2161 break before we come back?2 MR. COHEN: Please, Your Honor. 3 THE COURT: Okay. Sure. Take ten and come4 back.5 Please step down. Thank you.6 MR. BAJARDI: Thank you, Your Honor. 7 (Off the record - On the record.) 8 THE COURT: Address your clients ability to9 give a lay opinion about ethics or how do you want to10 proceed?11 MR. COHEN: Your Honor, if its acceptable,12 do you think I could brief this issue and have13 something to you by Monday morning?14 THE COURT: Yeah. Thats -- thats okay. 15 Well, theres nothing to brief. Just read the evidence16 rule on lay opinion. I know the law. You have to have17 a hearing. I dont need a brief.18 MR. COHEN: Okay. Can we have a hearing, but19 not right now?20 THE COURT: Okay. Are his qualifications21 going to change over the weekend?22 MR. COHEN: No.23 THE COURT: Then lets call him to the stand,24 if thats what you want to do. Lets see what he knows25 about ethics.

217MR. COHEN: Sure.1THE COURT: Okay. Good. 2Please resume the stand.3Proceed.4

VOIR DIRE EXAMINATION BY MR. COHEN: 5Q Lane, how long have you been involved in the6

journalism industry?7A In the industry since 1986. As a journalist since81987.9

Q And how have you learned the trade? Did you10learn on the job?11A I learned it on the job. Yes.12

Q Did you receive formal training on the job or13--14A Some of my employers offered formal training and -15- both a mix of formal and informal training.16

Q Okay. During your training -- your on-the-17job training as a journalist, do you receive any18specific training about ethics?19A Yes.20

Q As it relates to journalism?21A Yes.22

Q Can you describe that training?23A Different employers will have different policies24and codes and things, but there are many very basic25

2181 tenets of journalist ethics. And sticking with the2 truth is one of them. When at all possible, getting3 multiple sources for your information, making sure4 those sources are correctly identified whenever5 possible. And it goes on. Its a long list of things. 6 And, like I say, for different positions you have7 different things that apply as well as different types8 of journalism.9 Q Have you ever received any training10 specifically on conflicts of interest?11 A Yes.12 Q Could you go into more detail about that13 training?14 A If it sounds and looks like a conflict, it is a15 conflict. There are -- theres levels of training for16 conflicts of interest both for corporate conflicts of17 interest and journalistic conflicts of interest. At18 most, larger companies that --19 MR. FLOWERS: Objection, Your Honor.20 THE COURT: Just limit it to his journalistic21 experience with ethics. Journalistic ethics.22 MR. COHEN: Okay. Your Honor, I believe I23 asked him specifically about the training in24 journalistic ethics. I went into more detail about25 training on conflicts of interest. So, Im not really

219sure I understand the objection. Unless it was an1objection to what Mr. Bajardi said.2

THE COURT: What was the objection? Theres3no jury.4

MR. FLOWERS: The objection is he started5talking about corporate ethics. Hes here to testify6as to --7

THE COURT: To the extent its not a8journalistic corporation, I mean, thats the objection.9

MR. COHEN: Okay. 10THE COURT: Corporate ethics implies many11

things.12MR. COHEN: Correct, Your Honor. 13

BY MR. COHEN: 14Q Were you finished with your answer about your15

training --16THE COURT: Were not talking about17

shareholder obligations or anything like that or18accounting. Were talking about the ethics of a19journalist.20

MR. COHEN: Correct, Your Honor.21THE COURT: Okay. So, you can expand on that22

if you want.23MR. COHEN: Okay. Thank you.24

BY MR. COHEN: 25

2201 Q Were you finished with your answer to the2 question could you provide some -- could you describe3 your training --4 A No, I was not.5 Q -- specifically about conflicts of interest? 6 Could you finish your answer?7 A If youre in a situation where you are -- you have8 intimate knowledge of a story to the effect that youre9 --10 MR. FLOWERS: Objection, Your Honor.11 THE COURT: Overruled.12 THE WITNESS: Youre covering someone who is13 a personal friend of yours and you want to give them14 positive glowing coverage, thats a conflict of15 interest. You shouldnt -- you shouldnt do that. If16 you have a financial stake in a project that youre17 doing a story on, you should not do that story. If18 someone close to you has a financial stake in that, you19 should not necessarily do that story. Im talking20 about traditional ethics in traditional journalism as21 Ive seen it. And that -- and that includes the radio22 stations Ive worked for, the cable television23 operations Ive worked for and my current employer. 24 Im talking about specifically traditional journalism,25 traditional journalistic ethics in the roles that Ive

