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Borgata v. Phil Ivey Lawsuit: “Kansas City, Here I Come!”

Amid a protracted discovery phase in the high-profile lawsuit between Atlantic City’s Borgata Hotel Casino & Spa and high-rolling poker pro Phil Ivey, US Magistrate Judge Anne Marie Donio has ruled that lawyers for both the Borgata and for co-defendants Ivey and Cheung Yin Sun must travel to New Jersey to depose a key witness, a retired employee of Gemaco, Inc., the manufacturer of the cards at the center of the “edge sorting” case.

borgata-logoJudge Donio issued her latest order in the case on Monday, continuing months of procedural battles in the unique lawsuit.  The Borgata seeks to recover $9.6 million that Ivey won at the casino during four different high-stakes mini-baccarat sessions spanning much of 2012.  Sun, the primary co-defendant, served as an eagled-eyed spotter of tiny irregularities in the patterns on the card backs used during the games, and assisted Ivey in pulling off a complicated scheme involving card rotation (by the Borgata’s dealer) that shifted the game’s actual odds significantly into Ivey’s favor.

This latest ruling involves admission into evidence of expected testimony regarding the cards themselves, which used a full-bleed back design that by its nature is susceptible to minute printing irregularities.  Ivey and co-defendant Sun insisted on being provided with “purple Gemaco cards” during their play at the Borgata, but whether or not the Borgata also required the full-bleed card design as a part of its deal with Gemaco — as compared to more secure “bordered” or “no-bleed” patterns — remains to be revealed.

Nonetheless, the Borgata and its attorneys also named Gemaco and an unidentified “Jane Doe” Gemaco quality-control employee as co-defendants in the case, alleging that Gemaco was also negligent in providing cards that were susceptible to Ivey’s and Sun’s scheme.

Gemaco subsequently named a recently retired employee, Kay Summers, as being the Gemaco representative most qualified to testify on Gemaco’s behalf in the case, which has been agreed to by all parties involved.  It is unknown if Summers is indeed the “Jane Doe” co-defendant named in the case.

The recent battles in the case have been about where Summers’ deposition will be taken — in Kansas City, where she lives, or in New Jersey, where both the lawyers for Borgata and Ivey do business and where the case itself is being heard.

Judge Donio ruled that the deposition of Summers will be held in Kansas City at unspecified near-future date, rejecting a claim from Ivey’s and Sun’s attorney that the preponderance of hardships in the case argued for requiring Summers to travel to New Jersey.  Such depositions are normally held near the deposed witness’s place of residence, and Judge Donio found insufficient reason to depart from standard practice.

In issuing her order, Donio noted that [the attorneys for] “Defendants Ivey and Sun allege that the deposition should be conducted in New Jersey for three reasons”:

  • “First, Defendants Ivey and Sun allege that ‘[t]he most compelling reason’ to permit the deposition to occur in New Jersey ‘is that all counsel for the other parties along with the parties, would have to fly to Kansas City at a higher burden than one representative coming from Kansas City to New Jersey.'”
  • “Second, Defendants Ivey and Sun contend that Defendant Gemaco, Inc. routinely does business in New Jersey and should consider traveling to New Jersey ‘as a relative cost[]’ of defending itself in this litigation.”
  • “Third, Defendant Gemaco, Inc. ‘likely cannot show financial hardship in having its representative travel to New Jersey.'”

Judge Donio noted that Ivey and Sun are likely millionaires themselves, and the Borgata casino is well-heeled and well-represented as well, so little hardship would fall on attorneys for those litigants other than having to be bothered to book a flight to Kansas City.  Donio also noted Gemaco’s testimony that Summers is now retired and no longer travels to the US’s East Coast on behalf of the company, and that a video deposition of Summers was also a realistic possibility.

As a result, Donio ordered that counsel for the Borgata and for Ivey and Sun will instead travel to the Midwest, with Summers to be deposed at a future date at Gemaco’s Blue Springs, MO corporate offices, in suburban Kansas City.

The case itself is now expected to drag into 2016, if not even later, with a trial date months away from even being set.

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