6.Anthony Valenziano — Direct/Voir Dire/Cross/Redirect (Part 2)
302 linesDIRECT EXAMINATION BY MR. LESKO:
MR. LESKO: Your Honor, may I just show an Exhibit to the witness, please?
THE COURT: Let's see what we've got here.
Okay, go ahead.
MR. LESKO: I am showing you what's been marked for identification as Government's Exhibit 619.
MR. LESKO: Do you recognize that Exhibit?
ANTHONY VALENZIANO: Yes, I do.
MR. LESKO: Is it an e-mail from Joseph Waala to a number of attorneys, including Anthony Sylvester?
ANTHONY VALENZIANO: Yes, it is.
MR. LESKO: Your Honor, we'd offer Government's Exhibit 619.
MR. AGNIFILO: We object, Your Honor.
THE COURT: Oh.
MR. LESKO: Your Honor, I can add some questions.
THE COURT: Go ahead.
MR. LESKO: Is this a document that was produced in response to a subpoena in this case?
ANTHONY VALENZIANO: It was.
MR. LESKO: Was it produced by your law firm?
ANTHONY VALENZIANO: It was.
MR. LESKO: And was it a record that your law firm would typically keep in the normal course of its business?
ANTHONY VALENZIANO: Yes, both Riker Danzig and Sherman Wells would keep a correspondence file for all litigations, including the Franco litigation. Mr. Kaufman was an attorney of Riker Danzig at the time this e-mail was sent, as well as Mr. Sylvester.
MR. LESKO: So this record was, in fact, kept in the regular course of business of the law firm?
MR. LESKO: Your Honor, we offer Government's Exhibit 619.
THE COURT: Objection overruled.
MR. AGNIFILO: May I have just a quick voir dire, Judge? Just two questions.
THE COURT: Go ahead.
(Continued on following page.)
VOIR DIRE EXAMINATION BY MR. AGNIFILO:
MR. AGNIFILO: Good afternoon.
ANTHONY VALENZIANO: Good afternoon.
MR. AGNIFILO: My name is Marc Agnifilo. I represent Keith Raniere.
You're not one of the parties to this e-mail, correct?
ANTHONY VALENZIANO: I am not.
MR. AGNIFILO: Okay. Were you working on this case at the time?
ANTHONY VALENZIANO: I was not.
MR. AGNIFILO: Your Honor, I object to the e-mail.
THE COURT: Any other questions from the Government?
DIRECT EXAMINATION RESUMED BY MR. LESKO:
MR. LESKO: To your knowledge, who did Mr. Waala represent in the litigation?
ANTHONY VALENZIANO: NXIVM.
THE COURT: I am going to allow it.
Go on.
(Government's Exhibit 619 was received in evidence.)
MR. LESKO: Thank you, Your Honor.
BY MR. LESKO:
MR. LESKO: So this is an e-mail from Mr. Waala, and you described to a number of other mostly -- are they all attorneys there?
ANTHONY VALENZIANO: Yes, it appears so.
MR. LESKO: And what's the subject of the e-mail?
ANTHONY VALENZIANO: NXIVM Corp., et al versus Sutton, et al, 06-1051.
MR. LESKO: Okay.
And this e-mail was from Joseph Waala on Harold Kofman, is that right?
MR. LESKO: Can you read the first paragraph of the letter, please?
ANTHONY VALENZIANO: Sure.
First, we apologize for any delay in getting the few remaining materials to you. As you know, we already produced additional documents to you on May 2 and June 26, 2008. Since the requested tapes are being produced to you exactly as they are kept in the ordinary course, we presume there will be no dispute. Also at your request we have converted the 35 requested course tapes to DVDs. This process took some time, but is now complete. We were able to locate the Ethos questionnaires I mentioned we were still searching for and these are being provided.
MR. LESKO: Your Honor, I don't believe the jury can see the exhibit, I'm sorry.
(Exhibit published.)
THE COURT: Okay, there it is.