221had in traditional journalism.1BY MR. COHEN: 2

Q Have you ever had to --3THE COURT: Excuse me. Could you define what4

you mean by traditional journalism?5THE WITNESS: Traditional journalism meaning6

just the facts. This is information thats provided to7you. Youre not supposed to be giving one slant or8another. Im talking about working in radio news,9working in television news, working in my current10position. Im not specifically talking about whats11being called the fifth estate, the world that, you12know, is online and much more complicated in the way13people cover stories and go backward. Im talking14about my role in the jobs that Ive had that have paid15me for my expertise as a journalist.16

THE COURT: Thank you.17BY MR. COHEN: 18

Q Lane, have you ever recused yourself because19you believed you had a conflict of interest?20A Yes.21

Q Could you give me -- how many times have you22done that?23A At least twice.24

Q Can you discuss each instance?25

2221 A They involved stories that involved political2 figures in Hoboken that were airing on 1010 WINS.3 Q Both instances?4 A Both instances. Yes.5 Q Were you told to recuse yourself or did you6 know to do that?7 A I was told. I knew to do that --8 MR. FLOWERS: Object.9 THE COURT: Overruled. Overruled. He can10 answer it.11 THE WITNESS: I knew to do that and I was12 told that that was something that I should do. And13 thats how I know all the ethics that Im bound by by14 my bosses explaining to me exactly what the ethics are15 for the organization. And the ethics in this16 organization, as explained to me, if theres a Hoboken17 story, you dont do it. And you are to tell the editor18 on duty to remind that editor on duty that they should19 be taking another look at this and seeing if it can be20 covered in a different way.21 BY MR. COHEN: 22 Q Have you ever -- in your career, have you23 ever worked with someone who you believed should recuse24 themselves from a story due to a conflict of interest?25 A I monitored journalists below me who had -- for

223instance, there are -- Ive had people work for me who1graduated from college in the same community that we2were covering news when there were controversial issues3related to that college. Say they wanted -- the4instances where they wanted to buy more land and or5they wanted reroute streets or things of this type, I6made sure that the coverage was right down the middle7and attempted to have people who didnt graduate from8that college reporting on that colleges activities. 9Thats an example of when I was a news director I would10do that. I would try to take that out of the hands of11those who, you know, might even...12

Its not so much that you go into it13expecting that youre going to side to one side or14another, but you dont want any biases that are deep15down inside to come out. And you also dont want16somebody to err on the other side saying, well, I went17to this school and I dont want anybody thinking that18Im protecting them or helping them in any way, so Im19going to help the other side more or make it -- or make20it seem that way. Thats why we have an understanding21of conflicts of interest and we address them.22

Q So, Lane, correct me if Im wrong, have you23provided actual -- have you provided guidance or24instructions to people where youve worked on25

2241 journalistic ethics?2 A I have.3 Q Was it within your official job description4 to train?5 A Yes. I was the news director which is the manager6 of the new department.7 Q And how many employees worked under you as a8 news director?9 A Full time, depending on the time, three to four. 10 With part timers that could also be three to four11 additional.12 Q Now, this time where youre testifying when13 you were the news director and you trained people on14 ethics, has it only been once that youve been news15 director or was there another time?16 A Its only once that I held that title.17 Q Okay. Have you --18 A Ive held other titles, but.19 Q Yes. Have you served in another position,20 other than news director, where you trained21 subordinates on journalistic ethics?22 A Only less formally. It would -- it would come up23 in conversation as you -- in journalism, there are many24 people who want to be in electronic journalism in25 particular. They go to many of these schools, and they

