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Transcript of proceedings 10 21 2014


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Caution: This document contains repugnantly racist language

Transcript from a Motion for Sufficiency hearing conducted on October 21, 2014. Swanenburg's attorney spends much of the hearing complaining about and it's author. Nonetheless, Swanenburg changed many of his admissions from deny to admit.

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Transcript of proceedings 10 21 2014

  1. 1. I Vlnblnxn 2 IN THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 4 CHRISTOPHER T. SWANENBURG, ) Plaintiff; T CASE NO. (J! CL14-ODSBOV-04 d C 7 TODD D. BCNARD, 8 Defendant. 2 9 10 11 12 TRANSCRIPT OF PROCEEDINGS 13 Newport News, Virginia 14 October 21, 2014 15 l6 17 BEFORE: THE HONORABLE TIMOTHY S. FISHER 18 19 20 21 --------------------------------- ~- 22 TAYLOR ASSOCIATES, INC. 23 Registered Professional Reporters 24 Telephone: (757) 461-1984 25 Norfolk, Virginia TAYLOE ASSOCIATES, INC.
  2. 2. -oz-—. ..-__. . . _ . ... _.. ,.. -._. ..g. -- ~o . .._—_, ,—, :—. ._. ... - 13 14 15 16 17 18 19 20 21 22 23 24 25 on behalf of the Plaintiff: D. HAYDEN FISHER, ESQUIRB Fisher Clarke 2304-A West Main Street Richmond, Virginia 23220 (804) 335-1270 hfisher@fisherclarke, com On behalf of the Defendant: FRANK A. EDGAR, JR. , ESQUIRE SARAH M. SAVILLE, ESQUIRE Irving B. Goldstein 8 Associates 741 J. Clyde Morris Boulevard, Suite A Newport News, Virginia 23601 (757) 873-8173 faedgarjr@ibg1au. com ssavi1le@ibg1aw. com TAYLOE ASSOCIATES, INC. (The proceedings commenced at 2:00 p. m.)
  3. 3. ~. .-. ..——. .. , .. ... _., V —. -.. ... ._. .___. _ ‘4_“__' “A I W _ "“""" *-V--——— ~~v —— T. -- . _.___. ._. ._. .._ _ _ (The court reporter was sworn. ) THE COURT: Mr. Edgar, go to the first request for admission. I've got the background. MR. EDGAR: All right. We'll do. THE COURT: That would be number 11 -- MR. EDGAR: Number 12. THE COURT: All right. 10 MR. EDGAR: That is an identical request 11 for admission served in the first case. There is no 12 question that he uttered the word, and yet he's denied 13 it here. 14 Same with number 17. 15 They both ask him to admit something he 16 admitted in the first case, and yet he denies here. 17 Clearly in bad faith. And I can go through the 18 deposition transcripts and the testimony from trial. 19 He eat right there and he said he said it. 20 I've got "utter" defined pretty broadly. 21 I don't know what else to do in this case. I'm 22 getting frustrated, Your Honor. 23 It's the same request for admission 24 number 16 from the first case. Did he deny that one? 25 THE COURT: TAYLOE ASSOCIATES, INC. MR. EDGAR: No, he said "admitted, "
  4. 4. .. .., ... ... - s. .__—. —.. ——. -—. .T. . ~, :_. {.. —._. .. _ comma, to the extent blah, blah, blah. But the word "admitted" right there in the front. Here he's got 4 "denied. " 5 THE COURT: Mr. Fisher. 6 MR. FISHER: Your Honor, we spoke on this 7 over the phone. I agreed to modifiy this answer. 8 The problem is, Your Honor, there's an 9 individual in the courtroom named Mr. Mark Moreno who 10 I had a case against another client. Hr. Suanenburg 11 was a witness back in the summer. We got a verdict 12 against him. He's now out there in this 13 wi1liamsburglax. com which he's created. He's taking 14 stuff from this case -- 15 THE COURT: What are you talking about? 16 MR. FISHER: I'm talking about -- 17 THE COURT: We're talking about two 18 requests for amissions. The answer is admitted or 19 denied. 20 MR. FISHER: Well, it's not an admit or 21 deny because the implication -- 22 THE COURT: That's what admissions are. 23 MR. FISHER: The implication is that he 24 said that as an original thought, not -— that he 25 uttered it as an original thought as to quoting it. TAYLOE ASSOCIATES, INC. 1 so to be clear, he's quoting it, because what's
