prsrardy! OPEN COURT oe GRIERSON CMKM DIAMONDS, INC. Plaintite vs. DEPT. NO. XI URBAN CASAVANT, et al. : Transcript of Defendants : Proceedings BEFORE THE HONORABLE ELIZABETH GONZALEZ, DISTRICT COURT JUDGE JURY TRIAL - DAY 7 FRIDAY, AUGUST 26, 2011 APPEARANCES: FOR THE PLAINTIFF: BILL FRIZZELL, ESQ. DAVID KOCH, ESQ. WILLIAM SHEPHERD, E: FOR THE DEFENDANTS: JAMES R. CONDO, ESQ. ALEXANDER L. FUGAZZI, ESQ. PATRICIA REFO, ESQ. ANDY STONE, ESQ. COURT RECORDER: TRANSCRIPTION BY: SILL HAWKINS FLORENCS HOYT District Court Las Vegas, Nevada 89146 Proceedings recorded by audio-visual recording, transcript preduced by transcription service. one ue inns {TAOLAS VEGAS, NEVADA, FRIDAY, AUGUST 26, 2011, 9:58 A.M. (Court was called to order) (Jury is not present) THE COURT: Okay. We were going to talk about some exhibit issues for Mr. Frizzell first. MR. FRIZZELL: There's two 201 exhibits. I'm trying -- ‘TRE COURT: Proposed Exhibit 201? MR. FRIZZELL: 201, yes, Your Honor. THE COURT: Hold on a second. Let me catch up with you. Okay. MR. FRIZZELL: May I approach the clerk? I'd like to have 201A marked. what I'm doing, Judge, is taking off the first page of that exhibit, which is a letter signed by Brian Dvorak, and asking the Court to allow me to supplement 201A, which is the exact same exhibit without that letter. THE COURT: Okay. Is there any objection to that, MS. REFO: Mr, Stone is -- THE COURT: Mr. Stone. MS. RBFO: -- handling the exhibits. THE COURT: So if you turn to Tab 201, they're taking away the page that has an actual Bates Stamp 7084 on it, and then it would be 7085 through 7091 as the Proposed 201A.MR. STONE: And 201 has already been admitted. THE COURT: No. MR. FRIZZELL: If it has, we're okay, Judge. THE COURT: 201 has not been admitted. MR. STONE: We would have no objection to Proposed Exhibit 201A. THE COURT: 201A will be admitted. (Plaintiff's Exhibit 201A admitted) MR. FRIZZELL: Judge, as to 304 and 305 -~ THE COURT: Hold on a second. Let me get to that part of my notebook. All right. MR. FRIZZELL: Judge, those are I guess what I would call demonstrative exhibits. And I don't know if the Court wants them to actually be admitted at this time. And they're -~ THE COURT: I don't typically admit demonstrative exhibits. I let you use them for illustrative purposes with the jury. But if counsel stipulate they want to have them admitted, I always admit them. So these look like they're two charts with circles on them. MR. FRIZZELL: I was intending to blow this one up, and that's why wanted the Court THE COURT: Have fun. MR. FRIZZELL: Thank you, Judge. THE COURT: They're illustrative. He's CMKMDiamonds, and he says there's all this stuff that's related to it, and there are circles all the way around. MR. STONE: Well, we would object as to admitting THE COURT: I'm not admitting it. I said he could use it for illustrative purposes only unless you otherwise stipulate. Okay. Anything else? MR. PRIZ2ELL: Judge, 301. THE COURT: Okay. MR. FRIZZELL: If I could approach the clerk, Judge. THE COURT: Sure. MR. PRIZZELL: I want to add a custodial -- declaration of custodian of records from Btrade to that Exhibit 301. So I will make that -- and a cover letter make that 301A. THE COURT: Have you shown that custodian of records certificate to the defendants? MR. FRIZZBLL: It has been included. I mean, it's in their discovery, and I've referenced it in our exhibit list. THE COURT: Why don't you show them, since they're saying they haven't seen it before. MR. FRIZZELL: I just gave them another copy. But what we did is we disclosed to them all of thesubpoena -- records that were subpoenaed, and they were disclosed along with these affidavits. And it was in digital form it was done in digital form, so -- I don't know that they've seen the original, but the way we ~~ the way we disclosed is we -- we just sent it through a scanner, what we got from in this case Etrade, and on the top of it was the affidavit. That was done back early in discovery in this case. THE COURT: Okay. Does anybody have an objection to the admission of the documents which are at 301 from Etrade given the proffered custodian