweiss.com
18 WITNESS INSTRUCTION NOT TO ANSWER
18 Videotaping: 19 Page Line
19 MAGNA LEGAL SERVICES
BY: JOSEPH CALVARESE
20 87 5
20 515 S. Figueroa Street, Suite 1425 21
Los Angeles, California 90071
21 866.624.6221
22
22 23
23
24
24
25 25
Page 4 Page 5
1 INDEX TO EXHIBITS 1 INDEX TO EXHIBITS (CONTINUED)
2
3 Exhibits Description Page 2
4 Exhibit 1 HCC insurance policy 12 3 Exhibits Description Page
5 Exhibit 2 Twin City insurance policy 12 4 Exhibit 16 12/27/07 Conversation 77
6 Exhibit 3 10/14/16 Deposition of 12
Miss Ghisletta Record
7 5
Exhibit 4 12/12/16 Deposition of 12 Exhibit 17 Undated Conversation 79
8 Miss Ghisletta
9 Exhibit 5 8/7/06 Memorandum Re 42 6 Record
Change of Employer 7 Exhibit 18 12/27/07 Ghisletta email 83
10 to Marcon; 12/26/07 Lutz
Exhibit 6 FPC/NewCo Agreement 35
11 8 email to Ghisletta
Exhibit 7 NewCo Term Sheet 36 9 Exhibit 19 1/27/10 Spievack letter 85
12
Exhibit 8 5/8/07 Fox/Ghisletta 44
to Boltax/Hartford
13 email exchange 10
14 Exhibit 9 8/14/07 Dexter letter 49 11
to Fox 12
15
Exhibit 10 9/23/07 Ma email with 55 13
16 attached article 14
17 Exhibit 11 10/18/07 Marcon email 58 15
to Rubocki
18 16
Exhibit 12 11/7/07 Claims Notice 61 17
19 from Equity Risk Partners 18
to Professional Indemnity
20 Agency, Inc. 19
21 Exhibit 13 11/7/07 Claims Notice 66 20
from Equity Risk Partners
22 to The Hartford
21
23 Exhibit 14 12/11/97 Conversation 71 22
Record by Rubocki 23
24
Exhibit 15 12/14/07 broker letter 75
24
25 25
2 (Pages 2 to 5)
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1 DEPOSITION OF AMY GHISLETTA 1 (Technical adjustment.)
2 Monday, November 13, 2023 2 VIDEOGRAPHER: On the record, 1:04.
3 -o0o- 3 THE REPORTER: Go ahead, Mr. Frost.
4 4 MR. FROST: This is Christopher Frost
5 VIDEOGRAPHER: We are now on the record. 5 here on behalf of Defendant Twin City Fire
6 This begins Videotape No. 1 in the deposition of 6 Insurance Company.
7 Amy Ghisletta in the matter of Fox Paine & 7 MR. CORDOVA: This is Thomas Patrick
8 Company, LLC, et al. v. Twin City Insurance 8 Cordova and my colleague, Jaren Janghorbani, the
9 Company, et al. Today is November 13th, 2023, and 9 Paul Weiss Law Firm on behalf of the witness.
10 the time is 1:01 P.M. Pacific. 10 THE REPORTER: My name is Nancy Collier
11 This deposition is being taken virtually 11 Hamada, a California State certified shorthand
12 at the request of McKool Smith. The videographer 12 reporter, and this deposition is being held via
13 is Joseph Calvarese of Magna Legal Services. The 13 videoconferencing equipment. The witness and
14 court reporter is Nancy Collier Hamada of Magna 14 reporter are not in the same room. The witness
15 Legal Services. 15 will be sworn in remotely pursuant to agreement of
16 Will counsel and all parties present 16 all parties. The parties stipulate that the
17 state their appearances and whom they represent. 17 testimony is being given as if the witness was
18 MS. MILLER: Mckenna Miller with McKool 18 sworn in person.
19 Smith representing Plaintiff Fox Paine & Company. 19 So agreed, Counsel?
20 THE REPORTER: Excuse me, Mr. Frost, we 20 MS. MILLER: Yes.
21 can't hear you. 21 MR. FROST: Agreed.
22 Ms. Miller, did you want to go off the 22 MR. CORDOVA: Agreed.
23 video while we straighten this out? 23
24 MS. MILLER: Yeah, let's do that. 24 AMY GHISLETTA,
25 VIDEOGRAPHER: Off the record the 1:03. 25 having been first duly sworn, testifies as follows:
Page 8 Page 9
1 EXAMINATION 1 insurer for the period of 2006 through 2008;
2 BY MS. MILLER: 2 right?
3 Q Good morning, Miss Ghisletta, or I guess 3 A I recall that HCC was a carrier for Fox
4 afternoon. I forgot, it's 1:00 P.M. 4 Paine.
5 You were previously deposed in the 5 Q Okay. Are you aware that this present
6 New York action captioned Fox Paine & Company vs. 6 action is brought by FPC against the FPC excess
7 Houston Casualty Company, et al.; correct? 7 insurers, including Twin City?
8 A Yes. 8 A Am I aware that that's the current
9 Q And you were deposed once on 9 action, yes.
10 October 14th, 2016, and also again on 10 Q Okay. So you understand both actions are
11 December 12th, 2016; correct? 11 coverage actions as related to FPC's 2007
12 A Yes. 12 insurance policies?
13 Q I may refer to Fox Paine & Company as FPC 13 A Yes.
14 throughout this deposition. I might also refer to 14 Q As you can imagine, a lot of the
15 Houston Casualty Company as HCC. You understand 15 information and events overlap from the previous
16 those abbreviations? 16 New York action and the present action. As we
17 A Yes. 17 discussed, you've already been deposed twice in
18 Q And you recall that the New York action 18 the previous action. Did you review your prior
19 involved a suit brought by Fox Paine as related to 19 testimony in preparation for today's deposition?
20 its 2007 insurance policy with its primary 20 A Yes.
21 insurer, HCC, and it's broker, Equity Risk 21 Q And you knew you were under oath at the
22 Partners; correct? 22 time you provided that previous testimony;
23 A Based on my view of the prior deposition, 23 correct?
24 yes. 24 A Yes.
25 Q And you knew HCC was the primary FPC 25 Q And you did your best to provide truthful
3 (Pages 6 to 9)
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1 and accurate testimony seven years ago in 2016; 1 A I don't recall that I made any changes,
2 right? 2 no.
3 A Yes. 3 Q Okay. Now as a roadmap of what I'm going
4 Q Do you agree that the testimony you gave 4 to do today, I'm going to go through your prior
5 seven years ago in 2016 is closer in time to the 5 testimony with you. Obviously not the whole
6 events at issue? 6 thing, just some targeted sections, and ask you
7 A Yes. 7 whether those answers hold true today. Put
8 Q Is it fair to say your recollection of 8 another way, if I had asked these questions again
9 events from 2007 was better in 2016 than it is 9 would your testimony be the same.
10 today? 10 I will also ask additional questions as
11 A Yes. 11 related specifically to Twin City that you have
12 Q And you did your best to provide truthful 12 not testified about.
13 and accurate testimony in 2016; right? 13 When my examination is complete, Twin
14 A Yes. 14 City's counsel will ask you questions related to
15 Q Now right after you took those 15 your testimony in 2016 or any of the additional
16 depositions in 2016, did you review your testimony 16 testimony you offer now. Do you understand that?
17 to ensure your -- ensure it was truthful and 17 A Yes.
