2:15-cv CSB-EIL # 297 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS URBANA DIVISION

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1 2:15-cv CSB-EIL # 297 Page 1 of 6 E-FILED Friday, 07 December, :02:22 AM Clerk, U.S. District Court, ILCD IN THE UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS URBANA DIVISION HYE-YOUNG PARK, a/k/a LISA PARK, Plaintiff, vs. Case No. 15-cv-2136 MICHAL T. HUDSON, individually, HEIDI JOHNSON, individually, CHARLES SECOLSKY, individually, ROBERT STAKE, individually, and THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, Defendants. ROBERT STAKE S RESPONSE TO MOTION TO MODIFY AND/OR SUPPLEMENT THE RECORD NOW COMES defendant ROBERT STAKE, by and through his attorneys, Thomas, Mamer & Haughey, LLP, and for his RESPONSE TO MOTION TO MODIFY AND/OR SUPPLEMENT THE RECORD, states as follows: Plaintiff, Hye-Young Park, a/k/a Lisa Park (hereinafter Park, has filed a Motion to Modify and/or Supplement the Record pursuant to Circuit Rule 10(b. Dkt. #293. Circuit rule 10(b merely provides that a motion to correct or modify the record pursuant to Fed.R.App.P. 10(e must be presented first to the district court. Therefore, defendant Robert Stake (hereinafter Stake is treating Park s motion as if it were brought pursuant to Fed.R.App.P. 10(e. Rule10(e provides that if anything material to either party is omitted from or misstated in the record by error or accident, the omission may be corrected and a 1

2 2:15-cv CSB-EIL # 297 Page 2 of 6 supplemental record may be certified. Fed.R.App.P. 10(e(2. The Seventh Circuit has plainly stated the purpose of Rule 10(e is to ensure that the record on appeal accurately reflects the proceedings in the trial court (thereby allowing us to review the decision that the trial court made in light of the information that was actually before it, not to enable the losing party to add new material to the record in order to collaterally attack the trial court s judgment. U.S. v. Elizadle-Adame, 262 F.3d 637, 641 (7 th Cir As the Seventh Circuit has stated, Rule 10(e does not give this court authority to admit on appeal any document which was not made part of the record in the district court. U.S. v. Hillsberg, 812 F.2d 328, 336 (7 th Cir quoting Borden Inc. v. Federal Trade Commission, 495 F.2d 785, 788 (7 th Cir The entirety of Park s motion is dedicated to adding new evidence to the record, not to correct errors and/or omissions to the record in its current form. Park addresses what she asserts are ten false claims. Each of these ten assertions are accompanied with references to evidence that if not already contained in the record, was certainly available to her at the time the motions for summary judgment were being briefed, and at the time of trial. Only False Claims 7-10 relate to Stake. False Claim #7 With respect to False Claim #7, Park asserts that one of Stake s attorneys, William J. Brinkmann, set forth the question, Who would make this up, a story about forcing a tongue into her mouth? Well, the answer is Lisa Park. Dkt. #293, p. 51, citing Trial Transcript, Dkt. #289, p. 2. This question by Stake s counsel was 2

3 2:15-cv CSB-EIL # 297 Page 3 of 6 posed in the closing arguments to the jury. It is axiomatic that closing arguments are not evidence. In fact, the jury was properly instructed in that regard. Dkt. #240, p. 5. The remainder of this section of Park s motion contains argument as to why she believes counsel s assertion to be false. She does not point to any evidence that was erroneously misstated or omitted from the record. Park further attempts to add documents to the record that were not presented in the district court. For example, on page 81 of her motion she sets forth a document that was issued to her on September 8, Park is clearly attempting to add new evidence that was obtained after her trial. Given the issue date of that document, it could not have been erroneously omitted from the record. Adding that document, or any other document that was not presented in the district court, is inappropriate. False Claim #8 Park challenges the Court s ruling with respect to her Motion for Leave to Reopen Discovery and to Extend Time filed on May 1, Dkt. #191. In that motion, Park sought to reopen discovery in order to ascertain Stake s knowledge regarding the identity of a person who allegedly provided documents and personal items to Park s attorney anonymously. Stake objected to this motion, and the Court denied Park s motion on May 31, This issue was again considered in connection with Stake s Fifth Motion in Limine. Dkt. #202. In its order on the motions in limine, the Court cited Federal Rule of Evidence 403 as a basis for barring any testimony, evidence, or argument relating to the information that was 3

