FILED: NEW YORK COUNTY CLERK 03/13/ :17 PM INDEX NO /2011 NYSCEF DOC. NO. 744 RECEIVED NYSCEF: 1 03/13/2017

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1 NYSCEF DOC. NO. 744 RECEIVED NYSCEF: 1 03/13/ SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY CIVIL TERM PART X SAMSON LIFT TECHNOLOGIES LLC, 4 Plaintiff 5 - against - Ind. No /11 6 JERR-DAN CORPORATION a/k/a JERRDAN CORPORATION AND OSHKOSH CORPORATION 7 Defendant X 8 60 Centre Street New York, New York. 9 February 28, B E F O R E 11 HONORABLE SHIRLEY WERNER KORNREICH 12 Justice 13 A P P E A R A N C E S 14 ZEICHNER ELLMAN & KRAUSE, LLP Attorneys for Plaintiff Avenue of the Americas ' New York, NY BY: PETER JANOVSKY, ESQ. ANTHONY I. GIACOBBE, JR., ESQ. 17 TARIQUE N. COLLINS, ESQ of 126

2 NYSCEF DOC. NO. 744 RECEIVED NYSCEF: 2 03/13/ GODFREY KAHN S.C. Attorneys for Jerr-Dan 883 East Michigan Street, Suite 1800 Milwaukee, WI BY: ANTHONY S. BAISH, ESQ. DANIEL T. FLAHERTY, ESQ. TANNENBAUM HELPERN SYRACUSE & HIRSCHTRITT LLP Attorneys for Jerr-Dan Corporation 900 Third Avenue New York, NY BY: PAUL D. SARKOZI, ESQ. OSHKOSH CORPORATION Attorneys for Jerr-Dan Corporation 2307 Oregon Street Oshkosh, WI BY: HEATHER KELLY, ESQ Kathy Y. Jones Official Court Reporter of 126

3 NYSCEF DOC. NO. 744 RECEIVED NYSCEF: 3 03/13/2017 '~, ', 2 THE COURT: Good morning. 3 You may be seated. 4 So, what I have in front of me are six in liminei, 5 motions and this is the first time that I've seen this 6 case. 7 This was a case that had its genesis in federal 8 court, two federal courts, Southern District and 9 Pennsylvania Western District I believe. 10 Subsequently, after two and a half years of 11 litigation, it found its way into the commercial division 12 anal it found its way into Justice Schweitzer's part. +,, 13 Justice Schweitzer had the case from the time it entered ` 14 supreme court and wrote quite a bit on it. 15 There was a lot of litigation. There was more 16 than one complaint. Excuse me. There was a complaint, 17 amended complaint which was dismissed. It had 13 or causes of action. 19 Subsequently, there was a second amended 20 complaint with three causes of action and on summary 21 judgment two of those causes of action were dismissed. 22 Part of the breach of contract action I believe also was 23 either dismissed or withdrawn. 24 So, what we have now and in a sense this is a 25 case dealing with unfair trade. It was a patent on a side 26 loader and I'll just call it a side -- it was a tow truck KATHY Y. JONES, OFFICIAL COURT REPORTEI~. 3 of 126

4 2 that loads cars from the side. It was some kind of new 3 type of tow truck. 4 Plaintiff owned the patent and licensed it in 5 the United States to Jerr-Dan Corporation. Jerr-Dan 6 Corporation eventually was taken over by a company called 7 Oshkosh Corporation, its parent company. There was a -- 8 and you've got to excuse me if the facts aren~t totally 9 clear. I have had to bone up on all of this because I 10 knew nothing about the case before I read these motions. 11 From what I gather, Oshkosh bought Jerr-Dan. 12 Jerr-Dan was a company that manufactured tow trucks and 13 Oshkosh among other things manufactured all kinds of 14 trucks and vehicles. 15 In any event, the license, the patent license, I 16 assume it was a license, it was renegotiated, a new 17 agreement was reached and the breach alleged is pursuant 18 to that agreement. 19 And all that, from what I remember, all that's 20 left at this point is whether the new truck was marketed 21 and sold and manufactured with commercially reasonable 22 effort in accordance with all the other products Jerr-Dan 23 produced. 24 So, I believe that~s the only issue. 25 The case is going to trial at this point only on 26 this issue. 4 of 126

5 NYSCEF DOC. NO. 744 RECEIVED NYSCEF: 5 03/13/ It went to the court -- I am sorry -- to the 3 Appellate Division. The Appellate Division affirmed 4 summary judgment of Justice Schweitzer and since Justice 5 Schweitzer is no longer on the bench, I was lucky enough 6 to catch the case. 7 So, as I said, this is the first time for me on 8 this case and we're dealing with six fairly substantial in 9 limine motion. I'm hoping to be able to deal with them 10 from the bench because that's what I do with in limines 11 Okay. 12 So, the first in limine motion is motion number and it's a motion by defendant to preclude allegations 14 not relevant but which may pertain to the dismissed 15 claims. I'm being very broad but you can argue it and let 16 me hear from you. 17 Oh, it's defendants. Why did I think it was 18 plaintiffs. I am sorry. Defendants. Sorry? 19 MR. BAISH: Thank you, your Honor. 20 My name is Tony Baish, Godfrey & Kahn on behalf 21 of Jerr-Dan. I'll be handling this motion. 22 You've accurately summarized the broad strokes 23 of the history of this dispute and our motion is directed 24 toward, you know, after all of this time and all of this 25 effort we've got this case down to its core to what it 26 should be about which is whether Jerr-Dan -- 5 of 126