18 accurate? 18 Q Okay. I am sending the exhibits to the
19 A Did I ensure it at the time? 19 court reporter and I have them labeled. I may not
20 Q Yeah. Like did you receive the 20 offer them in the order that they are labeled, but
21 transcripts from your counsel and review it just 21 they will all be offered at one point, so don't be
22 to make sure it was correct? 22 confused if I say Exhibit 2 and we haven't yet
23 A I don't recall. 23 gotten to Exhibit 1.
24 Q Okay. Are you aware of any changes you 24 All right. I am going to offer into
25 made to the previous testimony? 25 evidence Exhibit No. 3 which is your October 14,
Page 12 Page 13
1 2016 -- well, strike that. I'll start from the 1 to take control of these exhibits for you to have
2 top. 2 a PDF copy on your own computer, please let me
3 Plaintiffs' Exhibit No. 1 will be the 3 know. I'm happy to make this as easy as possible
4 Twin City excess insurance policy, Plaintiffs' 4 for you. I'm not trying to make things more
5 Exhibit No. 2 will be the HCC policy, Plaintiffs' 5 difficult or trick you. I want this to be as
6 Exhibit No. 3 will be Amy Ghisletta's 6 seamless as possible.
7 October 14th, 2016 transcript, and Plaintiffs' 7 All right. Please let me know when
8 Exhibit No. 4 will be Amy Ghisletta's 8 you're able to see this screen which you should be
9 December 12th, 2016 transcript. 9 able to see the Amy Ghisletta testimony.
10 (Deposition Exhibits 1-4 were marked for 10 A I can see it, yes.
11 identification by the court reporter.) 11 Q Perfect. I might try and make this
12 BY MS. MILLER: 12 actually a little bit smaller. Looks a little
13 Q I'm going to go ahead and share my screen 13 large.
14 to bring up the October 14th, 2016 transcript. 14 All right. Now on the October 14, 2016
15 MR. FROST: And I'll just make an 15 transcript starting at page 8, line 13 through
16 objection for the record. We have not received 16 page 9, line 12, I'm going to keep it on the
17 copies and don't have copies of these exhibits, 17 screen for a second so you can just review where
18 but I do understand what you refer to. 18 we're at.
19 MS. MILLER: Yes. I would send them to 19 Here you testified that in December of
20 you right now except for they are very large, so 20 2005 you were employed for Fox Paine & Company.
21 I'm going to share my screen and understand that 21 Is that still correct? Is that testimony still
22 you will get the stickered copies as part of the 22 correct?
23 transcript. 23 A Yes.
24 Q Okay. Now if at any point, 24 Q You testified that your title at the time
25 Miss Ghisletta, it would be more helpful for you 25 was chief financial officer; is that correct?
4 (Pages 10 to 13)
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1 A Yes. 1 objections all through the day on that basis, so
2 Q Which was also commonly referred to as 2 if you'll give me a continued objection on the
3 the CFO; is that correct? 3 deposition on that basis, then I won't interrupt
4 A Yes. 4 you anymore, and we can go forward from there.
5 Q You were then asked, "Generally speaking, 5 MS. MILLER: That works for me.
6 what were your duties as CFO for Fox Paine & 6 MR. FROST: Thank you.
7 Company back in or about December 2005?" 7 MS. MILLER: Would you mind reading
8 You responded, "I had financial 8 back -- well, yeah, would you mind reading back
9 responsibility for Fox Paine & Company, which was 9 the question just so we have a clean record?
10 the management company, as well as the funds that 10 (Record read: You were then
11 it managed and all of the subsidiary funds and 11 asked, "Generally speaking,
12 legal entities." 12 what were your duties as CFO
13 Is that still true and correct? 13 for Fox Paine & Company back
14 MR. FROST: And I'm going to make, if you 14 in or about December 2005?"
15 don't mind -- Miss Ghisletta, I'm sorry, this is 15 You responded, "I had
16 Christopher Frost. I'm going to make an objection 16 financial responsibility for
17 just for the record, and obviously the questioning 17 Fox Paine & Company, which was
18 can continue. 18 the management company, as
19 And Mckenna, I'm just going to make an 19 well as the funds that it
20 objection that this is improper questioning, lacks 20 managed and all of the
21 foundation for her memory here today. You're just 21 subsidiary funds and legal
22 asking her to read testimony, and I'm going to 22 entities."
23 object to that being improper under the rules 23 Is that still true and
24 based on form and foundation. 24 correct?)
25 I don't have any intent or desire to make 25 THE WITNESS: Yes.
Page 16 Page 17
1 BY MS. MILLER: 1 Q Now we're going to page 2000 -- 207,
2 Q You also testified that you recall that 2 excuse me, line 5, and this line of questioning
3 you were responsible for initiating insurance 3 goes through page 209, line 16.
4 coverage for the firm; is that correct? 4 You testified that in 2006 Saul was
5 A Yes. 5 concerned with minimizing liability for Fox
6 Q All right. I am going to now bring up 6 Paine & Company in connection with the formation
7 Plaintiffs' Exhibit No. 4 which is the 7 of NewCo and Fund III; correct?
8 December 12, 2016 exhibit. 8 A Sorry, you're asking me if...
9 Are you able to see this transcript, 9 Q I'm asking you -- so I'll phrase it this
10 Miss Ghisletta? 10 way: You were asked, "Now, in 2006, Saul was
11 A Yes. 11 concerned with minimizing liability for Fox
12 Q Okay. All right. For this next line of 12 Paine & Company in connection with the formation
13 questioning we'll be looking at page 195, line 19 13 of NewCo and Fund III; correct?"
14 through page 196, line 3. 14 You responded, "Yes"; right?
15 Now you testified in 2005 your job 15 A Yes.
16 responsibilities as CFO included procuring 16 Q And that answer is still true today?
17 insurance coverage for Fox Paine & Company, and 17 A To the best of my recollection, yes.
18 then the questioner, Miss Rockett, asked, "Do you 18 Q Okay. You were then asked, "So, in 2006,
19 believe you likely would have been in contact with 19 Saul Fox would not have wanted you to cancel or
20 Fox Paine & Company's broker or a broker offering 20 terminate Fox Paine & Company's GPL insurance
21 to provide GPL procurement services for Fox 21 policy; correct?"
22 Paine & Company?" 22 You responded, "No."
23 There were objections, and you responded, 23 Is that still the case?
24 "Yes." Is that correct? 24 A Best of my recollection, yes.
25 A Yes. 25 Q Okay. All right. You were asked, "In
5 (Pages 14 to 17)
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1 2006, Saul Fox would not have wanted you to remove 1 You responded, "Yes."
2 FPC as a named insured on Fox Paine & Company's 2 Is that still the case?
3 GPL policy; correct?" 3 A To the best of my recollection.
4 There were objections and you responded, 4 Q "And, in 2007, you did not procure a GPL
5 "Yes, to the best of my knowledge." 5 insurance policy for Fox Paine & Company that was
6 Is that still correct? 6 intended to exclude Fox Paine & Company or Saul
7 A To the best of my recollection, yes. 7 Fox from coverage; correct?"
8 Q "And, in 2007, Saul Fox would not have 8 You responded, "Yes."
9 wanted you to cancel or terminate Fox Paine & 9 Is that still the case?
10 Company's GPL insurance policy; correct?" 10 A To the best of my recollection.
11 You responded, "Yes, to the best of my 11 Can I just say my recollection as of this
12 knowledge." 12 time was better than it is today, so I have
13 Is that still correct? 13 nothing at this time that would change what I said
14 A To the best of my recollection, yes. 14 in my deposition.
15 Q "And, in 2007, Saul Fox would not have 15 Q I understand.
16 wanted you to remove FPC as a named insured on Fox 16 MR. CORDOVA: Yeah, Miss Miller, I mean,
17 Paine & Company's 2007 GPL policy; correct?" 17 the testimony is what it is, and so, you know, I
18 And you responded, "Yes, to the best of 18 think the witness has already testified as to her
19 my knowledge." 19 recollections generally and her truthfulness in
20 That's still correct today; right? 20 testifying initially, so just kind of walking
21 A To the best of my recollection. 21 through, you know, all of this 300-plus, you know,
22 Q "And, in 2006, you didn't procure a GPL 22 deposition testimony is really not a good use of
23 insurance policy for Fox Paine & Company that was 23 anyone's time.
24 intended to exclude FPC or Saul Fox from coverage; 24 MS. MILLER: Totally. Do you want to go
25 correct?" 25 off the record real quick?