BY MR. LESKO:
MR. LESKO: All right, so this, just to paraphrase what you just read, this statement indicates that the tapes -- and these are the tapes that we've been discussing?
ANTHONY VALENZIANO: The 35 described in this e-mail would have been 35 of the 57 we discussed earlier, yes.
MR. LESKO: Okay. And that's in Government's Exhibit 605.
And it states that requested tapes are being produced to you exactly as they are kept in the ordinary course, is that right?
ANTHONY VALENZIANO: That's what the e-mail says, yes.
MR. LESKO: Okay. Okay.
Now, I am going to show you --
MR. LESKO: If I could just show this exhibit to the witness, Your Honor.
THE COURT: Go ahead.
BY MR. LESKO:
MR. LESKO: I am going to show you Government's Exhibit 618.
Do you recognize that exhibit?
ANTHONY VALENZIANO: I do. It appears to be an e-mail from our file from Joseph Waala to several attorneys. This appears to have been Mr. Kofman's copy of that e-mail.
MR. LESKO: And is that e-mail sort of a cover e-mail attaching another document?
ANTHONY VALENZIANO: Yes, there's a PDF attached, which was a letter, a transmittal letter.
MR. LESKO: And was this a letter from Mr. Waala?
ANTHONY VALENZIANO: It appears to be, yes.
MR. LESKO: Okay. Dated July 1st, 2008?
MR. LESKO: And it's to, among other people, Mr. Kofman?
MR. LESKO: And are these records that your law firm would have kept in the regular course of its business?
MR. LESKO: And are these records, in fact, records that were kept in the ordinary course of your -- of the law firm's business?
MR. LESKO: And as we've discussed previously, Mr. Waala was NXIVM's attorney?
MR. LESKO: Your Honor, we'd offer Government's 618.
MR. AGNIFILO: We object, Judge.
THE COURT: All right, Government's 618 is received in evidence over objection.
(Government's Exhibit 618 was received in evidence.)
THE COURT: Next.
MR. LESKO: Your Honor, if we could publish the exhibit to the jury, please.
THE COURT: Sure.
(Exhibit published.)
BY MR. LESKO:
MR. LESKO: Okay, so this is the first page of Government's 618. We discussed this previously.
What's the date of the e-mail?
ANTHONY VALENZIANO: July 1, 2008.
MR. LESKO: And what's the subject matter?
ANTHONY VALENZIANO: NXIVM versus Sutton.
MR. LESKO: That's the lawsuit we've been discussing?
MR. LESKO: And it indicates this is a -- it's attaching a PDF letter, is that right?
MR. LESKO: And in the "to" line, among others, it's being sent to Anthony Sylvester and Harold Kofman, is that right?
MR. LESKO: And they're lawyers at your firm?
ANTHONY VALENZIANO: They were -- at the time they were both lawyers at Riker Danzig, yes.
MR. LESKO: So the second page of Government's 618, the date of that letter?
ANTHONY VALENZIANO: Also July 1, 2008.
MR. LESKO: And it's sent from Joseph Waala?
MR. LESKO: And the "re" line, the "re" line, does that relate to the Franco lawsuit that we've been discussing?
ANTHONY VALENZIANO: Yes, that appears to be the full caption of the primary action; yes.
MR. LESKO: And that's, we talked about this, but this is the docket number (indicating)?
MR. LESKO: And what are thee initials right here?
ANTHONY VALENZIANO: DMC was the district judge who handled the matter. The Honorable Dennis Cavanaugh, now retired; and the MF is the magistrate who is still the magistrate on the matter, the Honorable Mark Falk.
MR. LESKO: Okay. And this letter, in sum and substance, this letter is a cover letter that involves the production of materials, right?
ANTHONY VALENZIANO: Yes, it appears upon review that this is the cover letter producing, among other things, the 35 DVDs.
MR. LESKO: Okay. And the date of this letter?
ANTHONY VALENZIANO: July 1st, 2008.
MR. LESKO: And those 35 DVDs, those are some of the DVDs that are included in Government's 605?
MR. LESKO: I should have asked you this, I apologize.