6 2 THE COURT: Its almost eight years frankly. 3 MR. BAISH: Right. And we're now down to what's 4 really at the core of this which is whether or not 5 Jerr-Dan exercised its commercially reasonable efforts. 6 THE COURT: What exactly do you want me to 7 preclude? 8 MR. BAISH: We want you to preclude seven 9 different types of evidence, your Honor. 10 THE COURT: You're going to have to be very 11 specific because let me tell you this, and I'm not sure if 12 you're familiar with my rules, but let me state it right 13 here. When I do, particularly jury trials, since r'~ - ~~.. 14 commercial cases are very complicated and very document 15 heavy, you may put things in evidence books. You make 16 your in limine motions. You cross designate EBT testimony~l 17 and everything. I spend sometimes days prior to the jury 18 trial dealing with all of this. 19 At the point when you're going to trial, nothing 20 that hasn't been ruled on by me including every piece of 21 evidence you put into that evidence book is going to be 22 introduced at the trial. Do you understand that? 23 MR. BAISH: Absolutely. 24 THE COURT: So, these rulings are the rulings. 25 So, you have to be very specific. I am not going to have 26 a jury that sits for months. My juries -- I finished a 6 of 126

7 NYSCEF DOC. NO. 744 RECEIVED NYSCEF: 7 03/13/ jury trial a couple of weeks ago with nine witnesses and 3 three experts and we did it, we did it with going full 4 days but we did it in a week. That's what we're going to 5 do in front of the jury. 6 I won't torture a jury. So, I'm telling you 7 that right now. So, you better be very specific because 8 if you come up with a different -- with something else 9 during trial, you're out of luck. 10 MR. BAISH: Sure. 11 THE COURT: Okay. 12 MR. BAISH: Absolutely. 13 Let me start with this. There are three types 14 of evidence, your Honor. In this process THE COURT: What are the three types of 16 evidence? 17 MR. BAISH: Well, the three types of evidence 18 that are very closely related. The first type is evidence 19 of statements allegedly made by executives of Oshkosh 20 Corporation during the visit that Samson representatives 21 made to Oshkosh's facility in Wisconsin. 22 THE COURT: You're talking now about the 23 fraudulent inducement claim? 24 MR. BAISH: That's correct. That's exactly 25 right. 26 THE COURT: Now, the fraudulent inducement 7 of 126

8 1 Proceedings claims are out? MR. BAISH: THE COURT: That's correct. And the specifics of those promises 5 6 certainly wont come in but what are you asking me to preclude? 7 MR. BAISH: The specifics of those promises. 8 That's THE COURT: MR. BAISH: THE COURT: was puffery clearly. MR. BAISH: THE COURT: What are you asking me? That~s really the heart of it. I mean, some of it from what I read Sure: And some of it were allegedly promises but the Courts have found, both Schweitzer and the Appellate Division, that there was not fraudulent inducement here. These promises -- whatever was in the agreement was in the agreement. the agreement can't come in. So, promises outside of However, there may well be -- since commercially reasonable efforts and marketing, you know, marketing and selling, et cetera, are very broad terms, the other side is going to have to explain what that means MR. BAISH: THE COURT: Sure. And there may be things that came 26 out with regard to the other causes of action that explain 8 of 126

9 ~I 2 what that means. 3 MR. BAISH: I think that's not the case with 4 respect to these statements. 5 THE COURT: Are you saying that there will not 6 have to be any evidence outside of the contract to show 7 what the meaning is. 8 MR. BAISH: I think that would be probably an 9 overstatement. However, what would not THE COURT: Is the term ambiguous in any way? 11 MR. BAISH: No, but I do think that it would be 12 fair to evaluate Jerr-Dams commercially reasonable 13 efforts in the context of Jerr-Dan's actions and 14 discussions with THE COURT: What does it mean? 16 What are commercial -- will the jury understand 17 what commercially reasonable efforts means? 18 Will there be any evidence at all? 19 Do you think any evidence at all should come in 20 as to the intent of the parties? 21 MR. BAISH: Yep, and I think that intent THE COURT: Yes? 23 MR. BAISH: I think that's right, but that 24 evidence would not involve any statements or activity by 25 Oshkosh Corporation. This was a contract with Jerr-Dan. 26 THE COURT: Well, wasn't Oshkosh involved in all 9 of 126

10 NYSCEF DOC. NO. 744 RECEIVED NYSCEF: 10 03/13/ Proceedings 2 of this? 3 MR. BAISH: No, no. Candidly, they were not. 4 THE COURT: Why were they at Oshkosh's premises 5 then? 6 7 MR. BAISH: acquired Jerr-Dan. Oshkosh got involved when they That was -- the acquisition was 8 announced weeks after the initial -- 9 THE COURT: I understand but is there any difference between the two contracts in regard to the commercially reasonable? 12 MR. BAISH: No. r' THE COURT: MR. BAISH: Is the language exactly the same? The language in that regard is the 15 same The change that Samson claims was detrimental we feel we've proven Justice Schweitzer found. 18 THE COURT: No, I'm just talking about the 19 breach that has to be determined at this trial. 20 MR. BAISH: That language I believe is 21 identical. 22 THE COURT: Is that whole paragraph exactly the 23 same? 24 MR. BAISH: I think that's correct? 25 THE COURT: You think? 26 MR. BAISH: I think that's correct. 10 of 126

11 NYSCEF DOC. NO. 744 RECEIVED NYSCEF: 11 03/13/ THE COURT: I hope you know more than I know. 3 MR. BAISH: I got them right in front of me. T 4 can check. I don't want to say they are word for word 5 identical and it turns out to be wrong. But as I stand 6 here right now -- 7 THE COURT: While you're standing there now, why, 8 don't you look at that and tell me if they are exactly the'' 9 same. 10 Does the other side know? 11 MR. JANOVSKY: I believe they are exactly the 12 same. 13 THE COURT: If they are exactly the same, your 14 argument would be the intent should be just the intent of 15 Jerr-Dan and the plaintiff. 16 Is that what your argument is? 17 MR. BAISH: No, that's not the argument with 18 respect to the statements by Oshkosh. 19 THE COURT: It's not statements by Oshkosh that 20 are important. 21 MR. BAISH: I agree with you and that's what 22 we're trying to preclude. 23 THE COURT: If your argument holds true but 24 although they signed a new contract, does that matter at 25 all? 26 MR. BAISH: It does not, does not. 11 of 126

