Opinion
Civil Action No. 7129
Date Submitted: April 26, 2001
Date Decided: May 7, 2001
Robert K. Payson, Arthur L. Dent, of POTTER ANDERSON CORROON LLP, Wilmington, Delaware: OF COUNSEL: Gary J. Greenberg, Law Offices, New York, NY, Attorneys for Petitioners.
Thomas J. Allingham II, Leonard P. Stark, of SKADDEN ARPS SLATE MEAGHER FLOM LLP, Wilmington, Delaware, Attorneys for Respondent.
MEMORANDUM OPINION AND ORDER REFUSING N CERTIFICATION OF AN INTERLOCUTORY APPEAL
Petitioners, Cede Co. and Cinerama, Inc. ("Cinerama"), have applied for certification of an interlocutory appeal (the "Application") of this Court's February 16, 2001, Order Governing Further Proceedings, as well as the Court's March 30, 2001, Letter Opinion denying Cinerama's motion for reargument of the Order.
The February 16 Order is attached as Exhibit A.
The March 30 letter opinion is attached as Exhibit B.
Cinerama has presented four distinct grounds for an interlocutory appeal. They are: (1) the trial court's purported refusal to hear fact witnesses at the new trial ("Ground I"); (2) the trial court's scheduling of the new trial for four days ("Ground II"); (3) the trial court's expurgation of the existing record ("Ground III"); and (4) the trial court's decision to allow for new or updated expert witness testimony ("Ground IV"). Not one of Cinerama's bases for certification, however, meets the criteria of Supreme Court Rule 42 for certification of an interlocutory appeal.
I. PROCEDURAL BACKGROUND
The long history of the dispute between these parties is well known not only to the parties, but also to all those who are familiar with Delaware corporate law. As Cinerama continues to battle its seemingly eternal adversary, Technicolor, the present appraisal proceeding is all that remains after almost two decades of fierce litigation. As these parties launch their final campaign, the conflict between them not only appears to sustain both combatants, but has in part come to define them.
Cinerama's application for certification of an interlocutory appeal results from proceedings following the Supreme Court's most recent remand to the Court of Chancery. Based on the Supreme Court's remand, and after written submissions from the parties, this Court held a conference with counsel on November 14, 2000, to consider various procedural issues relating to the remanded proceedings. The parties submitted additional written submissions following the conference. This Court issued its disputed Order on February 16, 2001.
See Cede Co. v. Technicolor, Inc., Del. Supr., 758 A.2d 485 (2000), reh'g denied, (July 26, 2000) (ORDER) (" Technicolor V").
The Transcript from the November 14, 2000 Conference on the Nature and Scope of New Trial (the "Transcript") is attached as Exhibit C.
Following the Order, Cinerama — in a 54-page "speaking motion" — sought reargument. After receiving Technicolor's opposition to reargument, and after carefully considering the views advanced by both parties, this Court denied Cinerama's motion for reargument in its March 30, 2001 Letter Opinion.
In response to the Order and the Court's later denial of reargument, Cinerama filed this application for certification on April 16, 2001. Technicolor filed a brief response on April 26, 2001, reserving its rights regarding the merits of any arguments presented to the Supreme Court.
Cinerama requested, pursuant to Supreme Court Rule 52(c)(i), an extension of time within which it would seek an interlocutory appeal. The Court granted this extension on April 6, 2001, thus permitting Cinerama to file the application with this Court on April 16, 2001.
Under Supreme Court Rules 42(c)(iii) and (d)(iv)(D), this Court must file its order (and its opinion with respect thereto) certifying or refusing to certify an interlocutory appeal within ten days of Technicolor's response. For the reasons that follow, I decline Cinerama's invitation to certify the Order and Letter Opinion for an interlocutory appeal.
II. THE REQUIREMENTS FOR AN INTERLOCUTORY APPEAL
Supreme Court Rule 42(b) clearly describes the criteria to be applied in determining whether to certify an interlocutory appeal. Cinerama contends that it brings the application pursuant to Supreme Court Rule 42(b)(i)(iii) and (v). That Rule states in pertinent part:
Cinerama's Application, at 22.