225come out, some of them very well trained and some of1them not. And they learn a great deal on the job. 2Its the kind of job that you have to learn by doing3and learn from people who have been doing it a long4time. And so, they are constantly having interns below5me that need guidance on issues like this. There are -6- as well as even occasionally new employees. So, yes. 7In the past, thats been the case.8

Q Have you ever -- have you ever seen someone9that worked with you get disciplined or fired because10of an alleged conflict of interest?11A Ive seen it happen elsewhere, but I havent --12

Q At the place where youve worked?13A Id have to think about that. Its possible --14

MR. KATZMAN: Judge, that question really is15irrelevant for purposes of this case. What does it16matter?17

THE COURT: As to other people?18MR. KATZMAN: As to other people and in terms19

of without a witness from CBS saying --20THE COURT: I understand. The proffer is21

that to establish the foundation for a lay opinion.22MR. KATZMAN: For the witness himself to say23

that he -- that it would be because Ms. Pincus said --24and I have got the exact quote, by the way, to put it25

2261 in perspective --2 THE COURT: We didnt get there yet.3 MR. KATZMAN: Okay. Okay. 4 THE COURT: I understand ultimately where5 this may go, but this is an opportunity the plaintiffs6 entitled to.7 MR. KATZMAN: Yes. Youre absolutely right,8 Judge.9 THE COURT: So continue.10 BY MR. COHEN: 11 Q I think the question was have you ever worked12 in a company where you saw someone be fired or13 disciplined because of an alleged conflict of interest?14 THE COURT: That doesnt go to his15 qualifications.16 MR. COHEN: Okay. 17 THE COURT: Okay.18 BY MR. COHEN: 19 Q Do you -- is the training that you receive in20 ethics, is that continuing or has it already -- have21 you already received it? Is it --22 A Its received. And its continuing in the effect23 that the people who hold the titles of news director24 and many other titles that are supervisory will provide25 regular updates and reminders on the policies of

227journalistic ethics that the company people work for1are ascribed to. There were many times at Bloomberg,2when I worked at Bloomberg, that we had to go through3ethics courses, specifically related to journalists. 4

The same was at CNBC. When I worked at CNBC,5there were -- there were ethics courses for journalism,6especially in that financial type of journalism where7so many things can be -- you know, journalists may not8even be -- journalists who may own a stock and then9reporting on a stock, and thats a no-no. And, you10know, Ive always advised people who have asked me11about that, you know, if they want to work in financial12news, they should own mutual funds that other people13operate as opposed to owning companies individually14that they may be asked to report on. These are the15types of ethics. 16

And, again, thats something that is specific17to CNBC or Bloomberg or any of the financial reporting18operations that you wouldnt hear as much about at a19CBS radio or 1010 WINS because that wouldnt be20something that would come up on a regular basis. 21

So, it would be -- its fluid. There are22pillars of journalistic ethics and then there are23constant updating. Just last election day, there was a24reminder that went out saying -- you know, reminding25

2281 people that its company policy not to be in any way2 politicking, electioneering. I havent printed it out. 3 If I knew I was going to be in this position, Id be4 happy to read. But its essentially saying -- you5 know, there are policies about this is election day. 6 This is not -- you know, it would be inappropriate in7 the workplace for anybody to be in this newsroom to be8 showing their interest one way or the other in the9 election. 10 And, like I say, I dont want to quote this11 particular memo because I dont have it in front of me,12 but in the past it was also people shouldnt be13 celebrating victories or defeats. 14 There are many -- I mean, the New York Times15 makes publically available a very large journalistic16 ethics booklet that they make all of their newsroom17 employees follow, as well as employees of the New York18 Times company that are told that they have to ascribe19 to these journalistic ethics. Even family members who20 dont work for the New York Times. They have one of21 the strictest ethics policies.22 Then you can turn to the Society of23 Professional Journalists who are -- well, it was24 formerly the Radio/Television News Directors25 Association, which I was a member of, which is now the

229Radio/Television Digital News Association, they have an1ethics -- these are ethics frameworks that are put out2there so employers can put together -- and news3directors can put together their own set of ethics for4their particular organization. The set of ethics for51010 WINS is not going to be the same in entirety as6CNBC or the Huffington Post. Its -- there are basic7tenants and then there are company policies.8