Page 20 Page 21
1 MR. CORDOVA: Sure. 1 involving your clients, Mr. Cordova, depending on
2 MS. MILLER: Let's go off the record. 2 what Miss Miller's willingness is to engage in it.
3 VIDEOGRAPHER: Off the record, 1:21. 3 But in response just again, and I
4 (Discussion held off the record.) 4 won't -- I'll be brief. But so the record is
5 VIDEOGRAPHER: On the record, 1:22. 5 clear, the plaintiffs in this case have asked Twin
6 MS. MILLER: Sure. So my -- Twin City is 6 City for a blanket agreement that all depositions
7 objecting to the use of this testimony in this 7 taken in all prior proceedings that are outside of
8 present case. We are entitled to these underlying 8 this proceeding, including the New York action,
9 facts to prove our case. We think this is the 9 including the underlying Fox Paine litigation from
10 best and easiest way to present this testimony for 10 2008 to 2012, have asked us for an agreement that
11 Miss Ghisletta to show her how she testified in 11 all of those depositions be treated as if they
12 the past and confirm that this is still the case. 12 were taken in this action. That's just an
13 If we think there is a more streamlined 13 unreasonable request. We have said on multiple
14 way to do this, I am amenable to that, but we are 14 occasions there's no way we can agree to that.
15 entitled to get this testimony, and that's what 15 That would not be in the best interest of our
16 we're going to do. 16 client to agree to that.
17 MR. CORDOVA: Yeah, I just don't -- my 17 However, this is essentially -- if the
18 understanding is that the issue is as to 18 plaintiffs, by the way, wanted to take these
19 admissibility, and I just don't understand how 19 depositions of these individual people, they
20 walking through this transcript is -- addresses 20 waited for the last couple of weeks of a year-long
21 the admissibility issue that Twin City has raised. 21 discovery period to do it in.
22 MR. FROST: Well, if it helps any, I can 22 So here's where I think that we might be
23 just put a response on the record and it might 23 able to find some -- a way through this if really
24 help us to find a way to resolve this type of 24 all you want to do is go through and ask her is it
25 thing for this deposition and future depositions 25 correct that she testified about something.
6 (Pages 18 to 21)
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1 First of all, again, I appreciate you 1 to.
2 giving me the objection, the standing objection so 2 MS. MILLER: Sure. I just on the record
3 I don't have to say it over and over again, but 3 would object to your characterizations in a number
4 asking her if it's correct that she testified to 4 of places.
5 something does not make it any more admissible 5 But separate from that, I am not asking
6 than it was before. We can fight about that 6 Miss Ghisletta if I am reading her transcript
7 later. 7 correct. I am asking her if it is still her best
8 But we have offered a solution to this, 8 recollection today. She is responding that this
9 and that is if you want to submit, like we would 9 transcript from 2016 is her best recollection, and
10 normally do, deposition designations of things you 10 that's still the recollection she has. She is
11 want to get in, we very well may agree to some, if 11 given an opportunity to tell me why it may no
12 not all, of it, for example, for Miss Ghisletta's 12 longer be her recollection, and it also gives you
13 deposition testimony, as an example, to say we 13 an opportunity, Mr. Frost, to ask her questions
14 could agree to that, for it to be used in this 14 and cross-examine her on these topics.
15 case. Obviously we might have 15 So I am going to proceed. If you would
16 counter-designations we want to make. 16 like to offer a separate agreement for depositions
17 If you're willing to do that, we're 17 going forward, that is fine. Let's not waste more
18 willing to engage in that and take away the need 18 of Miss Ghisletta's time discussing this on the
19 for wasting people's time in live format like 19 record.
20 this. So we're happy to do that. I'm offering 20 MR. FROST: Well, I -- just for the
21 that on the record to you, Miss Miller. I'm 21 record though, I have offered that before on more
22 offering it on the record for Mr. Cordova for his 22 than one occasion as a way to drastically shortcut
23 client, and we can proceed that way because there 23 this and many other non-party depositions, and so
24 are other clients that, I believe, Mr. Cordova 24 far plaintiffs have been unwilling to engage in
25 represents that that could also potentially apply 25 that type of solution. So we're still willing to
Page 24 Page 25
1 do it if you're willing to a engage in that. I'm 1 MS. MILLER: Yeah.
2 sure the witness would appreciate that, but 2 VIDEOGRAPHER: Off the record, 1:28.
3 that's -- we stand willing to do it. 3 (Brief pause in proceedings.)
4 MR. CORDOVA: And if I may, and I think 4 VIDEOGRAPHER: On the record, 1:33.
5 it would be certainly more respectful of my 5 MS. MILLER: All right. So first to
6 client's time if the parties would stipulate that 6 respond, Mr. Frost, we did send you a letter which
7 Miss Ghisletta did testify, you know, as reflected 7 listed specifically the transcripts we wanted to
8 in the transcript, and again, that she did so 8 use in this action. Not every transcript, not
9 consistent with, you know, her understanding of 9 every hearing, but we listed by deponent and by
10 her oath and her endeavoring to speak truthfully, 10 date what deposition we were seeking to have in
11 because otherwise I really -- this is a pretty 11 this action, so that is -- and you did not agree
12 significant waste of a third party's -- or excuse 12 to that.
13 me, a non-party's time. 13 But putting that aside, if you are
14 MR. FROST: Twin City agrees to that. I 14 willing to agree today that Miss Ghisletta's
15 mean, we stipulate that this testimony is accurate 15 transcripts from October 14th, 2016 and
16 when it was taken and that she understood her 16 December 12th, 2016 are able to be used for all
17 oath. I have no problem agreeing to that. 17 purposes in this action as if they were taken in
18 MR. CORDOVA: Miss Miller? 18 this action, I -- that is an agreement that we
19 MS. MILLER: I have...I have hesitation, 19 would be willing to make.
20 so if we want to take a five-minute break, I can 20 MR. FROST: Well, Mckenna, that's the
21 get back to you, but I can't guarantee we'll agree 21 same thing you've been asking us the whole time,
22 to that, but if you want to take five minutes, 22 and that's just not something we can agree to. I
23 I'll... 23 don't understand why this is difficult. Why -- if
24 MR. CORDOVA: Yeah. No, I appreciate you 24 you have certain pages that you're going to run
25 need to run it up the chain. 25 through today and read through them, why don't you
7 (Pages 22 to 25)
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1 just send them to us, we'll read it, and say yeah, 1 pages, let us send you our counters, and we do
2 that's fine with us, we want to designate these as 2 that and that's something we do beyond the
3 well, and then there we go. I don't understand 3 discovery cutoff, then we can do that. I'm happy
4 why we can't do it that way, but just to say every 4 to do that.
5 word in here we're going to agree to, that's just 5 In other words, just if you wanted to go
6 not something I can agree to. 6 that route, let Miss Ghisletta, you know, be done,
7 MS. MILLER: Okay. Well, that response 7 then I'm happy to do it. If you don't want to do
8 would have been nice to the letter that we sent I 8 it that way, that's fine, but I'm just -- I'm
9 think over three weeks ago, but as for now, we 9 offering that as a...as a way through this. It
10 have Miss Ghisletta here, and since you did not 10 seems pretty reasonable.
11 agree to that, we're going to get her testimony. 11 MS. MILLER: I think it will be more
12 I'm not sure how we work around that. 12 trouble to bring her back than just go through
13 MR. FROST: Well, I mean, you can work 13 this now.
14 around it by we can agree to reset her deposition 14 MR. FROST: I don't think we'll need to
15 beyond discovery cutoff if we can't -- you know, 15 bring her back is my point. I'm just saying you
16 if we have logistical problems, but if you want to 16 wouldn't waive anything if you decide to go that
17 do it that way -- I did offer. Look, I don't want 17 route.
18 to fuss with you at all. I did offer this a 18 MS. MILLER: Well, I can't trust that
19 number of times to Michael. I'm not saying -- I 19 that's the case, Mr. Frost. I appreciate that,
20 don't know how -- what y'all talked about, and it 20 but I can't trust that that's the case, and we
21 certainly is your prerogative not to agree, but 21 have her here, and you won't agree to the
22 we're willing to do it that way. 22 testimony. You didn't respond beforehand when we
23 So if you want to do it that way, we're 23 said we wanted to use this testimony, so I
24 perfectly happy -- like you wouldn't waive 24 don't...I don't feel like I'm given much choice
25 anything basically. If you wanted to send us the 25 here.
