Greenberg vs Koch Trial: Part 13

Day 6: Wednesday, 3rd April 2013

Bill Koch, cross-examination

Arthur Shartsis rose to cross-examine Bill Koch, and opened by referring to Hardy Rodenstock, suggesting that if Rodenstock had anything to do with the October 2005 auction Koch would have run as far away from it as possible.  Koch replied that at that time, he didn’t know how bad Rodenstock was; later, he would never have had anything to do with him.  Koch confirmed that before the October 2005 auction he had determined that Rodenstock was behind the Jefferson Lafite bottle.  However, Koch emphasised that at that time, he did not know how fake that bottle was, as there was conflicting evidence, with one person saying it was fake, another at a university saying it was real, and at that point, no definitive answer had emerged.

Shartsis asked about the proposed display at the Museum of Fine Arts in Boston, suggesting it was the museum who called the bottles fakes.  Koch replied that the museum wanted to show the bottles, but had requested provenance, which is what led to Brad Goldstein’s calls to Monticello.  He agreed that Monticello (for the non-Americans, Monticello was Thomas Jefferson’s primary plantation, in Virginia, now owned by the Thomas Jefferson Foundation) was the most authoritative source of information about Jefferson, although he had not realised it prior to Goldstein’s research.

Shartsis expressed some disbelief that when Koch spent $400,000 on the “Jefferson Lafites” in 1988 he did not know that Monticello was the primary source of Jefferson information.  Koch replied that he knew that Monticello existed, but he had not been aware of the extent of their archives.  Koch had read that the bottles had been discovered in a cellar in Paris.  He knew that the person who discovered the cellar would not reveal its precise location, nor how he had found the bottles.  Shartsis found it surprising that Koch did not even call Monticello to discover if Jefferson ever bought such bottles.  (I am not so surprised he did not call Monticello, if he did not know this information existed.  Hard to relate to it now, but remember this was the pre-internet era…  He would have had to look hard even to find the phone number of Monticello.  What I confess I do find surprising is that Koch was willing to accept such vague provenance information, not least the lack of information about the number of bottles.  Rodenstock was clearly wanting to see the level of demand before deciding whether or not to ramp up production…)  Koch replied that he did not pick up the phone and call, because he relied on Christie’s “glowing” catalogue about it, although he had not bought the bottles from Christie’s, but from other people.  Koch agreed that in hindsight, he was “bloody naïve…. Stupid”.  Shartsis challenged this, saying that Koch owns a $4 billion company, but Koch replied that when it comes to something that’s a hobby, his biggest fault is being too trusting.

Shartsis asked Koch how much he had spent on amassing his various collections, suggesting it was over $100 million.  Koch replied that he did not know, and, emphatically, that he did not want to know and he did not want his wife to know.

Koch confirmed that he had never spoken with Christie’s about the bottles he eventually bought.  He confirmed that despite not having bought the bottles from Christie’s, nor having spoken with them about the bottles, he sued Christie’s for them.  Koch specified that he sued them because they authenticated the Thomas Jefferson bottles, although not the four he bought.

Koch confirmed that he knew that auction houses authenticate bottles, although he had never seen it done.  Although he owned about 50% of the stock in an auction house (i.e. Chicago Wine Company), for which he has paid about $500,000, he had only visited it once.  Koch emphasised that this was a sealed bid type of auction company, not one where there are a number of people in a room with an auctioneer hammering down on the sale.  He explained that while $500,000 is still a fair amount of money, compared with his other investments it was relatively small, and did not justify his spending any time on it.  In fact, he did not realise, when he bought his stake in the company, that there was such a thing as fake wine around.

Shartsis accused Koch of being unconcerned with how his company dealt with the public in terms of authenticating wine.  Koch replied that this was not a true statement.  He did not know what the auction house did and he did not know there were fake wines; had he known, he would have been very concerned.

After an objection by Hueston, sustained by Justice Oetken, on the grounds of argumentativeness, Shartsis returned to the conversation with Monticello.  He suggested that Goldstein was told that Jefferson did not buy those bottles.  Koch replied that he did not think it was that direct, more “we have no evidence that he bought such bottles”, but suggested that Shartsis ask Brad Goldstein directly, as it was he who had the conversation, and it was Koch’s impression of Goldstein’s impression that was being elicited.  Monticello had no archival evidence that Jefferson ever bought Lafite, and their archeological excavations on his dump pile (side note: In a previous life, I’ve done this!  As long as it’s WELL decomposed, it is fascinating.) revealed no engraved bottles.  Based on this, Koch concluded they were fake, and at this point, he believed that Hardy Rodenstock had been involved in selling him the fake Jefferson bottles.  Koch then felt he had to do a lot of investigation to prove these were fake, because they had been blessed twice before for being real.