  5. 5. happening, Your Honor, is we think Mr. Boward is doing this. He‘: giving everything to Mr. Moreno, who's in the courtroom today, and he's -- THE COURT: Mr. Fisher, I don't have any idea what you're talking about. I'm in a courtroom. I'm in a trial. MR. FISHER: Right. THE COURT: Admit that you uttered the 10 word nigger on or about March 3rd, 2010; denied. M. FISHER: Right. Your Honor -- 11 THE COURT: What? It's admitted or 12 13 14 MR. FISHER: I agreed to modify that. 15 THE COURT: I don't care what you agreed 16 to. It's up to me to make a ruling. MR. FISHER: Right. 17 18 THE COURT: From now on, we're just 19 following the rules. 20 MR. FISHER: Well, then my -— I think 21 this discovery is on file for an improper purpose, and 22 it's harassment. And all this stuff is ending up 23 online. They're taking this stuff and it's getting 24 posted online. I asked for a protective order that 25 this stuff will only be used -- TAYLOE ASSOCIATES, INC. THE COURT: Number 12 is admitted, and
  6. 6. —~-——. ._. ... ... . . .- . .. -.- p—. ___ _. j.. .. the attorneys‘ fees are on that. You either pay attention to what we're doing here now or I'll go away for four or five minutes and you rethink the situation. I don't know who Moreno is, and I don't even know what you're talking about. I don't care. MR. FISHER: But my point, Your Honor, is that I said I'd like a protective order. Did you file a motion for a 10 THE COURT: 11 protective order? 12 MR. FISHER: No, Your Honor. We had this 13 discovery conference; and I said, I'll modify the 14 answer if we can agree on a protective order this 15 stuff is not to be used for anything but this case. 16 They wouldn't agree to that. So all this stuff is 1? getting posted online. 18 THE COURT: Why would they have to? 19 Requests for admissions are the simplest form of discovery in the world, admit or deny. Pick a 20 21 word, admit or deny. 22 MR. FISHER: Because they're going to 23 post it online, and the implication is that he said 24 this as an original thought, not that he -- the answer So the way -- it's very similar to 25 is he quoted it. TAYLOE ASSOCIATES, INC. defamation where the statement may be true; but the
  7. 7. implication is that Mr. Swanenburg made a racial comment, and he didn't make a racial comment. THE COURT: The implications are for everybody else. MR. FISHER: Right. THE COURT: You admit it or deny it. You admitted it before. You can't deny it now. MR. FISHER: Well, I agreed to strike the word "admitted" and have the qualified answer. THE COURT: I'm not negotiating with you. He's filed a motion. I'm making a ruling. At the end he's going to ask for attorneys’ fees. I'm going in there for about five minutes, and you rethink your progress here, because that number can be large. You might want to agree to whatever is going on here. (A recess was taken. ) THE COURT: Let me clear something up. Until yesterday I didn't know I had this hearing. Mr. Edgar was here on something else unrelated, and he mumbled something on the way out about seeing me in the next week or two or something like that. I don't know who Mr. Moreno is. I don't know what you're talking about. I don't care. It has TAYLOE ASSOCIATES, INC. nothing to do with this case from my perspective.
  8. 8. 16 17 18 19 20 £1 22 23 24 25 I print these things out last night. I go, What in the world could we have a discovery dispute about in this case, you know, my personal feeling, which determines sufficiency to the answers to the requests for admissions. MR. EDGAR: We have an agreement. I don't want to -- THE COURT: On all of them? MR. EDGAR: On all but one. THE COURT: I just thought I'd kind of do this so Mr. Fisher doesn't feel put upon, okay. MR. EDGAR: Sure. THE COURT: I looked at the transcript last night and I saw I object to the form. I saw Mr. Fisher's name. And I'm thinking, Why would I object to the form in a deposition? Oh, no, that's not me; that‘: you. That's somebody else. But let me tell you, since this thing started, you know, that has never been denied, never, that he said that. Now, what that means, the implications of all of that are for the jury, people's arguments later. If you've got a judgment against somebody, great, congratulations. If you hadn't nonsuited this TAYLOE ASSOCIATES, INC. we'd all be done, case, you might have got a judgment, 1