MR. COHEN: Thats all I have, Your Honor.9THE COURT: Cross?10MR. KATZMAN: I have no cross, Your Honor.11THE COURT: Mr. Booth?12MR. BOOTH: Yes.13

CROSS-EXAMINATION BY MR. BOOTH: 14Q You indicated that -- well, first of all, how15

far did you go in school?16A High school.17

Q What high school did you graduate from?18A Ketcham High School in Wappingers Falls, New York.19

Q Was there a course on journalism in high20school that you took?21A There was a radio club, but there was no22journalism course. No.23

Q Okay. And I take it you went right to work. 24You didnt go to college?25

2301 A Thats correct.2 Q So, you never -- you never went to a3 journalism school either.4 A Didnt go to a journalism school and was hired, I5 believe, for my first three jobs in journalism by6 people that didnt go to journalism school.7 Q Yeah. Theres probably a lot of people in8 the industry that didnt go to journalism school.9 A Thats correct.10 Q Okay. Is there a code of ethics, a standard11 code of ethics, for the industry?12 A As I mentioned, no code of ethics is adopted13 universally. Tenets -- tenets of a code of ethics are14 adopted.15 Q So, the anser to my question is no. Theres 16 no universal code of ethics, right?17 A There are those that are put out there as18 universal codes by the Society of Professional19 Journalists, by Radio/Television Digital --20 Q I take it theyre suggested codes. Theyre21 recommended. Theyre not, like, established as22 something that youre required to follow.23 A They are established as the benchmark.24 Q And there are more than one. Theres more25 than one such code.

231A As is typical in most industries, yes.1

Q And the different companies will choose --2pick and choose among themselves. In other words, its3not, like, standard. I think you said that 1010 WINS4and CBS may have different policies.5A Not when it comes to the most basic conflicts of6interest.7

Q Thats not my question. Theyll have8different policies, correct?9A Not necessarily, no.10

Q Didnt you just testify that 1010 WINS --11A No. 1010 WINS is CBS radio. CBS radio owns 101012WINS.13

Q Theyll have a different -- theyll have a14different --15A Than Bloomberg or CNBS or the New York Times.16

Q Okay. 17A To the letter of the law. Theyll have a18different constitution.19

Q Now, in the training that you got, was it all20on-the-job training?21A Yes.22

Q Theres no -- like, you didnt go -- they23didnt send you away to a seminar at Vale or Aspen or24something like that to study --25

2321 THE COURT: Counsel, your question -- is your2 question limited to journalistic training or ethical3 training?4 MR. BOOTH: In ethics. Journalistic ethics.5 THE COURT: Okay. Rephrase the question.6 BY MR. BOOTH: 7 Q Okay. Did the company ever send you to a8 course on journalistic ethics?9 A Not specifically.10 Q Okay. Is Rush Limbaugh -- do you have the11 same ethics that Rush Limbaugh might follow in his12 radio news program?13 A Absolutely not. He is not a journalist.14 MR. COHEN: Thats all I have.15 THE COURT: Okay. Mr. Flowers?16 MR. FLOWERS: Yes.17 CROSS-EXAMINATION BY MR. FLOWERS: 18 Q Mr. Bajardi, have you written any articles19 regarding journalistic ethics that have been published?20 A No.21 Q Have you taught any courses regarding22 journalistic ethics?23 A Only --24 Q I asked you if you taught any courses.25 A Taught any courses? No.

233Q Have you been asked to speak at any seminar1

regarding journalistic ethics?2A Ive been asked questions about journalistic3ethics at colleges.4

Q No. Answer the question, please. Have you5been asked to speak about journalistic ethics at any6seminar on journalistic ethics?7A Youre making it more specific than I can answer. 8I would have to answer no, if thats the way --9

THE COURT: Sir, did you --10THE WITNESS: Yes, sir?11THE COURT: Let me -- did you understand the12

question?13THE WITNESS: Yes.14THE COURT: Answer the question.15THE WITNESS: Not specifically, no.16

BY MR. FLOWERS: 17Q Are you generally aware that various18

industries have annual conventions or seminars or19continuing education programs?20A Various industries?21