12 NYSCEF DOC. NO. 744 RECEIVED NYSCEF: 12 03/13/ THE COURT: That's your argument about one 3 thing. These are the statements by Oshkosh. 4 What's the next? 5 MR. BAISH: The next is argument about changes 6 to the license agreement themselves and dovetailing with 7 that. 8 THE COURT: You have to be specific. 9 MR. BAISH: Sure. 10 Samson has taken the position that changes to 11 Article 5.1 of the license agreement from the first 12 agreement to the second resulted in the loss of important 13 rights, Samson's rights to control intellectual 14 properties. That issue has already been decided by 15 Justice Schweitzer and by the Appellate Division. And 16 that's most important in connection with the third 17 species of the THE COURT: Which is? 19 MR. BAISH: Evidence, which is evidence related 20 to Jerr-Dan's application for a patent on aspects of the 21 side loading technology that it developed. 22 THE COURT: You're saying that that shouldn't 23 come in? 24 Doesn't that go to the whole issue of motive and 25 intent? 26 MR. BAISH: No, your Honor, it does not and it 12 of 126

13 NYSCEF DOC. NO. 744 RECEIVED NYSCEF: 13 03/13/2017 r, 2 should not. Here is why. 3 For that to be the case, Samson needs to prove 4 that there existed an improvement to the side loading 5 technology as that term improvement is defined in the 6 contract. And that definition is limited. It means a 7 development. 8 THE COURT: I did not follow your argument. In 9 the brief, I frankly didn't agree. 10 MR. BAISH: Fair enough. 11 Let me back up a second. 12 The contract defines Improvements with a capital 13 I as developments that would but for the License Agreement 14 infringe on Samson's patent. 15 The complaint that Samson is making is that 16 Jerr-Dan filed for an application on developments. 17 THE COURT: I know what the complaint is, I 18 think. I think it's very important to hear oral argument 19 that goes to motive. It goes to, you know, what they 20 intended to do in regard to, you know, selling. 21 Isn't motive always important? 22 MR. BAISH: Well, Ism not sure whether it is or 23 isn~t but in this case we are not seeking to preclude them 24 from talking about our motive but would be completely 25 improper for Samson to say Jerr-Dan secretly and without 26 notice to Samson filed a patent application. 13 of 126

14 NYSCEF DOC. NO. 744 RECEIVED NYSCEF: 14 03/13/2017 '' 2 THE COURT: Well, they did. There was no 3 notice. 4 MR. BAISH: The only way there is a duty to give 5 notice is if there is a patent application on an 6 improvement. 7 THE COURT: They're not arguing -- they are not 8 asking for cause of action for breach because I'm not even 9 sure if the damages there frankly are different from the 10 damages for breach of contract. I don't know that that 11 cause of action could have stood because I don't know what 12 the damages -- if they could prove damages aside from the 13 contract damages but I think it's very important to their 14 proof motive. 15 MR. BAISH: Let me get at it this way. If 16 Jerr-Dan had filed an application for paint on a new type 17 of microwave oven. 18 THE COURT: That's different. That doesn't have 19 anything to do with the side loader. 20 MR. BAISH: You're right but the duty hinges on 21 the same question of whether there is an improvement. 22 THE COURT: I think it goes to two things. 23 I'll hear from the other side. 24 I think to some degree it deals with motive but 25 also beyond the whole issue of a motive, it just shows 26 what kind -- you know, when you're talking about a breach 14 of 126

15 NYSCEF DOC. NO. 744 RECEIVED NYSCEF: 15 03/13/ of contract, you're talking about the entire contract and 3 whether these people, what kind of actors they are and haw 4 seriously they took the contract. I think it's all very 5 important as context. 6 MR. BAISH: It is, your Honor. We do not ask 7 that there be no evidence that Jerr-Dan filed for a 8 patent. It is not appropriate, however, for Samson to say 9 that was done in secret and in violation of a duty to give 10 Samson notice of it. 11 THE COURT: So, you want to foreclose argument? 12 MR. BAISH: Argument and there is a host of 13 exhibits that we'll see when we get to the exhibits that 14 relate to the patent application itself and it complains 15 about it. 16 THE COURT: I read that. Unfortunately, I spent 17 a lot of time on this reading the papers and I thought it 18 went to motive and it went to context but that's my 19 feeling. 20 Let me hear from the other side. 21 MR. BAISH: Okay. 22 THE COURT: Let's first deal with the statements 23 by Oshkosh. 24 Why should they even come in when you have a 25 contract and usually, you know, there is a merger clause 26 here which of course I sometimes wonder given our case law 15 of 126

16 16 2 in New York whether merger clauses even matter any more. 3 But beyond that, usually an agreement between 4 sophisticated parties is an agreement and the agreement 5 doesn~t say anything about these promises that occurred 6 prior. 7 MR. JANOVSKY: That's correct, your Honor. 8 Peter Janovsky for Samson from Zeichner, Ellman 9 & Krause. 10 I think that the statements will fit in in a 11 context but I think there is other context that we need to 12 start with. 13 What they did is Oshkosh -- I am sorry Jerr-Dan signed a contract with Samson in June of Then they invited Samson up to their headquarters in 16 Oshkosh and the president of Jerr-Dan was there. And on 17 the basis of those promises, at least that's what the 18 testimony will show, the contract was amended to change 19 ownership of the license. 20 THE COURT: But that would be a fraudulent 21 inducement claim which is gone. 22 MR. JANOVSKY: But the point is that we're 23 talking about a reasonable commercial efforts contract, 24 and as you said, there is a very broad standard here, what 25 constitutes reasonable commercial efforts and basically 26 bad faith. And here~s what they did. After they built 16 of 126

17 NYSCEF DOC. NO. 744 RECEIVED NYSCEF: 17 03/13/2017 ~!~ 2 this truck, they filed a patent application. They didn't 3 tell us and we re not saying they had a duty to tell us 4 under the notice provisions of the contract. We're saying 5 that they along with everything else had a duty to tell 6 us. 7 THE COURT: Oh, I understand but that's a 8 different issue. I'm talking about the statements made by 9 Oshkosh prior to signing a contract. 10 MR. JANOVSKY: Well, I think that they go to the 11 commercially reasonable efforts because they are part of 12 the bad faith. 13 If I could clarify something about their 14 behavior. Okay. 15 We are not relying on the contract's provisions 16 that say that they must give notice or that they must 17 cooperate. we are relying on the reasonable commercial 18 efforts provision and what goes into that. 19 THE COURT: You're basically talking about and the application. 21 MR. JANOVSKY: No. 22 THE COURT: I'm talking about purely the 23 statements made prior to the signing of the contract. 24 MR. JANOVSKY: Well, what THE COURT: I don't see what relevance MR. JANOVSKY: What the Appellate Division said 17 of 126