  9. 9. " "“'"‘ "“'*"? -———-vs. ..--cw 1-n—. ~_. .._ _. .2.. . ‘. _.j. .._ g MR. FISHER: Yes, sir, Your Honor. THE COURT: There are only two times in my career have I denied a motion to strike on the part of the defendant and the plaintiff nonsuited. The first time I thought I had a stroke, because I wasn't sure I was hearing correctly at that point. But admit that you uttered the word nigger on or about March 3rd, 2010. That‘: yes or no. That's what admissions are for. You can dance around it all you want. The last time you admitted it and danced around it, and now you deny it? 14 MR. FISHER: We agreed to remove the -~ THE COURT: Denied is wrong, Mr. Fisher, 15 16 in a pleading, absolutely wrong. 11 Lawyers have a lot of issues with words. 18 People have a lot of issues with lawyers. That word looked at this, I almost stopped reading it 19 when I I'm looking at, Admit you uttered the 20 last night. 21 word, denied. I agreed to change that 22 HR. FISHER: but they —- the reason 23 before we got here, Your Honor, 24 why is that this stuff is all going to be put online. 25 And the implication is that he -- TAYLOE ASSOCIATES, INC. THE COURT: Am I not getting through to
  10. 10. you? MR. FISHER: Yes, sir. I understand, Your Honor. THE COURT: 1 don't care what you agreed MR. FISHER: Yes, sir. THE COURT: Earlier today I had a lawyer in here on a case that told me some stuff in February, 10 and he didn't understand when I finished with him what 11 the problem was -- 12 MR. FISHER: Yes, sir. 13 THE COURT: —- at that point. He 14 submitted a form to me with the wife‘: income of 15 $1,472 a month on a person in Navy in Japan, which I 16 went ahead and issued an order, which I figured 17 probably wasn't going to fly anyway, but I did it 18 anyway because I thought the guy was hiding from his 19 wife. It wasn't until June he finally hires a lawyer. 20 It turns out he had an allotment to his wife of $3,000 21 since June 2009. 22 That lawyer just forgot that 83,000 a 23 month that his client had been receiving. And when he 24 walked out of here, he still didn't understand what 25 the problem was when I vacated the order I entered in TAYLOE ASSOCIATES, INC. February and cost his client probably about $25,000,
  11. 11. K, ‘ . .._j Inn 7.. ., -. Admissions are admit or deny. Whether you like it or not, it doesn't make any difference. That's the rule. And this one had been admitted. And I look at the first word there and says "denied. " This is not subject to negotiation. It’: not suggest to your agreement with anybody. This is a pleading, and that is a false answer. Now, what is it we're still arguing 11 about? 12 MR. EDGAR: Your Honor, plaintiff's end his answer to 13 counsel has agreed that he will am 14 "admitted" on request for admissions number 12, 17, 15 18, 20, 21, 22, 23, 24, 30, and 31 -- 16 THE COURT: Okay. 17 MR. EDGAR: And that we will argue 33 today. So he's changed -- agreed to amend his answers 18 "admitted" on those 10, and then we'll 19 to a straight 20 argue 33. 21 And we can move right to that, Your 22 23 THE COURT: Okay. 24 MR. EDGAR: Your Honor, the burden -- n on the person receiving requests for 25 there is a burde TAYLOE ASSOCIATES, INC. 1 admission to do a reasonable inquiry. Here _. ._. _-.1 . . .1 L- — - maria cannral rnmnrks
  12. 12. Mr. Swanenburg nas stated and us; nude se. --_- --m_-_- about Mr. Boward competing with him in lacrosse, running lacrosse camps. tournaments, and travel teams. I asked him to adit Mr. Boward was not engaged in those businesses as of the date of these statements. This is the alleged malice side of the pleading that we've seen several times. We get an answer back that talks about times unrelated to June 24, 2010. It doesn't admit or 11 deny anything. He says he doesn't have complete 12 knowledge of what business Boward was engaged in 13 regarding running of camps but Boward was actually 14 recruiting camp attendees as early as April 2010. So 15 something about 2010. 16 And then he said Boward was engaged in 17 the business of running lacrosse camps prior to 18 June 2010 because Boward had worked in 19 Mr. Swanenburg's camp. 20 But he never addresses the day on which 21 these statements allegedly were made; and that was the 22 purpose of the admission, that Mr. Boward was not 23 engaged in those businesses on that day. Therefore, 24 you can't say that is some sort of indication of 25 malice, and that's why I asked. TAYLOE ASSOCIATES, INC. 1 I think that the answer does not a. .. A-I-s-.5 ha’: rush: and looked at C1113.
