Preliminary Matters
189 linesCOURT BAILIFF: All rise, Please be seated and come to order.
THE COURT: Good morning,
THE COURT: All right. Do we have any preliminary. matters?
MS. BREDEHOFT: Yes, Your Honor, we do.
THE COURT: Okay.
THE COURT: All right.
MR. NADELHAFT: First, the easy ones.
THE COURT: Easy ones are nice.
MR. NADELHAFT: These are the exhibits that were admitted and were on the list.
THE COURT: Okay. All right. So that's 1493F?
MR. NADELHAFT: Uh-huh. -
THE COURT: Okay. Got that one.
MR. NADELHAFT: There's a copy.
MS. VASQUEZ: Thank you.
MR. NADELHAFT: Right. That was --
THE COURT: And then 1903.
MR. NADELHAFT: That was yesterday.
THE COURT: Oh, that was yesterday's.
MR. NADELHAFT: Then there were two exhibits that were played during the depositions of Tracey Jacobs and iO Tillett Wright, and they were in by agreement, so I don't think they were on your list.
THE COURT: All right. 468 and 537. No objection; is that correct?
MS. VASQUEZ: I want to confirm this. Okay. Yes, no objection.
THE COURT: Okay. 468 and 537, no objection.
MR. NADELHAFT: Thank you.
THE COURT: I'll take them off my list as I go
MR. ROTTENBORN: We have a few witnesses that we want to discuss. The first one, we could discuss in open court, It's the motion to exclude Mr. Neumeister to exclude Mr. Neumeister.
THE COURT: Okay.
MR. ROTTENBORN: Which Mr. Murphy is 3. going to argue.
MS. LECAROZ: Our opposition is under seal, so it may make sense to handle it at sidebar.
THE COURT: You want to do it sidebar? Okay.
MR. ROTTENBORN: And then we have a few other witnesses.
THE COURT: Which one do you want to do
MR. ROTTENBORN: The first one is Beverly Leonard. She is someone that was identified last night by them. And they say that this is a witness who reached out to them late last night, which is whatever, that's fine. But she is, as best we can tell, she is one of the police officers from the Seattle airport, which we object to them calling for a couple different reasons. The first one, Your Honor, is Your Honor's rulings in the case, both in limine and May 25, 2022 during Ms. Heard's examination, no arrest is
THE COURT: All right.
MR. ROTTENBORN: We think the jury is going to draw from that. Second, Your Honor, that type of evidence and that type of testimony is precluded by the collateral evidence rule, which basically says that when somebody's introduced on cross-examination, a party can't introduce 608B, Your Honor. I have a copy if Your Honor would like to see, but under 608B, specific instances of conduct may not be proved by extrinsic evidence. And this is a side issue to the trial. It's about something totally unrelated to this. And, so, collateral evidence, 608B and the fact that it would expressly violate or explicitly Violate Your Honor's rulings that the rest is too prejudicial and isn't coming in.
THE COURT: Okay.
MS. VASQUEZ: If I may be heard, Your Honor. I was the one that received an email past 1:00 a.m. last night, still working with Ms. Meyers. I can represent to you that I emailed Ms. Leonard back, asked her to call me on my cell phone. I then had a phone call with Ms. Leonard, I confirmed a couple things; she has not been watching the trial, she has not seen testimony. I then instructed her, per Your Honor's ruling, that she is not to watch the trial, watch testimony.
THE COURT: That's not the issue.
MS. VASQUEZ: I understand that. Now as to the attempt -- with Your Honor's blessing to offer Ms. Leonard just to testify as a third-party fact witness as to what she observed. It is rebuttal. It is impeachment. Ms. Heard -- as Your Honor is aware, allowed me to ask Ms. Heard whether she assaulted her ex-girlfriend. She denied doing so. I then asked Ms. Heard whether people saw it. She denied that people saw it. And so --
THE COURT: So you're saying this witness actually saw this?
MS. VASQUEZ: Yeah, she witnessed the assault. She is the arresting officer.
MS. BREDEHOFT: No, she is not.
MS. VASQUEZ: I can represent to the Court, as an officer of this court, that she will not testify that she arrested Ms. Heard. She is only going to testify --
THE COURT: She can't testify she's an officer either.
MS. VASQUEZ: She's not an officer anymore, she's now retired. If you would like her not even testify --
THE COURT: She cannot say anything about being an officer, just somebody at the airport.
MS. VASQUEZ: Somebody at the airport. She observed Ms. Heard hit Ms. van Ree and rip off her necklace, leaving marks on her neck. That's what she's going to testify to.