18 NYSCEF DOC. NO. 744 RECEIVED NYSCEF: m 03/13/ is that Jerr-Dan even though it made omission and other 3 differential treatment of the Samson product, that they 4 have the right to prove the reasons for their different 5 treatment and they're going to give reasons why they did 6 this supposedly commercially reasonable -- 7 THE COURT: And you have a right to prove motive 8 and bad faith, et cetera. 9 MR. JANOVSKY: Exactly. That's what those 10 statements go to. 11 THE COURT: I don't understand what the 12 precontract statements. 13 MR. JANOVSKY: Because when the contract was 14 changed, Jerr-Dan gained the right to file a patent 15 application and they did it and they didn't -- not only 16 didn~t they give us notice but they left off Samson as 17 prior art under that patent. 18 So, here, they did a License Agreement with us. 19.And then they filed this patent. When they have a duty to 20 say what the prior art is, they left us off and the patent 21 office had to correct them and put it in. 22 Now, if that's not bad faith, I don't know what 23 is. 24 And if I could without getting into the weeds 25 too much clarify this whole issue of improvements and 26 capital I and small I, they are correct. To implicate of 126

19 NYSCEF DOC. NO. 744 RECEIVED NYSCEF: 19 03/13/2017 ', ', 2 of the License Agreement, we have to prove that there is a' 3 capital I improvement. 4 We don't have that proof. This is not an 5 infringement case. You have to prove that they would have 6 infringed. we don't have to get into that but they have 7 no evidence that it wasn't a capital I improvement. 8 Nobody knows whether it was a capital I improvement. We 9 didn't meet our burden on 5.1 but this goes to This goes to whether they acted commercially 11 reasonable. We didn't know about the patent for three 12 years and we discovered it without them telling us. If 13 they had told us at the beginning, we might have done some 14 inquiry into it. We might have tried to find out whether 15 it was capital I or small I, but they just didn't do this. 16 And it fits right into our counterargument to their 17 reasonability argument which is the warehousing argument 18 that they wanted to hide it and it succeeded because once 19 you file a patent application it shields anybody else from 20 developing a similar product. And it shields for example 21 their competitor Miller. 22 They don't know whether there is capital I or 23 small I. If you look at their papers, they never talk 24 about that. They filed a patent application. We didn't 25 prove it was capital I but they filed a patent 26 application, didn't tell us and didn't put us even on the 19 of 126

20 NYSCEF DOC. NO. 744 RECEIVED NYSCEF: 20 03/13/ application. Imagine that. They license a product -- a 3 patent from us. Then they file an application and omit us 4 from that. And that is not much so that we -- we also 5 didn't prove we were damaged in the fraud claims but as a 6 matter of fact Judge Schweitzer did say there was an issue 7 of fact on everything except the damages question. But 8 we're =- we don't claim damages far that change. We are 9 saying that they gained the advantage of being able to 10 file it and able to determine themselves if it was capital 11 I or small I. 12 Now, the jury could judge how different this 13 product was. We have the Israeli product and the product i' ~ 14 they built and they both pick a car and lift it onto a 15 flatbed or a bed, and you know, but we're not asking the 16 jury to determine anything about whether it was capital I 17 or small I, simply that we were induced to this change 18 that gave them the ability to hide it by filing a patent 19 application without telling us, without even listing us as 20 the prior art. 21 THE COURT: You know, I've read all the briefs 22 and I'm going to make my decision now. 23 You've used the word induced and again that is 24 no longer a part of this case. 25 So, as far as the promises made by Oshkosh prior 26 to signing of the agreements, that does not come in. That 20 of 126

21 NYSCEF DOC. NO. 744 RECEIVED NYSCEF: 21 03/13/2017 '! 2 is not part of the contract and there is no inducement 3 issue here. 4 As far as preclusion of offering in evidence an 5 argument about substantive changes to the License 6 Agreement, that comes in. I think it's very important to 7 motive. It gives the context. 8 I think it would be impossible for plaintiff to 9 prove a case without showing the motive behind and it also 10 is important because the other side can give reasons why 11 they -- why they did whatever they did. 12 I think that has to be refuted by the plaintiff. 13 Ism going to go through -- there are certain 14 things not mentioned in the oral argument that are in the 15 briefs. So, I'm going to mention each of the briefs. 16 So, that deals with the improvements to the 17 patent, all patent application issues and changes to the 18 licensing agreements. That will all come in to show 19 motive and context and reasons why which is motive really. 20 Now, the whole issue of whether Samson can 21 produce evidence to show that the use of the SLVR, that 22 the side loading tow truck would have saved lives or 23 avoided bodily injury, that cannot come in. I think 24 that's totally irrelevant and very prejudicial. 25 The issue of whether Samson should be precluded 26 from offering evidence at argument regarding Jerr-Dan's 21 of 126

22 NYSCEF DOC. NO. 744 RECEIVED NYSCEF: 22 03/13/2017 ', 2 alleged pre contractual promises, already I've stated that 3 doesn't come in. 4 Let me see what else that was in the brief. 5 And the whole issue of Oshkosh's and Jerr-Dan's 6 gross revenues, financial information, I think some of 7 this can come in but not the money, how much money they 8 have and that they're a big company. I think the fact 9 that they're a big company and why plaintiff chose to use 10 Jerr-Dan and then continued with Oshkosh, all of that can 11 come in but it can t be done by showing how many billions 12 of dollars or millions of dollars they have. 13 So, you know, you can do it without referring to 14 their gross revenues and specific finances because that, I 15 think, would be prejudicial. 16 I also find that the parties' prior litigation 17 history shouldn't come in. I think that's irrelevant. 18 So, I believe, that deals with most of it. 19 I just want to emphasize the patent 20 applications, -the changes in 5.1 can come in with regard 21 to motive and context. Okay. 22 So, that will constitute the decision and order 23 as to Okay. Now, moving on. This is 12. A11 right. 25 The next one is This is a motion by plaintiff and it's 22 of 126

