this; 2015 Amendments to the Federal Rules of Civil Procedure; Federal Judicial Center publication “The Elements of Case Management.”; Court’s standard form; Effective Legal Writing; PDF document; Motions to Continue Criminal Trials; instructions to e-file a .pdf copy for the record in CM/ECF; Motio

=== 2015 Amendments to the Federal Rules of Civil Procedure ===

COMMITTEE ON RULES OF PRACTICE AND PROCEDURE OF THE JUDICIAL CONFERENCE OF THE UNITED STATES WASHINGTON, D.C. 20544 JEFFREY S. SUTTON CHAIR JONATHAN C. ROSE SECRETARY CHAIRS OF ADVISORY COMMITTEES STEVEN M. COLLOTON APPELLATE RULES EUGENE R. WEDOFF BANKRUPTCY RULES DAVID G. CAMPBELL CIVIL RULES REENA RAGGI CRIMINAL RULES SIDNEY A. FITZWATER EVIDENCE RULES MEMORANDUM TO: Judge Jeffrey Sutton Chair, Standing Committee on Rules of Practice and Procedure FROM: Judge David G. Campbell Chair, Advisory Committee on Federal Rules of Civil Procedure RE: Proposed Amendments to the Federal Rules of Civil Procedure DATE: June 14, 2014 Over the course of the last four years, the Advisory Committee on the Federal Rules of Civil Procedure has developed, published, and refined a set of proposed amendments that will implement conclusions reached at a May 2010 Conference on Civil Litigation held at Duke University Law School. The Committee has also proposed and published amendments that would abrogate Rule 84 and the forms appended to the civil rules, and make a modest change to Rule 55. Final versions of the proposals were approved unanimously by the Committee at its meeting in Portland, Oregon on April 10-11, 2014, and approved unanimously by the Standing Committee at its meeting in Washington, D.C. on May 29-30, 2014. This report explains the proposed amendments. The text of the proposed rules and the proposed Advisory Committee Notes immediately follow this report. The Committee respectfully requests that you forward the proposed amendments for consideration by the Judicial Conference, the Supreme Court, and Congress. I. THE DUKE CONFERENCE. The 2010 Duke Conference was organized by the Committee for the specific purpose of examining the state of civil litigation in federal courts and exploring better means to achieve Rule 1’s goal of the just, speedy, and inexpensive determination of every action. The Committee invited 200 participants to attend, and all but one accepted. Participants were selected to ensure diverse views and expertise, and included trial and appellate judges from federal and state courts; plaintiff, defense, and public interest lawyers; in-house counsel from governments and corporations; and many law professors. Empirical studies were conducted in advance of the conference by the Federal Judicial Center (“FJC”), bar associations, private and public interest research groups, and academics. More than seventy judges, lawyers, and academics made presentations to the conference, followed by a broad-ranging discussion among all participants. The Conference was streamed live by the FJC. The conference planning committee and its chair, Judge John Koeltl of the Southern District of New York, spent more than one year assembling the panels and commissioning, coordinating, and reviewing the empirical studies and papers. Materials prepared for the Conference can be found at http://www.uscourts.gov, and include more than 40 papers, 80 presentations, and 25 compilations of empirical research. The Duke Law Review published some of the papers in Volume 60, Number 3 (December 2010). The Conference concluded that federal civil litigation works reasonably well –major restructuring of the system is not needed. There was near-unanimous agreement, however, that the disposition of civil actions could be improved by advancing cooperation among parties, proportionality in the use of available procedures, and early judicial case management. A panel on e-discovery unanimously recommended that the Committee draft a rule to deal with the preservation and loss of electronically stored information (“ESI”). Following the conference, the Committee created a Duke Subcommittee, chaired by Judge Koeltl, to consider recommendations made during the Duke Conference. The Committee also assigned the existing Discovery Subcommittee to draft a rule addressing the preservation and loss of ESI. The work of these subcommittees led to two categories of proposed amendments discussed below: the Duke proposals drafted by the Duke Subcommittee, and proposed new Rule 37(e) drafted by the Discovery Subcommittee. The proposed abrogation of Rule 84 and the proposed amendment to Rule 55 were developed independently of the Duke Conference initiatives. This report will discuss separately the Duke proposals, proposed Rule 37(e), the abrogation of Rule 84, and the amendment to Rule 55. Additional insight can be gained by reviewing the proposed rule language and committee notes in the Appendix. II. THE DUKE PROPOSALS. In a report to the Chief Justice following the Duke Conference, the Committee provided this summary of key conference conclusions: “What is needed can be described in two words – cooperation and proportionality – and one phrase – sustained, active, hands-on judicial case management.” Since the conference, the Committee and others have sought to promote cooperation, proportionality, and active judicial case management through several means. First, the FJC has sought to develop enhanced education programs. Among other measures, in 2013 the FJC published a new Benchbook for Federal District Court Judges with a new, comprehensive chapter on judicial case management written with substantial input from members of the Committee and the Standing Committee. Second, the Committee and the National Employment Lawyers Association (“NELA”) worked cooperatively with the Institute for Advancement of the American Legal System (“IAALS”) to develop protocols for initial disclosures in employment cases. The protocols were developed by a team of experienced plaintiff and defense lawyers and include substantial mandatory disclosures required of both sides at the beginning of employment cases. The protocols are now being used by more than 50 federal district judges. The FJC and the Committee intend to monitor this pilot program and other innovative changes made in several state and federal courts. Third, the Committee developed proposed rule amendments through the Duke Subcommittee. The Subcommittee began with a list of proposals made at the Duke Conference and held numerous conference calls, circulated drafts of proposed rules, and sponsored a mini- conference with 25 invited judges, lawyers, and law professors to discuss possible rule amendments. The Subcommittee presented recommendations for full discussion by the Committee and the Standing Committee during meetings held in 2011, 2012, and 2013. The proposed Duke amendments were published as a package in August 2013 along with the other proposed amendments discussed in this report. More than 2,300 written comments were received and more than 120 witnesses appeared and addressed the Committee in public hearings held in Washington, D.C., Phoenix, and Dallas. Following the public comment process, the Subcommittee withdrew some proposals, amended others, and proposed the package of amendments discussed below. We believe that this process has resulted in fully-informed rulemaking at its best. The original Duke Conference, the lengthy and detailed deliberations of the Duke Subcommittee, the mini-conference held by the Subcommittee, repeated reviews of the proposals by the full Committee and the Standing Committee, and the vigorous public comment process have provided a sound basis for proposing changes to the civil rules. Rather than discuss the proposed Duke amendments in numerical rule order, this report will address the discovery proposals, followed by proposals on judicial case management and cooperation. A. Discovery Proposals. 1. Withdrawn Proposals. The proposals published last August sought to encourage more active case management and advance the proportional use of discovery by amending the presumptive numerical limits on discovery. The intent was to promote efficiency and prompt a discussion early in each case about the amount of discovery needed to resolve the dispute. Under these proposals, Rules 30 and 31 would have been amended to reduce from 10 to 5 the presumptive number of depositions permitted for plaintiffs, defendants, and third-party defendants; Rule 30(d) would have been amended to reduce the presumptive time limit for an oral deposition from 7 hours to 6 hours; Rule 33 would have been amended to reduce from 25 to 15 the presumptive number of interrogatories a party may serve on any other party; and a presumptive limit of 25 would have been introduced for requests to admit under Rule 36, excluding requests to admit the genuineness of documents. These proposals received some support in the public comment process, but they also encountered fierce resistance. Many expressed fear that the new presumptive limits would become hard limits in some courts and would deprive parties of the evidence needed to prove their claims or defenses. Some asserted that many types of cases, including cases that seek relatively modest monetary recoveries, require more than 5 depositions. Fears were expressed that opposing parties could not be relied upon to recognize and agree to the reasonable number needed; that agreement among the parties might require unwarranted trade-offs in other areas; and that the showing now required to justify an 11th or 12th deposition would be needed to justify a 6th or 7th deposition, reducing the overall number of depositions permitted under the rules. After reviewing the public comments, the Subcommittee and Committee decided to withdraw these recommendations. The intent of the proposals was never to limit discovery unnecessarily, but many worried that the changes would have that effect. The Committee concluded that it could promote the goals of proportionality and effective judicial case management through other proposed rule changes, such as the renewed emphasis on proportionality and steps to promote earlier and more informed case management, without raising the concerns spawned by the new presumptive limits. 