Q Yes.22A I focus on my industry, not various industries.23

THE COURT: So, youre not aware? Are you24aware or not?25

2341 THE WITNESS: Im aware of my own industry.2 THE COURT: Next question.3 BY MR. FLOWERS: 4 Q Okay. Does your industry have any seminars5 or any conventions or any meetings where journalistic6 ethics are ever discussed?7 A I would imagine they do, yes.8 Q Have you ever been asked to speak at one?9 A No.10 Q Have you ever been asked by anyone to write11 or speak about any journalistic ethics issues?12 A Yes.13 Q Who?14 A There was a professor at SUNY New Paltz asked me15 to come to his communications class and talk a wide16 variety of issues, including journalistic ethics. It17 was a long time ago.18 Q So, you went to SUNY New Paltz, and thats19 the extent of your public perception or tenure as an20 expert in journalistic ethics.21 A No. My tenure as an expert in journalism ethics22 is my time in journalism and --23 Q Do you have anything objective other than24 your personal opinion as to how you qualify? Is there25 any third-party validation of your testimony about your

235ability to speak as an expert on journalistic ethics?1A I dont -- I dont know -- I dont know if one2exists.3

Q You dont understand the question.4A A third party --5

THE COURT: Have you been recognized as an6expert in the field of journalistic ethics, to your7knowledge? 8

THE WITNESS: I dont have any certification9to that effect. No.10

MR. FLOWERS: I dont have any other11questions, Judge.12

THE COURT: Okay. Any redirect?13MR. COHEN: Yes, Your Honor.14

REDIRECT EXAMINATION BY MR. COHEN: 15Q One of the questions, I think, from Mr. Booth16

was he asking are there different codes of journalism. 17Do you remember that question?18A From Mr. Booth?19

Q Yes.20A Yes.21

Q And your answer was yes?22A Yes.23

Q Are you aware of any codes of journalism that24say it is acceptable to participate in stories that you25

2361 report on?2 A Not in regards to the fourth estate journalism. 3 No.4 Q And what do you mean by fourth estate?5 A Fourth estate? I mean the fourth estate6 traditional journalism that I participate in as far as7 receiving a salary since 1987 with a gap.8 MR. COHEN: No further questions.9 THE COURT: Okay. Anything further? Okay. 10 You may step down.11 THE WITNESS: Thank you, Your Honor. 12 THE COURT: Thank you. Okay. Ill hear you,13 Mr. Cohen.14 MR. COHEN: Hear me on --15 THE COURT: On why you think you established16 that you laid a foundation to elicit a lay opinion from17 Mr. Bajardi.18 MR. COHEN: Okay. Well, as Mr. Bajardi19 testified, he has many years of on-the-job experience20 in journalism and has received training on the job in21 journalistic ethics, has provided guidance and22 instruction to subordinates on journalistic ethics, and23 I think thats all he needs to provide a lay opinion on24 journalistic ethics.25 THE COURT: Okay. Mr. Katzman?

237MR. KATZMAN: My position, Your Honor, would1

be that expert opinion is necessary.2THE COURT: Lay opinion.3MR. KATZMAN: I understand. But my opinion,4

our position is that expert testimony is necessary on5this witness on this issue and that a party should not6be permitted under this set of circumstances to be7laying -- to setting forth his own lay opinion on the8issue of ethics.9

How hes going to be tying this in also10becomes very, very interesting particularly when were11talking about a blog that was written in March of 201212pertaining to a 2009 election. I just want the Court13to understand that. It becomes even more tenuous when14the witness is now attempting to give his lay opinion15that it would be unethical for him to be supporting a16candidate three years earlier while he is now employed17with CBS.18

