7.Defense-Case Schedule and Disclosure Discussion
52 lines(Witness excused)
JUDGE KAPLAN: Now, members of the jury, we're going to have what I hope is a shorter day tomorrow because we're only going to have, as I understand it——correct me if I'm wrong——two witnesses tomorrow, and then we are off till next Thursday. And on next Thursday we may also have a short day; is that right?
MS. SASSOON: Your Honor, it depends on some issues we'd like to raise with you.
JUDGE KAPLAN: I'll stop with tomorrow. Tomorrow we're going to have a short day. And now I'll find out what the issues are. But I'll see you in the morning at 9:30.
COURT CLERK: All rise.
(Continued on next page)
(Jury not present)
JUDGE KAPLAN: Be seated, folks.
Lest I forget it, when we're done, I would appreciate the government taking back all the used witness binders and so on which are beginning to threaten the stability of the bench here.
Okay. Now what do I need to know about?
MS. SASSOON: The government expects to rest early in the day of a week from tomorrow, but it's our position that the defense should have to begin its case at that point.
JUDGE KAPLAN: Should or should not?
MS. SASSOON: Should, given that we're going to have this long break between now and next week for them to prepare. I don't think the witnesses we have on tap for that week are——they're going to be short, but I also think that they're not so material that it would affect, you know, the decision to put on a defense case.
We'd also ask that the Court set a deadline for the defense to notify us of its first witnesses in the defense case prior to Thursday.
JUDGE KAPLAN: Mr. Cohen?
MR. COHEN: I'm not sure I follow.
JUDGE KAPLAN: They would like you to plan on the commencement of your case, if any, promptly after they rest a week from tomorrow, I guess. First point.
Second point, they would like you to be obliged to identify, if you're putting in a case, who the witnesses will be, at least the first few, if there are going to be more than one, and the sequence by a date certain.
MR. COHEN: Well, your Honor, we will be prepared to go forward on the 26th if we do put on a case.
JUDGE KAPLAN: Is that the right date?
MR. EVERDELL: 26th, your Honor, that's a Thursday.
JUDGE KAPLAN: I think that's right.
MR. COHEN: I'm looking at your Honor's calendar.
JUDGE KAPLAN: Well, let's hope it's right.
MR. COHEN: I carry this with me all the time.
JUDGE KAPLAN: I'll treasure that thought. Especially if I can find my own calendar.
Thursday is the 26th. Next Thursday.
Okay. Now it would seem to me——well, Ms. Sassoon, when do you want notice?
MS. SASSOON: As it stands, rebuttal expert notice would then be due that Monday, and we'd like notice of the other witnesses by that Monday as well.
JUDGE KAPLAN: Okay. What do you say to that?
MR. COHEN: Your Honor, for the last several weeks, well, the entire trial, we've been getting notice from the government on the Friday before the week of all the witnesses for the week, without being told who will be called in what order, so in keeping with the symmetry of that, I would propose that we provide our notice on the 24th, which is two days before, which is how we've been receiving notice throughout the trial.
JUDGE KAPLAN: Do you think you could negotiate a reasonable compromise here, folks?
MR. COHEN: We can certainly try.
JUDGE KAPLAN: And if you can manage that, I'm going to send you to the Middle East.
MR. COHEN: That's above my pay rate, your Honor.
JUDGE KAPLAN: What about that?
MR. COHEN: Let us try. If your Honor will permit us, we'll try.
JUDGE KAPLAN: You'll let me know in the morning. But the rebuttal expert notices are due October 23rd.
MR. ROOS: And on that, your Honor, in case it's helpful for the defense and the Court, your Honor's order on the defense experts and the possibility of rebuttal experts basically attached or keyed various potential defense experts to various government experts or witnesses. The government is not calling the——
MR. RAYMOND: Andria van der Merwe, the expert on commodities.
JUDGE KAPLAN: So can we rely at this point on what constitutes the universe of potential defense expert notices?
MR. COHEN: Your Honor, we're still working through that, and we would——we can have a more concrete answer for your Honor tomorrow. We're certainly not going to rebut the expert that they didn't call, but——
JUDGE KAPLAN: That seems reasonable.
MR. COHEN: As much as we'd like to hear about corn and all the other things on their charts. But there is one issue that I do want to talk with my colleagues and my client about tonight.
JUDGE KAPLAN: Sure. Okay.
All right. Anything else tonight?
MS. SASSOON: One issue, your Honor. We're calling tomorrow an attorney from FTX. His name is Can Sun.
JUDGE KAPLAN: And he's a former attorney from FTX, right?
MS. SASSOON: Yes.
JUDGE KAPLAN: Yes.
MS. SASSOON: I reached out to counsel over the lunch break to ask that they flag if there are any issues they're going to raise on cross-examination related to their potential presence of counsel defense, and so hopefully we can work that out tonight and raise any issues before the witness takes the stand with your Honor. And we also are anticipating at least one lawyer from the FTX debtors to be here in court to protect what hasn't been waived in terms of privilege. I don't——our direct is not going to touch on anything that they're asserting privilege over, and I'm not aware of anything on cross-examination at this point that's going to touch on the privilege, but they will be here in the event that it's necessary.
JUDGE KAPLAN: Okay.
MR. COHEN: We will talk to them tonight, your Honor.
JUDGE KAPLAN: Good.
MR. COHEN: A lot of it depends on what they're planning to do in the direct, so maybe they can give us a hint.
JUDGE KAPLAN: Yes. Well, I urge communication. Thank you, folks.
COURT CLERK: All rise.
(Adjourned to October 19, 2023, at 9:30 a.m.)