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In a heavy handed effort to intimidate the Kwinter Brothers, Ronald Levy, the lawyer representing Aaron Gelber and Norman Sternthal (the “Plaintiffs”) at Hirsh Kwinter’s examination for discovery held on February 20, 2004, asked if Hirsh Kwinter had considered and discussed the potential of his personal liability for the defamatory statements that appeared in Paragraph 29 of the Estate of the Late David Kwinter’s (the “Defendant”) Amended Contestation and Cross-Demand (the “Contestation”) filed by the Defendant in response to the Plaintiffs’ legal action to enforce the provisions of the option agreement that the late David Kwinter had signed in June of 1984. Paragraph 29 of the Contestation reads:
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Concerned that [David] Kwinter might follow the advice of [David] Kwinter's two sons that he resort to legal proceedings to rebuff [Aaron] Gelber’s improper, unlawful and coercive tactics [Aaron] Gelber hurriedly traveled to Florida in order to ‘convince’ Kwinter to ‘accept’ that some form of written agreement be executed to protect their ‘mutual interests’;
The lawyer for the Plaintiffs found this allegation of misconduct in the Contestation as being so openly odious and constituting per se defamation of his clients that he felt emboldened to ask Hirsh Kwinter the following question during the latter's discovery:
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Me. Ronald Levy:
Q. 368 Ah! Okay. So did he [Stephen Kwinter] discuss with you your liability for the defamatory statements that appear in paragraph 29? Did you have that discussion with Stephen?
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Me. Pierre Bourque
Objection.
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Me. Ronald Levy:
On what basis, Me. Bourque?
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Me. Pierre Bourque
You are making a statement. You are assuming this is defamatory. You’re assuming that this Contestation is not serious and I will not allow the witness to answer such a question which is completely improper.
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Me. Ronald Levy:
Is it unlawful and coercive also, the question?
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Me. Pierre Bourque:
It’s not coercive because you’re not scaring me.
At the time of Hirsh Kwinter’s discovery, the Plaintiffs and their lawyer had no knowledge of the February 1984 tape recording of the telephone call between Aaron Gelber and Hirsh Kwinter where Aaron Gelber openly admits to the ‘improper, unlawful and coercive tactics’ that the Plaintiffs’ lawyer were inferring are defamatory in just suggesting that the Plaintiffs had engaged in such wrongful conduct. So, as the lawyer for the Estate persuasively argued, if it was defamatory to just infer that such wrongful actions took place, it should also be improper to permit those engaging in such wrongful actions to profit or benefit from such conduct.
Not surprisingly, once Hirsh Kwinter disclosed the existence of the tape-recorded February, 1984 telephone conversation, the issue of a possible claim for defamation was never again raised by the Plaintiffs or their lawyer as the they shifted their tactics to one of attempting to minimize Aaron Gelber’s threats heard on the tape, arguing that Aaron Gelber had never held back or withheld any monies owed to David Kwinter and that he, Aaron Gelber, was only lying to Hirsh Kwinter on the tape as a negotiation tactic. It was merely a white lie. Of course, this further 'white lie' was exposed when Aaron Gelber admitted under cross-examination at trial that he only paid the monies he was withholding from David Kwinter, after David Kwinter signed the contested option agreement.
It is interesting to note that during a break in the trial, the Plaintiffs’ lawyer, who was a classmate of Stephen Kwinter in McGill Law School, engaged in a brief discussion with Stephen Kwinter who stated that he had rarely been involved in a civil trial where such a compelling piece of evidence like the February 1984 tape recording was available and had the capability to so profoundly affect the fortunes of a party litigant. When the Plaintiffs’ lawyer said that he had heard worse, Mr. Kwinter smilingly replied that he hadn’t.
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