THE COURT: All right.
MR. ROTTENBORN: It's a plainly collateral matter. It's a mistrial. It's a collateral matter, just as if we were to bring someone on to testify about something Johnny did 30 years ago. It's a collateral matter. It's not relating --
THE COURT: Well, you did. Somebody --
MS. VASQUEZ: Ellen Barkin.
MR. ROTTENBORN: Understood.
THE COURT: How is that not allowed?
MR. ROTTENBORN: Under 608B, Your Honor, specific instances of conduct may not be proved by extrinsic evidence.
THE COURT: What was Ms. Barkin?
MR. ROTTENBORN: Ms. Barkin was testifying about the facts of her time and experience --
THE COURT: With specific incident.
MR. ROTTENBORN: Which didn't come up on cross-examination, which Your Honor blessed. Sure.
MS. VASQUEZ: Thank you.
MR. ROTTENBORN: Specific instances of conduct of a witness may not be proved by extrinsic evidence except as -- and then they say except as otherwise provided in this Rule. It's not impeachment. If it is impeachment, it's impeachment on a plainly collateral matter. It's not relating to whether or not Mr. Depp abused Ms. Heard. That is a collateral matter and under both the common law collateral evidence doctrine and the Rules of Evidence, it's not allowed. And her testimony is not -- it wasn't false. She said she didn't assault --
MS. VASQUEZ: It's proper rebuttal, Your Honor, and it's impeachment. Ms. Heard said she did not assault Ms. van Ree, that people did not see it. That's exactly what Ms. Leonard intends to testify about.
THE COURT: I don't find that it's a collateral matter in this matter because Ms. Heard testified that she always does self-defense, she only hits in self-defense, and that's what her expert also testified, was always hits in self-defense. That's why I allowed the question to begin with, to Ms. Heard at the time when she was on the stand in cross-examination. She said
MS. VASQUEZ: Understood, Your Honor.
MS. VASQUEZ: And as an officer of the court, I will represent she will not testify she was formerly a police officer or that she arrested Ms. Heard.
THE COURT: Very limited testimony --
MS. VASQUEZ: Understood.
THE COURT: Will be allowed in this matter based on that, for impeachment purposes.
MS. VASQUEZ: Thank you, Your Honor.
MR. ROTTENBORN: Second matter, Your Honor, is just want to get some parameters .of what Kate Moss. is allowed to testify to.
THE COURT: Okay.
MR. ROTTENBORN: So I don't have to jump up.
THE COURT: Is H&L her --
MS. VASQUEZ: Yeah.
THE COURT: There's a.lobby. I didn't know who it was.
MR. ROTTENBORN: This is the testimony of Amber related to Kate Moss. It's this one sentence. She said, “I just, in my head, instantly think of Kate Moss on the stairs when I swing at him."
THE COURT: Right.
MR. ROTTENBORN: So, in our view, asking about Kate Moss, did Johnny ever hurt you on the stairs, that's fair game.
THE COURT: Anything on the stairs.
MS. VASQUEZ: It is only related to the stairs. But, Your Honor, I will represent that in
MR. ROTTENBORN: I don't remember that May 25, 2022 : part. I sos have that, and I don't recall that. I'm not -- I'm not doubting what she's saying. But if she heard a rumor, it's the rumor about what happened on the stairs. So what I'm saying is they shouldn't be allowed to say -- elicit testimony about oh, Johnny was so sweet, Johnny never hit me. If they want to get her and ask her, you know, a couple questions about did he hit you on the stairs, I think that's fair game. But anything beyond that is beyond the scope of rebuttal, and I fear that that's what they're trying to do, and I just want to stem this off now.
MR. ROTTENBORN: CHEW: It is a very short
MR. ROTTENBORN: "He swung at Whitney and IJ had heard a rumor about that, so that's what I thought of."
THE COURT: Right. MR! CHEW: She testified about it both on direct -- “5 Okay. Yes, about the stairs.
MR. CHEW: They elicited testimony from Ellen Barkin about Johnny throwing a bottle 30 years ago against a wall in a crowded room and being abusive.
MR. CHEW: It's a very limited inquiry about whether he ever physically harmed her. We've been doing that throughout the --
MS. VASQUEZ: They brought in --
MR. CHEW: Clearly, what she's saying is that Johnny was violent with her, and she's going to say that's not true.