2. Amendments to Rule 26(b)(1): Four Elements. The proposed amendments to Rule 26(b)(1) include four elements: (1) the factors included in present Rule 26(b)(2)(C)(iii) are moved up to become part of the scope of discovery in Rule 26(b)(1), identifying elements to be considered in determining whether discovery is proportional to the needs of the case; (2) language regarding the discovery of sources of information is removed as unnecessary; (3) the distinction between discovery of information relevant to the parties’ claims or defenses and discovery of information relevant to the subject matter of the action, on a showing of good cause, is eliminated; (4) the sentence allowing discovery of information “reasonably calculated to lead to the discovery of admissible evidence” is rewritten. Each proposal will be discussed separately. a. Scope of Discovery: Proportionality. There was widespread agreement at the Duke Conference that discovery should be proportional to the needs of the case, but subsequent discussions at the mini-conference sponsored by the Subcommittee revealed significant discomfort with simply adding the word “proportional” to Rule 26(b)(1). Standing alone, the phrase seemed too open-ended, too dependent on the eye of the beholder. To provide clearer guidance, the Subcommittee recommended that the factors already prescribed by Rule 26(b)(2)(C)(iii), which currently are incorporated by cross-reference in Rule 26(b)(1), be relocated to Rule 26(b)(1) and included in the scope of discovery. Under this amendment, the first sentence of Rule 26(b)(1) would read as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.1 This proposal produced a division in the public comments. Many favored the proposal. They asserted that costs of discovery in civil litigation are too often out of proportion to the issues at stake in the litigation, resulting in cases not being filed or settlements made to avoid litigation costs regardless of the merits. They stated that disproportionate litigation costs bar many from access to federal courts and have resulted in a flight to other dispute resolution fora such as arbitration. They noted that the proportionality factors currently found in Rule 26(b)(2)(C)(iii) often are overlooked by courts and litigants, and that the proposed relocation of those factors to Rule 26(b)(1) will help achieve the just, speedy, and inexpensive determination of every action. Many others saw proportionality as a new limit that would favor defendants. They criticized the factors from Rule 26(b)(2)(C)(iii) as subjective and so flexible as to defy uniform application. They asserted that “proportionality” will become a new blanket objection to all discovery requests. They were particularly concerned that proportionality would impose a new burden on the requesting party to justify each and every discovery request. Some argued that the proposed change is a solution in search of a problem – that discovery in civil litigation already is proportional to the needs of cases. After considering these public comments carefully, the Committee remains convinced that transferring the Rule 26(b)(2)(C)(iii) factors to the scope of discovery, with some 1 The current version of this language in Rule 26(b)(2)(C)(iii) reads as follows: “On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: . . . (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” modifications as described below, will improve the rules governing discovery. The Committee reaches this conclusion for three primary reasons. Findings from the Duke Conference. As already noted, a principal conclusion of the Duke Conference was that discovery in civil litigation would more often achieve the goals of Rule 1 through an increased emphasis on proportionality. This conclusion was expressed often by speakers and panels at the conference and was supported by a number of surveys. In its report to the Chief Justice, the Committee observed that “[o]ne area of consensus in the various surveys . . . was that district or magistrate judges must be considerably more involved in managing each case from the outset, to tailor the motions practice and shape the discovery to the reasonable needs of the case.” The FJC prepared a closed-case survey for the Duke Conference. The survey questioned lawyers in 3,550 cases terminated in federal district courts for the last quarter of 2008. Although the survey found that a majority of lawyers thought the discovery in their case generated the “right amount” of information, and more than half reported that the costs of discovery were the “right amount” in proportion to their clients’ stakes in the case, a quarter of attorneys viewed discovery costs in their cases as too high relative to their clients’ stakes in the case. A little less than a third reported that discovery costs increased or greatly increased the likelihood of settlement, or caused the case to settle, with that number increasing to 35.5% of plaintiff attorneys and 39.9% of defendant attorneys in cases that actually settled. On the question of whether the cost of litigating in federal court, including the cost of discovery, had caused at least one client to settle a case that would not have settled but for the cost, those representing primarily defendants and those representing both plaintiffs and defendants agreed or strongly agreed 58.2% and 57.8% of the time, respectively, and those representing primarily plaintiffs agreed or strongly agreed 38.6% of the time. The FJC study revealed agreement among lawyers representing plaintiffs and defendants that the rules should be revised to enforce discovery obligations more effectively. Other surveys prepared for the Duke Conference showed greater dissatisfaction with the costs of civil discovery. In surveys of lawyers from the American College of Trial Lawyers (“ACTL”), the ABA Section of Litigation, and NELA, more lawyers agreed than disagreed with the proposition that judges do not enforce Rule 26(b)(2)(C) to limit discovery. The ACTL Task Force on Discovery and IAALS reported on a survey of ACTL fellows, who generally tend to be more experienced trial lawyers than those in other groups. A primary conclusion from the survey was that today’s civil litigation system takes too long and costs too much, resulting in some deserving cases not being filed and others being settled to avoid the costs of litigation. Almost half of the ACTL respondents believed that discovery is abused in almost every case, with responses being essentially the same for both plaintiff and defense lawyers. The report reached this conclusion: “Proportionality should be the most important principle applied to all discovery.” Surveys of ABA Section of Litigation and NELA attorneys found more than 80% agreement that discovery costs are disproportionately high in small cases, with more than 40% of respondents saying they are disproportionate in large cases. In the survey of the ABA Section of Litigation, 78% percent of plaintiffs’ attorneys, 91% of defense attorneys, and 94% of mixed- practice attorneys agreed that litigation costs are not proportional to the value of small cases, with 33% of plaintiffs’ lawyers, 44% of defense lawyers, and 41% of mixed-practice lawyers agreeing that litigation costs are not proportional in large cases. In the NELA survey, which included primarily plaintiffs’ lawyers, more than 80% said that litigation costs are not proportional to the value of small cases, with a fairly even split on whether they are proportional to the value of large cases. An IAALS survey of corporate counsel found 90% agreement with the proposition that discovery costs in federal court are not generally proportional to the needs of the case, and 80% disagreement with the suggestion that outcomes are driven more by the merits than by costs. In its report summarizing the results of some of the Duke empirical research, IAALS noted that between 61% and 76% of the respondents in the ABA, ACTL, and NELA surveys agreed that judges do not enforce the rules’ existing proportionality limitations on their own. The History of Proportionality in Rule 26. The proportionality factors to be moved to Rule 26(b)(1) are not new. Most of them were added to Rule 26 in 1983 and originally resided in Rule 26(b)(1). The Committee’s original intent was to promote more proportional discovery, as made clear in the 1983 Committee Note which explained that the change was intended “to guard against redundant or disproportionate discovery by giving the court authority to reduce the amount of discovery that may be directed to matters that are otherwise proper subjects of inquiry,” and “to encourage judges to be more aggressive in identifying and discouraging discovery overuse.” The 1983 amendments also added Rule 26(g), which now provides that a lawyer’s signature on a discovery request, objection, or response constitutes a certification that it is “neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.” The 1983 amendments thus made proportionality a consideration for courts in limiting discovery and for lawyers in issuing and responding to discovery requests. The proportionality factors were moved to Rule 26(b)(2)(C) in 1993 when section (b)(1) was divided, but their constraining influence on discovery remained important in the eyes of the Committee. The 1993 amendments added two new factors: whether “the burden or expense of the proposed discovery outweighs its likely benefit,” and “the importance of the proposed discovery in resolving the issues.” The 1993 Committee Note stated that “[t]he revisions in Rule 26(b)(2) are intended to provide the court with broader discretion to impose additional restrictions on the scope and extent of discovery[.]” The proportionality factors were again addressed by the Committee in 2000. Rule 26(b)(1) was amended to state that “[a]ll discovery is subject to the limitations imposed by Rule 26(b)(2)(i), (ii), and (iii) [now Rule 26(b)(2)(C)].” The 2000 Committee Note explained that courts were not using the proportionality limitations as originally intended, and that “[t]his otherwise redundant cross-reference has been added to emphasize the need for active judicial use of subdivision (b)(2) to control excessive discovery.” As this summary illustrates, three previous Civil Rules Committees in three different decades have reached the same conclusion as the current Committee – that proportionality is an important and necessary feature of civil litigation in federal courts. And yet one of the primary conclusions of comments and surveys at the 2010 Duke Conference was that proportionality is still lacking in too many cases. The previous amendments have not had their desired effect. The Committee’s purpose in returning the proportionality factors to Rule 26(b)(1) is to make them an explicit component of the scope of discovery, requiring parties and courts alike to consider them when pursuing discovery and resolving discovery disputes. Adjustments to the 26(b)(1) Proposal. The Committee considered carefully the concerns expressed in public comments: that the move will shift the burden of proving proportionality to the party seeking discovery, that it will provide a new basis for refusing to provide discovery, and that it will increase litigation costs. None of these predicted outcomes is intended, and the proposed Committee Note has been revised to address them. The Note now explains that the change does not place a burden of proving proportionality on the party seeking discovery and explains how courts should apply the proportionality factors. The Note also states that the change does not authorize boilerplate refusals to provide discovery on the ground that it is not proportional, but should instead prompt a dialogue among the parties and, if necessary, the court, concerning the amount of discovery reasonably needed to resolve the case. The Committee remains convinced that the proportionality considerations will not increase the costs of litigation. To the contrary, the Committee believes that more proportional discovery will decrease the cost of resolving disputes without sacrificing fairness. In response to public comments, the Committee also reversed the order of the initial proportionality factors to refer first to “the importance of the issues at stake” and second to “the amount in controversy.” This rearrangement adds prominence to the importance of the issues and avoids any implication that the amount in controversy is the most important concern. The Committee Note was also expanded to emphasize that courts should consider the private and public values at issue in the litigation – values that cannot be addressed by a monetary award. The Note discussion draws heavily on the Committee Note from 1983 to show that, from the beginning, the rule has been framed to recognize the importance of nonmonetary remedies and to ensure that parties seeking such remedies have sufficient discovery to prove their cases. Also in response to public comments, the Committee added a new factor: “the parties’ relative access to relevant information.” This factor addresses the reality that some cases involve an asymmetric distribution of information. Courts should recognize that proportionality in asymmetric cases will often mean that one party must bear greater burdens in responding to