Page 28 Page 29
1 MR. FROST: We did respond. I did 1 can add to this conversation.
2 respond on numerous occasions, but look, I mean, 2 But again, we're already in the middle of
3 that's fine. If you don't want to do it, you 3 November. I don't want to be called in December
4 don't want to do it. That's your prerogative. 4 by any means. It just seems to be -- so I will
5 MS. MILLER: Okay. 5 let you all decide what the best course of action
6 MR. CORDOVA: I do want to say that, 6 is. I'd like to get through it as quickly as
7 you know, certainly my sense is that the parties' 7 possible because I believe that I really don't
8 dispute will be the same regardless of whether 8 have much of a recollection. So if there are some
9 Miss Ghisletta testifies or not, and so just 9 questions, that, you know, we can finish it today,
10 having her kind of sit here is really burdensome 10 then let's do it, but again, I don't know how much
11 on her time and mine. I mean, this should not be 11 more I can add to this.
12 a non-party's problem and an obligation imposed on 12 MS. MILLER: I appreciate that
13 a non-party. 13 completely. I think we can be done in an hour or
14 Amy, do you want to...do you want to 14 so if we just charge forward, and that way we
15 finish today, or do you want to try to adjourn and 15 don't have to revisit this, and that can be that,
16 see if the parties can resolve the dispute? 16 so...
17 THE WITNESS: I mean, I would love to not 17 MR. CORDOVA: Do you mind if we -- I'm
18 have to revisit this. I will just reiterate what 18 sorry. Do you mind if we take a five-minute
19 I said before. I mean, we're -- you're asking me 19 break --
20 questions about something I said in 2016. That 20 MS. MILLER: Sure.
21 recollection -- and at the time I didn't recall a 21 MR. CORDOVA: -- so I can consult with
22 lot. My recollection today has not changed in 22 the witness?
23 respect to the fact that I don't recall anything 23 MS. MILLER: Sure.
24 further than what I said then, and in fact, I 24 VIDEOGRAPHER: Off the record, 1:38.
25 recall much less, so I don't know how much more I 25 (Discussion held between witness and her
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1 counsel outside of deposition proceedings.) 1 tell you I am trying my best, and I don't actually
2 VIDEOGRAPHER: On the record, 1:45. 2 need to give you -- I haven't timed myself doing
3 MR. CORDOVA: So I've consulted with my 3 this. I can't give you more exact.
4 client. Subject to the parties' representation 4 MR. CORDOVA: Mr. Frost?
5 that this won't take more than another hour, we 5 MR. FROST: I can't imagine I'm going to
6 are -- and Miss Ghisletta will not be called 6 be more than a few minutes.
7 again, we'll proceed to go forward today. We 7 MR. CORDOVA: I appreciate it. So we'll
8 would appreciate though that if the parties would 8 reserve the right to check in again in an hour,
9 kind of resolve this in advance of any further 9 but I appreciate the estimates.
10 depositions of my clients. 10 MS. MILLER: Great. Let's get started so
11 MS. MILLER: I'll note that my hour or 11 we don't waste any more time.
12 so, I believe I said, estimate is for my 12 Q Okay. And just to clarify,
13 questioning. I can't speak for Mr. Frost, so... 13 Miss Ghisletta, when I am asking you, you know,
14 MR. CORDOVA: So let me take those in 14 whether this is still correct or whether this is
15 turn. "Hour or so" means what? 15 correct when we're reading your prior testimony, I
16 MS. MILLER: I'm going to go as quick as 16 am asking if that is your best recollection today,
17 I can. That's what that means. I am entitled to 17 if that has changed, if that's your best
18 seven hours, and I am saying I am going as quick 18 recollection today. I am not just asking you if I
19 as I can to make this as short as possible for 19 am reciting your testimony correctly. Do you
20 your client, and as future disputes arise, we can 20 understand that?
21 call the judge and get his ruling right now. 21 A Yes.
22 I am entitled to seven hours, and I am 22 Q Okay. All right. You were asked -- I'm
23 being extremely accommodating by saying I'm trying 23 sorry, I'm not sharing my screen anymore.
24 to get this done within an hour or so. So I can't 24 For the record, we are still on
25 tell you what exactly the "or so" is. I can just 25 Plaintiffs' Exhibit 4. This is Amy Ghisletta's
Page 32 Page 33
1 December 12th, 2016 testimony. 1 THE REPORTER: Okay, thank you.
2 You testified in -- that, "in 2006, you 2 MS. MILLER: That was my fault. I
3 did not procure a GPL insurance policy for Fox 3 confused things.
4 Paine & Company that was intended to bankroll 4 Q Okay. Plaintiffs' Exhibit 1, the Houston
5 litigation against Fox Paine & Company; correct?" 5 Casualty Policy, I am going to scroll through this
6 A To the best of my recollection, yes. 6 a little bit, Miss Ghisletta, so you can orient
7 Q "And, in 2007, you did not procure a 7 yourself. If you would like to take control,
8 GPL insurance policy for Fox Paine & Company that 8 you're more than welcome to. I want you to feel
9 was intended to bankroll litigation against Fox 9 comfortable just testifying about this.
10 Paine & Company; correct?" 10 The date here, it's dated December 30th,
11 A To the best of my recollection, yes. 11 2006 to December 30th, 2007. The Insured
12 Q All right. Let's take this down. I am 12 Organization is Fox Paine & Company, LLC. Did you
13 now going to bring up Plaintiffs' Exhibit 1 which 13 procure this GPL insurance policy for FPC for the
14 is the HCC policy. 14 2007 year, Miss Ghisletta?
15 MR. CORDOVA: I actually thought you said 15 A I do not recall. So this would have been
16 it was the Twin City policy. 16 entered into as of 12/30/2006. I believe I was on
17 MS. MILLER: I am...I am so sorry. You 17 maternity leave at that time.
18 are correct. 18 Q In 2006?
19 I'll put this up. I...I spoke 19 A In 2006, yes.
20 incorrectly in that first instance. I have them 20 Q Did you testify that it was part of your
21 marked Plaintiffs' Exhibit 1 as the HCC exhibit -- 21 responsibilities to initiate the insurance
22 or HCC policy. Let me... 22 procurement?
23 THE REPORTER: I'm sorry, is this 23 A Yes.
24 Exhibit 1 or 2? 24 Q And so this policy you did not do that
25 MS. MILLER: This is Exhibit 1. 25 even though it was of your normal duties because
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1 you were on maternity leave? 1 says "The Hartford Universal Excess Policy"; is
2 A To the best of my recollection, yes. 2 that correct?
3 Q Okay. And was this the policy -- if you 3 A Yes.
4 know, was this the policy that ERP provided notice 4 Q And this one also says the policy period
5 under in November 2007? 5 is from 12/30/06 to 12/30/07; is that correct?
