Case 1:16-cv-04423-ALC-GWG Document 220 Filed 02/12/17 Page 1 of 14

Kent A. Yalowitz
+1 836.8344 Direct
Kent.Yalowitz@apks.com

February 12, 2017

VIA ECF
The Honorable Andrew L. Carter, Jr.
United States District Court
Southern District of New York
40 Foley Square, Room 435
New York, NY 10007

Re: World of Boxing LLC et al. v. Wilder et al., No. 16-cv-04870 (ALC) (GWG)
Wilder et al. v. World of Boxing LLC et al., No. 16-cv-04423 (ALC) (GWG)

Dear Judge Carter:

This firm represents the Defendants in No. 16 Civ. 44231 and the Plaintiffs in No. 16 Civ.
2
4870 (for purposes of last week’s trial, “Defendants”).

In summation, Plaintiffs’ counsel engaged in gross and extensive misconduct. We detail
the misconduct below and then set forth the requested relief.

I. The Pervasive Misconduct

A. Counsel Misrepresented the Record and Stated Facts Not in Evidence

In summation, counsel may not state facts that are not in evidence and may not
misrepresent the record. Fineman v. Armstrong World Indus., 980 F.2d 171, 207 (3d Cir. 1992)
(finding improprieties sufficient for a new trial where plaintiff’s counsel “supplied ‘facts’ not in
evidence”); United States v. Suarez, 588 F.2d 352, 354 (2d Cir. 1978) (“Broad latitude” afforded
to counsel during summation “does not mean, of course, that either counsel may refer to ‘facts’
that are not in the record, misstate the evidence, or allude to personal knowledge of guilt or
innocence”); Levitant v. City of N.Y. Human Res. Admin., 914 F. Supp. 2d 281, 311-12
(E.D.N.Y. 2012) (“[G]iven the lack of evidence in the trial record, counsel’s conduct in
referencing facts that were not established by evidence at trial and conduct by the defendant that
was not at issue in this case or had previously been excluded caused unfair prejudice to the
defendant, inflamed the jurors, and aroused their sympathy.”).

Yet in summation that is exactly what plaintiffs’ counsel did, accusing Mr. Povetkin of
submitting a false errata sheet after he heard Dr. Krasavin’s deposition testimony, claiming:

1
World of Boxing LLC and Alexander Povetkin.
2
World of Boxing LLC, Alexander Povetkin and Andrey Ryabinskiy.

Arnold & Porter Kaye Scholer LLP

250 West 55th Street | New York, NY 10019-9710 | www.apks.com
Case 1:16-cv-04423-ALC-GWG Document 220 Filed 02/12/17 Page 2 of 14

Hon. Andrew L. Carter, Jr.
February 12, 2017
Page 2

Mr. Povetkin signed a document in which he said that the word
“doctor” had been mistranslated and he had actually said “trainer.”

THE COURT: Okay, and, again, members of the jury, if your
recollection of the evidence is different than counsel’s recollection
of the evidence, it’s your recollection that controls.

MR. BURSTEIN: Absolutely. But read the testimony, ask for
the testimony. Why would he do that? Because he knew after he
heard Dr. Krasavin’s testimony, he learned that Dr. Krasavin
wasn't going to support him, he had to change his story. (Tr.
776.)

Counsel was improperly referring to evidence outside the record. The “errata” was never
admitted into evidence, and the testimony did not support the accusation that Mr. Povetkin
“signed a document in which he said that the word ‘doctor’ had been mistranslated and he had
actually said ‘trainer.’” 3 Far worse, however, was counsel’s utterly false accusation that “after

3
The testimony was:
Q. This is a document where you signed a document saying that
there were certain mistakes in the deposition transcript, correct?
[objection overruled]
A. I did not really understand the question.
Q. Well, you signed this document, correct?
A. Yes, my signature is there. I saw it.
Q. And you signed it on February 5th, the night before this trial
started, correct?
A. Yes, it turns out like that.
Q. Do you remember signing this document?
A. I don't really remember for sure. I signed a lot of papers.
Q. Do you remember that you told someone that when you said all
the vitamins were given to me in a transparent box by the doctor,
that there had been a mistake in translation, and what you had
meant to say was everything was given to you in a transparent box
Footnote continued on next page
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Hon. Andrew L. Carter, Jr.
February 12, 2017
Page 3