discovery than the other party bears. With these adjustments, the Committee believes that moving the factors from Rule 26(b)(2)(C) to Rule 26(b)(1) will satisfy the need for proportionality in more civil cases, as identified in the Duke Conference, while avoiding the concerns expressed in some public comments. b. Discovery of Information in Aid of Discovery. Rule 26(b)(1) now provides that discoverable matters include “the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.” The Committee believes that these words are no longer necessary. The discoverability of such information is well established. Because Rule 26 is more than twice as long as the next longest civil rule, the Committee believes that removing excess language is a positive step. Some public comments expressed doubt that discovery of these matters is so well entrenched that the language is no longer needed. They urged the Committee to make clear in the Committee Note that this kind of discovery remains available. The Note has been revised to make this point. c. Subject-Matter Discovery. Before 2000, Rule 26(b)(1) provided for discovery of information “relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party.” Responding to repeated suggestions that discovery should be confined to the parties’ claims or defenses, the Committee amended Rule 26(b)(1) in 2000 to narrow the scope of discovery to matters “relevant to any party’s claim or defense,” but preserved subject-matter discovery upon a showing of good cause. The 2000 Committee Note explained that the change was “designed to involve the court more actively in regulating the breadth of sweeping or contentious discovery.” The Committee proposes that the reference to broader subject matter discovery, available upon a showing of good cause, be deleted. In the Committee's experience, the subject matter provision is virtually never used, and the proper focus of discovery is on the claims and defenses in the litigation. Only a small portion of the public comments addressed this proposal, with a majority favoring it. The Committee Note includes three examples from the 2000 Note of information that would remain discoverable as relevant to a claim or defense: other incidents similar to those at issue in the litigation, information about organizational arrangements or filing systems, and information that could be used to impeach a likely witness. The Committee Note also recognizes that if discovery relevant to the pleaded claims or defenses reveals information that would support new claims or defenses, the information can be used to support amended pleadings. d. “Reasonably calculated to lead.” The final proposed change in Rule 26(b)(1) deletes the sentence which reads: “Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” The proposed amendment would replace this sentence with the following language: “Information within this scope of discovery need not be admissible in evidence to be discoverable.” This change is intended to curtail reliance on the “reasonably calculated” phrase to define the scope of discovery. The phrase was never intended to have that purpose. The “reasonably calculated” language was added to the rules in 1946 because parties in depositions were objecting to relevant questions on the ground that the answers would not be admissible at trial. Inadmissibility was used to bar relevant discovery. The 1946 amendment sought to stop this practice with this language: “It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.” Recognizing that the sentence had this original intent and was never designed to define the scope of discovery, the Committee amended the sentence in 2000 to add the words “relevant information” at the beginning: “Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” The Committee Note explained that “relevant means within the scope of discovery as defined in this subdivision [(b)(1)].” Thus, the “reasonably calculated” phrase applies only to information that is otherwise within the scope of discovery set forth in Rule 26(b)(1); it does not broaden the scope of discovery. As the 2000 Committee Note explained, any broader reading of “reasonably calculated” “might swallow any other limitation on the scope of discovery.” Despite the original intent of the sentence and the 2000 clarification, lawyers and courts continue to cite the “reasonably calculated” language as defining the scope of discovery. Some even disregard the reference to admissibility, suggesting that any inquiry “reasonably calculated” to lead to something helpful in the litigation is fair game in discovery. The proposed amendment will eliminate this incorrect reading of Rule 26(b)(1) while preserving the rule that inadmissibility is not a basis for opposing discovery of relevant information. Most of the comments opposing this change complained that it would eliminate a “bedrock” definition of the scope of discovery, reflecting the very misunderstanding the amendment is designed to correct. 3. Rule 26(b)(2)(C)(iii). Rule 26(b)(2)(C)(iii) would be amended to reflect the move of the proportionality factors to Rule 26(b)(1). 4. Rule 26(c)(1): Allocation of Expenses. Rule 26(c)(1)(B) would be amended to include “the allocation of expenses” among the terms that may be included in a protective order. Rule 26(c)(1) already authorizes an order to protect against “undue burden or expense,” and this includes authority to allow discovery only on condition that the requesting party bear part or all of the costs of responding. The Supreme Court has acknowledged that courts have that authority now, Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978), and it is useful to make the authority explicit on the face of the rule to ensure that courts and the parties will consider this choice as an alternative to either denying requested discovery or ordering it despite the risk of imposing undue burdens and expense on the party who responds to the request. The Committee Note explains that this clarification does not mean that cost-shifting should become a common practice. The assumption remains that the responding party ordinarily bears the costs of responding. 5. Rules 34 and 37(a): Specific Objections, Production, Withholding. The Committee proposes three amendments to Rule 34. (A fourth, dealing with requests served before the Rule 26(f) conference, is described later.) The first requires that objections to requests to produce be stated “with specificity.” The second permits a responding party to state that it will produce copies of documents or ESI instead of permitting inspection, and should specify a reasonable time for the production. A corresponding change to Rule 37(a)(3)(B)(iv) adds authority to move for an order to compel production if “a party fails to produce documents” as requested. The third amendment to Rule 34 requires that an objection state whether any responsive materials are being withheld on the basis of the objection. These amendments should eliminate three relatively frequent problems in the production of documents and ESI: the use of broad, boilerplate objections that provide little information about the true reason a party is objecting; responses that state various objections, produce some information, and do not indicate whether anything else has been withheld from discovery on the basis of the objections; and responses which state that responsive documents will be produced in due course, without providing any indication of when production will occur and which often are followed by long delays in production. All three practices lead to discovery disputes and are contrary to Rule 1’s goals of speedy and inexpensive litigation. 6. Early Discovery Requests: Rule 26(d)(2). The Committee proposes to add Rule 26(d)(2) to allow a party to deliver a Rule 34 document production request before the Rule 26(f) meeting between the parties. For purposes of determining the date to respond, the request would be treated as having been served at the first Rule 26(f) meeting. Rule 34(b)(2)(A) would be amended by adding a parallel provision for the time to respond. The purpose of this change is to facilitate discussion between the parties at the Rule 26(f) meeting and with the court at the initial case management conference by providing concrete discovery proposals. Public comments on this proposal were mixed. Some doubt that parties will seize this new opportunity. Others expressed concern that requests formed before the case management conference will be inappropriately broad. Lawyers who represent plaintiffs appeared more likely to use this opportunity to provide advance notice of what should be discussed at the Rule 26(f) meeting. The Committee continues to view this amendment as a worthwhile effort to focus early case management discussions. B. Early Judicial Case Management. The Committee recommends several changes to Rules 16 and 4 designed to promote earlier and more active judicial case management. 1. Rule 16. Four sets of changes are proposed for Rule 16. First, participants at the Duke Conference agreed that cases are resolved faster, fairer, and with less expense when judges manage them early and actively. An important part of this management is an initial case management conference where judges confer with parties about the needs of the case and an appropriate schedule for the litigation. To encourage case management conferences where direct exchanges occur, the Committee proposes that the words allowing a conference to be held “by telephone, mail, or other means” be deleted from Rule 16(b)(1)(B). The Committee Note explains that such a conference can be held by any means of direct simultaneous communication, including telephone. Rule 16(b)(1)(A) continues to allow the court to base a scheduling order on the parties’ Rule 26(f) report without holding a conference, but the change in the text and the Committee Note hopefully will encourage judges to engage in direct exchanges with the parties when warranted. Second, the time for holding the scheduling conference is set at the earlier of 90 days after any defendant has been served (reduced from 120 days in the present rule) or 60 days after any defendant has appeared (reduced from 90 days in the present rule). The intent is to encourage early management of cases by judges. Recognizing that these time limits may not be appropriate in some cases, the proposal also allows the judge to set a later time on finding good cause. In response to concerns expressed by the Department of Justice, the Committee Note states that “[l]itigation involving complex issues, multiple parties, and large organizations, public or private, may be more likely to need extra time to establish meaningful collaboration between counsel and the people who can supply the information needed to participate in a useful way.” Third, the proposed amendments add two subjects to the list of issues that may be addressed in a case management order: the preservation of ESI and agreements reached under Federal Rule of Evidence 502. ESI is a growing issue in civil litigation, and the Committee believes that parties and courts should be encouraged to address it early. Similarly, Rule 502 was designed in part to reduce the expense of producing ESI or other voluminous documents, and the parties and judges should consider its potential application early in the litigation. Parallel provisions are added to the subjects for the parties’ Rule 26(f) meeting. Fourth, the proposed amendments identify another topic for discussion at the initial case management conference – whether the parties should be required to request a conference with the court before filing discovery motions. Many federal judges require such pre-motion conferences, and experience has shown them to be very effective in resolving discovery disputes quickly and inexpensively. The amendment seeks to encourage this practice by including it in the Rule 16 topics. 