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Rockett v. Stifel, Nicolaus & Company, Inc.

United States District Court, M.D. Georgia, Valdosta Division

October 30, 2014

SUSAN ROCKETT, Individually and as the Administrator for the ESTATE OF ANDREW T. FULLER, and as the Executrix of the ESTATE OF MARTHA F. OWENS, Plaintiffs,
v.
STIFEL, NICOLAUS & COMPANY, INC. and ANTHONY JOHN FISHER, Defendants.

ORDER

HUGH LAWSON, Senior District Judge.

A pretrial conference was held in this case on October 24, 2014. During the conference, several pending motions were heard. The Court enters the following order on those motions.

I. Plaintiffs' Motion to Add Exhibits to the Pre-Trial Order (Doc. 155)

Plaintiffs move to append their exhibit list to include two recently discovered police reports. The police reports allegedly were made at some point in 2006 and relate to reported incidents of domestic violence between Defendant Anthony Fisher and his wife. The reports further suggest that Fisher was employed by Defendant Stifel in 2006. Throughout the course of this litigation, Stifel has asserted that the firm did not hire Fisher until 2009. The Court opines that the only potential relevance these reports may have may be for the purpose of impeaching Stifel's testimony regarding Fisher's dates of employment. The introduction of this evidence shall be limited to the employment information listed on the report. Plaintiffs shall properly redact the documents to exclude the irrelevant portions. To that extent, Plaintiffs' motion is granted.

II. Plaintiffs' Motion to Introduce Witness Testimony at Trial Via Skype (Doc. 132)

Plaintiffs seek permission to take the testimony of Steve Fried at trial via Skype or some other internet based electronic conferencing system. Mr. Fried resides in Las Vegas, Nevada. While Mr. Friend previously confirmed with Plaintiffs that he would be available for trial, on the eve of trial, Mr. Fried's attorneys advised him not to appear. However, his attorneys have informed Plaintiffs' attorneys that Mr. Fried is available electronically. Defendant objects to the introduction of remote testimony on the ground the Plaintiffs have failed to meet the Rule 43 requirement of "good cause in compelling circumstances" to permit remote testimony during the course of the trial. Fed.R.Civ.P. 43(a).

Recognizing that courts are moving into a more technologically advanced world, and realizing that the Court's subpoena powers do not extend to Las Vegas, the Court grants Plaintiffs' motion to implement remote testimony at trial. Plaintiffs have tested the electronic system in the courtroom and assure the Court that testimony of this nature is feasible. The Court expects the testimony to be presented smoothly and without interruption. In the event of a technological failure or glitch, Plaintiffs will forfeit the opportunity to engage in the examination of this witness. Both parties will provide any exhibits they plan to utilize to the witness in advance of his testimony. The parties shall take head to limit the number of documents to prevent any delays or confusion.

III. Plaintiffs' Motion in Limine to Prohibit Any Reference to Defendant Being Deprived of Commissions (Doc. 129)[1]

Plaintiffs argue that Defendant should be precluded from introducing evidence that Stifel earned no commissions from Plaintiffs' investment in Cardiac Networks, Inc. because that information is not relevant. Defendant responds that the fact that Defendant earned no fees when Plaintiffs transferred funds from their Stifel accounts to invest in Cardiac Network, Inc. is relevant to (1) whether Fisher acted as Defendant's agent in assisting Plaintiffs in wiring money out of their Stifel accounts; (2) whether Stifel ratified Fisher's actions; and (3) Plaintiffs' expert's testimony that Fisher's past production history indicated a desperation for commissions that should have been a red flag to Defendant that Fisher was likely to engage in high-risk trading activity. The Court agrees that this evidence may be relevant to the question of agency and to whether or not Defendant ratified the acts of its agent. Accordingly, this motion is denied.

IV. Plaintiffs' Motion in Limine to Preclude Any Reference to Plaintiffs' Financial Circumstances (Doc. 129)

Plaintiffs seek to exclude any reference to the individual Plaintiffs' net worth as irrelevant and prejudicial. Defendant asserts that evidence Plaintiffs' financial circumstances is relevant to counter Plaintiffs' characterization of themselves as unsavvy investor. This motion is denied.

V. Plaintiffs' Motion in Limine to Prohibit Any Reference to Michael Mazor's Good Character (Doc. 129)

The Court denies Plaintiffs' motion to prevent the introduction of evidence relating to Michael Mazor's good character. To the extent that Plaintiffs call Mazor's character, or the character of any other witness, into question, Defendant shall be permitted to introduce evidence to rehabilitate the character of the witness.

VI. Plaintiffs' Motion in Limine to Bar Defendant from Taking Any Position Contrary to Those Taken in its ...


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