Footnote continued from previous page
by your trainer? Do you remember saying that the word “doctor”
had been mistranslated and you had actually said “trainer”?
A. So, you know, the doctor just recommends. When somebody
recommends something, a medication, it's not like it's being given
to me by my relative, my grandmother or my mother. The doctor
is the one who recommends, and he hands them over and then they
are given to me, and the one who gives them to me is my physical
fitness trainer.
Q. But that's not what you said under oath during your deposition.
You said your doctor gave it to you?
A. Yes.
Q. And then you claimed that you hadn't said the word “doctor” in
Russian, you had said the word “trainer” in Russian, and that there
had been a mistake in the translation, right?
A. This, I can’t remember.
[sidebar]
Q. Mr. Povetkin—
THE COURT: Go ahead, counsel.
Q. —recently you reviewed your deposition with someone who
translated it for you, correct?
A. I don't understand “reviewed.”
Q. Well, did somebody go—have you read your—translate your
deposition for you to see if there were any errors in it?
A. It was translated.
Q. And you said that there were some errors in it, correct?
A. Probably. I don't remember exactly.
Q. But one of the errors that you said was that you had said the
word “trainer” in Russian when, in fact, the transcript said that you
had said “doctor;” isn't that so?
Footnote continued on next page
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Hon. Andrew L. Carter, Jr.
February 12, 2017
Page 4

he heard Dr. Krasavin’s testimony, he learned that Dr. Krasavin wasn’t going to support him, he
had to change his story.” Tr. 776. There is no dispute that Mr. Povetkin’s counsel, Ms. Kalivas,
prepared the errata sheet on Thursday, February 2; that Dr. Krasavin provided his deposition on
Friday, February 3; that Defendants provided Mr. Povetkin’s errata sheet on Sunday, February 5.

Thus, counsel misrepresented the timing of the errata—even though he had
acknowledged this timing only three days earlier:

MR. BURSTEIN: * * * I spoke with Mr. Yalowitz last night, and
he informed me that the redactions were made on Thursday.

MR. YALOWITZ: Corrections.

MR. BURSTEIN: Corrections were made on Thursday. That
doesn't change the issue of whether or not the translation was
correct and whether or not Mr. Povetkin is being honest about that,
but it certainly makes it very clear to me that it was unfair for us to
make any allegations to counsel about their involvement in the
process and to the extent it was construed that way—I don't think
we were necessarily saying that, but if it was construed that way I
entirely withdraw and apologize for that. Because if in fact it was
created on Thursday, then the entire theory of why it was done is
simply not there from the counsel perspective.

Footnote continued from previous page
A. I don't really remember that.
Q. Well, let's just try one more time. Look at the bottom of the
first page—
MS. KALIVAS: Objection.
Q. —of the sheet?
THE COURT: Sustained to that.
MR. BURSTEIN: Okay. I'll move on.
Tr. 535-40.
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Hon. Andrew L. Carter, Jr.
February 12, 2017
Page 5

Tr. 152-53 (emphasis added).

Thus, counsel’s statement accusing Mr. Povetkin of “changing his story” in response to
deposition testimony of Dr. Krasavin was not only unsupported by the evidence, but was actually
false, as plaintiffs’ counsel had acknowledged on the record.

B. Counsel Improperly Stated His Personal Opinion of Mr. Povetkin’s
Honesty and Disregarded the Court’s Rulings By Linking Honesty
and Motive

After his improper account of Mr. Povetkin’s supposed attempt to alter his deposition
testimony, counsel compounded the prejudice by improperly expressing his opinion of
Mr. Povetkin’s truthfulness and ascribing motive in violation of the Court’s earlier ruling barring
that issue from this trial:

I don’t blame him. This is an important case to him. I blame him
for not, respectfully, not being honest, but I don’t do it, there’s
nothing else, those are the facts of life. (Tr. 777)

Counsel’s personal opinion that Mr. Povetkin was “not being honest” was highly
improper. A lawyer may not express his or her personal opinion as to the truth or falsity of any
testimony or evidence. See Bellows v. Dainack, 555 F.2d 1105, 1108 (2d Cir. 1977) (Where
Plaintiff’s counsel expressed personal opinions at summation about the credibility of defendants,
the court found “the summation . . . sought to arouse undue passion and prejudice on the part of
the jury and clearly exceeded the bounds of propriety”); Smith v. Piedmont Airlines, Inc., 728 F.
Supp. 914, 919 (S.D.N.Y. 1989) (finding it improper “that counsel for plaintiff impermissibly
vouched for the credibility of plaintiff’s physician when he expressed to the jury his personal
opinion about her character”); N.Y. Rule of Professional Conduct 3.4(e) (A lawyer shall not
“state a personal opinion as to the . . . the credibility of a witness”).