2. Rule 4(m): Time to Serve. Rule 4(m) now sets 120 days as the time limit for serving the summons and complaint. The Committee initially sought to reduce this period to 60 days, but the public comments persuaded the Committee to recommend a limit of 90 days. The intent, as with the similar Rule 16 change, is to get cases moving more quickly and shorten the overall length of litigation. The experience of the Committee is that most cases require far less than 120 days for service, and that some lawyers take more time than necessary simply because it is permitted under the rules. Public comments noted that a 60-day service period could be problematic in cases with many defendants, defendants who are difficult to locate or serve, or defendants who must be served by the Marshals Service. Others suggested that a 60-day period would undercut the opportunity to request a waiver of service because little time would be left to effect service after a defendant refuses to waive service. After considering these and other comments, the Committee concluded that the time should be set at 90 days. Language has been added to the Committee Note recognizing that additional time will be needed in some cases. C. Cooperation. Rule 1 now provides that the civil rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.” The proposed amendment would provide that the rules “be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” As already noted, cooperation among parties was a theme heavily emphasized at the Duke Conference. Cooperation has been vigorously urged by many other voices, and principles of cooperation have been embraced by concerned organizations and adopted by courts and bar associations. The Committee proposes that Rule 1 be amended to make clear that parties as well as courts have a responsibility to achieve the just, speedy, and inexpensive resolution of every action. The proposed Committee Note explains that “discussions of ways to improve the administration of civil justice regularly include pleas to discourage over-use, misuse, and abuse of procedural tools that increase cost and result in delay. Effective advocacy is consistent with – and indeed depends upon – cooperative and proportional use of procedure.” The public comments expressed little opposition to the concept of cooperation, but some expressed concerns about the proposed amendment. One concern was that Rule 1 is iconic and should not be altered. Another was that this change may invite ill-founded attempts to seek sanctions for violating a duty to cooperate. To avoid any suggestion that the amendment authorizes such sanctions or somehow diminishes procedural rights provided elsewhere in the rules, the Committee Note provides: “This amendment does not create a new or independent source of sanctions. Neither does it abridge the scope of any other of these rules.” The Committee recognizes that a rule amendment alone will not produce reasonable and cooperative behavior among litigants, but believes that the proposed amendment will provide a meaningful step in that direction. This change should be combined with continuing efforts to educate litigants and courts on the importance of cooperation in reducing unnecessary costs in civil litigation. D. Summary: The Duke Proposals as a Whole. The Committee views the Duke proposals as a package. While each proposed amendment must be judged on its own merits, the proposals are designed to work together. Case management will begin earlier, judges will be encouraged to communicate directly with the parties, relevant topics are emphasized for the initial case management conference, early Rule 34 requests will facilitate a more informed discussion of necessary discovery, proportionality will be considered by all participants, unnecessary discovery motions will be discouraged, and obstructive Rule 34 responses will be eliminated. At the same time, the change to Rule 1 will encourage parties to cooperate in achieving the just, speedy, and inexpensive resolution of every action. Combined with the continuing work of the FJC on judicial education and the continuing exploration of discovery protocols and other pilot projects, the Committee believes that these changes will promote worthwhile objectives identified at the Duke Conference and improve the federal civil litigation process. III. RULE 37(e): FAILURE TO PRESERVE ESI. Present Rule 37(e) was adopted in 2006 and provides: “Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.” The Committee recognized in 2006 that the continuing expansion of ESI might provide reasons to adopt a more detailed rule. A panel at the Duke Conference unanimously recommended that the time has come for such a rule. The Committee agrees. The explosion of ESI in recent years has affected all aspects of civil litigation. Preservation of ESI is a major issue confronting parties and courts, and loss of ESI has produced a significant split in the circuits. Some circuits hold that adverse inference jury instructions (viewed by most as a serious sanction) can be imposed for the negligent loss of ESI. Others require a showing of bad faith. The Committee has been credibly informed that persons and entities over-preserve ESI out of fear that some ESI might be lost, their actions might with hindsight be viewed as negligent, and they might be sued in a circuit that permits adverse inference instructions or other serious sanctions on the basis of negligence. Many entities described spending millions of dollars preserving ESI for litigation that may never be filed. Resolving the circuit split with a more uniform approach to lost ESI, and thereby reducing a primary incentive for over- preservation, has been recognized by the Committee as a worthwhile goal. During the two years following the Duke Conference, the Discovery Subcommittee, now chaired by Judge Paul Grimm of the District of Maryland, considered several different approaches to drafting a new rule, including drafts that undertook to establish detailed preservation guidelines. These drafts started with an outline proposed by the Duke Conference panel which called for specific provisions on when the duty to preserve arises, its scope and duration in advance of litigation, and the sanctions or other measures a court can take when information is lost. The Subcommittee conducted research into existing spoliation law, canvassed statutes and regulations that impose preservation obligations, received comments and suggestions from numerous sources (including proposed draft rules from some sources), and held a mini-conference in Dallas with 25 invited judges, lawyers, and academics to discuss possible approaches to an ESI-preservation rule. The Subcommittee ultimately concluded that a detailed rule specifying the trigger, scope, and duration of a preservation obligation is not feasible. A rule that attempts to address these issues in detail simply cannot be applied to the wide variety of cases in federal court, and a rule that provides only general guidance on these issues would be of little value to anyone. The Subcommittee chose instead to craft a rule that addresses actions courts may take when ESI that should have been preserved is lost. Thus, the proposed Rule 37(e) does not purport to create a duty to preserve. The new rule takes the duty as it is established by case law, which uniformly holds that a duty to preserve information arises when litigation is reasonably anticipated. Although some urged the Committee to eliminate any duty to preserve information before an action is actually filed in court, the Committee believes such a rule would result in the loss or destruction of much information needed for litigation. The Committee Note, responding to concerns expressed in public comments, also makes clear that this rule does not affect any common-law tort remedy for spoliation that may be established by state law. Proposed Rule 37(e) applies when “electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery.” Subdivisions (e)(1) and (e)(2) then address actions a court may take when this situation arises. A. Limiting the Rule to ESI. Like current Rule 37(e), the proposed rule is limited to ESI. Although the Committee considered proposing a rule that would apply to all forms of information, it ultimately concluded that an ESI-only rule was appropriate for several reasons. First, as already noted, the explosion of ESI in recent years has presented new and unprecedented challenges in civil litigation. This is the primary fact motivating an amendment of Rule 37(e). Second, the remarkable growth of ESI will continue and even accelerate. One industry expert reported to the Committee that there will be some 26 billion devices on the Internet in six years – more than three for every person on earth. Significant amounts of ESI will be created and stored not only by sophisticated entities with large IT departments, but also by unsophisticated persons whose lives are recorded on their phones, tablets, cars, social media pages, and tools not even presently foreseen. Most of this information will be stored somewhere on remote servers, often referred to as the “cloud,” complicating the preservation task. Thus, the litigation challenges created by ESI and its loss will increase, not decrease, and will affect unsophisticated as well as sophisticated litigants. Third, the law of spoliation for evidence other than ESI is well developed and longstanding, and should not be supplanted without good reason. There has been little complaint to the Committee about this body of law as applied to information other than ESI, and the Committee concludes that this law should be left undisturbed by a new rule designed to address the unprecedented challenges presented by ESI. The Advisory Committee recognizes that its decision to confine Rule 37(e) to ESI could be debated. Some contend that there is no principled basis for distinguishing ESI from other forms of evidence, but repeated efforts made clear that it is very difficult to craft a rule that deals with failure to preserve tangible things. In addition, there are some clear practical distinctions between ESI and other kinds of evidence. ESI is created in volumes previously unheard of and often is duplicated in many places. The potential consequences of its loss in one location often will be less severe than the consequences of the loss of tangible evidence. ESI also is deleted or modified on a regular basis, frequently with no conscious action on the part of the person or entity that created it. These practical distinctions, the difficulty of writing a rule that covers all forms of evidence, as well as an appropriate respect for the spoliation law that has developed over centuries to deal with the loss of tangible evidence, all persuaded the Advisory Committee that the new Rule 37(e) should be limited to ESI. B. Reasonable Steps to Preserve. The proposed rule applies if ESI “that should have been preserved in the anticipation or conduct of litigation of litigation is lost because a party failed to take reasonable steps to preserve it.” The rule calls for reasonable steps, not perfection. As explained in the Committee Note, determining the reasonableness of the steps taken includes consideration of party resources and the proportionality of the efforts to preserve. The Note also recognizes that a party’s level of sophistication may bear on whether it should have realized that information should have been preserved. C. Restoration or Replacement of Lost ESI. If reasonable steps were not taken and information was lost as a result, the rule directs that the next focus should be on whether the lost information can