23 NYSCEF DOC. NO. 744 RECEIVED NYSCEF: 23 03/13/2017 ', ', 2 plaintiff's motion to preclude defendant from introducing 3 evidence not produced in discovery and specifically we're 4 talking about distribution incentive, the distribution 5 incentive program which is referred to as DIP schedules in 6 discovery. 7 Plaintiff argues that at summary judgment the 8 defendants stated the DIP program did nat cover the 9 majority of defendant's products. Now plaintiff says but 10 that was based upon two -- I think it was two schedules 11 that plaintiff was able to get from outside vendors. 12 Unfortunately, there was no spoliation motion 13 made here which frankly maybe should have been an issue, 14 but be that as it may, that is not an issue here. 15 So, defendant -- I mean, plaintiff at this point 16 doesn't want defendant to make arguments such as the 17 majority of its products are not covered by this program 18 when they haven't produced the evidence to make that 19 argument. I think that's what this is about. And that no 20 schedule not produced during discovery can be produced 21 which in this eight year old case I totally agree but let 22 me hear you. 23 MR. JANOVSKY: Well, you just -- that was a very 24 good summary. There is alternative relief is that they 25 finally produce the schedule. 26 THE COURT: They have produced them? 23 of 126

24 NYSCEF DOC. NO. 744 RECEIVED NYSCEF: 24 03/13/ Proceedings 2 MR. JANOVSKY: That they be ordered to produce 3 4 the schedules in lieu of preclusion or both for that matter. 5 6 eight years. THE COURT: This case has been litigated for 7 MR. JANOVSKY: The problem is -- 8 THE COURT: why have they not been produced up 9 till now? 10 MR. JANOVSKY: That's a good question. 11 I mean, we had three motions to compel in 12 Pennsylvania. They were denied and they came in here and gave us 50,000 pages and they didn't include at that time the dealer incentive program. 15 THE COURT: And you asked for them? 16 MR. JANOVSKY: Yes, we asked for them. 17 THE COURT: what did Judge Schweitzer do? 18 MR. JANOVSKY: It didn't go to Judge Schweitzer because we had reached a stipulation and the stipulation said that they agreed that Samson was not on - any of these 21 agreements. They agreed that other dealers had these incentives and they agreed that they wouldn't do anything to contradict these previous things. 24 THE COURT: But then in summary judgment they 25 rely on those two schedules. 26 MR. JANOVSKY: Well, one schedule. 24 of 126

25 NYSCEF DOC. NO. 744 RECEIVED NYSCEF: 25 03/13/ THE COURT: It was one schedule which really is 3 not the entire universe. 4 MR. JANOVSKY: Well, it's kind of a gotcha in a 5 way. They said, well, here is this schedule. 6 THE COURT: But there was never a motion to -- 7 you know, there was no spoliation motion made or anything. 8 MR. JANOVSKY: It was resolved by stipulation. 9 THE COURT: There was no motion made under, what 10 is it, 3126 under the discovery statute? 11 MR. JANOVSKY: Well, in the beginning of the 12 case actually we did make a motion. Because of our 13 experience in Pennsylvania, we made a motion at the very 14 beginning of the case for a preservation order. 15 THE COURT: What happened? 16 MR. JANOVSKY: The judge denied it as not ripe 17 because we hadn't had discovery. 1g THE COURT: This was in Pennsylvania? 19 MR. JANOVSKY: No, that was here. That was in 20 New York, Judge Schweitzer. We brought an order to show 21 cause. 22 THE COURT: Not ripe? 23 MR. JANOVSKY: I am sorry. 24 THE COURT: It was not ripe? 25 MR. JANOVSKY: Yes. He said there is no instant 26 dispute about discovery because we hadn't yet exchanged 25 of 126

26 NYSCEF DOC. NO. 744 RECEIVED NYSCEF: 26 03/13/ discovery and we were basing our argument on our 3 experience in Pennsylvania where they represented to the 4 Judge we have nothing else and the Judge said well -- 5 THE COURT: Okay. So, basically, you did make 6 some effort? 7 MR. JANOVSKY: Yes, yes, we did. 8 THE COURT: All right. 9 Let me hear from the other side. 10 MR. BAISH: Your Honor, this is a case of the 11 pot calling the kettle black as it relates to this case. 12 The parties reached a stipulation in April very close to the end of discovery. 14 THE COURT: Well, I have no problem with the 15 stipulation but I have a problem with a party arguing the 16 motion when they use a piece of evidence for more than it 17 stands for and when they withhold discovery. 18 MR. BAISH: Well, your Honor, with all due 19 respect THE COURT: Let me just say in this part there 21 is a litigation hold as soon as you know that there is 22 going to be any kind of litigation. 23 MR. BAISH: Yeah. 24 THE COURT: We try not to make everything -- we 25 try not to make it so that everything is turned over but 26 certainly relevant things have to be, particularly a case 26 of 126

27 NYSCEF DOC. NO. 744 RECEIVED NYSCEF: 27 03/13/ worth as much as this case. 3 MR. BAISH: Absolutely, your Honor. This is not 4 a case of spoliation, despite multiple motions. 5 THE COURT: I read the papers and I don't know 6 if I would rule that it was not spoliation, but be that as 7 it may, it's not an issue now. It's not an issue. 8 What I am asking -- saying they're asking for 9 certain things in preclusion and I do -- let me just tell 10 yau. 11 When I do a trial, you can only make argument 12 based upon the evidence. Questions of experts and other 13 people and of witnesses are based upon the evidence. 14 Therefore, if for some reason the evidence, and I buy 15 their argument that just on one schedule you cannot make 16 an argument that the majority of the products were not 17 part of a distribution incentive program. That's not 18 going to happen in my court. 19 MR. BAISH: We have no intention, your Honor, of 20 making a_ny arguments that are unsupported by the evidence. 21 I just want to note THE COURT: That is not sufficient evidence to, 23 you know, one schedule or two schedules is not sufficient 24 evidence to make that argument. You would have to have 25 had all of the schedules. 26 MR. BAISH: Well, your Honor, if I draw your 27 of 126