MR. ROTTENBORN: That's beyond the scope, Your Honor. The only two times Kate Moss came up is this rumor about what happened on the stairs. To get them to elicit testimony about was he ever violent, which I know is what they're going to try to do, and that's beyond the scope.
MR. ROTTENBORN: Your Honor has held both parties to objections that are made at the time, and if objections aren't made at the time, then we waive them. They could have brought up these issues --
THE COURT: They objected to Ellen Barkin's deposition testimony.
MS. VASQUEZ: Even in Motion in Limine, Your Honor.
MR. ROTTENBORN: Understood. But my understanding is not on the same basis that we're objecting now. I'm saying this is beyond the scope of this -- it's rebuttal testimony, Your Honor has been very strictly --
THE COURT: But they're saying they're rebutting Ellen Barkin also.
MS. BREDEHOFT: They never raised it in the interrogatories --
MR. ROTTENBORN: They can't call Kate Moss to rebut Ellen Barkin, Your Honor, that's 992 inappropriate rebuttal testimony. This is the one and only instance where Kate Moss came up, which was a rumor that Johnny had injured her on the stairs, which wasn't limited to Amber, that was a widely circulated rumor. That should be the only --
THE COURT: I'm going to limit it just to the stairs, okay?
THE COURT: The only -- because the 10.only reason it's coming in is because she opened 1] the door on cross-examination about the stairs.
MR. CHEW: But won't the jury think they're not allowed to ask whether he ever hit her, they're going to think --
THE COURT: Well, I mean, he could have done it in the case-in-chief. I don't even know if it would have come in, in case-in-chief. But what I'm saying is the only reason it was overruled because the door was opened because she mentioned Kate Moss on the stairs. She did that and that's why she's coming in to testify that nothing happened on the stairs. May. 25, 2022 MR! CHEW: May I set the context of how she knows--
THE COURT: Well, yeah, how she knows is fine.
MR. ROTTENBORN: How she knows him? If it's, like, you dated for five years, that's fine. MR: CHEW: I just don't want to run afoul of the'Court's rule.
THE COURT: You can do that. I'm saying you can't ask any questions about was he ever violent?
THE COURT: Focus right on the stairs. MR: CHEW: I gotcha. Understood, Your Honor. I just want to be clear, I don't want to run afoul, | I appreciate it. MR: ROTTENBORN: Two more. I'll be quick. This is Dr. Collins, who they've indicated they'll be calling today. Dr. Collins is a pathologist who will testify about some bruising pictures on Amber's face. They designated a longer report of her at the initial this is kind of like the Bercovici situation last week. They designated a longer report of her in their initial designations. They didn't put her on in the case-in-chief. Her rebuttal designations, which were filed at the end of February, consist of that. And so, we believe that she should not be allowed to testify. They could have put her on during the case-in-chief, they elected not to.
THE COURT: All right. So this is the only rebuttal designation?
MR. ROTTENBORN: Yep.
MS. MEYERS: If I may, Your Honor. We designated her as an informative witness, right. So we designated her at the earliest point at which we had to identify our expert witnesses, which was in January of 2022.
THE COURT: Obviously they can't rebut anything on Dr. Jordan because Dr. Jordan didn't testify.
MS. MEYERS: That's true, and we don't intend to have her do that.
THE COURT: So, previously exposed as to -- which plaintiff incorporates by reference. So what was the first?
MR. ROTTENBORN: The first designation was quite wholesome, but our point is, that's their case-in-chief. They should have put her on during the, case-in-chief. To just call her during rebuttal --
THE COURT: Here's the problem: It's not just rebuttal, it's the defense to your counterclaim.
MR. ROTTENBORN: Right.
THE COURT: So that's an issue you're going to have with some of these witnesses.
MR. ROTTENBORN: I have a response to that. So, there was an initial expert disclosure, I think it was January 11th or January 10th, something like that, the disclosure for people in response to the claims -- the defense was due February 10th.
THE COURT: Okay.
THE COURT: Okay.
MR. ROTTENBORN: Then there was a final rebuttal disclosure. They didn't disclose anything about Collins on February 10th.
THE COURT: They did disclose some people on February 10th for the defense?
MR. ROTTENBORN: But not Collins.
THE COURT: Allright. So.
MR. ROTTENBORN: So Collins was not listed,
THE COURT: So either in their direct _ case or rebuttal, but not in the counterclaim?
MR. ROTTENBORN: Correct. And the only reason that she's listed for rebuttal is Dr. Jordan. We didn't call Dr. Jordan, so she shouldn't be allowed to testify in rebuttal.