Moreover, counsel’s argument that Mr. Povetkin was not being honest because “this is an
important case to him” was in direct violation of the Court’s earlier rulings on this topic that
“motive to falsify” would not be allowed:

MR. BURSTEIN: * * * His motive to falsify is so overwhelming
and to come up with a story, I should be allowed to impeach him
on the theory that he knows the consequences of what will happen
if he loses here.
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Hon. Andrew L. Carter, Jr.
February 12, 2017
Page 6

THE COURT: I'm inclined to say no to that. It seems that it might
be appropriate for you to—again, I don't want to get into all of this
in terms of his credibility and bias and motive to testify. I'm
inclined to say no to that. It seems that it might be appropriate for
you to—again, I don't want to get into all of this in terms of his
credibility and bias and motive to testify.

***

MR. BURSTEIN: It's his motive to testify falsely. Right now, I
mean, it's true that we're in a vacuum, but if a witness has a desire
to—

THE COURT: But I believe that you were the person who was
objecting to any notion that the defendants wanted to put out
anything like he wouldn't risk his career by micro-dosing at this
small level because that small level that would be showing up there
wouldn't give him any benefit, and he wouldn't risk his career by
micro-dosing at this level. Wouldn't that be fair comment to start
re-going down this road? And that's something that you very
strenuously didn't want to get into.

MR. BURSTEIN: You know what, I have to give it to you, Judge.
I'll give you that one. So I have to back off. * * * (Tr. 515, 517.)

C. Counsel Improperly Referred to The Trainer as a Missing Witnesses
After Blocking His Testimony

Counsel accused Defendants of failing to present Mr. Povetkin’s trainer as a witness,
when in fact Defendants attempted to present his testimony, and Plaintiffs blocked it.

During summation, counsel began to assert his “missing witness” theory: “The people
who supposedly had provided the vitamins or whatever it was—”. Tr. 777. Following objection,
counsel admitted at sidebar that he was about to ask the jury “Where’s the trainer and where’s
the manager.” Tr. 778. The Court forbade it. Tr. 778-82. Then, in defiance of the Court’s
order, counsel put a board only a few feet from the jury with the question typed out in capital
letters: “WHERE IS MR. POVETKIN’S TRAINER?” See Tr. 788 (“But here’s other questions
you should ask yourselves”). (A photograph of the board is included as an Addendum at the end
of this letter.)
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Hon. Andrew L. Carter, Jr.
February 12, 2017
Page 7

This drew another objection, and Mr. Burstein left the board sitting on its easel when he
walked back into the robing room. It would have remained displayed to the jury during the
sidebar had defendants’ counsel not taken it down. See Tr. at 789, 799.

Earlier, Plaintiffs had successfully opposed Defendants’ application to allow submission
of deposition testimony or video testimony during trial of Mr. Povetkin’s trainer. See
K. Yalowitz Letter to J. Carter (Feb. 5, 2017) (DE 208); Tr. 88-100 (explaining importance of
issue); Tr. 156-57 (purpose of calling trainer as a witness would be “to rebut plaintiffs’ claim that
this whole theory about who gave Povetkin the Meldonium is a lie”).

The attempt to get the jury to draw an inference from the absence of the trainer was
improper.

D. Plaintiff’s Counsel Improperly Attacked Defense Counsel

Plaintiffs’ counsel asked the jury to draw negative inferences about Defense counsel’s
conduct of discovery—based on the improper hearsay testimony of Dr. Butch:

Mr. Yalowitz wants to talk about Dr. Butch not having seen the
second samples, but why? Because they did not want full access to
the second sample, to the three negative tests. They were not
prepared to allow my client and me to actually see what the truth
is, to get access to it. You can draw a very strong inference from
that.