28 NYSCEF DOC. NO. 744 RECEIVED NYSCEF: m 03/13/2017 ti 2 attention to paragraph seven of the stipulation submitted 1 3 to this Court and approved by Justice Schweitzer 4 defendants may present testimony, documents, or other 5 evidence that explains the DIPS for the proceedings ', 6 including trial. The stipulation itself reserves the I, 7 right. 8 THE COURT: The DIPS can be explained but the 9 argument that they are the entire universe and that the 10 majority of products are not on the DIPS cannot be made, 11 that is trying to pull the wool over the jury's eyes and 12 it's not based on the evidence. I've read all these 13 papers and I think it would be a miscarriage of the truth. 1 ~ 14 MR. BAISH: Your Honor, with all due respect, I 15 think that the piece of evidence we're relying on is a 16 document that they produced. 17 THE COURT: Yes, it can be used but it can't be 18 used as the entire universe of DIPS. Therefore, you 19 cannot say majority of products. 20 MR. BAISH: I agree with you. 21 THE COURT: One second. 22 MR. BAISH: We certainly agree, your Honor, that 23 one document should not be relied on to prove the totality 24 of what occurred with respect to the DIP. 25 What's good for the goose should be good for the 26 gander as well because they made an argument based on that 28 of 126

29 NYSCEF DOC. NO. 744 RECEIVED NYSCEF: 29 03/13/2017 'I '~, '~ 2 same document. We don't think they should have free range 3 to make an argument predicated upon that one document. 4 THE COURT: Nobody is going to make arguments 5 that are not found in the evidence. 6 MR. BAISH: We have no dispute with that either, 7 your Honor. 8 THE COURT: Basically, does that cover what 9 you're asking for, counsel? 10 MR. JANOVSKY: They can't make any argument on 11 the lack of evidence unless they produce it. 12 THE COURT: - Well, they can't produce it at this 13 r' point and they cant produce it now. It's too late. ~'- 14 MR. BAISH: Nor do we want to. 15 THE COURT: Therefore, they cannot make an 16 argument that the majority or whatever -- if it's not 17 based on the evidence, it cannot be made and I don't care 18 what the stipulation says. That is not an argument 19 founded on a stipulation. 20 MR. BAISH: I hear you, your Honor. I want to 21 make sure that we're all clear that the stipulation THE COURT: And the fact that all the DIPS are 23 not present can be brought to the jury's attention but 24 they cannot say that the other side failed to produce it. 25 They could just say we donut have all the DIPS. 26 MR. BAISH: Your Honor, I need to object only 29 of 126

30 NYSCEF DOC. NO. 744 RECEIVED NYSCEF: 30 03/13/ Proceedings because we could have had this fight in April of 2014 and we could have gone through the battle of potentially digging through the archives, the annuals, that great expense, that great burden, as we said to Judge 6 Schweitzer. We have reached an agreement to take that issue off the table and today I feel like we've being hog tied for the good faith that we showed at the same time to go resolve what was THE COURT: I don't think it was good faith. I think it was a smart move and frankly Ism -- as I said, the other side cannot say that you failed to produce or anything like that or that you were remiss in producing but they can bring to the Court that this is only one of the DIPS or two. 16 MR. BAISH: Your honor, we anticipate testimony as was contemplated in the stipulation about the DIPS and we intend to bring that testimony forward not with reference THE COURT: You cannot go elicit testimony from any of your witnesses that the majority of your products were not on the DIPS because they are not all the DIPS to support it. MR. BAISH: I presume the converse is true as well, your Honor, they can't make an argument that only the SLVR was segregated or removed from the DIP. 30 of 126

31 31 2 THE COURT: No, they can't because they donut 3 have the proof. 4 MR. BAISH: Thank you. 5 MR. JANOVSKY: Your Honor, our reply papers had 6 a document that does show that the majority were not on 7 the -- 8 THE COURT: You can argue whatever the evidence 9 will show. 10 MR. JANOVSKY: Thank you. 11 THE COURT: But if it's not part of evidence, no 12 party can argue it. t r. 13 MR. BAISH: Just to be clear, the reply papers 14 that they are relying on had exhibits that were not 15 produced in discovery. That's why I said the pot calling 16 the kettle black here, your Honor. 17 THE COURT: Where did those exhibits come from? 18 MR. JANOVSKY: That's the first I heard about 19 it. 20 THE COURT: What exhibits are you talking about? 21 MR. J.ANOVSKY: We're talking about spreadsheets 22 which said gross product for product line. We got them 23 from the documents that were produced. 24 MR. BAISH: The dealer incentive documents they 25 attach to summary judgment which is what they reference in 26 this motion were documents that were never produced to us 31 of 126

32 NYSCEF DOC. NO. 744 RECEIVED NYSCEF: 32 03/13/ in discovery. 3 MR. JANOVSKY: That's not what I'm referring to. 4 I'm referring to the financial documents that we attached 5 to our reply papers. 6 THE COURT: There are dealer incentive program 7 documents you got from third parties? 8 MR. JANOVSKY: No, these were produced by 9 Jerr-Dan. 10 THE COURT: I'm talking about the dealer 11 incentive program document they are talking about. 12 MR. JANOVSKY: The three? 13 THE COURT: Yes. 14 MR. JANOVSKY: Yes, yes. He got those from 15 other parties. 16 THE COURT: That can be used. Since they should 17 have been produced by the defendants, that~s okay. 1g That shall constitute the decision and order of 19 the Court. 2p Now, that was Thirteen. 22 Let me find it here. 13. Okay. 23 Thirteen is plaintiff's motion to preclude 24 Zepporiah Edmonds' testimony regarding the New Orleans 25 permitting process and that's dealing with I think a 26 demonstration of the SLVR down in New Orleans and what 32 of 126