be restored or replaced through additional discovery. As the Committee Note explains, nothing in this rule limits a court’s powers under Rules 16 and 26 to order discovery to achieve this purpose. At the same time, however, the quest for lost information should take account of whether the information likely was only marginally relevant or duplicative of other information that remains available. D. Subdivision (e)(1). Proposed Rule 37(e)(1) provides that the court, “upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice.” This proposal preserves broad trial court discretion to cure prejudice caused by the loss of ESI that cannot be remedied by restoration or replacement of the lost information. It further provides that the measures be no greater than necessary to cure the prejudice. Proposed subdivision (e)(1) does not say which party bears the burden of proving prejudice. Many public comments raised concerns about assigning such burdens, noting that it often is difficult for an opposing party to prove it was prejudiced by the loss of information it never has seen. Under the proposed rule, each party is responsible for providing such information and argument as it can; the court may draw on its experience in addressing this or similar issues, and may ask one or another party, or all parties, for further information. The proposed rule does not attempt to draw fine distinctions as to the measures a trial court may use to cure prejudice under (e)(1), but instead limits those measures in three general ways: there must be a finding of prejudice, the measures must be no greater than necessary to cure the prejudice, and the court may not impose the severe measures listed in subdivision (e)(2). E. Subdivision (e)(2). Proposed (e)(2) provides that the court: only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation, may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment. A primary purpose of this provision is to eliminate the circuit split on when a court may give an adverse inference jury instruction for the loss of ESI. As already noted, some circuits permit such instructions upon a showing of negligence, while others require bad faith. Subdivision (e)(2) permits adverse inference instructions only on a finding that the party “acted with the intent to deprive another party of the information’s use in the litigation.” This intent requirement is akin to bad faith, but is defined even more precisely. The Committee views this definition as consistent with the historical rationale for adverse inference instructions. The Discovery Subcommittee analyzed the existing cases on the use of adverse inference instructions. Such instructions historically have been based on a logical conclusion: when a party destroys evidence for the purpose of preventing another party from using it in litigation, one reasonably can infer that the evidence was unfavorable to the destroying party. Some courts hold to this traditional rationale and limit adverse inference instructions to instances of bad faith loss of the information. See, e.g., Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997) (“The adverse inference must be predicated on the bad faith of the party destroying the records. Mere negligence in losing or destroying records is not enough because it does not support an inference of consciousness of a weak case.”) (citations omitted). Circuits that permit adverse inference instructions on a showing of negligence adopt a different rationale: the adverse inference restores the evidentiary balance, and the party that lost the information should bear the risk that it was unfavorable. See, e.g., Residential Funding Corp. v. DeGeorge Finan. Corp., 306 F.3d 99 (2d Cir. 2002). Although this approach has some equitable appeal, the Committee has several concerns when it is applied to ESI. First, negligently lost information may have been favorable or unfavorable to the party that lost it – negligence does not necessarily reveal the nature of the lost information. Consequently, an adverse inference may do far more than restore the evidentiary balance; it may tip the balance in ways the lost evidence never would have. Second, in a world where ESI is more easily lost than tangible evidence, particularly by unsophisticated parties, the sanction of an adverse inference instruction imposes a heavy penalty for losses that are likely to become increasingly frequent as ESI multiplies. Third, permitting an adverse inference for negligence creates powerful incentives to over-preserve, often at great cost. Fourth, the ubiquitous nature of ESI and the fact that it often may be found in many locations presents less risk of severe prejudice from negligent loss than may be present due to the loss of tangible things or hard-copy documents. These reasons have caused the Committee to conclude that the circuit split should be resolved in favor of the traditional reasons for an adverse inference. ESI-related adverse inferences drawn by courts when ruling on pretrial motions or ruling in bench trials, and adverse inference jury instructions, should be limited to cases where the party who lost the ESI did so with an intent to deprive the opposing party of its use in the litigation. Subdivision (e)(2) extends the logic of the mandatory adverse-inference instruction to the even more severe measures of dismissal or default. The Committee thought it incongruous to allow dismissal or default in circumstances that do not justify the instruction. Subdivision (e)(2) covers any instruction that directs or permits the jury to infer from the loss of information that the information was in fact unfavorable to the party that lost it. The subdivision does not apply to jury instructions that do not involve such an inference. For example, subdivision (e)(2) would not prohibit a court from allowing the parties to present evidence to the jury concerning the loss and likely relevance of information and instructing the jury that it may consider that evidence, along with all the other evidence in the case, in making its decision. These measures, which would not involve instructing a jury that it may draw an adverse inference from loss of information, would be available under subdivision (e)(1) if no greater than necessary to cure prejudice. In addition, subdivision (e)(2) does not limit the discretion of courts to give traditional missing evidence instructions based on a party’s failure to present evidence it has in its possession at the time of trial. Subdivision (e)(2) does not include a requirement that the court find prejudice to the party deprived of the information. This is because the finding of intent required by the subdivision can support not only an inference that the lost information was unfavorable to the party that intentionally destroyed it, but also an inference that the opposing party was prejudiced by the loss of that favorable information. The Committee Note states that courts should exercise caution in using the measures specified in (e)(2). Finding an intent to deprive another party of the lost information’s use in the litigation does not require a court to adopt the measures listed in subdivision (e)(2). The remedy should fit the wrong, and the severe measures authorized by this subdivision should not be used when the information lost was relatively unimportant or lesser measures such as those specified in subdivision (e)(1) would be sufficient to redress the loss. IV. ABROGATION OF RULE 84. The Federal Rules of Civil Procedure are followed by an Appendix of Forms. The Appendix includes 36 separate forms illustrating things such as the proper captions for pleadings, proper signature blocks, and forms for summonses, requests for waivers of service, complaints, answers, judgments, and other litigation documents. Rule 84 provides that the forms “suffice under these rules and illustrate the simplicity and brevity that these rules contemplate.” Many of the forms are out of date. The sample complaints, for example, embrace far fewer causes of action than now exist in federal court and illustrate a simplicity of pleading that has not been used in many years. The increased use of Rule 12(b)(6) motions to dismiss, the enhanced pleading requirements of Rule 9 and some federal statutes, the proliferation of statutory and other causes of action, and the increased complexity of most modern cases have resulted in a detailed level of pleading that is far beyond that illustrated in the forms. Amendment of the civil forms is cumbersome. It requires the same process as amendment of the civil rules themselves – amendments proposed by the Committee must be approved by the Standing Committee, the Judicial Conference, the Supreme Court, and Congress. Public notice and comment are also required. The process ordinarily takes at least three years. In addition to being out of date and difficult to amend, the Committee’s perception was that the forms are rarely used. The Committee established a Rule 84 Subcommittee, chaired by Judge Gene Pratter of the Eastern District of Pennsylvania, to consider the current forms and the process of their revision, and to recommend possible changes. Members of the Subcommittee canvassed judges, law firms, public interest law offices, and individual lawyers, and found that virtually none of them use the forms. Many alternative sources of civil forms are available. These include forms created by private publishing companies and a set of non-pleading forms created and maintained by a Forms Working Group at the Administrative Office of the United States Courts (“AO”). The Working Group consists of six federal judges and six clerks of court, and the forms they create in consultation with the various rules committees can be downloaded from the AO website at http://www.uscourts.gov/FormsAndFees/Forms/CourtFormsByCategory.aspx. A May 2012 survey of the websites maintained by the 94 federal district courts around the country found that 88 of the 94 either link electronically to the AO forms or post some of the AO forms on their websites. Only six of the 94 mention the Rule 84 forms on their websites or in their local rules, confirming that the rules forms are rarely used. The Subcommittee ultimately recommended that the Committee get out of the forms business. The Committee agreed, and published a proposal in August 2013 to abrogate Rule 84 and eliminate the forms appended to the rules. The two exceptions to this recommendation are forms 5 and 6, which are referenced in Rule 4 and would, under the proposal, be appended to that specific rule. Very few of the public comments addressed the abrogation of Rule 84. Among the objections, most asserted that the elimination of the forms would be viewed as an indirect endorsement of the Twombly and Iqbal pleading standards. A few argued that the forms assist pro se litigants and new lawyers, but of these, only one stated that the writer had ever actually used the forms. The general lack of response to the Rule 84 proposal reinforced the Committee’s view that the forms are seldom used. After considering the public comments, the Committee continues to believe that the forms and Rule 84 should be eliminated. The forms are not used; revising them is a difficult and time-consuming process; other forms are readily available; and the Committee can better use its time addressing more relevant issues in the rules. The Committee continues to review the effects of Twombly and Iqbal. If it decides action is needed in this area, the more direct approach will be to amend the rules, not the forms. V. RULE 55. The Committee proposes that Rule 55(c) be amended to clarify that a court must apply Rule 60(b) only when asked to set aside a final judgment. The reason for the change is explained in the proposed Committee Note.