On Government's 618 in evidence, what is the date of that e-mail from Mr. Waala?
(Exhibit published.)
ANTHONY VALENZIANO: July 1st, 2008.
MR. LESKO: Okay.
MR. LESKO: Now, if I could show an exhibit just to the witness, please.
Thank you, Your Honor.
BY MR. LESKO:
MR. LESKO: I am showing you Government's -- what's been marked for identification as Government's 617.
Do you recognize this first page of this document?
ANTHONY VALENZIANO: I do.
MR. LESKO: And I'll turn to the second. Do you recognize the second page?
ANTHONY VALENZIANO: I do.
MR. LESKO: Turn to the third page. Do you recognize the third page?
ANTHONY VALENZIANO: I do.
MR. LESKO: Without getting into the substance of the document, what is Government's 617?
ANTHONY VALENZIANO: This is a letter from Anthony Sylvester to the Honorable Mark Falk, dated July 1st, 2008, regarding the NXIVM versus Sutton matter.
MR. LESKO: And was this a letter regarding outstanding discovery matters in the case?
ANTHONY VALENZIANO: Yes. This was a letter regarding, based on my review, outstanding discovery issues.
MR. LESKO: And was this a practice of Magistrate Judge Falk?
ANTHONY VALENZIANO: Yes, virtually every Magistrate Judge in the District of New Jersey when there is a dispute over written discovery or any sort of discovery dispute, rather than engage in motion practice would require the parties to put in a letter their positions and send it to the Court to see if he or she can resolve it.
MR. LESKO: So is this a joint letter, in essence?
ANTHONY VALENZIANO: Based on my review, yes, this is a joint letter.
MR. LESKO: Okay. And so it includes statements from your firm, your former firm, Riker Danzig?
MR. LESKO: And it includes statements from Mr. Waala, is that correct?
ANTHONY VALENZIANO: Yes. Where you see the bolded plaintiff's response, that would delineate plaintiff's response to a discovery issue that we had raised in the letter.
MR. LESKO: And plaintiff's response would have reflected NXIVM's response, is that correct?
ANTHONY VALENZIANO: Yes, they were the plaintiff in the matter.
MR. LESKO: Is this a document that your firm keeps in the ordinary course of its business?
ANTHONY VALENZIANO: Yes. Actually, if you look at the top right-hand corner, the 16889/2 is the file number. Usually poo-poo writing on letters, but sometimes people mark it to make sure it gets in the right file, so...
MR. LESKO: So this letter was actually kept in the ordinary course of the business of the firm?
ANTHONY VALENZIANO: Yes, absolutely.
MR. LESKO: Your Honor, we would offer Government's 617.
MR. AGNIFILO: Same objection, Judge.
THE COURT: All right, Government's Exhibit 617 is received in evidence over objection.
(Government's Exhibit 617 was received in evidence.)
MR. LESKO: Okay, if we could publish 617, Your Honor.
Thank you.
(Exhibit published.)
BY MR. LESKO:
MR. LESKO: So looking at the first page of Government's 617, it's addressed to Magistrate Judge Falk, is that correct?
MR. LESKO: And, again, the Franco, your litigation, 06-CV-1051, is that the docket number?
ANTHONY VALENZIANO: Yes, that's the docket number.
MR. LESKO: And this letter was submitted by Anthony Sylvester, right?
ANTHONY VALENZIANO: Yes, we -- Riker Danzig, Mr. Sylvester had prepared this letter, yes.
MR. LESKO: And so any -- let's turn to a representation.
In the first paragraph, the second page but first -- the paragraph with the title Plaintiff's Response, where did that information come from, those sentences under the heading Plaintiff's Response?
ANTHONY VALENZIANO: As this was a joint letter, that would have been provided by plaintiff's counsel.
MR. LESKO: And that's counsel for NXIVM?
MR. LESKO: Okay, so look at the -- on the second page of Government's 617, could you read the first paragraph of the second category of plaintiff's response?