4 2:15-cv CSB-EIL # 297 Page 4 of 6 subject to Plaintiff s motion to reopen discovery. Dkt. #210, p. 6. Park offers nothing more than argument as to why she disagrees with the Court s evidentiary ruling. This is simply an issue for appeal. False Claim #9 Judicial Notice of Korean Court Judgment Park asserts that Plaintiff suffered no prejudice from the trial is a false claim. This refers to the finding by the Court in its Order on Park s Motion for a New Trial that plaintiff suffered no prejudice from the court s refusal to take judicial notice of a Korean court judgment. Dkt. #273, p. 8. In making this determination, the Court noted that it allowed Park to testify before the jury about the Korean Court judgment, as well as the scar removal surgery. Id. The court further permitted Park to introduce the Korean court judgment. Id. Evidence of New Sexual Partner Park next complains that the Court allowed Stake s counsel to question her regarding whether she had a new sexual partner. Dkt. #293, p As with the other false claims, Park does not claim evidence has been omitted from the record. Instead, Park is simply arguing that admission of such evidence and medical records was inappropriate. These evidentiary issues are the subject of an appeal, not a motion to supplement or modify the record. False Claim #10 In his response to Park s Motion for a New Trial, Stake argued plaintiff s psychology records include no reference to the battery or Stake, while including 4

5 2:15-cv CSB-EIL # 297 Page 5 of 6 significant reference to other sources of emotional distress. This argument, according to Park, is false. As with her other false claim arguments, Park simply argues that the evidence does not support the judgment. Park seeks to introduce a letter purportedly written by one of her treating physicians, Arthur R. Traugott, M.D. Dkt. #293, p Park also references medical records generated in August and October of 2018, post-trial. Dkt. #293, pp Park is seeking to add evidence that was not even in existence at the time of the trial. Conclusion The Conclusion of Park s Motion to Modify and/or Supplement the Record provides a succinct summary of what she is seemingly trying to accomplish, i.e. to have the district court reexamine the facts and evidence (both old and new and rule in her favor. This is not a motion to correct the district court record as is contemplated by Fed.R.App.P. 10(e. Park had an opportunity to argue for a new trial, which was denied, and is now proceeding with an appeal in the United States Court of Appeals for the Seventh Circuit where her arguments as they apply to the true and accurate record of this court s proceedings are properly made. As set forth in U.S. v. Elizadle-Adame, 262 F.3d at 641, Rule 10(e is not an opportunity for Park to add new material to the record in order to collaterally attack the district court s judgment. The appellate stage of the litigation process is not the place to introduce new evidentiary materials. Berwick Grain, Inc. v. Illinois Dept. of Agriculture, 116 F.3d 231, 234 (7 th Cir To grant such motions not only would promote inefficient allocation of judicial resources, but also would deny non- 5

6 2:15-cv CSB-EIL # 297 Page 6 of 6 movants fair notice of the record they are to confront on appeal. Id. Accordingly, Park s Motion to Modify and/or Supplement the Record should be denied. WHEREFORE, defendant ROBERT STAKE, respectfully requests that plaintiff s MOTION TO MODIFY and/or SUPPLEMENT THE RECORD be DENIED, and for such other relief as this court deems just. /s/ William J. Brinkmann William J. Brinkmann Attorney for Defendant Robert Stake Thomas, Mamer & Haughey, LLP 30 E. Main, PO Box 560 Champaign, IL PH: ( Fax: ( wjbrinkm@tmh-law.com CERTIFICATE OF SERVICE I hereby certify that on December 7, 2018, I electronically filed the foregoing instrument with the Clerk of the Court using the CM/ECF system which will send notification of such filing to all registered parties. On the same day, a true and correct copy of the foregoing instrument was placed in the United States Mail, first-class postage properly prepaid, and addressed to: Hye-Young Park Charles Secolsky a/k/a Lisa Park 126 Rolling Meadows Road Apt. A3 Middletown, NY Paddock Dr. E. Savoy, IL /s/ William J. Brinkmann William J. Brinkmann Attorney for Defendant Robert Stake Thomas, Mamer & Haughey, LLP 30 E. Main, PO Box 560 Champaign, IL PH: ( Fax: ( wjbrinkm@tmh-law.com 6