Court sets trial date, denies request to produce EDC exec's testimony before SEC

    Superior Court Judge Michael Silverstein (WJAR)

    Attorneys for 38 Studios owner Curt Schilling, Wells Fargo Securities, Barclays Capital and the Rhode Island Economic Development Corp. filled Superior Court courtroom 17 on Friday to face off on a request to make Michael Saul, former EDC director, produce the transcripts of his testimony to U.S. Securities and Exchange Commission and to iron out a schedule for the case and trial date.

    Two things were decided by the court, a trial date of Sept. 1, 2016 (subject to modification) and the decision to deny the request that would force Saul to provide his testimony before the SEC .

    Superior Court Judge Michael Silverstein denied the request by Wells Fargo Securities, pointing out that Wells Fargo had knowledge of the transcript for some time already, which echoed what Max Wistow, attorney for the Rhode Island EDC, had argued.

    Wistow, of Wistow, Barylick, Sheehan & Loveley, said Wells Fargo knew about the transcripts but sat on its hands.

    "Nobody, nobody said anything about the SEC," Wistow said.

    The EDC's attorney went on to say that the request is prejudice to their case and will cause a delay.

    "We need to get this case over and done with," Wistow argued. "This is not good for the state."

    Silverstein agreed, saying, "It certainly has received its share or more of public attention."

    "Recognizing as the court does that these motions play a major role in the trial of the matter, the court finds it inexcusable the passage of time that has occurred here since Wells Fargo became aware to the time they seek discovery," Silverstein said. "The court deems this request, this motion, essentially to be a last minute attempt to obtain what in fact may be important information for the defense."

    Thomas Holt Jr., an attorney of K&L Gates LLP in Boston who is representing Wells Fargo, said they hadn't an inkling that Saul would file a "backflip affidavit," referring to a change in Saul's story about his involvement with the 38 Studios deal that left the state with a $75 million bill.

    Wells Fargo filed a memorandum of law in support of its request to strike parts of Saul's motion for summary judgment and affidavit. Wells Fargo argued that Saul, during his two-day deposition on Nov. 15, 2013, and Dec. 17, 2013, testified that he was the point person for the EDC throughout one phase of the 38 Studios deal. Yet, two years later on Feb. 27, 2015, Saul submitted an affidavit that provided a very different story of his role with the deal, according to Wells Fargo.

    In his deposition he described his role as being the "quarterback" and the "point person" for the EDC in the transaction, but in his affidavit Saul states his position was "largely administrative," court documents obtained by NBC 10 News show.

    "Without going into it, Wells Fargo had no reason to believe Mr. Saul would do an about face," Holt told the courtroom.

    Holt would not comment on the court's decision.

    After a two-hour break, attorneys on both sides went back and forth with how much time they'd need to prepare for trial and when to set dates to hear a number of motions for summary judgement. The judge's plan, but it still needed to be ironed out with the attorneys on both sides, is to begin hearing motions on February 8.

    Wistow asked for court to set aside a block of time and take motions one after another, but there was objection from Gerald Petros, attorney for First Southwest Co.

    "We believe, given the complexity of this case... there's a tremendous amount of work to be done," Petros said.

    Winto, who pointed out that the opposing side had dozens of lawyers, said there was no reason why all the preparation and summary judgements couldn't be completed between the present time and June. "Please, let's do this as soon as possible," he plead with Silverstein.

    Petros, however, asked the judge to consider a trial date after the summer ended pointing out that it would likely be an eight-week trial with dozens of witnesses, 60 plus depositions and discussions about the authenticity of hundreds of exhibits.

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