No interlocutory appeal will be certified by the trial court . . . unless the order of the trial court determines a substantial issue, establishes a legal right and meets one or more of the following criteria:
(i) Same as certified question. Any of the criteria applicable to proceedings for certification of questions of law set forth in Rule 41; or
(iii) Substantial issue. An order of the trial court has reversed or set aside a prior decision of the court, a jury, or an administrative agency from which an appeal was taken to the trial court which had determined a substantial issue and established a legal right, and a review of the interlocutory order may terminate the litigation, substantially reduce further litigation, or otherwise serve considerations of justice; or
(v) Case dispositive issue. A review of the interlocutory order may terminate the litigation or may otherwise serve considerations of justice.
Supreme Court Rule 41, incorporated into this analysis by Rule 42(b)(i) and relied on by Cinerama, requires important and urgent reasons for an immediate determination" by the Supreme Court of the disputed questions of law. Without limiting the Supreme Court's discretion to hear proceedings on interlocutory appeal, Rule 41 includes several examples of when certification may be appropriate. Cinerama cites each of these examples in support of its application:
Supr. Ct. R. 41(b).
(i) Original question of law. The question of law is of first instance in this State;
(ii) Conflicting decisions. The decisions of the trial courts are conflicting upon the question of law;
(iii) Unsettled question. The question of law relates to the constitutionality, construction or application of a statute of this State which has not been, but should be, settled by the Court.
In applying these criteria to the grounds asserted by Cinerama, my analysis falls into two categories. The first part of my analysis, set forth in Part III of this Opinion, examines the assertions made by Cinerama that directly challenge this Court's ability to manage its own schedule and procedures under the Rules of the Court of Chancery. The second part of my analysis, elaborated in Part IV, discusses the grounds asserted by Cinerama disputing sections of the February 16 Order that flow directly from this Court's interpretation of the Supreme Court's Technicolor V mandate and Chancery Rule 63. Part V restates my conclusion.
III. CINERAMA'S PURELY PROCEDURAL, NON-RULE 63 GROUNDS FOR CERTIFICATION
A. The Right to Present Fact Witnesses at the New Trial
Without so much as a citation to support its interpretation of my Order, Cinerama first contends that certification is appropriate because the trial court "has ruled that it will hear no fact witnesses." This contention is purely fictional. This Court has not ruled that Cinerama or Technicolor may not present fact witnesses at the new trial. In fact, the Court was quite clear on this point during the November 14, 2000, conference when it noted that the new trial will "entail calling those fact witnesses or using depositions of fact witnesses to establish the basic facts."
Application, at 7.
Transcript, at 4.
Cinerama argues that this Court "has ruled that only 'two expert witnesses' per side may testify at the new trial." This is true. Nothing in the February 16 Order, however, prevents either party from presenting fact witnesses. The only constraint on the parties regarding their decision to present fact witnesses comes from the amount of trial time each side possesses to present its case. Cinerama's counsel and Technicolor's counsel have to make choices about how best to use their trial time, but the Court has never ruled that fact witnesses cannot testify at the new trial. As the Court has never ruled that it will not hear fact witnesses, Ground I in no way supports certification.
Application, at 9.
See Order, ¶ 5. Cinerama apparently has decided not to seek certification on any purported right to offer more than two expert witnesses at the new trial.
The next section of the Opinion, Part III. B., discusses this Court's right to establish the length of the new trial.
B. The Trial Court's Discretion to Determine the Length of the New Trial
Cinerama next applies for certification of an interlocutory appeal on the ground that this Court has set an unreasonable four-day limit on the new trial. In Technicolor V, the Supreme Court stated:
The new trial in this appraisal proceeding should be much shorter than the original trial and, perhaps, even shorter than other statutory appraisal trials. . . . [W]e encourage the successor judge to impose reasonable limitations upon the time that each party will have to present its case, e.g., a fixed number of trial days for each side.
