Ray v. Balestriere Fariello

• Court: District Court, S.D. New York
• Decided: January 18, 2023
• Docket: 1:18-cv-11211
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

AMES RAY, Plaintiff, No. 1:18-cv-11211 (JLR) -against- ORDER BALESTRIERE FARIELLO, et al., Defendants.

JENNIFER L. ROCHON, United States District Judge: The Court has reviewed the parties’ joint letter, dated January 17, 2023. See ECF No. 171. It is hereby ORDERED: • Plaintiff’s Exhibits: Defendants have waived their objection to Plaintiff’s exhibits 26 and 27. Additionally, the Court declines to issue Defendants’ requested instruction to the jury regarding these exhibits (see ECF No. 171 at 1), because the instruction would inappropriately comment on the evidence and “influence the jury on decisions which should be in the jury’s sole province.” United States v. Mundy, 539 F.3d 154, 158 (2d Cir. 2008) (holding that, absent special circumstances, judges should not “summarize and comment upon the evidence generally” in their instructions to the jury). • Defendants’ Exhibits: o Defendants have withdrawn exhibit DX-7. See ECF No. 171 at 2. Plaintiff has waived his objection to Defendants’ exhibits DX-79, DX-100, DX-104, DX-113, DX-128, and DX-134, subject to Defendants separating these exhibits into subparts as agreed upon by the parties. See ECF No. 171 at 1-2. Defendants shall submit such revised exhibits, after conferring with Plaintiff, by January 19, 2023. Since the joint letter states that the “only” Defendants’ exhibit that remains in dispute is DX-108, the Court concludes that Plaintiff has not renewed, and has therefore waived, his objection to Defendants’ exhibits DX-25, DX-66, DX-89, DX-106, DX-112, DX-137, and DX-151. o Plaintiff objects to the first sentence in Defendants’ exhibit DX-108 on hearsay grounds. Defendants assert that the sentence is not hearsay because they do not intend to offer it for the truth of the matter asserted, but Defendants do not state any alternative purpose for introducing the sentence. See ECF No. 171 at 2. Plaintiff’s objection is sustained, without prejudice to the Court revisiting if Defendants articulate a legitimate purpose for which it is sought to be admitted, other than the truth of the statement asserted. See Fed. R. Evid. 801(c)(2). Defendants shall provide a redacted version of DX-108 by January 19, 2023. o Defendants shall submit their proposed exhibits DX-163, DX-164, DX-165, and DX-166 to the Court by January 19, 2023. Before submission, the parties must confer about these exhibits in an effort to resolve any objections and, if any objection remains, Plaintiff must make the objection (and Defendants must provide their response) at the time the exhibits are filed. e The Court asked the parties whether they had any objections to the Court’s PowerPoint of preliminary instructions to the jury that were provided to the parties on January 11, 2023. The parties have not raised any objections and, hearing no objection, the Court will present those instructions to the jury before opening statements. e The Court will provide the parties’ jointly proposed preliminary instruction regarding the attorney-client privilege during the initial instructions prior to opening statements. See ECF No. 171 at 2. e Finally, Plaintiff shall, by January 19, 2023, file a stipulation signed by all parties dismissing this action as to John Does 1-5 or file a letter stating that Plaintiff does not intend to dismiss John Does 1-5 from this action. Dated: January 18, 2023 New York, New York SO ORDERED.

J 5 NIFERT. ROCHON nited States District Judge