33 NYSCEF DOC. NO. 744 RECEIVED NYSCEF: 33 03/13/ happened in New Orleans. And I think it deals with 3 whether or not New Orleans was going to purchase. 4 I think it's a purchasing process. I misread my 5 notes. And also it deals with certain s in an 6 exchange from her to plaintiffs, et cetera. 7 So, I think plaintiffs want to preclude a lot of 8 this but I'm not sure if they're asking to use the s 9 even though she wouldn't be testifying. I'm not sure 10 exactly what this exactly will be. 11 Let me ask you. 12 MR. GIACOBBE: Thank you, your Honor. 13 Anthony Giacobbe for Samson on this motion. 14 Judge, there are three categories, each of which 15 is vital. 16 THE COURT: What are they? 17 MR. GIACOBBE: One is the extreme prejudice that 18 would result to Samson if Ms. Edmonds is allowed to THE COURT: Forget about the prejudice. You 20 argue that her testimony is I don't recall, T don't 21 recall, and then just hearsay testimony. 22 MR. GIACOBBE: Correct. The hearsay is as to 23 damage. 24 THE COURT: So, you're arguing the rules of 25 evidence. 26 MR. GIACOBBE: Correct. 33 of 126

34 NYSCEF DOC. NO. 744 RECEIVED NYSCEF: 34 03/13/2017 r 2 THE COURT: Okay. 3 MR. GIACOBBE: So, the first category is 4.testimony that vehicles that were towed were damaged. 5 THE COURT: Are you arguing that any of her 6 testimony would come in? 7 MR. GIACOBBE: I would like to preclude all of 8 it, your Honor, because the three categories effectively 9 cover just about everything. 10 THE COURT: That the vehicles towed were 11 damaged. What else? ~2 MR. GIACOBBE: Secondly, Judge, the decision by 13 the City of New Orleans whether ox not to buy and purchase 14 the SLVR. 15 THE COURT: Yes. 16 MR. GIACOBBE: Of which she says she does not 17 know and was not her responsibility. lg THE COURT: It wasn't her responsibility. She 19 had no -- New York is an odd duck in terms of evidence. 20 She testified she had no authority to purchase. It wasn't 21 her job to purchase. Certainly not back then. And she 22 also testified it seems clear if you have no authority to 23 even purchase, she certainly had no authority to speak on 24 behalf of those purchasing. 25 So, in New York you need authority to speak as 26 well as the other authority as an agent and she clearly 34 of 126

35 NYSCEF DOC. NO. 744 RECEIVED NYSCEF: 35 03/13/ Proceedings did not have either or. So, you're arguing about the buying. What is the third? 5 MR. GIACOBBE: And thirdly, Judge, extrinsic 6 evidence. The defendants want to use her to impeach the 7 8 Samson witnesses who sent s and one of whom will testify. 9 THE COURT: That's what I didn't understand How would Samson's own s be introduced by you? I don't see how they are not hearsay. 12 MR. GIACOBBE: Your Honor, some of that has been resolved by agreement of the parties. And some of those I~ s involved are not just internal Samson s but involve Ms. Edmonds. THE COURT: They were s to Ms. Edmonds. We have to deal with the evidence issues that haven't been agreed to later. As far as I'm concerned, hearsay is hearsay. Is that it? 20 MR. GIACOBBE: It is it with one last sentence, Judge. I think this really is what is most important to the Court. Ms. Edmonds said especially around this time I don't have a brain. Much of the brain left during the Mardi Gra season and Jazzfest because we're pulled in so many directions which is, I guess which is better than saying she was having too much fun at Mardi Gra but her 35 of 126

36 NYSCEF DOC. NO. 744 RECEIVED NYSCEF: 36 03/13/2017 '' 2 own testimony is that her recollection is not reliable. 3 THE COURT: She said I don't recall to almost 4 everything? 5 MR. GIACOBBE: Yes. 6 THE COURT: Let me hear from the other side. 7 MR. FLAHERTY: Thank you, your Honor. 8 Dan Flaherty on behalf of Jerr-Dan. 9 Ms. Edmonds certainly had a role in the City of 10 New Orleans process. 11 THE COURT: She said no. I read the entire 12 testimony unfortunately. I read her whole EBT and she 13 clearly -- she said over and over she was not the 14 purchasing agent at that point. 15 MR. FLAHERTY: I completely agree, your Honor. 16 She did not make the purchasing decision but she also 17 specifically testified THE COURT: She said she had no authority. 19 MR. FLAHERTY: She also said she did have 20 responsibility for making recommendations for the purchase 21 of devices like the SLVR and she declined to recommend 22 that the City purchase the SLVR. 23 THE COURT: No, she said she doesn't recall most 24 of the time. 25 Interestingly, on page 79, she said, line 12, 26 "There is a difference in saying we would like to purchase 36 of 126

37 NYSCEF DOC. NO. 744 RECEIVED NYSCEF: 37 03/13/ Proceedings a SLVR because she said she did but never we will or were committed or even approved to do so." She says that. She then on page 80, line three, says, "Just a 5 pleasant interaction with Mr. Anderson." She's talking about meeting him, "but no specifics relative to talking purchasing and so forth because I knew I didn't have that authority. There was another gentlemen with Mr. Anderson and I'm assuming it must be Maxim Ruten and I think it was 10 Rutenberg and Mr. Anderson." She said, "Mr. Anderson was the appointed contact." She consistently said she doesn't recall. On page 86, lines 16, she said, "And I would not be involved." She's talking about her job title and 15 purchasing the SLVR. "That's correct. I wouldn't have that knowledge. I would not be involved with that process." She specifically says that. Then, on page 94, line five, she says, and she's talking about Mr. Mendoza, who is her boss and who does give the ultimate say so although he isn't one who purchases, there is another department, but he is the one 22 that ultimately agrees. She said, "I don't recall him coming to me and asking me anything relevant to this .~~ We're talking about the purchasing or a purchase 26 of the SLVR. She specifically says all of that. 37 of 126