Technicolor V, 758 A.2d at 492-93 (emphasis supplied).
In response to these instructions by the Supreme Court, and based on this Court's inherent authority to control its own docket and schedule, the February 16 Order directs the parties to limit their presentations of their respective cases to two days each. Based on my personal experience over the past twelve years, I am convinced that this appraisal case can be properly and fairly tried in four days. As the Order makes clear, and entirely consistent with past practice, the Court has in no way imposed an unyielding restraint on the time the parties have to present their respective cases. Rather, the Court may decide that additional time is necessary, in which case the parties will be granted more time to make their presentations. The decision to extend the length of the trial, however, properly rests solely within the discretion of this Court. The Court controls the courtroom, not Cinerama.
As I have made clear (I thought), I stand ready to work with counsel so as to assist in this effort. For example, local Delaware counsel surely know of my willingness to extend the length of an ordinary trial day, to avoid interruptions and trial recesses, and to streamline the examination of witnesses and introduction of exhibits. Given the age and history of this lawsuit, I agree fully with the Supreme Court that it should be a shorter trial than other statutory appraisal trials, trials that typically consume only two or three days in this Court. Technicolor's counsel, although not happy with the four-day constraint, seem to understand this fact much better than Cinerama's counsel, no doubt because the latter has not familiarized himself with the unique practice and procedures in Chancery appraisal trials.
See e.g. Order, ¶ 6 (establishing that a fifth day will be made available to the parties should, in the discretion of the Court, that time be necessary).
The parties may not be pleased by the Court's decision to use its discretionary authority to limit the length of the new trial, especially given the extraordinary length of the first trial in this matter. The first trial, however, was excessively and unnecessarily long. Why should it serve as a type of "benchmark" for a new trial?
Ultimately, Cinerama has presented no grounds on which to oppose my exercise of the discretion clearly outlined by the Supreme Court in Technicolor V. Further, this Court fails to understand how the scheduling of a trial determines a substantial issue, establishes a legal right, or satisfies any of the other criteria required by Supreme Court Rule 42. Ground II therefore fails as a basis for certification.
IV. THE RULE 63 GROUNDS FOR AN INTERLOCUTORY APPEAL A. Technicolor V and Rule 63
The two other grounds Cinerama urges this Court to certify for purposes of an interlocutory appeal flow directly from Cinerama's disagreement with this Court's comprehension of its responsibilities under Court of Chancery Rule 63. As I explained at the November 14 conference, "my [view] is that the Supreme Court believed . . . I should have the prerogative to schedule a new trial, and structure that trial in a way that [is] fair and efficient for the parties and for the Court." I went on to explain that "the most helpful and efficient way to [structure the new trial] is to have a completely new trial." This interpretation is directly in accord with Court of Chancery Rule 1, which states that all of the Rules that govern the procedures in the Court of Chancery — including Rule 63 — "shall be construed and administered to secure the just, speedy, and inexpensive determination of every proceeding."
Transcript, at 4.
Transcript, at 50.
Ct. Ch. R. 1. See also Advisory Committee Notes to Federal Rule of Civil Procedure 63, 1991 Am. (noting that Rule 63 is designed to provide "[a]n efficient mechanism for completing these cases without unfairness.")
In direct contrast to this Court's desire to conduct a fair and efficient new trial, Cinerama continues to assert that the Supreme Court has mandated merely a "do-over" retrial: an encore performance at which only witnesses who testified at the first trial may testify at the second trial, where these witnesses may not alter or update their testimony in any way, and where every ruling made by the original trial judge and every stipulation entered into by the parties in connection with the first trial must be given full force and effect. These assertions form the basis of the final two grounds on which Cinerama applies for certification of an interlocutory appeal. As discussed below, Cinerama's interpretation of Rule 63 and Technicolor V plainly conflicts with the Supreme Court's clear interpretation of Rule 63, the unequivocal language used by the Supreme Court in Technicolor V, and any reasonable, commonsense notion of judicial efficiency. Grounds III and IV thus do not satisfy the requirements of Supreme Court Rule 42. For the reasons set forth in more detail below, I deny the application as to these two grounds as well.