documentation? MR. STONE: Yes, Your Honor. We have several objections. One is -~ THE COURT: Let's hear what they are. MR. STONE: -- relevance. This is an Etrade account dealing with it looks to be Ginger Gutierrez, has -- THE COURT: That's what it says. MR, STONE: -- nothing to do with our clients. The other objection is that, despite the fact that there is now a subpoena that appears to be a declaration of custodian of records, there aren't any Bates labels in Document 301 that would tie up that particular exhibit and those documents as to it being disclosed pursuant to this custodian of records. And also, Your Honor, the date on the custodian of records is October 17th, 2007. The -- our clients were not includeduntil the first amended complaint was filed, August 13th, 2009. THE COURT: So is your objection that it's not in compliance with NRS 52.470? MR. STONE: Yes, Your Honor THE COURT: Mr. Frizzell, 52.470, which I am using a banking institution to deal with Etrade, since it falls within many of the banking regulations, is sort of specific about how you have to do it. MR. FRIZZELL: Judge, if when these records were delivered to the defendant -- I mean -~ yeah, to the defendant in this case, not in discovery. But at the time that we issued they subpoenas they were not a party to the suit. I understand that. Other than that, it appears we've complied with that statute. I may be missing something. I apologize. THE COURT: Let me tell you the part that I think is the biggest problem. “The records must be preserved and maintained as a cohesive unit, and may not be separated except upon order of the court." And I think that's where the issue is being raised. Correct? MR. STONE: Yes, Your Honor. MR. FRIZZELL: Well, we have it. We have those records, Judge. THE COURT: Where? MR. FRIZZELL: They have them. well, they'reactually THE COURT: Well, no. See, this is —- custodians of records produce documents with a certificate on the top sheet The documents are -- sometimes they're in an envelope, and they all stay in the envelope. Sometimes they come Bates stamped as group if counsel assists the person who's producing the documents. Sometimes they send you an electronic image nowadays with the custodian certificate and with the documents attached. Because the objection I am hearing from Mr. Stone is that the documents are Bates stamped, they weren't in the case when they were produced, they weren't given to them all together, his objection is sustained. MR. FRIZZELL: Okay. Judge, if -- MR. KOCH: I think, Your Honor, if I could, the documents were given to the defendants all together, they just were not provided an exhibit here to the Court. That's my understanding of what Mr. Frizzell -- THE COURT: I don't know. That's MR. ERIZZELL: But it was. That's -~ THE COURT: Well, but then show me the records that are "maintained in the cohesive unit and may not be separated except upon order of the court." Show me those. MR. FRIZZELL: They're in digital form and in a hardTHE COURT: Well, how did the custodian give them MR. FRIZZELL: They mailed us hard copies. THE COURT: Okay. So MR. FRIZZBLL: We put them in THE COURT: --~ where is the hard copy with the certificate on top? That's what I need. MR. FRIZZELL: We do have those. They're not physically in the courtroom. They could be here by ~ THE COURT: Okay. I'm not even addressing the relevance objection and whether they'd be admitted for a limited purpose, so MR. FRIZZELL: The relevance objection, Judge, these there's been testimony in this case Mr. Glenn represented James Kinney, obviously Ginger Gutierrez and James are party defendants in this case. These are trading records showing them trading CMKM Diamonds stock, trading stock after opinion letters have been issued by Mr. Glenn giving these defendants the stock in this case. And there's -- from damages purpose price, value, and it's part, as opposed to all of the records. I -- Judge I have made a specific -- the reason you only have a small part of this broken out, I announced to the Court and I told the defendants that I -- THE COURT: 1 know. And you told me you selected a portion of those records to use.