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Karsten & Tallberg
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Order | Filed: May 13, 2024 | Entered: May 13, 2024 Pal v. Cipolla et al
Civil Rights: Other | Connecticut
Order
ORDER. Plaintiff has filed a response to the Court's order instructing Plaintiff to identify a single rebuttal witness in the event Defendants open the door to rebuttal testimony under Fed. R. Evid. 801(d)(1)(B). ECF No. 451. As Plaintiff will recall from the pretrial conference, the Court noted that it would allow Plaintiff to introduce one rebuttal witness in the event that Defendants introduce evidence that Plaintiff recently fabricated her sexual assault allegations. See ECF No. 450 at 23 ("I would not be inclined to have you call everyone under the sun to make this point.... But if you want to call one witness on this for rebuttal purposes, I'll let you do that, basically the one you told the most or the one that you think... would be the best witness or the most available."). Rather than identifying a single witness, as the Court explicitly instructed, Plaintiff has identified 30 potential rebuttal witnesses. ECF No. 451 at 1-2. The Court reiterates that Plaintiff may subpoena a single witness to provide rebuttal testimony in the event the Defendants introduce evidence that Plaintiff recently fabricated her sexual assault allegations. Plaintiff must identify this witness by May 15, 2024. If Plaintiff does not identify this witness by that date, the Court will not permit rebuttal testimony on this point. In addition, the rebuttal witness must appear to testify in person.
Signed by Judge Michael P Shea on 5/13/2024. (Bassali, D) -
Order | Filed: May 13, 2024 | Entered: May 13, 2024 Pal v. Cipolla et al
Civil Rights: Other | Connecticut
Order on Motion to Disqualify Counsel
ORDER: The plaintiff's motion to disqualify counsel (ECF No. 447) is DENIED because it is frivolous. First, it is unclear why the Plaintiff contends -- repeatedly -- in the motion that counsel for the Town of Wilton Defendants made "written representations that they have independent knowledge of an investigation conducted [by] the CT State's Attorneys, which they claim concluded that Plaintiff's allegations (which gave rise to this lawsuit of Pal v. Cipolla et al) are baseless." ECF No. 447 at 4. The motion points to a reply brief filed by the Town of Wilton Defendants' counsel (ECF No. 295), but that document does not suggest that these attorneys had "independent knowledge" of anything; the reply brief merely attaches the Ferencik letter, ECF No. 295 at 3, ECF No. 295-1, which the Court discussed in denying an earlier frivolous motion by the Plaintiff, see ECF No. 312. And Plaintiff does not provide any other basis for the Court to find that these defense attorneys have "independent knowledge" of the investigation and the conclusions it reached. Even if she had, however, that would not be a basis to disqualify them. As the Court stated when it denied, Plaintiff's earlier attempt to disqualify one of these same attorneys (ECF No. 97):
"Motions to disqualify are disfavored in the Second Circuit because they are frequently used as litigation tactics by opposing parties, and have the effect of interfering with a party's choice of counsel." See Evans v. Artek Sys. Corp., 715 F.2d 788, 791 (2d Cir. 1983). The party seeking to disqualify another party's counsel thus faces a 'heavy burden.' Id. at 794.
Plaintiff cannot meet that "heavy burden" here. The only reason the Court has allowed Attorney Ferencek to testify is that Plaintiff has sought to call him and the Court has determined that any testimony he might offer that she made, and he received, a complaint about the alleged conduct of certain defendants in this case has some limited relevance, at least to rebut any the suggestion that Plaintiff did not attempt to report the serious allegations she is making to relevant authorities. (The Court has not yet determined whether Ferencek would be allowed to testify only as a rebuttal witness.) As the Court has made clear at pretrial conferences, if Plaintiff in fact calls Ferencek and she elicits such testimony from him, she may also elicit testimony from him about the steps he took in the investigation, and she or Defendants (on cross-examination) may also elicit from him -- briefly -- why he did or did not choose to bring charges at the conclusion of the investigation. And so even if the Town of Wilton defense attorneys themselves had "independent knowledge" of the investigation (putting aside the fact that it is unclear how they could), the witness with first-hand knowledge of the investigation is, of course, the prosecutor who conducted it. And unless there were reason to believe that the defense attorneys' purported knowledge about the conclusion of the investigation was significantly more favorable to these attorneys' clients than Ferencek's owe testimony -- and even Plaintiff does not suggest there is -- then there would be no need or reason for the Court to permit the defense attorneys to testify on behalf of their clients. Even under that scenario -- which is not supported by any facts the plaintiff has brought to the Court's attention -- it would not be "obvious" that these lawyers "ought to be called as [] witness[es] on behalf of their client[s]." D. Conn. L. Civ. R. 83.13(b). The Court will not reconsider this ruling, and the Court will impose financial sanctions on the Plaintiff if she files a motion to reconsider it.
Signed by Judge Michael P Shea on 5/13/2024. (Bassali, D) -
Order | Filed: May 13, 2024 | Entered: May 13, 2024 Pal v. Cipolla et al
Civil Rights: Other | Connecticut
Order on Motion for Order
ORDER. Plaintiff has filed a motion for the Court to set dates certain for several witnesses' testimonies. ECF No. 448. It is not the Court's practice to set dates certain for witnesses at trial, and the Court is not required to allow witnesses to testify at the times listed on the subpoenas; rather, it is each party's responsibility to coordinate with witnesses to ensure that the next witness he or she wishes to call is at the courthouse and prepared to testify once the prior witness's testimony has concluded. Lawyers and parties typically do this by staying in frequent communication with the witness while the trial progresses, and ensuring that each party's next witness is seated in the hallway outside the courtroom. The Court has made a limited exception to this general rule for the purpose of coordinating the testimony of witnesses whom it has allowed to testify remotely. Plaintiff proposes setting a date certain of May 28, 2024 at 9:15 AM for the testimony of Dr. Marc Silver, a remote witness, but the Court has previously set that time aside for the testimony of Dr. Jill Edgar, another remote witness. Thus, the Court sets a date certain for the testimony of Dr. Marc Silver for May 29, 2024 at 9:30 AM. Plaintiff shall ensure that Dr. Silver is available at this time, and, if he is not, Plaintiff must file another motion seeking to set a date certain for his testimony by May 15, 2024.
Signed by Judge Michael P Shea on 5/13/2024. (Bassali, D)
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