B. The Expurgation of the Existing Record
Cinerama asserts that this Court has erroneously ruled, in violation of Technicolor V's mandate and Rule 63, that it will "disregard the existing record" and "set aside all prior stipulations and law of the case determinations." This attack, like so many others leveled by Cinerama against this Court, is mystifying. I will simply point directly to my own words, spoken at the November 14 conference, as providing a less abbreviated, more accurate picture of what, in fact, I have ruled:
Application, at 10-11.
. . . I have to pay homage to the legal determinations that have been made by the Supreme Court. . . . But everything else that went on at the earlier trial, I think from a trial judge's point of view, to try to extrapolate from that and incorporate portions of that into a new trial, it's confusing. It's not helpful. It's potentially prejudicial, because I may unfairly accept some tainted findings that I shouldn't. This way [with a completely new trial], there is no risk of a tainted finding working its way into my analysis, because it's going to hit me fresh.
Transcript, at 42.
As the actual language of the February 16 Order indicates, the Court has: (1) set aside the original Pre-Trial Order, but the parties remain free to stipulate to any or all of that original Pre-Trial Order; (2) all trial exhibits used at the original trial may be used in the new trial should the parties stipulate to their use or make proper motions for admission before the Court; and, (3) 50 as to prevent any prejudice to the parties, all evidentiary rulings made at the original trial shall not be deemed law of the case unless that matter was specifically affirmed or decided by the Supreme Court. These rulings are entirely consistent with the Supreme Court's analysis and instructions to this Court in Technicolor V.
Paragraphs one, three, and four of the Order state in full:
1. The original Pre-Trial Order in the matter shall be of no further force or effect, and the parties shall be required to submit a new Pre-Trial Order on a schedule to be established. The parties are free to stipulate that any or all of the original Pre-Trial Order shall be incorporated in the new Pre-Trial Order.
3. The documentary record of trial exhibits admitted at the original trial shall not be used for any purposes at the new trial unless the admission of any such exhibit is stipulated to by the parties or such exhibit is admitted by the Court on motion made before the new trial. The parties shall also be permitted to introduce new exhibits, the admissibility of which shall be resolved by stipulation or motion prior to trial.
4. Evidentiary rulings made at the original trial shall not be deemed law of the case, except for matters that have been specifically affirmed or decided by the Delaware Supreme Court.
See e.g., Technicolor V, 758 A.2d at 492, 499 (commenting on why the new trial may be much shorter in length than the original trial, "the present opinion has resolved several more issues [and] there are undoubtedly many undisputed evidentiary facts that the parties can identify and resolve by stipulation"); (deciding an additional issue that shall be considered law of the case for purposes of the new trial).
First, the Court's, and not Cinerama's, view squarely agrees with the Supreme Court's analysis of Rule 63. Rule 63 states:
If a trial or hearing has been commenced and the judge is unable to proceed, any other judge may proceed with it upon certifying familiarity with the record and determining that the proceedings in the case may be completed without prejudice to the parties. The successor shall at the request of a party recall any witness whose testimony is material and disputed and who is available to testify again without undue burden. The successor judge may also recall any other witness.
Ct. Ch. R. 63 (emphasis added).
As the Supreme Court noted in Technicolor V, the first sentence of Rule 63 "requires two conditions to be met before the operative procedures in the second and third sentences can be invoked." These two conditions are: (1) "the successor trial judge must certify his or her familiarity with the record," and (2) "the successor judge must make a determination that the proceedings can be completed without prejudice to the parties." As the Supreme Court recognized, this Court met the first of these two conditions but erred as to the second. The Supreme Court clearly stated that "the successor judge should have made an actual determination that the proceedings could be completed without prejudice to the parties." This determination was absent from this Court's earlier decision, overruled by Technicolor V.
Technicolor V, 758 A.2d at 490.