38 ~ I~ ~, 2 MR. FLAHERTY: I agree, your Honor. And if you 'i 3 look at page 102 of her transcript, when she's asked and 4 did one of your roles or maybe your only role in the 5 purchasing process is making a recommendation ~o your 6 director, this back in "Answer: Yes, sir, to director Mendoza who in 'i 8 turn would make a recommendation to the equipment 9 purchasing department THE COURT: The equipment purchasing department 11 which is not the department to which she belonged. 12 This entire thing, first of all, first of all, 13 is hearsay but under the New York rule she doesn~t even 14 have authority to speak on behalf of the department much 15 less authority to purchase any of these SLVRs. Everything 16 she says is hearsay. 17 In regard to the damaged vehicles, she said she 18 was told this by someone, a subordinate -who at one point 19 she says was told this by somebody else, a Mr. Jones who 20 drove the vehicle, double hearsay. 21 There was no written report of this. She had 22 no -- she was not part of the purchasing process. Wasn't 23 within her authority. There was nothing established to 24 show it was a business duty of hers to make such a report. 25 None of her testimony comes in. It is totally 26 out of this case. It is absolute hearsay. 38 of 126

39 39 2 As far as the s go, unless there is a 3 stipulation, I don't see how the plaintiffs can use their 4 own s to support whatever they want to support. 5 MR. FLAHERTY: I just want to note, your Honor, 6 while I certainly hear and understand your ruling, I think, 7 it's important to distinguish between the ultimate 8 purchasing authority and those who lead to a purchasing 9 decision and it is our -- the defendant's position that 10 Ms. Edmonds' role, she directly interacted with the 11 plaintiff, the plaintiffs representative. She personally 12 observed the SLUR during a demonstration in New Orleans. 13 THE COURT: She said she saw it during a t 14 demonstration. She doesn't recall very much of it. She 15 certainly did not see any damage herself. 16 Believe me, T have read the entire - thing and the 17 one thing I tend to be is a stickler in terms of the 18 evidence, it is absolute hearsay and I am not allowing it 19 in. 20 That's the ruling of the Court on motion number MR. FLAHERTY: Understood, your Honor. 23 THE COURT: Now, let's move on. 24 Motion number 17 and 16. Okay. These are two 25 motions. Okay. Sixteen is a motion again by plaintiff, 26 oh, and they want to use portions of defendant's expert 39 of 126

40 !~ 2 testimony on their direct case. 3 Motion number 17 is plaintiff's motion to allow 4 EBT and documents regarding Oshkosh job offers to Maxim 5 Rutenberg. These are two different things. 6 Ism going to do 17 first because I think 16 is 7 more complicated and also because I read the papers and I 8 can't figure out what 16 is about because no party -- 9 there are no specifics. So, we!11 deal with 16 later. 10 Seventeen deals with apparently Maxim Rutenberg 11 worked far Samson for a two-year period and was very 12 involved in the marketing and the sales of this SL -- and 13 demonstration of the SLVR. He did not work for Samson f ~, 14 when his EBT was taken twice in this action. The first 15 time it was early on. I think it was still while it was 16 in Pennsylvania in District Court and apparently 17 Mr. Rutenberg who prior to his working from what I recall 18 for Samson had applied for a job with either I think 19 Oshkosh, parent company of Jerr-Dan, who frankly was very 20 involved in all of these proceedings. So, he didn~t get 21 the job. Somehow, after he stopped working for Samson, he 22 was contacted by Oshkosh at two different points regarding 23 a job in Russia for them. At the time of his EBT, I think 24 this was the second time he was contacted, he was 25 supposedly cooperating with Samson and was to be prepped 26 for the EBT and then contacted Samson to tell Samson that 40 of 126

41 NYSCEF DOC. NO. 744 RECEIVED NYSCEF: 41 03/13/2017 ~I ', '' 2 he was -- that he was in the midst of interviewing for 3 Oshkosh and felt there was a conflict. He felt under 4 pressure and did not want to be prepped by Samson and felt 5 that if he testified for Samson it might influence the job 6 offer by Oshkosh. 7 After protest by Oshkosh and the first -- first, 8 there was an adjournment of the EBT. Then there was a 9 decision that he would be subpoenaed, but eventually he 10 was deposed even though at that point there was still the 11 job offer over his head. And Oshkosh would not agree to 12 adjourn until, there is a dispute, but until further in 13 the process of that job offer whether or not it was 14 another interview or whether or not it was the job offer 15 but Oshkosh refused adjournment and the Court went along 16 with Oshkosh. 17 So, Mr. Rutenberg testified while he still had 18 the job offer he thought available and when he said he was 19 conflicted, he also did not submit to preparation for the 20 EBT by Samson. He testified without counsel at the EBT, 21 not with Samson's counsel representing him. So, now, the 22 question is what can come in and I'll hear you. 23 MR. JANOVSKY: Just as a matter of housekeeping, 24 there is a parallel motion to this. It's 15 by Jerr-Dan. 25 Sixteen is unrelated. 26 THE COURT: You're right about that. There is 41 of 126

42 2 also another motion and I have it. I don't know what I 3 did with it. Oh, here it is. You're right. It was my 4 next note. That is defendant's motion to exclude evidence 5 and argument regarding Rutenberg and possible employment 6 with Oshkosh and that's, yeah, it's connected to Oh, apparently, Mr. Rutenberg is not going to be 8 appearing for trial. 9 Why is that by the way? 10 MR. JANOVSKY: He lives in New Jersey. So, he 11 can't be subpoenaed. 12 THE COURT: And he hasn't agreed? 13 MR. JANOVSKY: Well, we haven't -- ~~~ 14 THE COURT: Has anybody asked? 15 MR. JANOVSKY: We haven~t asked him. And I 16 donut know that defendants have. 17 MR. BAISH: Mr. Flaherty is going to argue this 18 motion. I~11 just tell you we have not asked him either 19 but we took his deposition again in THE COURT: So, there are two depositions. I 21 know. 22 MR. BAISH: So, you know, other than looking at 23 documents, we didn't have a lot of independent 24 recollection. So, I'm not sure there would be a lot to be 25 gained by bringing him in. 26 THE COURT: Because it's about, probably, you 42 of 126