ANTHONY VALENZIANO: Plaintiff's Response: The 35 videotapes demanded by defendants are being produced today, July 1, and plaintiffs have advised defendants of such. Collecting, duplicating and converting the tapes into DVDs at defendant's request took some time, but they were produced today in unedited fashion as requested. There should be no further disputes with regard to these tapes.
MR. LESKO: Okay. So -- so, those 35 videotapes are included in Government's 605 that you previously reviewed?
MR. LESKO: And the representation of NXIVM's counsel was that they were produced in unedited fashion?
MR. LESKO: And this representation was ultimately made to Magistrate Judge Falk, is that right?
ANTHONY VALENZIANO: Yes, it is e-filed with the court.
MR. LESKO: I probably asked this, I am getting a little old.
The date of that letter?
ANTHONY VALENZIANO: July 1, 2008.
MR. LESKO: Thank you. That was Government's 617.
So, how many lawyers represented NXIVM in this litigation?
ANTHONY VALENZIANO: Lawyers or law firms?
MR. LESKO: Let's start with law firms.
ANTHONY VALENZIANO: Approximately 10 or 11 law firms. Some of that was local counsel work, just because they had lawyers who were not admitted to the district. But over the course of the case that I was involved in, they had -- not -- over the course of the case they had, at least, ten law firms.
MR. LESKO: Okay. How many lawyers total?
ANTHONY VALENZIANO: I, quite frankly, couldn't tell you.
MR. LESKO: And this litigation with respect to your clients, Stephanie Franco, lasted how long?
ANTHONY VALENZIANO: Ms. Franco was sued in August in 2003. She was formally dismissed March 15th, 2018.
MR. LESKO: Fifteen years?
ANTHONY VALENZIANO: Fourteen-and-a-half, yes.
MR. LESKO: And litigation in two federal districts, is that right?
ANTHONY VALENZIANO: Yes, yes.
MR. LESKO: All over a binder?
MR. LESKO: So during your review of the videotapes to prepare for trial, did you determine that they were suspicious at all?
ANTHONY VALENZIANO: Upon our review, things that our client, Ms. Franco, had told us we might find in DVDs that covered her time there weren't there. So that did raise a concern on our part that they may have -- that they weren't fullsome DVDs.
MR. LESKO: Did you have any other concerns?
ANTHONY VALENZIANO: During the course of the litigation, there were many discovery disputes with NXIVM. At one point they had been sanctioned --
MR. AGNIFILO: I object.
THE COURT: Sustained.
BY MR. LESKO:
MR. LESKO: So were there related discovery disputes that that led to suspicions about the videotapes, without going into the details of that?
ANTHONY VALENZIANO: We were -- we all -- we -- we had -- we had concerns that we were not getting a fullsome production.
MR. LESKO: How about the tapes, themselves, the appearance of the tapes, was there anything about the appearance of the tapes that created concern?
MR. AGNIFILO: Your Honor, leading, objection to the leading.
THE COURT: Sustained.
BY MR. LESKO:
MR. LESKO: Was there anything about the videotapes, themselves, that led you to become concerned?
ANTHONY VALENZIANO: Upon review, there were tapes that appeared to have jump cuts in them that would seem to be skipping around.
MR. LESKO: Did you do anything in response to these concerns?
ANTHONY VALENZIANO: Internally we discussed retaining an expert to review the DVDs and opine as to whether or not they had been edited. Ultimately, though, it was cost prohibitive.
MR. LESKO: Was this an expensive case for Ms. Franco?
ANTHONY VALENZIANO: Absolutely -- it was expensive for her family, yes.
MR. LESKO: No further questions, Your Honor.
THE COURT: Cross-examination.
CROSS-EXAMINATION BY MR. AGNIFILO:
MR. AGNIFILO: Good afternoon.
ANTHONY VALENZIANO: Good afternoon.
MR. AGNIFILO: I just have a few questions for you, nothing -- nothing too major.
I am going to show you, you were looking at Government Exhibit 619 when you were on direct examination.
(Exhibit published.)