Id.
Id.
Id. at 491 (emphasis added).
See Cede Co. v. Technicolor, C.A. No. 7129, Chandler C. (Jan. 29, 1999), mem. op.
Second, after noting the absence of this determination, the Supreme Court plainly declared:
This Court's holding in Technicolor IV was intended to constitute our determination that the basic, intermediate and ultimate factual determinations that were made by the original trial judge were inextricably intertwined with both his legally erroneous majority acquiror principle and his assessment of witness credibility. We have regretfully concluded that the only way to avoid prejudice to the parties in this unusual appraisal proceeding, on remand before a successor judge, is by having a new trial. Accordingly, we now hold that the successor judge must conduct an entirely new trial in this statutory appraisal proceeding.
Technicolor V, 758 A.2d at 492 (emphasis added).
Two points are immediately clear from these passages and bear reemphasizing. One: the Supreme Court found error with this Court's lack of a determination as to whether prejudice would flow to the parties from proceeding on remand without a new trial. Two: the Supreme Court itself found, as a matter of fact, that unavoidable prejudice to the parties would occur if this Court solely based a decision on either the factual or legal conclusions made by the original trial judge. Put another way, the Supreme Court itself determined that, absent "an entirely new trial," the remanded proceedings could not be completed without prejudice to the parties. Based on that fundamental determination by the Supreme Court, the operative provisions of the second and third sentences of Rule 63 (upon which Cinerama now relies) do not apply. Hence, Cinerama's extensive reliance on the second and third sentences of Rule 63 is beside the point.
The above-quoted passages also illustrate how the view of the new trial ordered by Technicolor V, as presented by Cinerama, does not agree with the plain language of the opinion. As quoted above, the Supreme Court ordered "that the successor judge must conduct an entirely new trial in this statutory appraisal proceeding." This language is entirely consistent with the terminology used by the Supreme Court throughout Technicolor V to establish the type of proceeding that must occur following remand. For example, the Supreme Court noted that "[t]he single most important issue presented to the successor judge at the outset of the proceedings on remand was to decide whether the new appraisal valuation mandated by this Court could be accomplished without having an entirely new trial." The Supreme Court further emphasized the nature of the remanded proceedings when it commented, "this statutory appraisal proceeding is remanded to the Court of Chancery for a completely new trial."
Id.
Id. at 489 (emphasis added).
Id. at 493 (emphasis added).
Even assuming that the Supreme Court has not spoken on the Rule 63 issue as clearly and forcefully as this Court believes it has (and as Cinerama seems to believe it has not), practical considerations strongly support this Court's interpretation of what is required under Technicolor V. As this Court noted at the conference:
[Under Rule 63,] if I have a concern as the trial judge who is succeeding in a case — if I have a concern that fairness and the ability to prevent prejudice to the parties requires me to hear everything anew — that trial judge who has reached that conclusion in his or her mind, that she or he cannot reach a fair and just result relying on pieces of an earlier record, that trial judge — our American system of justice has to say: "Wait a minute. I realize it's an expense. I realize it's costly. I realize it creates all kinds of logistical problems, but we are going to have to start all over and let me hear it from the beginning, new, because I wasn't part of it at the beginning."
Transcript, at 42-43.
Cinerama asserts that this Court has lost the ability to structure the new trial in a way that comports with basic principles of fairness and judicial efficiency. Cinerama's reading of Rule 63, however, ignores the application of Court of Chancery Rule 1 to this proceeding. When read in conjunction with each other, Rules 1 and 63 indicate that trial courts have the discretion to conduct "an entirely new trial" if the trial court believes that a new trial will "secure [a] just, speedy, and inexpensive determination" of the proceeding in question. Additionally, Cinerama ignores this Court's repeated statements that it recognizes the cost and expense the parties will necessarily incur as a result of ordering a completely new trial and that it will work assiduously to limit these costs. It is this Court's view, however, that this inconvenience and added cost is a small price to pay for what the Court must ultimately strive to achieve — a fair, just, and efficient resolution of this dispute.