After lunch, Shartsis returned to the question of the email from Mark Curley, who manages Koch’s wine collection, to Jeff Zacharia of Zachy’s.  (The email had been discussed late in Koch’s direct testimony, and related to the provenance of a magnum of 1921 Petrus Koch had purchased in the October 2005 sale.)  Shartsis asked if, as far as Koch was concerned, the email was incomplete because it did not disclose that Royal Wine may have been the source of the 1921 Petrus.  (According to the email, the consignor claimed the wines came from either a major Toronto collector or English Royalty.)  Koch replied that the email spoke for itself, and did not mention Royal Wines.

Koch confirmed that after this email, he spoke with Jeff Zacharia to find out who the consignor was, because he wanted more details.  Zacharia checked with the consignor, and then reported back to Koch that it was Eric Greenberg.  Shartsis asked if Koch knew that it was an anonymous auction.  Koch agreed he knew that the consignor’s name was not in the catalogue, and that it is common for the name of the consignor not to be made public.  Koch agreed that Greenberg did not have to identify himself, and that had done so to Koch.

Koch confirmed that he called Greenberg twice, who was willing to speak with him both times, even though the second time Koch had an investigator on the phone.  In these conversations, he volunteered information, including the fact he did not keep records for his wine, and so could not reliably match a specific bottle to its definite source.  Greenberg was also willing to talk about counterfeit wines, and indicated that he had bought several bottles of Petrus ’21 from Royal Wine Merchants.  He also said that Hardy Rodenstock is a friend of both Royal Wine Merchants and of Bipin (Desai, a prominent US collector), from whom Greenberg had also purchased a bottle of 1921 Petrus.

Koch also confirmed that Greenberg had also volunteered to Koch that he had discovered he had purchased several fakes from Royal Wine Merchants.  At the time, Koch was focused on the 1921 Petrus, and did not ask which other wines from either Royal or Bordeaux Wine Locators were counterfeit.

Shartsis asked Koch if he had bought at auction many times, and Koch replied that he had done, both art auctions and wine auctions.  He agreed it probably half or more than half of his wine came via auctions.  He has, albeit rarely, bought antiques at auctions, including guns, and has also acquired gold nuggets, Western and American Indian art and artifacts.

Shartsis suggested that during the 1980s, Koch was a mad buyer of wine at auction, and bought so much he could not remember all of it.  Koch had, as of summer 2012, 43,300 bottles of wine in five separate cellars: two in Cape Cod, two in Florida and a small one in Colorado.  He could not remember all of the auctions he bid on in the 1980s, and could not off the top of his head remember which bottle came from which source, but that this information was available from his computer.

At the time he was buying these wines, Koch did not really know the practices from the selling side, so he did not know that auction houses might reject wine being put up for sale.  Shartsis noted that Koch had sold wine through Christie’s in 1999, so he had experience.  Koch replied that he did not have much of an experience, with Shartsis asking if it was the bottles who had the experience.  Koch replied no, his staff did, as they handled everything with Christie’s.  Koch checked the list of wines to be sold with the then head of his wine collection, Marc Lazar (Eugh.  That would be this Marc Lazar, paedophile and crony of Rudy Kurniawan. http://caselaw.findlaw.com/mo-court-of-appeals/1403641.html .)  After the list was agreed, Koch had no further direct involvement.  He did not know if Christie’s did or did not accept all of the wines Lazar proposed.  He assumed it would be a negotiation, but in the sense that the auction house would, for example, be pressing him to include more of his outstanding wines, such as 1982 Petrus, than he wanted to.