Tr. 760; 789 (“Why did they initially refuse to give Dr. Butch the information he needed?”).

The entire basis for this assertion was an obviously improper hearsay statement from
Dr. Butch, which counsel read and showed to the jury: “And were you told why they weren't
available?” “It was indicated to me that the other side was unwilling to allow it.” Tr. 759.4 At
sidebar, counsel even misrepresented the record to the Court, falsely claiming that this testimony
had come in without objection. Compare Tr. 790 (“you didn’t object to it”) with Tr. 424
(objections overruled).

4
Dr. Butch was incorrect about the course of discovery. See Tr. 790-91 (Defendants’ concern
with authorizing the release of the vial numbers corresponding to the reported negative samples
“was not whether we would allow it so much as whether we were going to get the evidence at the
same time” as Plaintiffs).
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Hon. Andrew L. Carter, Jr.
February 12, 2017
Page 8

Similarly, plaintiffs’ counsel falsely asserted that Dr. de Boer “didn’t give you all of his
testimony because he admitted he had testified at other proceedings but somehow didn't tell us
about that and why is that?” Tr. 767. In fact, Dr. de Boer’s report correctly included “a list of all
other cases in which, during the previous 4 years, the witness testified as an expert at trial or by
deposition.” Fed. R. Civ. P. 26(b)(2)(B)(v); see Tr. 768-68. Yet Plaintiffs’ counsel persisted on
this issue even after learning the true facts at sidebar, and even cut the witness off when he was
trying to explain his answer to the improper questions on re-cross (Tr. 770).

Encouraging the jury to draw an inference of Defendants’ intent from pre-trial discovery
disputes is improper, particularly as Defendants’ intent is not as issue in this trial. Brown v.
Walter, 62 F.2d 798, 799 (2d Cir. 1933) (L. Hand, J.) (finding misconduct and “unfair[ness] to
the last degree” where plaintiff’s summation suggested that the “defense had been fabricated by
the insurer” without “the slightest support in the evidence”).

Plaintiff’s summation was also infected by improper impugning of defense counsel.
Indeed, Mr. Burstein opened his remarks by asserting that “Mr. Yalowitz” had made “selective
misrepresentations” of the record. Tr. at 758-59. Counsel went on:

So you have Mr. Yalowitz, and he's a fine lawyer and he's working
hard for his client, but when you don't have the facts,
unfortunately, sometimes what you have is not the most accurate
recounting of what the evidence is. Tr. 762.

In fact, counsel referred to “Mr. Yalowitz” by name a dozen times in his summation, and
even was admonished by the Court (at sidebar) to cease “these attacks on counsel.” Tr. 792.

Denigrating defense counsel is improper and can prejudice the client by tainting the
jury’s consideration of the evidence offered by the client. Koufakis v. Carvel, 425 F.2d 892, 904
(2d Cir. 1970) (“Mr. Berg’s summation was replete with improper personal references to
himself, and to Mr. Weisman, trial counsel for the appellants. It is enough to say in general that
counsel’s remarks were in reckless and purposeful disregard of all the proprieties; they went far
beyond the permissible limits of fair comment on what was before the jury and dealt altogether
too much with matters and considerations outside the record which were obviously intended to
prejudice the appellants in the eyes of the jury and seek their favor for the plaintiff.”).

E. Counsel Repeatedly Misstated the Burden of Proof

Counsel repeatedly misstated the law by attempting to shift the burden of proof to
defendants throughout his summation. For instance, he asked the jury to consider: “Where is the
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Hon. Andrew L. Carter, Jr.
February 12, 2017
Page 9

proof that Mr. Povetkin even took Meldonium in September 2015?” Tr. 772-73. This was not an
isolated slip-up:
But he's never proven that he explicitly knows he didn't take
Meldonium, because the dots have never been connected. Tr. 788.

They have no witness or any data to support the notion that he last
took it in 2015. Tr. 797.

Because, again, he might have taken it in 2015 and in 2016, but if
he can't prove—not prove, because he doesn’t have a burden. If
there's no evidence that he took it in—that allows you to conclude
that he took it in 2015, you have to grant a verdict in our favor,
because there was Meldonium in his system and his explanation is
2015. If you reject it, you have to find for the plaintiff. Tr. 786.