6 A I don't know. 6 A Yes.
7 MR. FROST: Form and foundation. 7 Q And you believe you were on maternity
8 THE WITNESS: I don't recall. 8 leave, and so that you did not assist in proc
Preview
FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 12/28/2023 Exhibit 9 FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 12/28/2023 Page 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE CITY AND COUNTY OF SAN FRANCISCO FOX PAINE & COMPANY, LLC; FOX PAINE CAPITAL FUND II INTERNATIONAL, L.P.; FP INTERNATIONAL LPH, L.P. FOR PAINE INTERNATIONAL GP, LTD.; and SAUL A FOX, Plaintiffs, vs. No. CGC-17-557275 TWIN CITY FIRE INSURANCE COMPANY AND DOES 1-10, INCLUSIVE, Defendants. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ VIDEOCONFERENCED DEPOSITION OF AMY GHISLETTA Monday, November 13, 2023 1:01 P.M. - 3:49 P.M. Remotely from Lafayette, California Nancy Collier Hamada, CSR No. 5819 FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 12/28/2023 Page 2 Page 3 1 APPEARANCES OF COUNSEL 1 INDEX OF EXAMINATION 2 (ALL PRESENT VIA VIDEOCONFERENCING) 3 2 4 For Plaintiffs: 3 WITNESS: AMY GHISLETTA 5 MCKOOL SMITH, P.C. BY: MAKENNA A. MILLER, ESQ. 4 EXAMINATION PAGE 6 300 S. Grand Avenue, Suite 2900 5 Los Angeles, California 90071 7 213.694.1200 6 BY MS. MILLER 8 mmiller@mckoolsmith.com 7 BY MR. FROST 89 8 For Defendants: 8 9 9 MAYNARD COOPER & GALE 10 BY: CHRISTOPHER C. FROST, ESQ. 10 1901 Sixth Avenue North, Suite 1700 11 11 Birmingham, Alabama 35203 205.254.1000 12 INFORMATION REQUESTED 12 cfrost@maynardcooper.com 13 (NONE) 13 For Witness Amy Ghisletta: 14 PAUL | WEISS 14 BY: T. PATRICK CORDOVA, ESQ. 15 15 JAREN JANGHORBANI, ESQ. 1285 Avenue of the Americas 16 16 New York, New York 10019-6064 17 212.373.3211 17 pcordova@paulweiss.com 18 WITNESS INSTRUCTION NOT TO ANSWER 18 Videotaping: 19 Page Line 19 MAGNA LEGAL SERVICES BY: JOSEPH CALVARESE 20 87 5 20 515 S. Figueroa Street, Suite 1425 21 Los Angeles, California 90071 21 866.624.6221 22 22 23 23 24 24 25 25 Page 4 Page 5 1 INDEX TO EXHIBITS 1 INDEX TO EXHIBITS (CONTINUED) 2 3 Exhibits Description Page 2 4 Exhibit 1 HCC insurance policy 12 3 Exhibits Description Page 5 Exhibit 2 Twin City insurance policy 12 4 Exhibit 16 12/27/07 Conversation 77 6 Exhibit 3 10/14/16 Deposition of 12 Miss Ghisletta Record 7 5 Exhibit 4 12/12/16 Deposition of 12 Exhibit 17 Undated Conversation 79 8 Miss Ghisletta 9 Exhibit 5 8/7/06 Memorandum Re 42 6 Record Change of Employer 7 Exhibit 18 12/27/07 Ghisletta email 83 10 to Marcon; 12/26/07 Lutz Exhibit 6 FPC/NewCo Agreement 35 11 8 email to Ghisletta Exhibit 7 NewCo Term Sheet 36 9 Exhibit 19 1/27/10 Spievack letter 85 12 Exhibit 8 5/8/07 Fox/Ghisletta 44 to Boltax/Hartford 13 email exchange 10 14 Exhibit 9 8/14/07 Dexter letter 49 11 to Fox 12 15 Exhibit 10 9/23/07 Ma email with 55 13 16 attached article 14 17 Exhibit 11 10/18/07 Marcon email 58 15 to Rubocki 18 16 Exhibit 12 11/7/07 Claims Notice 61 17 19 from Equity Risk Partners 18 to Professional Indemnity 20 Agency, Inc. 19 21 Exhibit 13 11/7/07 Claims Notice 66 20 from Equity Risk Partners 22 to The Hartford 21 23 Exhibit 14 12/11/97 Conversation 71 22 Record by Rubocki 23 24 Exhibit 15 12/14/07 broker letter 75 24 25 25 2 (Pages 2 to 5) FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 12/28/2023 Page 6 Page 7 1 DEPOSITION OF AMY GHISLETTA 1 (Technical adjustment.) 2 Monday, November 13, 2023 2 VIDEOGRAPHER: On the record, 1:04. 3 -o0o- 3 THE REPORTER: Go ahead, Mr. Frost. 4 4 MR. FROST: This is Christopher Frost 5 VIDEOGRAPHER: We are now on the record. 5 here on behalf of Defendant Twin City Fire 6 This begins Videotape No. 1 in the deposition of 6 Insurance Company. 7 Amy Ghisletta in the matter of Fox Paine & 7 MR. CORDOVA: This is Thomas Patrick 8 Company, LLC, et al. v. Twin City Insurance 8 Cordova and my colleague, Jaren Janghorbani, the 9 Company, et al. Today is November 13th, 2023, and 9 Paul Weiss Law Firm on behalf of the witness. 10 the time is 1:01 P.M. Pacific. 10 THE REPORTER: My name is Nancy Collier 11 This deposition is being taken virtually 11 Hamada, a California State certified shorthand 12 at the request of McKool Smith. The videographer 12 reporter, and this deposition is being held via 13 is Joseph Calvarese of Magna Legal Services. The 13 videoconferencing equipment. The witness and 14 court reporter is Nancy Collier Hamada of Magna 14 reporter are not in the same room. The witness 15 Legal Services. 15 will be sworn in remotely pursuant to agreement of 16 Will counsel and all parties present 16 all parties. The parties stipulate that the 17 state their appearances and whom they represent. 17 testimony is being given as if the witness was 18 MS. MILLER: Mckenna Miller with McKool 18 sworn in person. 19 Smith representing Plaintiff Fox Paine & Company. 19 So agreed, Counsel? 20 THE REPORTER: Excuse me, Mr. Frost, we 20 MS. MILLER: Yes. 21 can't hear you. 21 MR. FROST: Agreed. 22 Ms. Miller, did you want to go off the 22 MR. CORDOVA: Agreed. 23 video while we straighten this out? 23 24 MS. MILLER: Yeah, let's do that. 24 AMY GHISLETTA, 25 VIDEOGRAPHER: Off the record the 1:03. 25 having been first duly sworn, testifies as follows: Page 8 Page 9 1 EXAMINATION 1 insurer for the period of 2006 through 2008; 2 BY MS. MILLER: 2 right? 3 Q Good morning, Miss Ghisletta, or I guess 3 A I recall that HCC was a carrier for Fox 4 afternoon. I forgot, it's 1:00 P.M. 4 Paine. 5 You were previously deposed in the 5 Q Okay. Are you aware that this present 6 New York action captioned Fox Paine & Company vs. 6 action is brought by FPC against the FPC excess 7 Houston Casualty Company, et al.; correct? 7 insurers, including Twin City? 8 A Yes. 8 A Am I aware that that's the current 9 Q And you were deposed once on 9 action, yes. 10 October 14th, 2016, and also again on 10 Q Okay. So you understand both actions are 11 December 12th, 2016; correct? 11 coverage actions as related to FPC's 2007 12 A Yes. 12 insurance policies? 13 Q I may refer to Fox Paine & Company as FPC 13 A Yes. 14 throughout this deposition. I might also refer to 14 Q As you can imagine, a lot of the 15 Houston Casualty Company as HCC. You understand 15 information and events overlap from the previous 16 those abbreviations? 16 New York action and the present action. As we 17 A Yes. 17 discussed, you've already been deposed twice in 18 Q And you recall that the New York action 18 the previous action. Did you review your prior 19 involved a suit brought by Fox Paine as related to 19 testimony in preparation for today's deposition? 20 its 2007 insurance policy with its primary 20 A Yes. 21 insurer, HCC, and it's broker, Equity Risk 21 Q And you knew you were under oath at the 22 Partners; correct? 22 time you provided that previous testimony; 23 A Based on my view of the prior deposition, 23 correct? 24 yes. 24 A Yes. 25 Q And you knew HCC was the primary FPC 25 Q And you did your best to provide truthful 3 (Pages 6 to 9) FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 12/28/2023 Page 10 Page 11 1 and accurate testimony seven years ago in 2016; 1 A I don't recall that I made any changes, 2 right? 2 no. 3 A Yes. 3 Q Okay. Now as a roadmap of what I'm going 4 Q Do you agree that the testimony you gave 4 to do today, I'm going to go through your prior 5 seven years ago in 2016 is closer in time to the 5 testimony with you. Obviously not the whole 6 events at issue? 6 thing, just some targeted sections, and ask you 7 A Yes. 7 whether those answers hold true today. Put 8 Q Is it fair to say your recollection of 8 another way, if I had asked these questions again 9 events from 2007 was better in 2016 than it is 9 would your testimony be the same. 10 today? 10 I will also ask additional questions as 11 A Yes. 11 related specifically to Twin City that you have 12 Q And you did your best to provide truthful 12 not testified about. 13 and accurate testimony in 2016; right? 13 When my examination is complete, Twin 14 A Yes. 14 City's counsel will ask you questions related to 15 Q Now right after you took those 15 your testimony in 2016 or any of the additional 16 depositions in 2016, did you review your testimony 16 testimony you offer now. Do you understand that? 17 to ensure your -- ensure it was truthful and 17 A Yes. 18 accurate? 