Shartis then said to Koch that around the time of the Zachy’s auction, in October and November 2005, he had bought about $6 million of wine at six different auctions. Koch replied “I did?” and thanked Shartsis for telling him.  Shartsis asked about Brian Orcutt, who acted as Koch’s advisor, and would buy for him at auction.  Orcutt and Koch would discuss what wines Orcutt should bid on, and Koch would give Orcutt a maximum per bottle to pay.  Shartsis asked why Koch did not attend the auctions himself, and he replied that generally he preferred to be doing his work to make a profit to pay for the wines, rather than spending his time actually buying them.  Therefore, Orcutt attended on his behalf.  Shartsis commented that Koch had paid Orcutt $303,000 so he would not have to attend the auction.  Koch explained this was not for auction attendance, but for wine advice generally, including both what to buy at auction and doing the actual bidding.

Koch confirmed he had found 421 counterfeit wines, in the approximately 20% to 25% of his collection that had been examined.  He had also found counterfeits in other collections, guns, Indian artefacts, one or two gold nuggets, and one antique, as well as a painting initially attributed to one painter but actually done by his sister.

Shartsis then moved on to discuss Robert Parker, whom Koch agreed was very famous as a wine critic, which he does by tasting.  Koch would sometimes read Parker’s reviews when deciding whether or not to buy a particular wine, because he wanted to buy the very best.  He did not, however, believe he had a collection of the very best, because when he started out, he bought some lesser wines and vintages, but he has since become more refined in his taste.  He has endeavoured to build a collection that he considers outstanding, but he does not care what others think – he buys wines that he likes.  (I love this part.  And the fact he drinks them.)

Shartsis asked if Koch culled his collection, removing undesirable items.  Koch replied that he had unfortunately culled very rarely, and when he did, it was to get rid of things he no longer liked.  When he sat on the museum board, he would advise them to cull the collection, and use the money to buy new items, but found that “curators are worse than I.  They don’t want to get rid of anything.”

Changing the subject (and saying he would always make this clear, so as not to confuse Koch), Shartsis then asked if Koch had seen at an auction wine bottles where the capsules had been peeled back to expose part of the cork.  Koch replied that he had not been to a wine auction, so had no experience of seeing it there.  He had seen capsules peeled back in auction catalogues, but could not say if he had noticed this before the Zachy’s October 2005 auction.

Shartsis returned to the question of bar coding (with no indication of a change of subject this time), and stated that Koch did not start his collection with a bar code, and had been collecting for seven or eight years before he organised his cellar, around 1985.  Koch replied that he sold a bunch of stock in 1983, and used some of the money to buy a lot of wine.  Before that, he had only a tiny collection.  Once it got to a stage of being overpowering, at about 10,000 bottles, Koch decided he ought to organise it, and bar code everything.

Shown the Zachy’s catalogue from October 2005, Koch replied that he had not read the Conditions of Sale and Limited Warranty, as he regarded it as boilerplate.  Shartsis noted that Koch was in a $4 billion business, which has written contracts, and asked if it would be acceptable to him if one of his customers said “I consider a term in the contract BS, I view it as boilerplate, and I’m not going to follow it”?  Koch replied that if it was fraud, it was not acceptable.  If a term in his contract violated US law, then it was acceptable to ignore it.  Shartsis snapped that it was for the judge to tell the jury what the law is, not Koch; Hueston objected on the grounds it was argumentative – Shartsis had asked for an answer and it was given, and Judge Oetken sustained the objection.

Koch stated he knew all auction houses had an “as is” clause and added that he considered it a licence to steal, that he had litigated it and he had won.  Shartsis played deposition testimony in which Koch said he had never read an auction catalogue terms and conditions; Koch replied that this did not mean he did not know what was in it.  However, he did not believe the wine was offered “as is”.  Koch did not know whether the Chicago Wine Company sold wine “as is”; he repeated his previous statements that he did not get involved in the management of the company.

Koch did not know at the time of the auction that there was an invitation for prospective buyers to view the lots, but he had assumed that if he wanted to he could call Zachy’s and ask.

Shartsis, over Hueston’s objection, was allowed to examine Koch on the disclaimer of merchantability of the wine.  Koch replied that there are many issues regarding merchantability – for example, a broken bottle.  Shartsis asked what Oxbow do; Koch replied that he had not been involved in the detail of the contracts for a long time, but he did not think there was any specific mention of merchantability.  Shartsis provided a copy of an Oxbow contract, which specified no representation regarding merchantability.