Ct. Ch. R. 1.
See, e.g., Transcript, at 43-44 ("I want to guard against what Mr. Greenberg is concerned about, that Cinerama is then forced into incredibly costly new hires of new experts of its own. . . . [The Order will be adopted] with the promise that I'll be vigilant about making sure [these proceedings are] fair and that no one takes advantage of my ruling.")
For these reasons, the Order is in direct compliance with Technicolor V and Cinerama has failed to advance any argument that supports certification of Ground III under the dictates of Supreme Court Rules 41 and 42. I therefore deny certification on the basis of Ground III.
C. The Presentation of New Expert Witness Testimony
The fourth and final ground for certification upon which Cinerama relies is its assertion that this Court will improperly allow expert witnesses to testify who either did not testify at the original trial or who did testify previously, but now seek to alter or update their testimony. Specifically, Cinerama challenges sections 5(A) and (B) of the Order, which allow for the presentation of expert witnesses: (1) who the parties each believe will best represent their respective interests at trial; (2) who may testify using any advances in methodology or valuation techniques that have occurred since the original trial; and (3) in a manner that this Court believes will ultimately lead to the fairest, most efficient result possible.
Order, at ¶ 5. Sections A and B of 5 state in full:
A. Each party may designate up to two expert witnesses without regard to whether such witness(es) previously testified on its behalf at the original trial or whether such party's witness(es) at the original trial are "available" (as that term is used under Court of Chancery Rule 63 or the Delaware Uniform Rules of Evidence) to testify again.
B. The expert witness(es) of each party may utilize any methodologies or techniques generally recognized by experts in the particular field and by the courts of this State, without regard to whether such methodologies or techniques were employed by such party's witness(es) at the original trial.
In support of its position, Cinerama repeatedly refers to Technicolor V and the right to "rehear" or "recall" witnesses. As explained above, Cinerama appears to have fundamentally misunderstood the Rule 63 analysis in Technicolor V. Consistent with the above analysis, to the extent that Cinerama relies on the second and third sentences of Rule 63, its reliance is misplaced. Additionally, though, here Cinerama repeatedly quotes short phrases from Technicolor V without placing those quotations within the context of the analysis within which they were written. For example, the Supreme Court discussed whether this Court could continue in these proceedings without having to recall any witnesses whatsoever. The Supreme Court was not placing a strict limitation directing who must retestify during the new trial, but rather was explaining why the trial court must hear any testimony at all. By selectively quoting from the Supreme Court's analysis, Cinerama has in essence attempted to convert a floor into a ceiling. Cinerama's efforts do not serve the interests of the parties or this Court in reaching a fair, just, and efficient result.
See, e.g., Application, at 14 n. 9.
Practical considerations concerning the implementation of Cinerama's view as to the format of the new trial also strongly counsel against its distorted reading of Technicolor V. When this Court considered how best to structure the new trial, it became abundantly clear almost immediately that Cinerama's conception of the Rule 63 "do-over" retrial was, at best, extremely impractical and, at worst, would lead to results bordering on the absurd.
For instance, under Cinerama's view, the parties could only present expert witnesses who testified at the original trial and those witnesses would have to "stick to their report[s], stick to their analysis, stick to their computations, and then present that same report, those same computations, and then explain the basis for them." Cinerama would deny each expert the right to testify in any way that differs from the essence of what the expert testified to at the original trial in 1989.
Transcript, at 27.
Under Cinerama's interpretation of Rule 63, this Court would be required constantly to observe whether any testimony at the new trial deviates from what was testified to at the original trial. This presents several practical problems, including the possibility of an exhausting number of objections by counsel, what standard of "deviation" the Court should apply in ruling on these objections, the forcing of experts to testify how best to value Technicolor without being allowed to refer to any developments in valuation techniques that have occurred since 1989, and the complete lack of any basis for believing that Cinerama's unworkable proposal will in any way aid this Court in ultimately determining the fair value of Technicolor on the date of the merger.