MR. AGNIFILO: When did you start working on this case?
ANTHONY VALENZIANO: I worked on the case starting in 2013. I put in a formal appearance in the matter in August of 2014.
MR. AGNIFILO: Okay, so what you just put into evidence are letters and things from five years before you started working on this case; fair to say?
ANTHONY VALENZIANO: That's fair to say.
MR. AGNIFILO: So we didn't look at the second paragraph of this letter, e-mail, rather, from July 2nd.
And it says: Not to belabor this point, but I clearly stated the tape was lost and my co-counsel's notes from the meeting confirm this. You stated it was destroyed, just as you argued in your Rule 37 motion, that Ms. Keeffe intentionally destroyed e-mails after she testified to losing them in 2006. The notion that I would represent to you at a meet-and-confer that my client destroyed evidence when, in fact, that evidence was unintentionally misplaced is absurd. As you know, Ms. Keeffe is available to testify as to the circumstance of which the tape was lost.
Do you know who Ms. Keeffe is?
ANTHONY VALENZIANO: I know of Ms. Keeffe, yes.
MR. AGNIFILO: What do you know of her?
ANTHONY VALENZIANO: She was, at this time, the -- an employee of NXIVM who was involved in, I guess, producing documents.
MR. AGNIFILO: Okay. Did you understand her to be the head of the Legal Department at the time?
ANTHONY VALENZIANO: I did not understand her to be the head of the Legal Department, no.
MR. AGNIFILO: But you understood her to be playing a role in the production of discovery in the case, correct?
ANTHONY VALENZIANO: Yes. Ms. Keeffe was -- she was a 30(b)(6) witness in the case, I believe, on certain matters, yes.
MR. AGNIFILO: Okay, so just explain what a 30(b)(6) witness, just tell the jury what that is.
ANTHONY VALENZIANO: Sure, a 30(b)(6) witness if you serve a deposition notice with topics for an entity, obviously an entity can't testify, a person has to testify.
MR. AGNIFILO: We do criminal work.
ANTHONY VALENZIANO: I know, I know.
A 30(b)(6) witness is a person who testifies on behalf of the company as to certain topics that are identified by the other party.
So Ms. Keeffe was designated by NXIVM to testify about certain topics that the parties had identified in the litigation.
MR. AGNIFILO: All right. Now, do you know that one of the things that took so long in the progress of the case that you reviewed on direct examination is that while the case was in the Middle District of New York there was an interlocutory appeal to the Second Circuit?
ANTHONY VALENZIANO: I do know about that, yes.
MR. AGNIFILO: Was that on what's known as a fair use issue?
ANTHONY VALENZIANO: The case originally started with claims of a violation of the Lanham Act and copyright infringement against both Ms. Franco and Mr. Ross. The Northern District threw those claims out. An appeal was taken to the Second Circuit. The decision was affirmed, and I believe NXIVM filed what is a Petition For Certiorari asking the United States Supreme Court to review the case, and that was ultimately denied.
MR. AGNIFILO: Just very briefly, so the Northern District of New York is the trial level court, correct?
MR. AGNIFILO: Okay. And then one step above that is the Second Circuit Court of Appeals, right?
MR. AGNIFILO: So what happens is an appeal was taken from the trial level court, in this case the Northern District of New York, to the Second Circuit Court of Appeals, correct?
MR. AGNIFILO: Okay. And the fair use -- the Second Circuit ruled against NXIVM in the Second Circuit, correct?
MR. AGNIFILO: All right.
So the NXIVM lawyers sought a petition for a Writ of Certiorari, which is a review of the Second Circuit's decision by the Supreme Court of the United States, correct?
MR. AGNIFILO: And then the case came all the way back to the Northern District of New York, right?
MR. AGNIFILO: Okay. And then at some point it went from the Northern District of New York to the District of New Jersey?
ANTHONY VALENZIANO: Yes, I believe it came back in '05 and was transferred to the District of New Jersey in '06.
MR. AGNIFILO: Okay.