Koch agreed that he had described the “as is” clause in his direct testimony as a clause that permitted them to “steal and cheat”.  He thought that for the auction houses to put in a clause that allowed them to say anything they liked in the catalogue and then not take responsibility for whether or not it was fake was just wrong.  At the time of the Zachy’s auction, however, he did not have that opinion.  He always thought it was BS; the steal and cheat position is because of his experience.  Even thinking it was BS, Koch admitted he had sent Orcutt (for $150,000) to the auction to bid on his behalf, to the tune of $3.7m million.

Koch agreed he did not contact Jeff Zacharia over the BS clause, nor did he give Zacharia the choice of doing business with him.  No one forced him to spend money at the auction.  Nevertheless, he did not think he, or anybody, should be bound by the terms of a contract when there is fraud involved.

Koch confirmed he had looked at neither the contract nor the catalogue to see if there was a guarantee of provenance; he had relied on what was said in the catalogue, which was that this was “the best of the best”.  Although there was no specific wine-by-wine information given, in the front of the catalogue, it had said that it was from the Continent (i.e. Europe), and much came directly from the domaines, which to Koch’s mind was a pretty powerful statement.  Shartsis asked Koch if he kept his wine carefully, and Koch confirmed that he did monitor the temperature and humidity of it.  Shartsis claimed there was nothing in the catalogue regarding the conditions the wine was kept in, but Koch had decided to buy anyway.  Koch disagreed, saying that if a collector is described as “the equivalent of Alexander the Great, that implies directly that he kept the wines in perfect condition, and when he says he bought it directly from the domaine or from other outstanding collectors” that – and was cut off by Shartsis, who asked him if he had enquired how the wine was stored.  Koch confirmed he had not.

Asked if he believed Zachy’s was guaranteeing the authenticity of the wine, Koch replied that he believed that they would stand behind (meaning be held accountable for) what was said in the catalogue – that when it said Chateau Petrus 1921, it actually was Chateau Petrus 1921.

After a short break, Shartsis started on the subject of the catalogue, alleging that Koch had testified he had read it in “excruciatingly careful detail” and “extreme detail”.  Koch replied that he did not know what Shartis meant by “extreme detail” but he had read it, line by line.  Shartsis asked if, had Sotheby’s told Koch this was one of the greatest collections in the world, if he would have believed them.  Koch replied that at that time, yes.  (Reminder note: Sotheby’s had pointed out the fakes; they would not have accepted the fakes for sale.)  Shartsis asked if Koch knew Richard Brierley, and he replied that he had met him once, and confirmed that, when he met him, he thought highly of him.  When Shartsis asked if, had Brierley told him it was one of the great collections of the world, Koch would have believed him, Koch replied (quite sensibly) that this was a very speculative question, and he didn’t know.

Thwarted on this one, Shartsis turned to the question of Koch’s purchasing habits, and noted that Koch had indicated that it was very important to him that the person selling the wine in the Zachy’s October 2005 auction was not a reseller.  When Koch agreed, Shartsis claimed that Koch had bought a lot of wine from people who were resellers, because he had bought wine from anonymous consignors at auction.  Koch agreed that he had known that smaller sales had taken place by the consignor in the auction in question (i.e. Greenberg), about whom he had not sought further information before the sale, but he emphasised that what he understood was that this was someone downsizing, not someone in the business of buying and selling.

Continuing with the letter of introduction, Shartsis pointed out that all the wines in the case were Bordeaux, and the representations about sourcing direct from domaines related to those from Burgundy and the Rhone.  Shartsis claimed that Koch had testified that he was misled because there was a representation that all of the wines had been bought from domaines.  Koch replied that it also included “as well as from other collectors who are personal friends of some of the world’s greatest winemakers”, and that would include Petrus, Mouton, Cheval Blanc, etc.  Shartsis asked if Koch knew what “on occasion” meant; Koch replied that he did, but that another phrase, “the balance of the collection, much of its sizzle”, meant to him that a lot of the wines came from the greatest winemakers, and some directly from the domaines.

Shartsis noted that the introduction referred to “rare examples” of older wines, and Koch confirmed he had bought some of these.  Shartsis noted that he was not suing Greenberg about some of those wines.  Koch replied that there are a bunch that are real, there are some that he believes are fake that he is not suing over, and there are the ones he is suing over.  Of these, one is a 19th Century wine.  Shartsis noted that this is one bottle out of 17,000 that were consigned for the sale, and one of the 2,700 that Koch had bought.  (False statistical inference here.  We really should know one out of how many 19th century bottles consigned.  And one out of how many 19th century bottles bought.  But even if that were the argument, Koch is nowhere claiming that ALL the wines Greenberg consigned to the auction or sold to him are counterfeit.  Therefore, this is sort of a “well, yes, he murdered someone, but look at all the other people he DIDN’T murder” argument.)  Koch also pointed out that there were other bottles involved in this specific lawsuit.