To illustrate how Cinerama's view could lead to absurdly illogical results, I will borrow an example used by Technicolor. Suppose that one of Cinerama's experts wrote an article in 1993 in which he admitted that his analysis in the original trial in 1989 was wrong. According to Cinerama, that expert would still be committed to use the very same analysis he used at the first trial notwithstanding that he himself no longer believes it. Even more absurd, Cinerama would limit the cross-examination of this expert to what could have been known at the original trial. Technicolor, therefore, would not be able to use on cross-examination the expert's 1993 article to attack the expert's direct testimony. See, e.g., Application at 8 (where Cinerama argues for the due process obligation of the successor judge to "rehear prior testimony" and objects to the ability of an expert to rely on any valuation methodology or technique not used at the original trial).
Finally, I must, with some regret, respond to Cinerama's needless distortion of the Court's words in Cinerama's unseemly attempt to secure an improper certification of an interlocutory appeal. To do so, it is necessary for me to present the selective quotation blandished by Cinerama in its certification application (on page 1 of its motion, no less) within the context of the overall discussion that was occurring at that point in the November 14 conference. From pages 41 to 44 of the transcript of that conference, the Court summarized. all of its proposed rulings, as well as the Court's reasoning as to how the new trial should be conducted. As referred to above, the Court discussed the application of Technicolor V and Rule 63, the role of earlier determinations by the Supreme Court, the structure of an entirely new trial, and the proper role of any witnesses that may be presented at the new trial. After Technicolor's counsel thanked the Court, Cinerama's counsel responded to the Court's extensive comments with the following statement:
We agree completely, 100 percent, maybe 200 percent, that what the Supreme Court and Rule 63 contemplate is that you are to hear the case anew. You are to hear it fresh. You are to start from the beginning. We do not understand why that means [either party] can field a new expert.
Transcript, at 45.
Cinerama declared its complete agreement with the Court's ruling, except as to the right to present new expert witnesses.
Following this comment, the Court and Cinerama's counsel engaged in a brief exchange solely concerning the right to present new expert witnesses at the new trial. The Court's statements now cited by Cinerama's counsel, in support of certification of all the issues addressed in the Order, occurred towards the end of this colloquy:
Transcript, at 45-47.
Application, at 1.
THE COURT: Why don't we get the mandate [of the Supreme Court in Technicolor V] clear? You [counsel for Cinerama] have a different view. I have a different view. The only people who know the answer to that question, I suppose, definitively, are the people who wrote it.
MR. GREENBERG: . . . [A]t the risk of making an error, if Your Honor wants to go back to the Supreme Court, you know it really is up to the Court.
THE COURT: I love it up there. I would be happy to certify it back up there.
Transcript, at 46-47.
First, as the context of this comment makes clear, this exchange addressed the specific discussion over whether new expert testimony should be allowed at the new trial. In fact, the comments of Cinerama's counsel appear to suggest complete agreement with all other aspects of the Order, contrary to Cinerama's assertions of Grounds I, II, and III presented today as part of the pending application. To the extent Cinerama's counsel have misused the Court's words to suggest to the Supreme Court that I support certification of Grounds I, II, and III, that use is not only misplaced, but quite inappropriate as well. For reasons known only to them, Cinerama's counsel consistently choose not to address this Court's rulings fairly or in a way that would permit the appellate Court to undertake a meaningful review.
Second, as counsel to Cinerama have noted, the decision to certify is entirely left to the discretion of this Court (actually, to the Supreme Court). Surely Cinerama's counsel would not suggest seriously that this Court should certify an application for interlocutory appeal where the basic criteria for such an appeal have not been met. I decline to certify an appeal on the basis of Ground IV because it does not meet the minimum requirements established by Supreme Court Rule 42.
V. CONCLUSION
For the reasons described above, I find that Cinerama has failed to satisfy the requirements of Supreme Court Rule 42 for certification of an interlocutory appeal. I therefore deny Cinerama's application in its entirety.
IT IS SO ORDERED.