These were blatantly incorrect statements of the burden of proof in this case. The Court
even admonished counsel (at sidebar): “They don't have a burden in this case. Intent is not an
issue.” Yet Plaintiffs’ summation attempted to leave the jury with the misimpression that
Defendants need to prove exactly when Mr. Povetkin took Meldonium in order to prevail.

II. Relief Requested

Taken together, the extensive improprieties during summation exacerbates the prejudice
caused by any one improper remark. There is particular concern here because Plaintiffs offered
no substantive evidence in their case in chief of any theory beyond Mr. Povetkin’s alleged
“micro-dosing” after the supposedly “negative” April 7, 8 and 11, 2016 tests—a theory that no
reasonable jury could accept after Plaintiffs’ sole witnesses (two experts) admitted that they
failed to consider the UCLA laboratory’s own drug testing reports, which admittedly did not
report the absence of Meldonium in Mr. Povetkin’s urine samples. Ironically, UCLA had these
reports all along, while Defendants had to subpoena them and received them only a few weeks
before trial.

Much of the misconduct cannot now be cured, because instructions concerning such
misconduct will only draw further unwarranted attention to the improperly injected issue. For
example, Mr. Povetkin’s motives to lie should was not supposed to be an issue, but at this point,
how can any discussion of it inure to Mr. Povetkin’s benefit? Similarly, the bell cannot be un-
rung from Mr. Burstein’s improper smearing of defense counsel’s motives and honesty. And the
misstatements attempting to shift the burden of proof were pervasive, not isolated, so that a
curative instruction will likely be inadequate.
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Hon. Andrew L. Carter, Jr.
February 12, 2017
Page 10

A mistrial in such circumstances would be warranted, and Defendants therefore reserve
their right to move for a mistrial after the jury renders its verdict. See Manion v. American
Airlines, Inc., 215 F.Supp.2d 90, 92-93 (D.D.C. 2002) (granting motion for mistrial in similar
circumstances) (citing McWhorter v. City of Birmingham, 906 F.2d 674, 677 (11th Cir. 1990)
(counsel’s closing argument “was in direct violation of the district court’s ruling and was thus
highly improper”); and Brown v. Royalty, 535 F.2d 1024, 1028 (8th Cir.1976) (repeated and
deliberate references to evidence the court has excluded is grounds for a new trial)).

At this time, Defendants request the following relief:

A. The Trainer

With regard to the issue of Mr. Povetkin’s trainer, Andrey Kozlov:

1. Reopen The Evidence. The Court should reopen the evidence to allow
Mr. Povetkin’s trainer, Andrey Kozlov, to testify by video tomorrow. Plaintiffs
opposed both deposition and video testimony of Mr. Kozlov, and the Court reserved
decision (Tr. 156-57). Now that it has become an issue in summation, the Court
should permit the testimony.

2. Uncalled Witness Instruction. Alternatively, the Court should give a very strong
curative instruction:

Uncalled Witness Equally Available

There are several persons whose names you have heard during the
course of the trial but who did not appear here to testify, and one or
more of the attorneys has referred to their absence from the trial. I
instruct you that each party had an equal opportunity or lack of
opportunity to call any of these witnesses. Therefore, you should
not draw any inferences or reach any conclusions as to what they
would have testified had they been called. Their absence should
not affect your judgment in any way.

For example, Mr. Povetkin’s trainer, Andrey Kozlov, was available
to both sides. Thus the plaintiff cannot complain that the trainer
was not called to testify, because the plaintiff could have called the
trainer.
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Hon. Andrew L. Carter, Jr.
February 12, 2017
Page 11