Koch confirmed that it was important the provenance was similar to wines recently tasted by Michael Broadbent, and that he had been somewhat influenced by the Parkers scores for these wines.  He also confirmed that he had been influenced by Fritz Hatton and Jeff Zacharia’s notes on their tasting of a magnum of Lafleur 1947.

Referring to the line “all these Right Bank magnums sourced on the continent”, Shartsis and Koch agreed this meant Europe.  Koch agreed that Hardy Rodenstock was in Europe, in Germany. And confirmed he had not asked Zachy’s if the wines might have come from Hardy Rodenstock.

Turning to the catalogue, Shartsis noted that the description of lot 357, a bottle of Cheval Blanc 1921, mentioned Hardy Rodenstock, and asked if Koch’s antennae had not raised at this, given that Rodenstock had sold him the four fake Jefferson bottles.  Koch replied that at this point, he had not known that Rodenstock was faking a lot of other wines.  (OK, I know I’m on the side of the good guys here, but… really? I believe him, to be honest.  I’m just quite surprised.)  Koch added that at that point, he had taken the bottle to be cesium tested, and it had come out negative – i.e. that it was pre-atomic bomb.  Therefore, he had suspected but not known that the Jefferson bottle was fake, and confirmed that he was investigating Rodenstock at that time.  Rodenstock’s name was mentioned in connection with a number of other bottles, including the bottle of 1864 Latfleur.  Lot 401 had a mention of a cork with a date stamp 1980, which Zachy’s took to mean it had been recorked in 1980.  (Seriously?  Someone has been really negligent here.)  Koch also confirmed that he had been familiar with the fact that Robert Parker had written tasting notes on Chateau Petrus 1921 tasted with Hardy Rodenstock.  (Which is another good example why you cannot taste for authenticity.  Parker’s palate and notes have been benchmarked on fake wines.).

Shartsis continued to another bottle of Petrus 1921, which said “part of vintage visible on cork”, and asked Koch if he had read it.  Koch replied that he was sure he had, but he did not remember specifically.  Shartsis asked him somewhat sarcastically if he was sure he read all the descriptions, and Koch replied that when he decides to buy a wine, that is normally what he does.  However, he does not read the tasting notes.

On a bottle of 1921 Chateau Lafleur, at issue in the case, Shartsis pointed out that there was no description of anything on the cork, and asked Koch if he had been misled about what was on the cork.  Koch replied that if something on the cork was wrong and it was not disclosed, he had been misled by omission, and pointed out that this is what the lawsuit was about – that Greenberg had not disclosed the whole truth.  Shartsis objected to what he termed Koch’s “filibuster”.  Hueston cross-objected that Koch was answering the question, and Judge Oetken agreed.  He also noted that both sides had “gone on some”, and that he would allow a little leeway to both parties.  Shartsis argued to Koch that some of the cork descriptions said “fully branded cork”, and some showed they were not; Koch replied that in contrast, they did not say unbranded, but were simply silent on the question.

Koch confirmed that he believed he could have asked to inspect the wines.  However, he noted that  one auction house refused to let him inspect.  He agreed that Zachy’s would have given him an answer, but he did not know if that answer would be positive or negative.  He did not ask someone from Sotheby’s to go and inspect the wines for him, noting he did not think they would go and inspect a competitor’s cellar.  (And, I must say, this is a ridiculous question.  Koch is absolutely right to be so scathing.)

Koch repeated that he had not thought it would be worthwhile to inspect the wines.  He also emphasised that it would have been difficult, because he only got the catalogue approximately 10 days before the auction.

Shartsis tried to argue that Koch could have inspected simply by looking at the catalogue.  (Really?  He thinks so?)  Koch replied that he did not know anyone at the time who could provide that type of inspection, and confirmed he had not tried to find anyone.  Today, he could get someone to look at it.  (This will highlight riskier wines, but no one can inspect wines from catalogue photos.)  Bill Edgerton claimed he could identify fake wine simply by looking at the page of a catalogue, Shartsis positied.  Koch replied that there are some people who can do this – Maureen Downey, Michael Egan, and maybe a handful of others.  Shartsis claimed that Downey could not even tell the difference between a magnum and a bottle in a catalogue, and returned to the question of her website posting.  Hueston objected, and it was sustained, but not before Koch had emphasised that he did not think Shartsis had her testimony correct.  Eventually, Justice Oetken asked Shartsis to move on.