=== Federal Judicial Center publication “The Elements of Case Management.” ===

This manual describes techniques that judges have found effective in managing their cases at various stages of the litigation process. Federal Judicial Center pocket guide series Third edition One Columbus Circle NE Washington, DC 20002-8003 fjc.dcn • fjc.gov federal judicial center pocket guide series The Elements of Case Management Third Edition William W Schwarzer Alan Hirsch Dedicated to Judge William W Schwarzer 1925–2017 Second printing 2019 Third edition 2017 Second edition 2006 First edition 1991 Federal Judicial Center Thurgood Marshall Federal Judiciary Building One Columbus Circle NE Washington, DC 20002 fjc.dcn • fjc.gov This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory mission to develop educational materials for the judicial branch. While the Center regards the content as responsible and valuable, this publication does not reflect policy or recommendations of the Board of the Federal Judicial Center. Contents Preface, vii Introduction, 1 The Rule 16 Conference, 3 Timing and procedural matters, 3 Establishing jurisdiction and identifying pivotal issues, 5 Attorneys’ fees, 6 Setting dates for future proceedings, 7 Settlement, 8 The judge’s role, 8 Discovery, 10 Motions, 12 The Final Pretrial Conference, 13 Defining and narrowing the issues, 13 Previewing the evidence, 13 Considering limits on the length of the trial, 14 Establishing the ground rules for the trial, 14 Considering the use of special procedures, 14 Exploring once more the opportunities for settlement, 15 Trial, 16 Starting the trial, 16 Helping the jury, 17 Instructions, summations, and deliberations, 18 Bench trials, 19 Using the Court’s Resources, 21 Related Readings, 22 v Preface Judge William W Schwarzer, who served as director of the Federal Judicial Center from 1990 to 1995, wrote the first edition of this brief handbook in 1991 with the assistance of former Center staff mem- ber Alan Hirsch. In 2006, my immediate predecessor, Judge Barbara Jacobs Rothstein, contributed additional material reflecting the growing impact of electronic discovery and other technological in- novations on the nature and cost of civil litigation. I have undertaken a similar effort in this third edition, primarily to emphasize the point—one that animated the 2015 Amendments to the Federal Rules of Civil Procedure—that just, speedy, and in- expensive resolution of disputes depends upon engaged and active judicial case management. Judge Schwarzer recognized this reality many years ago, and his practical advice remains valuable today. For that reason and for many others, this third edition appropriately is dedicated to his memory. Jeremy D. Fogel Director, Federal Judicial Center vii viii Introduction Rule 1 of the Federal Rules of Civil Procedure describes the goal of the judicial system: “to secure the just, speedy, and inexpensive de- termination of every action.” If judges are to achieve this goal despite limited judicial resources and the rising cost of litigation, particularly discovery, they must manage the litigation process. Case management means different things to different people, and there is no single way to do it. In fact, there are substantial differences of opinion about many of the subjects we discuss here. But there is general agreement that case management, in essence, involves trial judges using the tools at their disposal with fairness and common sense (and in a way that fits their personalities and styles) in order to achieve the goal described in Rule 1. These tools include the Federal Rules of Civil and Criminal Procedure, the Federal Rules of Evidence, local rules, some provisions in Title 28, and the inherent authority of the court. Although judges operate in an environment largely shaped by local practice and custom, innovation and adaptation to circum- stances also contribute to effective case management. Faced with busy dockets, some federal judges say that they simply don’t have time to meet with lawyers to discuss case management. In fact, however, a relatively modest amount of a judge’s time devoted to case management early in a case can save very significant amounts of time later on. Saving time also means saving costs, both for the court and for the litigants. Judges who think they are too busy to manage cases probably are too busy not to. Indeed, the busiest judges with the heaviest dockets are often the ones most in need of sound case-man- agement practices. This manual briefly describes techniques that judges have found effective in managing their cases at various stages of the litigation pro- cess. It begins with a discussion of the Rule 16 conference, outlining how proper use of this conference enables judges to establish control of cases at the outset. It then provides separate discussions of several items on the Rule 16 agenda—settlement, discovery, and motions— that continue to play an important role in case management after the conference and are, in any event, important enough to warrant discrete consideration. The manual next turns to case management during the final pretrial conference, and then the trial itself. Finally, 1 it discusses how judges can make the most effective use of the court’s human and material resources. For more detailed analysis of tech- niques for managing civil litigation and samples of orders and other forms some judges and courts have used, refer to the Civil Litigation Management Manual, Second Edition (Judicial Conference of the United States 2010). This manual is not intended to suggest that there is one preferred approach to case management. Its suggestions are offered as food for thought—a foundation for thinking about techniques and methods that will best suit the individual judge. Finally, a word of caution: lo- cal rules and the law of the circuit may affect some of what is said here. 2 The Elements of Case Management, Third Edition The Rule 16 Conference A judge’s initial contact with the lawyers normally comes at the Rule 16 conference, known in some districts as a preliminary pretrial con- ference, scheduling conference, or status conference. The purpose of the conference is to launch the case-management process. The specif- ic rules or practices in each district will influence the precise nature and scope of the conference. Regardless of variations, however, the culture of each court should further the central principle underlying Rule 16: that a judicial officer take charge of the case early on and, together with the lawyers, establish a program appropriate for its just, speedy, and inexpensive resolution. In some courts, that judicial officer will be the judge to whom the case is assigned. Becoming familiar with the case early helps the judge manage it effectively and, if necessary, try it more efficiently. In some courts, however, magistrate judges supervise the pretrial process. For this to work well, the magistrate judge needs the assigned dis- trict judge’s backing. The district judge and magistrate judge should reach a general understanding about the management of the case at the outset and coordinate periodically. Lawyers should not get the impression that appealing the magistrate judge’s case-management rulings is likely to be advantageous. Timing and procedural matters Rule 16 requires the court to issue a scheduling order within 60 days after the appearance of a defendant or within 90 days after the com- plaint has been served on a defendant. It is advantageous to schedule the first conference as early as possible, before the lawyers become bogged down in discovery or motions. Though some cases obviously require less attention than others, it makes good sense to schedule conferences in all cases with potential discovery and motion activity. Some types of cases, such as government collection cases or Social Security appeals, usually are so routine that no conference is needed. Rule 16 conferences should not be perfunctory scheduling ex- ercises. Judges who use conferences in that way miss out on its sub- stantial benefits. The conference should be a moment of truth for the pleader and an opportunity for thoughtful discussion among the parties. The lawyers responsible for the case—not junior associates— 3 The Elements of Case Management, Third Edition should be there and should be prepared to explain their claims and defenses and to discuss future proceedings. Although Rule 16(c) provides an agenda for the conference, judges may think of additional items appropriate for a particular case. Many judges issue a standard status conference order in advance, notifying the lawyers of what is expected of them. Many judges ask the lawyers to submit a joint case-management statement prior to the conference, summarizing the essentials of the case in simple terms, stating their position on the various agenda items, and proposing a joint sched- uling plan. In addition to laying the groundwork for a complete and specific conference agenda, this procedure requires lawyers to prepare for the conference, to think about the case, and to reach agreements. This kind of analysis often eliminates meritless claims or defenses. A judge’s reputation for insisting that lawyers be on top of a case from the beginning works wonders in reducing dockets and moving them along. Of course, the judge too should be prepared for the conference, having read the pertinent pleadings and the lawyers’ statements. In some cases, it also can be advantageous to have the parties pres- ent. This gives them an opportunity to hear opposing counsel and to learn firsthand what may be involved in the litigation, including the likely cost. Such knowledge can engender a more receptive attitude toward settlement. On the other hand, there is a risk that clients’ pres- ence will discourage candor on the part of the attorneys, or that some clients will attach too much significance to casual remarks. In some cases, it may be advantageous to have the parties available at the court- house though not necessarily present during all of the conference. While some judges hold Rule 16 conferences in open court with a court reporter present, others hold them in chambers and off the record, encouraging greater informality and a more searching and productive discussion. Some conferences (and even motion hearings) can be conducted by telephone, saving time and money. But there is much to be said for having the case’s first conference in person, bringing the lawyers and the judge face to face. Quite often, lawyers will not have talked to each other about the case beforehand. Bringing them together to engage with the litigation early on is one of the most useful aspects of case management. 