18 Q Okay. I am sending the exhibits to the 19 A Did I ensure it at the time? 19 court reporter and I have them labeled. I may not 20 Q Yeah. Like did you receive the 20 offer them in the order that they are labeled, but 21 transcripts from your counsel and review it just 21 they will all be offered at one point, so don't be 22 to make sure it was correct? 22 confused if I say Exhibit 2 and we haven't yet 23 A I don't recall. 23 gotten to Exhibit 1. 24 Q Okay. Are you aware of any changes you 24 All right. I am going to offer into 25 made to the previous testimony? 25 evidence Exhibit No. 3 which is your October 14, Page 12 Page 13 1 2016 -- well, strike that. I'll start from the 1 to take control of these exhibits for you to have 2 top. 2 a PDF copy on your own computer, please let me 3 Plaintiffs' Exhibit No. 1 will be the 3 know. I'm happy to make this as easy as possible 4 Twin City excess insurance policy, Plaintiffs' 4 for you. I'm not trying to make things more 5 Exhibit No. 2 will be the HCC policy, Plaintiffs' 5 difficult or trick you. I want this to be as 6 Exhibit No. 3 will be Amy Ghisletta's 6 seamless as possible. 7 October 14th, 2016 transcript, and Plaintiffs' 7 All right. Please let me know when 8 Exhibit No. 4 will be Amy Ghisletta's 8 you're able to see this screen which you should be 9 December 12th, 2016 transcript. 9 able to see the Amy Ghisletta testimony. 10 (Deposition Exhibits 1-4 were marked for 10 A I can see it, yes. 11 identification by the court reporter.) 11 Q Perfect. I might try and make this 12 BY MS. MILLER: 12 actually a little bit smaller. Looks a little 13 Q I'm going to go ahead and share my screen 13 large. 14 to bring up the October 14th, 2016 transcript. 14 All right. Now on the October 14, 2016 15 MR. FROST: And I'll just make an 15 transcript starting at page 8, line 13 through 16 objection for the record. We have not received 16 page 9, line 12, I'm going to keep it on the 17 copies and don't have copies of these exhibits, 17 screen for a second so you can just review where 18 but I do understand what you refer to. 18 we're at. 19 MS. MILLER: Yes. I would send them to 19 Here you testified that in December of 20 you right now except for they are very large, so 20 2005 you were employed for Fox Paine & Company. 21 I'm going to share my screen and understand that 21 Is that still correct? Is that testimony still 22 you will get the stickered copies as part of the 22 correct? 23 transcript. 23 A Yes. 24 Q Okay. Now if at any point, 24 Q You testified that your title at the time 25 Miss Ghisletta, it would be more helpful for you 25 was chief financial officer; is that correct? 4 (Pages 10 to 13) FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 12/28/2023 Page 14 Page 15 1 A Yes. 1 objections all through the day on that basis, so 2 Q Which was also commonly referred to as 2 if you'll give me a continued objection on the 3 the CFO; is that correct? 3 deposition on that basis, then I won't interrupt 4 A Yes. 4 you anymore, and we can go forward from there. 5 Q You were then asked, "Generally speaking, 5 MS. MILLER: That works for me. 6 what were your duties as CFO for Fox Paine & 6 MR. FROST: Thank you. 7 Company back in or about December 2005?" 7 MS. MILLER: Would you mind reading 8 You responded, "I had financial 8 back -- well, yeah, would you mind reading back 9 responsibility for Fox Paine & Company, which was 9 the question just so we have a clean record? 10 the management company, as well as the funds that 10 (Record read: You were then 11 it managed and all of the subsidiary funds and 11 asked, "Generally speaking, 12 legal entities." 12 what were your duties as CFO 13 Is that still true and correct? 13 for Fox Paine & Company back 14 MR. FROST: And I'm going to make, if you 14 in or about December 2005?" 15 don't mind -- Miss Ghisletta, I'm sorry, this is 15 You responded, "I had 16 Christopher Frost. I'm going to make an objection 16 financial responsibility for 17 just for the record, and obviously the questioning 17 Fox Paine & Company, which was 18 can continue. 18 the management company, as 19 And Mckenna, I'm just going to make an 19 well as the funds that it 20 objection that this is improper questioning, lacks 20 managed and all of the 21 foundation for her memory here today. You're just 21 subsidiary funds and legal 22 asking her to read testimony, and I'm going to 22 entities." 23 object to that being improper under the rules 23 Is that still true and 24 based on form and foundation. 24 correct?) 25 I don't have any intent or desire to make 25 THE WITNESS: Yes. Page 16 Page 17 1 BY MS. MILLER: 1 Q Now we're going to page 2000 -- 207, 2 Q You also testified that you recall that 2 excuse me, line 5, and this line of questioning 3 you were responsible for initiating insurance 3 goes through page 209, line 16. 4 coverage for the firm; is that correct? 4 You testified that in 2006 Saul was 5 A Yes. 5 concerned with minimizing liability for Fox 6 Q All right. I am going to now bring up 6 Paine & Company in connection with the formation 7 Plaintiffs' Exhibit No. 4 which is the 7 of NewCo and Fund III; correct? 8 December 12, 2016 exhibit. 8 A Sorry, you're asking me if... 9 Are you able to see this transcript, 9 Q I'm asking you -- so I'll phrase it this 10 Miss Ghisletta? 10 way: You were asked, "Now, in 2006, Saul was 11 A Yes. 11 concerned with minimizing liability for Fox 12 Q Okay. All right. For this next line of 12 Paine & Company in connection with the formation 13 questioning we'll be looking at page 195, line 19 13 of NewCo and Fund III; correct?" 14 through page 196, line 3. 14 You responded, "Yes"; right? 15 Now you testified in 2005 your job 15 A Yes. 16 responsibilities as CFO included procuring 16 Q And that answer is still true today? 17 insurance coverage for Fox Paine & Company, and 17 A To the best of my recollection, yes. 18 then the questioner, Miss Rockett, asked, "Do you 18 Q Okay. You were then asked, "So, in 2006, 19 believe you likely would have been in contact with 19 Saul Fox would not have wanted you to cancel or 20 Fox Paine & Company's broker or a broker offering 20 terminate Fox Paine & Company's GPL insurance 21 to provide GPL procurement services for Fox 21 policy; correct?" 22 Paine & Company?" 22 You responded, "No." 23 There were objections, and you responded, 23 Is that still the case? 24 "Yes." Is that correct? 24 A Best of my recollection, yes. 25 A Yes. 25 Q Okay. All right. You were asked, "In 5 (Pages 14 to 17) FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 12/28/2023 Page 18 Page 19 1 2006, Saul Fox would not have wanted you to remove 1 You responded, "Yes." 2 FPC as a named insured on Fox Paine & Company's 2 Is that still the case? 3 GPL policy; correct?" 3 A To the best of my recollection. 4 There were objections and you responded, 4 Q "And, in 2007, you did not procure a GPL 5 "Yes, to the best of my knowledge." 5 insurance policy for Fox Paine & Company that was 6 Is that still correct? 6 intended to exclude Fox Paine & Company or Saul 7 A To the best of my recollection, yes. 7 Fox from coverage; correct?" 8 Q "And, in 2007, Saul Fox would not have 8 You responded, "Yes." 9 wanted you to cancel or terminate Fox Paine & 9 Is that still the case? 10 Company's GPL insurance policy; correct?" 10 A To the best of my recollection. 11 You responded, "Yes, to the best of my 11 Can I just say my recollection as of this 12 knowledge." 12 time was better than it is today, so I have 13 Is that still correct? 13 nothing at this time that would change what I said 14 A To the best of my recollection, yes. 14 in my deposition. 15 Q "And, in 2007, Saul Fox would not have 15 Q I understand. 16 wanted you to remove FPC as a named insured on Fox 16 MR. CORDOVA: Yeah, Miss Miller, I mean, 17 Paine & Company's 2007 GPL policy; correct?" 17 the testimony is what it is, and so, you know, I 18 And you responded, "Yes, to the best of 18 think the witness has already testified as to her 19 my knowledge." 19 recollections generally and her truthfulness in 20 That's still correct today; right? 20 testifying initially, so just kind of walking 21 A To the best of my recollection. 