Shartsis suggested that today, Koch would ask an expert to examine wines before he bought them at auction.  Koch replied that he buys very little at auction now, because he is tired of buying fake wine.  If he were to buy at auction, he might have an expert examine it, depending on the wine.

Koch confirmed that Edgerton looked at a bottle in the Christie’s catalogue, and Koch bought it knowing that it was fake.

Changing the subject again, Shartsis asked if Koch was aware that there were Zachy’s stickers on two of the bottles being claimed in the case.  Asked if he had ever looked at the bottles, Koch replied he had, but he hadn’t inspected them for Zachy’s stickers.  He confirmed it was the policy of his cellar that if there was an existing sticker on the bottle, they left it there.  Shartsis then suggested that this meant that if Zachy’s had placed stickers on bottles from the 2005 auction, those stickers would still be on the wine in his cellar.  Koch replied that that was a big “if”: IF Zachy’s had put them on, they would be there.

Shartsis then moved into evidence an email from Jeff Zacharia inviting Koch to a dinner the night before the auction, and Koch confirmed that he had flown in from Colorado to attend it.  The email spoke about the wines being from one consigner, and “by far the most magnificent offering” Zachy’s had ever done.  Koch agreed he had no reason to believe Greenberg had edited that email.

Koch confirmed that there were wines tasted, and that highlighted on the invitation were Chateau Lafleur 1947 and 1950, both of which he bought.  Asked if he had tasting the wines, he said he did not remember, adding that given there were 28 bottles that he counted, and at six glasses per bottle, if he’d tasted them all it would have been four and a half bottles of wine, and he would have been comatose.  (Clearly, Mr Koch has never heard of either a tasting pour or the concept of spitting.  OK. I accept there are some wines you just don’t spit.  But still – you don’t need to drink a full glass of each of them!)  He tasted a lot of wines and he cannot remember which he tasted and which he did not.  Shartsis pointed out that the two main features of the evening were the wines highlighted in Zacharia’s letter, but Koch replied that there were other wines in there that he found at least as interesting.  Pressed again and again, Koch finally responded “I do not recall all of the wines I tasted because there were so bloody many of them”.  He accepted that there was a probability that he had tasted the highlighted wines, but he did not know; in fact, he did not even know if they had opened them.

Shartsis asked Koch if he had subjected any of the wines in the case to a tasting.  (Ridiculous suggestion.)  Koch replied (quite rightly) that this would have destroyed the evidence (and wouldn’t Greenberg have liked that).  Shartsis noted that none of the evidence in the case is what is in the bottle.  Koch emphasised that because they did not want to destroy the whole bottle, the evidence related to the bottle, the corks, the capsules, the labels and what is put on the bottle.  It also concerns what they had learned about from the winemakers about the bottles.

Asked to confirm that his expert, Michael Egan, did not know a think about the bottle other than the bottle itself, Koch replied that he ask Michael Egan about that.  Shartsis complained to the judge about this reply, while Hueston argued improper question, in that Koch could not possibly know what was in Michael Egan’s head.  Judge Oetken sustained the objection.

Trying to continue the theme, Shartsis suggested that Egan’s report was based only on the bottle.  Taking his word wonderfully literally, Koch replied that it was based on the bottle shape and composition, the glue, the printing, the capsule, the cork and a number of other things, which together indicate that the bottle is fake.  Shartsis continued to try to get Koch to say what Egan had done or thought, and Koch continued to reply he did not know; he had, in fact, only met Egan for the first time at the courthouse.  Koch had read portions of Egan’s report, and agreed that in those portions he had read, only those matters had been considered, but he had not read the whole thing so could not speak to the whole thing.  Koch also pointed out that if he had opened the bottle, the capsule and cork would have been damaged, and the capsule would have been changed.  Shartsis argued (and the word is used advisedly, as there was much objecting by Hueston and intervention by the judge) that he could have photographed everything.  (The problem here is that the evidence would have been changed, and if, say, an independent expert were to come in, they would not be able to make the same conclusions.)