  13. 13. 13 14 15 16 17 18 19 20 21 22 23 24 25 sufficiently state that NC a , -u- -__ _--i, , Because he's made the pleading, so he either admits it or he denies it, either one. But I've got to have an answer. I can do nothing under 4:12 later after the case if I don't have an admission or a denial. THE COURT: Mr. Fisher. MR. FISHER: Your Honor, that requires personal knowledge my client does not possess regarding what Boward was doing on June 24, 2010. All we have is the information that we had. And there was a reasonable inquiry conducted. We know he told Mr. Goeller he was starting —- planned to start a new program. We know he ultimately did start a new program. The timing of exactly what day he did that my client doesn't know. He doesn't have personal knowledge about that, can't admit or deny it. He provided the information he has. But the statement of the information that my client has about that is in the admission, and he says he doesn't have complete knowledge about it because it's not -- he doesn't have personal knowledge about it. So we provided all the information that we have, that Mr. swanenburg has about that. I think that's a fair answer. TAYLOR ASSOCIATES, INC. THE COURT: I'm waiting for my computer r I I I I I I I I I I . _ . .._- , __ : ‘A
  14. 14. While I'm doing that, regardless of my response on that question, up to, well, March 2010 I assume when Mr. Swanenburg lost his job Mr. Boward was his assistant coach? MR. FISHER: Assistant coach, and he also helped him with his business. THE COURT: I understand. That’: become the bigger issue in the second case, hasn't it? But, anyway. Are you going to lead me to believe that up through March 2010 Mr. Boward was running his own 14 camp somewhere in competition with Mr. Swanenbutg's 15 thriving business of running lacrosse camps and he 16 hired him as his assistant? 17 MR. FISHER: It started after that. 18 THE COURT: I understand that. Up to 19 that point. MR. FISHER: 20 Right. 21 THE COURT: Okay. Sometimes I wonder if 22 you and I are talking about the same case, Mr. Fisher. I'm not really sure what's going on. 23 on occasion. 24 MR. EDGAR: Your Honor, I'll note 25 paragraph 11 and 12 of the pleading where TAYLOE ASSOCIATES, INC. 1 Mr. Swanenburg pleads without pleading upon 2 information and belief, he pleads, At all times
  15. 15. 12 13 14 15 16 17 relevant defendant's actions were made by personal spite and ill will with the goal of injuring plaintiff in his profession and trade of organizing lacrosse-related events. At all times defendant was a competitor of plaintiff as a professional lacrosse coach, mentioning lacrosse camps, tournaments, and travel teams. That's paragraph 12. So he's pleaded it without upon information and belief, so he must know because he plead it as a fact. And, yet, he doesn't give me an answer to the request for admission that asks precisely that question, which is does —- did he or didn't he. MR. FISHER: On that day, June 24, 2010, was he engaged. That requires, you know, what is the definition of engage. He started planning on it. He already started planning on it. He did it. He told Vic Goeller in April he wanted to recruit players and recruit Vic Goeller specifically to come to his camps and tournaments that summer. So he had planned to do it. He ultimately did it. What he exactly was doing on June 24, TAYLOE ASSOCIATES, INC. 2010 in that process, you know, that's where the question, I guess, comes in as to is he engaged in
  16. 16. -‘—--—~ - v- "'-w. —~—. ... ——. ——_—. -vnw--x7_-—¢. A.. —--—. —.. _. ..». .—. ,,. .:. - _, _ - ______ business or has he started the company yet. We provided the answer to the request with all the information we have, the facts that we have. I mean, obviously, this is something he planned to do. He went out to his competitors and tried to recruit them to the tournaments that summer. He ultimately did create a competing program. Where 10 he was in that process on that specific date, you 11 know, that's —- my client doesn't know exactly where 12 he was on that specific date in terms of, you know, 13 had he filed his new corporation yet, had he hired 14 anybody, had any employees, you know. 15 On June 24, 2010 my client can't -- 16 doesn't have information as to exactly what he was 1? doing, although, obviously, he was planning on doing 18 it and he did it. 19 so the request was very specific on the 20 date, and my client just doesn't -- can't answer, you 21 know, exactly what he was doing on that particular 22 date. THE COURT: All right. 23 24 MR. FISHER: I think that's a fair 25 TAYLOE ASSOCIATES, INC. THE COURT: I'm going to deny the motion 2 on that one.