And when you said that NXIVM had 10 or 11 lawyers, you don't mean all at one time, right?
ANTHONY VALENZIANO: No, no, they had a succession of law firms, where one would either resign or be relieved and they would get a new law firm, and it just -- that way, yes.
MR. AGNIFILO: And I think what you said is sometimes there would be sort of a primary law firm and then local counsel, correct?
MR. AGNIFILO: And that's not uncommon, right?
ANTHONY VALENZIANO: You need local counsel if you want to practice in the District of New Jersey and you're not admitted to it --
MR. AGNIFILO: Right.
ANTHONY VALENZIANO: -- it's common.
MR. AGNIFILO: So in other words, do you remember the name Bob Crockett, is that a lawyer that you remember?
ANTHONY VALENZIANO: I do.
MR. AGNIFILO: Okay. Bob Crockett was from California?
MR. AGNIFILO: And when Bob Crockett would appear, he would appear in conjunction with a local lawyer from New Jersey, correct?
ANTHONY VALENZIANO: Mr. Crockett originally appeared on behalf of Ms. Keeffe. He had local counsel -- he didn't have local counsel originally because he was with the firm of Latham and Watkins, which actually had admitted lawyers to the district.
When he reappeared for NXIVM years later, he did have local counsel who sponsored his admission.
MR. AGNIFILO: Okay. And ultimately, Ms. Franco ended up settling her case, correct?
ANTHONY VALENZIANO: All matters between the parties were resolved amicably, yes.
MR. AGNIFILO: All right.
MR. AGNIFILO: I don't have any other questions, Judge. Thank you.
MR. AGNIFILO: Thank you.
ANTHONY VALENZIANO: You're welcome.
THE COURT: Anything else?
MR. LESKO: Yes, Your Honor.
MR. AGNIFILO: Hold on. I was giving it to you.
REDIRECT EXAMINATION BY MR. LESKO:
MR. LESKO: So Ms. Keeffe was mentioned --
MR. LESKO: -- by Mr. Agnifilo?
MR. LESKO: Was she a party to the lawsuit?
ANTHONY VALENZIANO: She was.
MR. LESKO: Who brought her into the lawsuit?
ANTHONY VALENZIANO: Mr. Ross did.
MR. LESKO: And was she dismissed as a party at some point?
ANTHONY VALENZIANO: Mr. Ross voluntarily dismissed his claims against Ms. Keeffe after -- go ahead, I'm sorry.
MR. LESKO: Do you know why that happened?
ANTHONY VALENZIANO: Yes, I believe I do. Ms. Keeffe at some point in time left the employ of NXIVM, I believe in around 2014, and as a result of that Mr. Ross decided to terminate his claims against her.
MR. LESKO: So 15 years of litigation -- the litigation was brought by NXIVM initially against Ms. Franco?
MR. LESKO: 15 years of litigation?
ANTHONY VALENZIANO: Yes, against all three; Mr. and Mrs. Sutton and Ms. Franco, yes.
MR. LESKO: A Second Circuit appeal -- is it fair to say a Second Circuit appeal is a fairly expensive piece of law to purchase if you're a client?
MR. LESKO: It's expensive?
MR. LESKO: NXIVM, 30 lawyers. How many law firms again?
ANTHONY VALENZIANO: At least 10.
MR. LESKO: How much did the case settle for?
ANTHONY VALENZIANO: There were -- there were three components of the settlement.
One was Ms. Franco authorized NXIVM to give a statement -- Ms. Franco authorized NXIVM to give a statement that she had authored written questions proposed to us that we responded to, and actually -- actually, I just want to be clear here. I know I received a subpoena for the settlement agreement. The case ultimately settled. Ms. Franco agreed to pay $1.
MR. LESKO: $1?
ANTHONY VALENZIANO: Yeah.
MR. LESKO: No further questions.
THE COURT: Anything else?
MR. AGNIFILO: No, Judge.
THE COURT: All right the witness is excused. You may stand down.
(Witness steps down.)
THE COURT: All right, the Government may call its next witness.