Shartsis noted that Koch thought the contents of the bottles in the case were worthless. Koch agreed it had no financial value.  To Shartsis’s annoyance, however, Koch reminded him that he was trained as a scientist, and that pouring the wine out would be modifying evidence, and as a scientist, this would be wrong.  Therefore, the contents of the bottle are worth something as evidence.

Koch confirmed that some of the bottles had been tested for caesium isotopes that did not exist before 1950.  He did not remember which bottles had been tested, to which Shartsis asked if he had “just delegated everything to everybody else”, and Hueston’s objection that this was argumentative was, once again, sustained.  They continued to argue, at which point Koch asked the judge if he could “run to the restroom while these guys are arguing”.

While the jury was out, Hueston pointed out to Justice Oetken that there was a persistent line of questioning regarding caesium testing, and neither side had called a caesium expert.  He felt, therefore, this was misleading and irrelevant.  Shartsis suggested he might present evidence from a caesium expert.  Hueston noted that if he did, it was for the expert to testify about, not Koch.  Shartsis argued that Koch had dropped 12 bottles from the case because they were not fake, to which assertion Hueston strongly objected, noting that the defendant had complained vociferously (I can just imagine) that the case would be too long.  Therefore, they had decided to streamline the case, focusing on one auction, and the 24 bottles from that auction.  That did not mean that the other bottles were not fake, nor that they were afraid of any other evidence that had been uncovered.  There was then a great deal of fractious argument regarding the caesium expert and his report, which had been marked as an exhibit but had not been submitted to evidence.  Eventually, Oetken agreed that Shartsis could ask one final question on caesium testing.  He did, Koch replied that he did not know, and Shartsis moved on to David Molyneux-Berry MW.

Koch confirmed that Molyneux-Berry, formerly of Sotheby’s, had come into his cellar to examine wines.  Koch did not know that Molyneux-Berry had concluded that the 1928 Chateau Latour was “probably genuine”, and replied that that was his opinion.

There was a side-bar discussion regarding documents from Jim Elroy, which Shartsis wanted to ask Koch about.  Hueston replied that he would not object as long as Shartsis gave Koch a fair chance to say if he knows or has seen them, and when he has seen them.

Shartsis then presented the Elroy documents to Koch.  He confirmed he had seen them, and that Elroy was his lead investigator, although now reported directly to the lawyers.  Elroy had reported to Brad Goldstein, who reported to Koch.  Goldstein is head of communications for Oxbow.  The first document was a memorandum that Elroy sent to M Berrouet at Petrus, describing what he had been told when he visited Petrus, including a reference to a cork being too long for anything Petrus had ever used.  Koch noted that the format was not the same as a standard email, missing the “to”, “from” and “subject” lines; Shartsis noted that Elroy could not produce the originals.  The memorandum said that Petrus had received Elroy’s email, and confirmed that all of the comments were true.

The next document appeared identical but in certain places the language was different, stating that “Until now, you have never observed a 1921 Petrus magnum and never heard of such a bottle.  All of the above causes you to believe the bottle is a forgery.”  Koch agreed that it was different, but he knew for a fact it was true because he had visited Petrus and asked that question.  Shartsis asked if the language had been inserted by Jim Elroy; Koch replied that he did not know.  However, Koch added (after Shartsis tried to prevent him, but Judge Oetken, at Hueston’s objection, allowed) that he had spoken with Elroy about it.  Elroy had told Koch that he had had two conversations about it, and screwed up in his documentation of those two conversations.

Shartsis moved to strike this as hearsay, at which Hueston retorted that Shartsis had known he was asking Koch to explain memos that he did not write and Koch was providing an explanation – answering the question he had been asked.  At his deposition, Koch had had not explanation for the difference.  However, he explained that after the deposition, he asked Elroy about it. Shartsis snarked “Did I ask him about what happened after?” to which Koch wonderfully replied “No, you didn’t, but I volunteered it,” and Judge Oetken, whom it seems was getting as fed up with Shartsis as I am by this point, added “He volunteered it.  Next question.”