This instruction is adopted from Sand, Modern Federal Jury Instructions 75-4 and the
Fifth Circuit Civil Jury Instruction 2.9 (reprinted in Sand and available at
http://www.lb5.uscourts.gov/juryinstructions/). The inclusion of the Fifth Circuit’s direct
and pointed instruction is necessary because counsel plaintiff affirmatively blocked the
receipt of Mr. Kozlov’s testimony, was ordered by the Court not to raise his absence in
summation, disobeyed the Court’s order by putting up a board directly in front of the jury
with the printed question “WHERE IS THE TRAINER,” and attempted to leave that
board in the jury’s view during a lengthy sidebar. As the Fifth Circuit explains in its
comments to its uncalled witness pattern instruction, “this instruction is appropriate only
if the issue arises during closing argument or at some other time in trial.” Comment to
Fifth Circuit Civil Jury Instruction 2.9. As the Ninth Circuit has explained, “[w]hen a
court gives a curative instruction to the jury, the instruction should specifically address
the improper argument, rather than state a boilerplate rule regarding evaluation of
evidence. For example, a belated instruction that the jurors ‘are the sole judges of the
credibility of the witnesses’ was insufficient to neutralize the harm caused when the
prosecutor vouched for government witnesses.” Ninth Circuit Manual on Jury Trial
Procedures § 3.20.E at 107 (2013 ed.) (discussing and quoting United States v. Kerr, 981
F.2d 1050, 1053-54 (9th Cir. 1992)) (available at
http://www.ca9.uscourts.gov/district/guides/MJTP.pdf).

3. Habit Instruction. Finally, the Court should instruct the jury that it may consider the
evidence of Mr. Povetkin’s practice:

There has been evidence introduced in this case concerning the
practice of Mr. Povetkin and his team with respect to the
administration of vitamins. This evidence may be considered by
you in determining whether the defendant acted in conformity with
that practice on the occasion in question. The weight you give to
practice evidence, if any, is entirely up to you, since you are the
sole judges of the facts.

This evidence was elicited at page 529 of the transcript:

Q. Do you and your team have a practice with regards to vitamins
recommended to you by Dr. Krasavin?

A. Well, yes, of course. He's the one that recommends the
vitamins and my trainer in physical fitness, he's the one who gives
them to me. Tr. 529.
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Hon. Andrew L. Carter, Jr.
February 12, 2017
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B. The Pretrial Discovery Process

The injection into the summation of the pretrial discovery process was improper.
Therefore, the Court should provide the following relief at this point:

1. The Court should strike the hearsay testimony of Dr. Butch. Hearsay is inadmissible
and no exception to the hearsay rule permitted counsel to elicit Dr. Butch’s testimony,
let alone emphasize it in closing by reading it and displaying it. This improper
testimony should not be put before the jury again.

2. The Court should give the following curative instruction, following its discussion of
depositions:

The pretrial discovery process allows both sides to obtain
information before a trial and is governed by a set of rules that are
not related to the trial itself. To whatever extent the plaintiffs’
counsel made arguments in his summation concerning the
exchange of information during the pre-trial discovery process, to
whatever extent that may have occurred, such argument was
improper.5 You must disregard Mr. Burstein’s comments and any
demonstrative aid he may have shown you concerning the
exchange of information before the trial. Further you must not
discuss the pre-trial discovery process, nor permit it to enter into
your deliberations in any way.

C. The Burden of Proof

The Court should clarify its burden of proof instruction by adding the following curative
instruction, following its statement that Plaintiffs have the burden of proving their case by a
preponderance of the evidence:

To whatever extent the argument of plaintiffs’ counsel called upon
any defendant to prove anything, to whatever extent that may have
occurred, such argument was improper.

5
Compare United States v. Bubar, 567 F.2d 192, 200 (2d Cir. 1977) (approving then-District
Judge Newman’s curative instruction: “(T)o whatever extent the argument of government
counsel called upon any defendant to testify or to explain away any evidence, to whatever extent
that may have occurred, such argument was improper, uncalled for and illegal.”).
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Hon. Andrew L. Carter, Jr.
February 12, 2017
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D. The “Eratta Sheet”

Counsel’s intentional mischaracterization of the record concerning the errata sheet should
also be addressed in the Court’s instructions. In its instruction on “what is or is not evidence,”
the Court should provide an additional example following the “when did you stop beating your
wife” example from the pattern jury instructions.

To take another example, during the trial the plaintiffs’ counsel
asked questions of Mr. Povetkin about some of the pretrial
proceedings. Counsel’s questions about those matters are not
evidence, and you may not consider the facts he assumed in his
questions to be true.

Respectfully yours,

cc: EFC Counsel
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Hon. Andrew L. Carter, Jr.
February 12, 2017
Page 14

ADDENDUM:

The Improper Demonstrative Aid