21 through, you know, all of this 300-plus, you know, 22 Q "And, in 2006, you didn't procure a GPL 22 deposition testimony is really not a good use of 23 insurance policy for Fox Paine & Company that was 23 anyone's time. 24 intended to exclude FPC or Saul Fox from coverage; 24 MS. MILLER: Totally. Do you want to go 25 correct?" 25 off the record real quick? Page 20 Page 21 1 MR. CORDOVA: Sure. 1 involving your clients, Mr. Cordova, depending on 2 MS. MILLER: Let's go off the record. 2 what Miss Miller's willingness is to engage in it. 3 VIDEOGRAPHER: Off the record, 1:21. 3 But in response just again, and I 4 (Discussion held off the record.) 4 won't -- I'll be brief. But so the record is 5 VIDEOGRAPHER: On the record, 1:22. 5 clear, the plaintiffs in this case have asked Twin 6 MS. MILLER: Sure. So my -- Twin City is 6 City for a blanket agreement that all depositions 7 objecting to the use of this testimony in this 7 taken in all prior proceedings that are outside of 8 present case. We are entitled to these underlying 8 this proceeding, including the New York action, 9 facts to prove our case. We think this is the 9 including the underlying Fox Paine litigation from 10 best and easiest way to present this testimony for 10 2008 to 2012, have asked us for an agreement that 11 Miss Ghisletta to show her how she testified in 11 all of those depositions be treated as if they 12 the past and confirm that this is still the case. 12 were taken in this action. That's just an 13 If we think there is a more streamlined 13 unreasonable request. We have said on multiple 14 way to do this, I am amenable to that, but we are 14 occasions there's no way we can agree to that. 15 entitled to get this testimony, and that's what 15 That would not be in the best interest of our 16 we're going to do. 16 client to agree to that. 17 MR. CORDOVA: Yeah, I just don't -- my 17 However, this is essentially -- if the 18 understanding is that the issue is as to 18 plaintiffs, by the way, wanted to take these 19 admissibility, and I just don't understand how 19 depositions of these individual people, they 20 walking through this transcript is -- addresses 20 waited for the last couple of weeks of a year-long 21 the admissibility issue that Twin City has raised. 21 discovery period to do it in. 22 MR. FROST: Well, if it helps any, I can 22 So here's where I think that we might be 23 just put a response on the record and it might 23 able to find some -- a way through this if really 24 help us to find a way to resolve this type of 24 all you want to do is go through and ask her is it 25 thing for this deposition and future depositions 25 correct that she testified about something. 6 (Pages 18 to 21) FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 12/28/2023 Page 22 Page 23 1 First of all, again, I appreciate you 1 to. 2 giving me the objection, the standing objection so 2 MS. MILLER: Sure. I just on the record 3 I don't have to say it over and over again, but 3 would object to your characterizations in a number 4 asking her if it's correct that she testified to 4 of places. 5 something does not make it any more admissible 5 But separate from that, I am not asking 6 than it was before. We can fight about that 6 Miss Ghisletta if I am reading her transcript 7 later. 7 correct. I am asking her if it is still her best 8 But we have offered a solution to this, 8 recollection today. She is responding that this 9 and that is if you want to submit, like we would 9 transcript from 2016 is her best recollection, and 10 normally do, deposition designations of things you 10 that's still the recollection she has. She is 11 want to get in, we very well may agree to some, if 11 given an opportunity to tell me why it may no 12 not all, of it, for example, for Miss Ghisletta's 12 longer be her recollection, and it also gives you 13 deposition testimony, as an example, to say we 13 an opportunity, Mr. Frost, to ask her questions 14 could agree to that, for it to be used in this 14 and cross-examine her on these topics. 15 case. Obviously we might have 15 So I am going to proceed. If you would 16 counter-designations we want to make. 16 like to offer a separate agreement for depositions 17 If you're willing to do that, we're 17 going forward, that is fine. Let's not waste more 18 willing to engage in that and take away the need 18 of Miss Ghisletta's time discussing this on the 19 for wasting people's time in live format like 19 record. 20 this. So we're happy to do that. I'm offering 20 MR. FROST: Well, I -- just for the 21 that on the record to you, Miss Miller. I'm 21 record though, I have offered that before on more 22 offering it on the record for Mr. Cordova for his 22 than one occasion as a way to drastically shortcut 23 client, and we can proceed that way because there 23 this and many other non-party depositions, and so 24 are other clients that, I believe, Mr. Cordova 24 far plaintiffs have been unwilling to engage in 25 represents that that could also potentially apply 25 that type of solution. So we're still willing to Page 24 Page 25 1 do it if you're willing to a engage in that. I'm 1 MS. MILLER: Yeah. 2 sure the witness would appreciate that, but 2 VIDEOGRAPHER: Off the record, 1:28. 3 that's -- we stand willing to do it. 3 (Brief pause in proceedings.) 4 MR. CORDOVA: And if I may, and I think 4 VIDEOGRAPHER: On the record, 1:33. 5 it would be certainly more respectful of my 5 MS. MILLER: All right. So first to 6 client's time if the parties would stipulate that 6 respond, Mr. Frost, we did send you a letter which 7 Miss Ghisletta did testify, you know, as reflected 7 listed specifically the transcripts we wanted to 8 in the transcript, and again, that she did so 8 use in this action. Not every transcript, not 9 consistent with, you know, her understanding of 9 every hearing, but we listed by deponent and by 10 her oath and her endeavoring to speak truthfully, 10 date what deposition we were seeking to have in 11 because otherwise I really -- this is a pretty 11 this action, so that is -- and you did not agree 12 significant waste of a third party's -- or excuse 12 to that. 13 me, a non-party's time. 13 But putting that aside, if you are 14 MR. FROST: Twin City agrees to that. I 14 willing to agree today that Miss Ghisletta's 15 mean, we stipulate that this testimony is accurate 15 transcripts from October 14th, 2016 and 16 when it was taken and that she understood her 16 December 12th, 2016 are able to be used for all 17 oath. I have no problem agreeing to that. 17 purposes in this action as if they were taken in 18 MR. CORDOVA: Miss Miller? 18 this action, I -- that is an agreement that we 19 MS. MILLER: I have...I have hesitation, 19 would be willing to make. 20 so if we want to take a five-minute break, I can 20 MR. FROST: Well, Mckenna, that's the 21 get back to you, but I can't guarantee we'll agree 21 same thing you've been asking us the whole time, 22 to that, but if you want to take five minutes, 22 and that's just not something we can agree to. I 23 I'll... 23 don't understand why this is difficult. Why -- if 24 MR. CORDOVA: Yeah. No, I appreciate you 24 you have certain pages that you're going to run 25 need to run it up the chain. 25 through today and read through them, why don't you 7 (Pages 22 to 25) FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 12/28/2023 Page 26 Page 27 1 just send them to us, we'll read it, and say yeah, 1 pages, let us send you our counters, and we do 2 that's fine with us, we want to designate these as 2 that and that's something we do beyond the 3 well, and then there we go. I don't understand 3 discovery cutoff, then we can do that. I'm happy 4 why we can't do it that way, but just to say every 4 to do that. 5 word in here we're going to agree to, that's just 5 In other words, just if you wanted to go 6 not something I can agree to. 6 that route, let Miss Ghisletta, you know, be done, 7 MS. MILLER: Okay. Well, that response 7 then I'm happy to do it. If you don't want to do 8 would have been nice to the letter that we sent I 8 it that way, that's fine, but I'm just -- I'm 9 think over three weeks ago, but as for now, we 9 offering that as a...as a way through this. It 10 have Miss Ghisletta here, and since you did not 10 seems pretty reasonable. 11 agree to that, we're going to get her testimony. 