  17. 17. — . ... ,_. .., ..~. ... ... .. 4-—. .'. .__, -_. .__ _‘ <_V For your information, Mr. Fisher, I wasn't going to make you admit all of them. Apparently you did, so that’: fine. MR. FISHER: My concern, Your Honor, is not that. My concern is the stuff that's going up on the Internet. Your letters, pleadings, motions, discovery, it's all getting posted online. There‘: 10 this whole things called Lacrosse Story that bashes my 11 client. 12 THE COURT: Mr. Fisher, I did a med mal 13 case a couple, three years ago. Fairly energetic You-all can figure who 14 plaintiff's lawyer locally. 15 that is. 16 But, anyway, he was complaining about the 17 defense firm, not the defense counsel in the case but 18 that another member of that defense firm had 19 intentionally filed a bunch of discovery against him a 20 couple weeks before this trial to tie him up. And 21 then the defense lawyer said, Well, first of all, I 22 don't even know what you're talking about; we're a big 23 firm: everybody does what they do. 24 Then he said, Oh, by the way, did you 25 know that the plaintiff's lawyer has a blog with all TAYLOB ASSOCIATES, INC. 1 this stuff on it? And the first case was referred to 2 as Riverside 1, went through the supreme court; second
  18. 18. case was Riverside 2, that was mine. Gee, who has that blog? And everybody’: going like this back and forth, all right. I don't have anything to do with newspapers, Internet. That‘: the First Amendment, okay. Complain somewhere else. Now, I did allude to the people that, you 11 know, if somebody wants to go to the Bar and argue 12 about whether stuff is happening that lawyers are 13 putting out on the Internet, that's so. 14 But when you're saying all this bothers 15 you, again, did you get a judgment against somebody? 16 I heard that flying by. 17 MR. FISHER: Yes, Mr. Mark Moreno, who 18 comes to all these hearings. 19 THE COURT: Okay. Well, that's fine. I 20 have no idea what you're talking about. Don't take 21 that personally. If it was in the paper, I missed it. 22 I spent a lot of time this year trying 23 not to read the paper because I was in it too much, 24 but that's another story. So I don't have any idea. First time I 25 TAYLOE ASSOCIATES, INC. I don't 2 think I've ever heard -- I remember Mr. Elliott’:
  19. 19. name, but I don't know who that gentlemen is. so whatever happened happened. Congratulations. But that has nothing to do with me. I don't know who you take that up with. I don't know that Al Gore is in charge of the Internet -. anymore; but, you know, whoever is in charge of the 13 Internet, whatever. Now, if you're talking about fair trial and I certainly have some control over the parties in those cases. But unless you're telling me, you 14 15 16 17 18 19 20 21 22 23 24 25 know -- even if Mr. Boward was doing something on the Internet, I haven't heard you say he's doing it. You're saying the stuff is there. I don't know what I'm going to do or could do, you know, as far as that goes. So things may be upsetting you, but I don't have any knowledge about that at all, nor do I think I have any involvement in it, nor, by the way, do I have a pleading that raises this issue in front of me. MR. FISHER: Right. THE couar: All I'm dealing with here is TAYLOE ASSOCIATES, INC. sufficiency of the answers on requests for admissions, which you very kindly agreed to. I've ruled on one.
  20. 20. 1C 11 12 Mr. Edgar can draw the order. MR. EDGAR: I will, Your Honor. THE COURT: Do we have a trial date? MR. FISHER: Yes, December 16th and 17. And I was going to ask if we could set a pretrial conference : oday. THE COURT: Sure. Call Libby. She'll do something one way or the other. I assume there‘: something to talk about. I don't know what it would be, but who knows. That's fine. MR. EDGAR: Thank you, Your Honor. THE COURT: Anything else? MR. FISHER: Ho, Your Honor. THE COURT: Okay. Thank you very much. (The proceedings were concluded at 2:25 TAYLOE ASSOCIATES, INC. COURT REPORTER'S CERTIFICATE
  21. 21. - --——. ~— . .._______ I, Kristi R. Weaver, KEg13LcLuu Professional Reporter, certify that I recorded verbatim by stenotype the proceedings in the captioned cause before the HONORABLE TIMOTHY S. FISHER, Judge of said Court, Newport News, Virginia, on the 21st day of October, 2014. I further certify that to the best of my knowledge and belief, the foregoing transcript 11 constitutes a true and correct transcript of the said 12 proceedings. Given under my hand this day of O(; ’0U€,7/ , 2014, at Norfolk, Virginia. 13 14 15 16 17 18 19 Kristi R. Weaver, RPR, 20 CCR No. 0313158 21 22 23 24 25 TAYLOE ASSOCIATES, INC. VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS arr-nu-I-nnl? l'lrD 'l‘ RWANFNBURG.