The whole issue is tenuous. Thank you.19THE COURT: Mr. Booth?20MR. BOOTH: Judge, I dont believe that this21

is a subject thats ripe for lay opinion. Its not --22THE COURT: Because?23MR. BOOTH: Its something that a non-expert24

can give an opinion on matters of common knowledge and25

2381 observations, but I think this hearing demonstrated2 clearly that this is an area where the opinion must be3 from a qualified expert, I think.4 THE COURT: Mr. Flowers?5 MR. FLOWERS: I concur, Your Honor. What Mr.6 Cohen is trying to do is basically have Mr. Bajardi7 testify to an ultimate issue in the case, and then say8 that hes an expert in that determination. Its self-9 serving. I didnt hear anything from the witness which10 would point to any objective circumstances, facts or11 educational background that would qualify him as an12 expert. Its woefully inadequate, Judge, by any13 criteria for establishment of expert testimony.14 THE COURT: Okay. All right. Based on the15 proffer at sidebar and not knowing the background of16 the witness, plaintiff was given an opportunity to have17 this hearing.18 And generally, lay opinions are admissible19 when they relate to observations or something; for20 example, drunkenness or speed of a car or the value of21 ones personal property, things in that regard. Its22 clear to this Court from the testimony of the witness23 that hes aware of standards in the journalism24 industry, but has not been formally schooled, trained25 in any quantifiable or objective seminar courses. He

239has never written, published or lectured as an expert,1couldnt point to being recognized as an expert in the2field. Clearly, he makes distinctions between news3media, acknowledging, you know, traditional, which Im4not by way of his definition. 5

Interestingly that the witness indicated that6reporters should not report on stories or organizations7where they have an interest. And almost every night on8the network news one of the networks announce that9their parent company is the subject of a story given10todays climate when four or five news organizations11control most of the media. Its a daily occurrence.12

So, I find that opinion, frankly, wrong and13contra to reality these days because organizations do14report on stories in which they have interest in which15their parent companies have interest every day.16

But regardless of that, I mean, Im not17satisfied the witness has any specialized knowledge in18the field to give an opinion, lay opinion, certainly19not an expert opinion on ethics. So, the objection to20testifying as to his impression of journalistic ethics21is sustained.22

MR. COHEN: Your Honor?23THE COURT: Yes.24MR. COHEN: So, would Your Honor permit me to25

2401 submit any briefing at all on this or are we -- Id2 like for the opportunity. Obviously, I cant make Your3 Honor read what I write, but --4 THE COURT: No. Youre wrong, Counsel. Im5 obligated to consider anything you submit whether its6 late or invited or otherwise. And I will read it. So,7 do what you deem fit.8 MR. COHEN: Thank you, Your Honor.9 THE COURT: Okay. Any regarding the second10 part of the motion, the other shoe is going to fall as11 to where this is going to go as far as the effect or12 the cause. You know, thats got to be followed up by13 you some other way through testimony.14 MR. COHEN: Im sorry.15 THE COURT: In other words, the effect of16 these statements allegedly made, okay, have to be tied17 in and causally related to some, you know, defamation18 or elements of your case through some other testimony19 that has been served in discovery and is admissible.20 MR. COHEN: Yes, Your Honor.21 THE COURT: Okay. Good. All right. So,22 Monday, 9:30, and well continue. In the meantime, any23 other e-mails that counsel can work out, you know,24 between themselves by stipulation -- and then just so25 you know, for example, you have these statements or

241blogs made by one of the defendants, okay, thats going1to come in. But, again, what you do with it as far as2your proofs, I mean, thats going to be the issue. 3Statements by the parties are most likely going to be4admitted, okay, but you need something to causally5relate or tie that into your case. Okay?6

So, all right. Then Monday, 9:30.7MR. KATZMAN: Thank you, Judge.8THE COURT: All right. Have a nice weekend.9MR. FLOWERS: Thank you, Your Honor.10MR. COHEN: Thank you.11

(Proceedings Concluded.)12* * * * * * * 13

14

24212 C E R T I F I C A T I O N34 I, Karen English, the assigned transcriber,5 do hereby certify the foregoing transcript of6 proceedings on electronic recording dated 1/29/15,7 electronic recording time from 01:28:11 to 03:05:11, is8 prepared in full compliance with the current Transcript9 Format for Judicial Proceedings and is a true and10 accurate compressed transcript of the proceedings as11 recorded.1213141516 /S/ Karen English #421 17 SIGNATURE AOC NUMBER181920 Karen English Trans. Svc. March 27, 2015 21 AGENCY DATE