11 MS. MILLER: I think it will be more 12 I'm not sure how we work around that. 12 trouble to bring her back than just go through 13 MR. FROST: Well, I mean, you can work 13 this now. 14 around it by we can agree to reset her deposition 14 MR. FROST: I don't think we'll need to 15 beyond discovery cutoff if we can't -- you know, 15 bring her back is my point. I'm just saying you 16 if we have logistical problems, but if you want to 16 wouldn't waive anything if you decide to go that 17 do it that way -- I did offer. Look, I don't want 17 route. 18 to fuss with you at all. I did offer this a 18 MS. MILLER: Well, I can't trust that 19 number of times to Michael. I'm not saying -- I 19 that's the case, Mr. Frost. I appreciate that, 20 don't know how -- what y'all talked about, and it 20 but I can't trust that that's the case, and we 21 certainly is your prerogative not to agree, but 21 have her here, and you won't agree to the 22 we're willing to do it that way. 22 testimony. You didn't respond beforehand when we 23 So if you want to do it that way, we're 23 said we wanted to use this testimony, so I 24 perfectly happy -- like you wouldn't waive 24 don't...I don't feel like I'm given much choice 25 anything basically. If you wanted to send us the 25 here. Page 28 Page 29 1 MR. FROST: We did respond. I did 1 can add to this conversation. 2 respond on numerous occasions, but look, I mean, 2 But again, we're already in the middle of 3 that's fine. If you don't want to do it, you 3 November. I don't want to be called in December 4 don't want to do it. That's your prerogative. 4 by any means. It just seems to be -- so I will 5 MS. MILLER: Okay. 5 let you all decide what the best course of action 6 MR. CORDOVA: I do want to say that, 6 is. I'd like to get through it as quickly as 7 you know, certainly my sense is that the parties' 7 possible because I believe that I really don't 8 dispute will be the same regardless of whether 8 have much of a recollection. So if there are some 9 Miss Ghisletta testifies or not, and so just 9 questions, that, you know, we can finish it today, 10 having her kind of sit here is really burdensome 10 then let's do it, but again, I don't know how much 11 on her time and mine. I mean, this should not be 11 more I can add to this. 12 a non-party's problem and an obligation imposed on 12 MS. MILLER: I appreciate that 13 a non-party. 13 completely. I think we can be done in an hour or 14 Amy, do you want to...do you want to 14 so if we just charge forward, and that way we 15 finish today, or do you want to try to adjourn and 15 don't have to revisit this, and that can be that, 16 see if the parties can resolve the dispute? 16 so... 17 THE WITNESS: I mean, I would love to not 17 MR. CORDOVA: Do you mind if we -- I'm 18 have to revisit this. I will just reiterate what 18 sorry. Do you mind if we take a five-minute 19 I said before. I mean, we're -- you're asking me 19 break -- 20 questions about something I said in 2016. That 20 MS. MILLER: Sure. 21 recollection -- and at the time I didn't recall a 21 MR. CORDOVA: -- so I can consult with 22 lot. My recollection today has not changed in 22 the witness? 23 respect to the fact that I don't recall anything 23 MS. MILLER: Sure. 24 further than what I said then, and in fact, I 24 VIDEOGRAPHER: Off the record, 1:38. 25 recall much less, so I don't know how much more I 25 (Discussion held between witness and her 8 (Pages 26 to 29) FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 12/28/2023 Page 30 Page 31 1 counsel outside of deposition proceedings.) 1 tell you I am trying my best, and I don't actually 2 VIDEOGRAPHER: On the record, 1:45. 2 need to give you -- I haven't timed myself doing 3 MR. CORDOVA: So I've consulted with my 3 this. I can't give you more exact. 4 client. Subject to the parties' representation 4 MR. CORDOVA: Mr. Frost? 5 that this won't take more than another hour, we 5 MR. FROST: I can't imagine I'm going to 6 are -- and Miss Ghisletta will not be called 6 be more than a few minutes. 7 again, we'll proceed to go forward today. We 7 MR. CORDOVA: I appreciate it. So we'll 8 would appreciate though that if the parties would 8 reserve the right to check in again in an hour, 9 kind of resolve this in advance of any further 9 but I appreciate the estimates. 10 depositions of my clients. 10 MS. MILLER: Great. Let's get started so 11 MS. MILLER: I'll note that my hour or 11 we don't waste any more time. 12 so, I believe I said, estimate is for my 12 Q Okay. And just to clarify, 13 questioning. I can't speak for Mr. Frost, so... 13 Miss Ghisletta, when I am asking you, you know, 14 MR. CORDOVA: So let me take those in 14 whether this is still correct or whether this is 15 turn. "Hour or so" means what? 15 correct when we're reading your prior testimony, I 16 MS. MILLER: I'm going to go as quick as 16 am asking if that is your best recollection today, 17 I can. That's what that means. I am entitled to 17 if that has changed, if that's your best 18 seven hours, and I am saying I am going as quick 18 recollection today. I am not just asking you if I 19 as I can to make this as short as possible for 19 am reciting your testimony correctly. Do you 20 your client, and as future disputes arise, we can 20 understand that? 21 call the judge and get his ruling right now. 21 A Yes. 22 I am entitled to seven hours, and I am 22 Q Okay. All right. You were asked -- I'm 23 being extremely accommodating by saying I'm trying 23 sorry, I'm not sharing my screen anymore. 24 to get this done within an hour or so. So I can't 24 For the record, we are still on 25 tell you what exactly the "or so" is. I can just 25 Plaintiffs' Exhibit 4. This is Amy Ghisletta's Page 32 Page 33 1 December 12th, 2016 testimony. 1 THE REPORTER: Okay, thank you. 2 You testified in -- that, "in 2006, you 2 MS. MILLER: That was my fault. I 3 did not procure a GPL insurance policy for Fox 3 confused things. 4 Paine & Company that was intended to bankroll 4 Q Okay. Plaintiffs' Exhibit 1, the Houston 5 litigation against Fox Paine & Company; correct?" 5 Casualty Policy, I am going to scroll through this 6 A To the best of my recollection, yes. 6 a little bit, Miss Ghisletta, so you can orient 7 Q "And, in 2007, you did not procure a 7 yourself. If you would like to take control, 8 GPL insurance policy for Fox Paine & Company that 8 you're more than welcome to. I want you to feel 9 was intended to bankroll litigation against Fox 9 comfortable just testifying about this. 10 Paine & Company; correct?" 10 The date here, it's dated December 30th, 11 A To the best of my recollection, yes. 11 2006 to December 30th, 2007. The Insured 12 Q All right. Let's take this down. I am 12 Organization is Fox Paine & Company, LLC. Did you 13 now going to bring up Plaintiffs' Exhibit 1 which 13 procure this GPL insurance policy for FPC for the 14 is the HCC policy. 14 2007 year, Miss Ghisletta? 15 MR. CORDOVA: I actually thought you said 15 A I do not recall. So this would have been 16 it was the Twin City policy. 16 entered into as of 12/30/2006. I believe I was on 17 MS. MILLER: I am...I am so sorry. You 17 maternity leave at that time. 18 are correct. 18 Q In 2006? 19 I'll put this up. I...I spoke 19 A In 2006, yes. 20 incorrectly in that first instance. I have them 20 Q Did you testify that it was part of your 21 marked Plaintiffs' Exhibit 1 as the HCC exhibit -- 21 responsibilities to initiate the insurance 22 or HCC policy. Let me... 22 procurement? 23 THE REPORTER: I'm sorry, is this 23 A Yes. 24 Exhibit 1 or 2? 24 Q And so this policy you did not do that 25 MS. MILLER: This is Exhibit 1. 25 even though it was of your normal duties because 9 (Pages 30 to 33) FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 12/28/2023 Page 34 Page 35 1 you were on maternity leave? 1 says "The Hartford Universal Excess Policy"; is 2 A To the best of my recollection, yes. 2 that correct? 3 Q Okay. And was this the policy -- if you 3 A Yes. 4 know, was this the policy that ERP provided notice 4 Q And this one also says the policy period 5 under in November 2007? 5 is from 12/30/06 to 12/30/07; is that correct? 6 A I don't know. 6 A Yes. 7 MR. FROST: Form and foundation. 7 Q And you believe you were on maternity 8 THE WITNESS: I don't recall. 8 leave, and so that you did not assist in proc