4 The Elements of Case Management, Third Edition Establishing jurisdiction and identifying pivotal issues The primary objective of the Rule 16 conference is for the judge and the lawyers to discern what the case is really about. Pleadings often do more to obscure the real issues than to identify them. Before getting to the issues, however, the judge should always explore subject-matter ju- risdiction, the absence of which is, of course, a non-waivable defect. It sometimes happens that the absence of jurisdiction is not recognized until well into a case—occasionally not until the appeal. The pretrial conference can prevent proceedings that will later prove fruitless. Once federal jurisdiction has been established, the most important function of the conference is the identification of pivotal issues. This process reduces many seemingly complex cases to simple, clearly de- fined disputes that can be resolved more easily than appeared at first. For example, the Rule 16 conference may reveal that the plaintiff ’s right to recover ultimately turns on whether a legal defense bars the claim. Resolving that defense by motion, or perhaps by a separate trial, can save time and expense. Detecting the underlying issues in dispute sometimes requires vigorous questioning of the attorneys by the judge to get beyond the pleadings. Parties may raise assorted claims or defenses that create the impression of a complex lawsuit when, upon probing, it turns out that the entire case hinges on a straightforward factual or legal ques- tion—or no triable issue at all. The Rule 16 conference is also a time for the judge to address the need for, and possible limitations on, the use of expert testimony under Rule 702 of the Federal Rules of Evidence. Under the Supreme Court’s decisions in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 S. Ct. 137 (1999), the district judge is the gatekeeper who must pass on the sufficiency of proffered evidence to meet the test under Rule 702. The court should use the conference to explore in depth what issues implicate expert evidence, the kinds of evidence likely to be offered, and potential areas of controversy. For more on the management of expert evidence, see Manual for Complex Litigation, Fourth, ch. 23, 469–516 (Federal Judicial Center 2004). An important function of the conference is to disclose just what relief the plaintiff seeks—what damages it expects to prove and on 5 The Elements of Case Management, Third Edition what basis, and what other relief is sought. This helps to define what is at stake in the litigation. Undertaking this process at the outset can substantially reduce discovery. A commercial dispute, for example, may turn on an ordinary business record that has never been shown to the opponent. No discovery is needed. The judge can direct that the record be made available promptly and that the lawyers report back by telephone on a specified date. Similarly, if a defendant pleads all of the boilerplate defenses, the plaintiff may be in the position of having to conduct costly and unnecessary discovery; by using the conference to clarify which issues are genuinely in dispute, the judge can prevent such waste. The Rule 16 conference should also be used to screen out cases or claims that lack any factual basis. While notice pleading means that parties need not allege all the evidentiary detail, it does not entitle them to litigate issues for which they have no evidence. Parties may not look wholly to discovery to make a case or defense. There must be some showing of a factual basis, or at least a strong likelihood of one, as a condition for permitting a party to go forward. Careful definition of issues early in a case may also disclose issues susceptible to resolution by summary or partial summary judgment. Discussion can reveal some threshold legal issue that may not have appeared clearly to the lawyers or perhaps was swept under the rug by one of them. Judges who familiarize themselves with a case can usually determine whether there are disputed evidentiary facts re- quiring trial or whether the issue can be resolved on motion. The conference not only lays the groundwork for motions but also provides an invaluable opportunity to identify and assess the proportionality of the discovery needed before motions can be made, thereby avoiding premature motions and building the foundation for proper ones. The conference can streamline or head off the filing of summary judgment motions that involve disputed factual issues and would only waste the parties’ money and the court’s time. Attorneys’ fees The Rule 16 conference can also reduce future litigation over attor- neys’ fees. After disputes on the merits are resolved, and an award of attorneys’ fees is indicated, parties often bitterly dispute the proper 6 The Elements of Case Management, Third Edition amount of such fees. They contest the amount of time that should have been or was in fact spent on the case and argue about what is a reasonable billing rate. Such disputes can be prevented or at least re- duced if the judge lays down ground rules and establishes appropriate record-keeping requirements at the beginning of the case. Setting dates for future proceedings Rule 16 directs the judge to set dates for completion of discovery, fil- ing motions, joining other parties, and amending the pleadings. The judge may also modify the times for disclosure under Rule 26 and the extent of discovery, and set dates for a final pretrial conference and trial. It is important that these dates be set at the outset of the case if feasible. Sometimes not enough is known about a case to set meaningful dates, and another conference may be necessary. Some judges set firm discovery cutoff and trial dates at the first conference and never depart from those dates. Such rigidity can be effective for disposing of civil cases rapidly, but it is not always practical for courts whose heavy criminal dockets may affect trial dates for civil cases. However, most judges agree that a firm trial date is the most effective tool in case management. Therefore, every effort should be made to keep the scheduled trial date. Judges should always set a firm date for the next event in the case, be it another conference, the filing of a motion, or any date requiring action by the lawyers. Every case in a judge’s inventory should have a specific date calendared that will bring it to the court’s attention. Setting a firm schedule at the conference is no substitute for de- fining and narrowing issues. Focusing lawyers’ attention on the issues from the outset avoids unnecessary discovery, promotes early settle- ment, prevents pointless trials, and, where a trial is needed, furthers efficiency and economy. 7 The Elements of Case Management, Third Edition Settlement The Rule 16 conference also should explore the possibility of settle- ment, and in most cases it should include a specific discussion of an appropriate time for and process of alternative dispute resolution. Most cases will eventually settle anyway, but often only after unneces- sary cost, delay, and judicial effort. The traditional settlement on the courthouse steps, after much discovery and motion activity, not only is wasteful but also leaves the parties feeling dissatisfied with their experience as litigants. Judges should try to facilitate early settlement where practical. Lawyers are generally not in a good position to evaluate settle- ment possibilities at the first conference, knowing too little of the case. Once the issues have been identified and narrowed, however, relatively little discovery may enable them to make a reasonable eval- uation. The deposition of the plaintiff and perhaps the defendant or a key witness, and the exchange of a few documents, may be all that is necessary. This can be readily arranged, and the lawyers can be directed to return at a specified date if they have not settled. Such “phased discovery” frequently leads to an early settlement. At the outset of a case, lawyers have rarely thought much about damages. Judges should focus attention on this subject early because it is crucial to a realistic evaluation. Many lawyers give insufficient consideration to the economics of their case, plunging into litigation without making a cost–benefit calculation. A client may have a mer- itorious claim, but the time and money necessary to establish it may be out of proportion to the potential reward. The Rule 16 conference should provide lawyers with a “reality check,” and discussion about settlement should focus their attention on what would be an accept- able outcome for the client. The judge’s role It is useful for a judge to inquire about settlement whenever meeting with the lawyers. Lawyers are often interested in settling (particularly in view of the rising cost of litigation), but may consider raising the subject an admission of weakness. A judge’s questions offer a graceful opening. 8 The Elements of Case Management, Third Edition Different judges take different approaches to settlement. Some judges become actively involved in settlement negotiations in their own cases, thinking that another judge would lack the necessary fa- miliarity. Others choose not to, believing it may compromise them if the case goes to trial. This is a legitimate concern, because partic- ipation in the negotiations sooner or later may require the judge to evaluate and express a view on the strength of a claim or defense. Doing so will jeopardize the appearance of impartiality in future pro- ceedings, and may cause both the judge and the parties to feel un- comfortable. This is less of a problem in a jury trial than in a bench trial. Nevertheless, in all cases, unless both parties urge the judge to act as settlement judge and waive disqualification, there is much to be said for recruiting a colleague on the court—another district judge or a magistrate judge—as a settlement judge. Many courts also have established alternative dispute resolution (ADR) programs, to which cases may be referred. Of course, settlement is not desirable in every case. The dispute may involve a principle of importance to the parties or an issue whose resolution on the merits will help guide the conduct of other parties. Moreover, a party with a meritless claim should not be assisted in extracting a nuisance settlement by threatening protracted and costly litigation. Judges who are actively involved in settlement negotiations should be sensitive to such considerations and should avoid using their position of authority to apply undue pressure on parties to set- tle. Judges should facilitate, not coerce, settlement. 