Shartsis stated that there was a claim of falsification of evidence against Elroy at the time of Koch’s deposition, which he suggested Koch knew about.  Koch replied that this was not evidence, and that Shartsis was mischaracterising it.  Hueston objected to the term “falsified document”, on the grounds that there had been an explanation for it; Oetken sustained the objection.  Shartsis (whom I’m really coming to dislike) kept arguing that Koch knew the document had been changed at the time of his deposition, and Koch kept trying to say that he could not remember what he knew at the time of his deposition, what he found out at his deposition, and what he found out afterward, because there had been so much “hubble bubble” over it, and asked to read his deposition on that topic so that he did not contradict himself.  He emphasised that he had not been concerned about it at his deposition, because he knew that both documents were correct, because he heard it directly from Chateau Petrus, so he was not concerned that one might be more complete than another.

The jury was excused for the day.

Shartsis reminded Judge Oetken that when Greenberg had been on the stand, Hueston had complained about his rambling and outbursts, and Oetken had indicated to Greenberg that he should be more direct in his answers.  Oetken pointed out that he had also said that Greenberg did not necessarily have to answer yes or no, and he had given Greenberg a fair amount of leeway.  Shartsis argued that Koch was getting more, which Hueston disputed, saying that he would be happy to get out the transcripts and measure out long responses and non-responsiveness.  Oetken said it was a judgement call, and that he would continue to try to balance answering the question with allowing them to explain their answers.

Court adjourned for the day.

Bill Koch cross-examination (cont’d)

Arthur Shartsis resumed cross-examination of Bill Koch, starting with showing him an invoice sent from Zachy’s 3rd December 2004 for wine he had purchased at an auction held on that day, and a catalogue for that auction.

Shartsis reminded Koch of a statement he had made the previous day regarding tasting a 1921 Petrus, that didn’t taste like 1921 Petrus.  Koch replied that he had said it did not taste like Petrus – he had never previously had a 1921 so he could not compare, but it tasted neither like Petrus nor like an old wine.

Shartsis referred to John Kapon, and asked if Koch thought of John Kapon as a wine expert.  Koch noted that he had had a lot of experience with wines, and was an expert at selling and finding wine, but he was not someone who could authenticate.

Koch agreed that after 35 years of collecting wine he did not consider himself an expert in authentication.  He agreed that the 1921 Petrus was the work of a “master forger”, and that it was difficult to determine it was fake for him, but for someone who was an expert authenticator, it was not.

To try to determine whether the bottles were fake, Koch had hired Bill Edgerton, David Molyneux-Berry, former head of Sotheby’s, James Martin, who was a forensic examiner of documents and printing, using electron microscopes and other devices.  He had also hired Professor Hubert from France to do caesium testing, and had bottles taken to Chateaux.  He had also identified printers who had printed labels for Hardy Rodenstock, in particular the 1921 Petrus, although he did not know if the bottles had been transported to the printers.

Shartsis asked if, had Koch suspected that even one bottle in the 2005 Zachy’s auction was counterfeit, he would have walked away from it.  Koch replied that he really did not know what he would have done at the time, because he was not as aware as he was by the time of the trial of counterfeit wines.

Shartsis referred Koch to the “Supplemental Responses and Objections to Defendant Eric Greenberg’s First Set of Interrogatories”.  In it, he had stated that according to an interview with Richard Brierley, Greenberg had told Brierley that Serena Sutcliffe had told him there were fakes in his cellar, and had walked away because of the large number of counterfeits.  Brierley also had stated that he had told Greenberg that Greenberg had counterfeit wine in his cellar, comprising approximately 10% to 15% of the total bottles in the cellar, and that the sale fell through when Brierley refused to take certain vintages.  Koch agreed that he had verified that this is what he knew at the time.

Koch agreed that he had made a special trip from Colorado to come to the pre-auction wine dinner, where he met Jeff Zacharia and his father.  At that dinner, he did not ask him if there were any bottles that had a relationship to Hardy Rodenstock, Farr Vintners (a party in the Jefferson Lafite sale), or Wine Discovery (source of the 1921 Petrus) in the auction.  Koch noted it was in a big crown and he simply shook hands and said “Great to meet you”.  Koch noted that at that time, he had not yet proved conclusively that the Jefferson bottles were fakes, so he did not mention this to Zacharia, and because of the crowd, he did not warn him about Rodenstock.

Koch agreed that in all his auction dealings he had never seen a catalogue that indicated the consignor had ever had fakes in his collection, but tried to explain his answer, which was cut off by Shartsis.

Click here for Part 14.