MS. MEYERS: You Honor, we designated her in our affirmative designations. They had notice as of January 2022. She's the earliest -- they had more notice than was necessary to put her up on rebuttal. And in those designations, which --
THE COURT: The Court: Right. May 25, 2022;
MS. MEYERS: If’ necessary, I can go grab. We identified, at the end, we said that we also designate her to testify in rebuttal in response to anything that any witness has testified to.! And at this point --
THE COURT: Well, you can't use an expert rebuttal on lay witnesses.
MS. MEYERS: But we --
THE COURT: An expert in rebuttal can only rebut experts.
MS. MEYERS: So we identified her in our initial disclosure.
THE COURT: So what is she rebutting? Which expert is she rebutting? MS.|MEYERS: We designated her affirmatively, and at this point, they didn't put in any of. the photographs of Ms. Heard during our case- in-chief, so now that it's in, in their defense -- ‘ It's your rebuttal. Rebuttal case. MS'MEYERS: Well, it's also our 7077 defenses case.
THE COURT: You didn't designate her as your defense witness, correct, your defense experts?
MS. VASQUEZ: I believe-we did, in reference.
THE COURT: Designated as your defense experts. That's a different story. You're saying they didn't designate --
MR. ROTTENBORN: I do not believe that she was ever mentioned on February 10th. These morn are the two Mr. Murphy has those.
THE COURT: February 10th? All right. So let me see the designations from February 10th. Do you have the designations from February 10th?
THE COURT: Does somebody have the designations from February 10th?
MS. VASQUEZ: Your Honor --
MS. MEYERS: So, Your Honor, first of all, there's no prejudice here. We identified her affirmatively.
THE COURT: Rebuttal experts are only for experts that were deposed in the case, who is rebutting their expert.
MS. MEYERS: Well, she's responding to the evidence that came in, in their defense.
THE COURT: No. Objection sustained unless you've designated them in your defense.
MR. ROTTENBORN: And I believe the exact same argument is going to be made for Mr. Neumeister.
THE COURT: Was he designated in your defense?
MS. MEYERS: He's in the affirmative and --
THE COURT: They didn't bring any experts, so he can't testify either, okay? So that's where we are,
MR. ROTTENBORN: We'll just confirm {9 that there was no reference there.
MS. LECAROZ: We're checking too.
MR. ROTTENBORN: Okay.
THE COURT: That's where we ate.
THE COURT: That's where we are. 7079
MR. ROTTENBORN: Okay. That's all we have.
MS. VASQUEZ: I anticipate, Your Honor, that their rebuttal experts that are counters to Mr. Neumeister and Dr, Collins will also not be allowed to testify in the rebuttal case.
THE COURT: Well, yes, because if Mr. Collins doesn't testify, then they don't get a rebuttal expert either. It works both ways.
MS. BREDEHOFT: We wouldn't be able to call Jordan. If Neumeister is out, correct.
THE COURT: They can only rebut experts you've put in on your defense. All right.
MR. NADELHAFT: Mr. Murphy's looking for February.
THE COURT: 10th of February.
MR. MURPHY: February 10th. I don't see Collins. This is part of my argument, Your Honor, Neumeister is not in there as well.
THE COURT: We have Richard Marks in defense, Mr. Spindler in defense, Mr. Bania in defense, Dr. Curry in defense, Dr. Shaw in defense. That's where we are. All right. So that's where we are. Oh, and the TMZ motion is set for 1:00, so they'll be here at 1:00 to argue their motion. Would you like to weigh in on the motion?
THE COURT: It will be quick, though.
MS. MEYERS: If I may, I have some exhibits for Jamie that she requested.
THE COURT: Sure.
MS. LECAROZ: Your Honor, we had prepared a.written opposition on the motion to exclude Mr. Neumeister.
THE COURT: Would you like to put it as part of your record?
MS. LECAROZ: Yeah, I think that's a good idea.
THE COURT: Thank you. MS.:LECAROZ: Thank you.
THE COURT: All right. Are we ready for the jury?
MR. ROTTENBORN: Yes, Your Honor.
THE COURT: Okay.
MR. CHEW: Good morning, Your Honor. Mr. Depp calls Kate Moss to the stand. She will be appearing on your screen.
THE COURT: All right. Ma'am, can you \Shear me?
THE WITNESS: Yes.
THE COURT: Yes, can you count to five
THE WITNESS: One, two, three, four, five.
THE COURT: Thank you, ma'am. If you could raise your right hand.