9 The Elements of Case Management, Third Edition Discovery Discovery, while often a critically important means of getting at the truth, also is probably the single greatest source of cost and delay in civil litigation. Judges can do much to mitigate this problem. Rule 26(b) gives judges great power and discretion to control discovery. This power can be used to prevent duplication, to require lawyers to use the least expensive way to get necessary information, including discovery of information stored electronically, and, particularly in light of the 2015 amendments to Rule 26(b), to keep discovery costs from becoming disproportionate to what is at stake in the lawsuit. At the initial conference, the judge should review the lawyers’ discovery plans with these considerations in mind and keep the dis- covery program in line with the objectives of Rule 26(b). Judges gen- erally should not use valuable conference time to develop a detailed discovery plan with the lawyers. Instead, the lawyers should be asked to propose an agreed-upon plan, which the judge should review with care. Although the civil rules limit the number of depositions and in- terrogatories and the length of depositions, the court may alter those limits. The judge should therefore require justification as to the need for particular discovery and explore alternatives for getting informa- tion less expensively. Abuse of the discovery process is a ground for sanctions, but sanctions will rarely be needed when sound case man- agement is applied. Special care is required to manage expert discovery. The parties will usually exchange experts’ reports before their depositions are taken—the reports can focus the deposition, and may even obviate the need for it. An expert should not be permitted to testify at trial unless he or she has been made available for deposition before the tri- al. Therefore, in some cases it makes sense to defer expert discovery until other discovery is completed, giving the parties a clearer sense of what expert testimony may be needed. Some district judges assign supervision of discovery matters to magistrate judges. Whoever handles discovery disputes should have a program for keeping them under control. The most effective meth- od may be having the judicial officer available to resolve any discov- ery dispute by telephone. This is particularly effective when a dis- pute develops during the taking of a deposition. Knowing that the 10 The Elements of Case Management, Third Edition judge is only a phone call away has a wonderful tendency to make lawyers more reasonable. It is surprising how quickly disagreements are resolved when they must be presented to the judge in a succinct statement. Telephone conferences eliminate the opportunity to use discovery disputes to obstruct the litigation. Establishing this proce- dure at the outset of a case greatly reduces the number of discovery disputes. Many districts have local rules that preclude the filing of discov- ery motions unless the parties certify that they have met and con- ferred in a good-faith attempt to resolve the dispute. Even without such a rule, the judge can require that such a conference take place, and such practices are expressly encouraged in the 2015 Committee Notes to amended Rule 26(b). 11 The Elements of Case Management, Third Edition Motions Motions play an important role in litigation. They can prevent un- necessary trials or at least narrow issues so as to expedite trials. Pointless motions, however, waste time and money; whenever pos- sible, the judge should discourage them. The classic example is the Rule 12(b)(6) motion for failure to state a claim. More often than not, the asserted defect is readily cured by an amendment. At the Rule 16 conference, the judge can ask the parties to specify any grounds they might have for such a motion and can determine in advance whether a defect is curable. Curable defects should generally be brought to the opponent’s attention before a motion is filed. Similarly, lawyers should be discouraged from filing Rule 11 motions. There is a ten- dency to misuse this rule, which generally should be directed only at abusive conduct. A hearing is unnecessary if a motion is routine and the outcome obvious. If the motion presents a difficult or close issue, the lawyers should come to court to answer questions and address the judge’s concerns. Local rules or the Rule 16 scheduling order will provide a schedule for filing motions and oppositions. The time limits should be observed so that the judge has sufficient time to prepare for a hear- ing, if there is to be one. If at all possible, the judge should be prepared to decide the mo- tion from the bench. Most disputes do not become easier to resolve once taken back to chambers. In fact, as time passes the matter be- comes cold, and the judge will need more time to refresh his or her recollection. While the litigants are entitled to the court’s best effort, they will generally prefer a prompt decision to a perfect but belated one. Trial courts should write no more than necessary, but often the legal issue involved in a summary judgment motion may be of great importance to the case before the court and to other cases. In those cases a written opinion is necessary. Otherwise, ruling from the bench orally after argument will be adequate and expeditious. 12 The Elements of Case Management, Third Edition The Final Pretrial Conference The final pretrial conference can be valuable in two respects. First, it is the last good shot at settlement. Second, it is a dress rehearsal for the trial. Delay and expense in civil litigation result not only from unnecessary trials but also from trials lasting too long and involving too many witnesses and exhibits. At the final pretrial conference, the judge and the lawyers can ascertain in advance what issues have to be tried and what evidence is necessary. This will also help ensure that the lawyers are prepared for trial. Despite its potential, some judges treat the final pretrial confer- ence as little more than a scheduling conference to set the final trial date. Others go to the opposite extreme and require preparation of elaborate statements, summaries, and stipulations. There is much to be said for a middle course: doing whatever is necessary, given the cir- cumstances of the case, to lay the groundwork for a fair and efficient trial. Here are some of the agenda items the judge should consider. Defining and narrowing the issues The judge should have attempted to define and narrow the issues at the initial conference, but by the time of the final pretrial conference everyone will have a clearer understanding of the case. This con- ference presents the last and best opportunity to prevent waste of valuable trial time on pointless or undisputed matters. A good way to focus the issues is to require the parties to submit proposed jury instructions (or proposed findings of fact and conclusions of law in bench trials) that set forth clearly the governing rules of law and the factors controlling their application. Previewing the evidence By hearing and ruling on motions in limine, the judge can head off admissibility disputes during trial. The final pretrial conference pro- vides an opportunity to hold a hearing under Rule 104 of the Federal Rules of Evidence to determine the admissibility of expert testimony under Daubert, and to exercise the authority conferred by Rules 403 and 611. The judge can bar duplicative testimony (by limiting each side’s expert or character witnesses, for example). So, too, the judge can eliminate testimony about matters not in dispute. For example, 13 The Elements of Case Management, Third Edition there is no point in having a handwriting expert if there is no dispute over who was the writer. Many foreseeable objections to testimony— such as hearsay objections—can be resolved before trial, as can issues concerning the permissible scope of opening statements. Proposed exhibits should be previewed with a view to holding down their number and volume. There is little point in inundating ju- rors with a mass of exhibits beyond their capacity to read and absorb. (In post-trial interviews, jurors often complain that the lawyers pre- sented too much evidence.) The judge may suggest that voluminous exhibits be redacted to eliminate unnecessary portions and cumu- lative exhibits be eliminated. Sometimes information from numer- ous exhibits can be presented in a summary exhibit (as authorized by Federal Rule of Evidence 1006). Previewing proposed exhibits can also save valuable trial time, since the judge can rule on evidentiary objections and receive into evidence unobjectionable exhibits. Considering limits on the length of the trial Trials that last too long are costly, exhaust jurors, and hinder compre- hension. When a trial threatens to be protracted, some judges find it useful to limit the number of witnesses or exhibits each side may offer. Other judges sometimes limit the amount of time allowed each side for direct and cross-examination, using a chess clock or similar means to keep a running account of the time used by each party. Such limits can be helpful to the court and the parties but should be im- posed with care and only after consultation with counsel. Establishing the ground rules for the trial The final conference can fix the procedures for trial, including the conduct of voir dire and method of jury selection, the order of wit- nesses, and daily trial schedules. Considering the use of special procedures The judge can discuss with counsel and determine the propriety of bifurcation, the return of sequential verdicts by the jury, use of spe- cial verdicts or interrogatories, and any other phasing arrangements or special procedures that may be appropriate. 14 The Elements of Case Management, Third Edition Exploring once more the opportunities for settlement Now that the parties are completely familiar with the case, they may be ready to settle if the judge provides the opening. * * * The results of the final pretrial conference should be memorial- ized in a pretrial order. To save time, the judge can dictate the order to the court reporter at the end of the conference with counsel present. 15 The Elements of Case Management, Third Edition Trial At trial, the court’s management power transcends the authority spe- cifically conferred by rules, statutes, and decisions. The judge has broad inherent power over the management of cases, attorneys, and parties. That inherent power, employed judiciously, enables the court to do what is necessary to produce just, speedy, and economical trials. Although case management brings judges into areas that were once entirely controlled by lawyers, the judge should be careful not to take the case away from the lawyers. While the court can and should set limits, define issues, and establish ground rules, it should leave the case to be tried by the lawyers. The judge needs to appreciate that the lawyers have obligations to their clients, obligations that at times will be in tension with the court’s objectives. Also, the lawyers know the case better than does the judge, who is managing many cases. The judge’s task is to bring about a reasonable accommodation by formu- lating a framework within which the adversary process will function constructively. What follow are suggestions for managing the various stages of trial. Starting the trial The process of selecting jurors varies somewhat from court to court. The court may seat from six to twelve jurors, depending on the ex- pected length of the trial, and all jurors remaining when the case goes to the jury will participate in the deliberations. Rule 47 gives the judge the choice of personally conducting the voir dire or leaving it to the lawyers. Most judges conduct the voir dire themselves in order to expedite jury selection. Doing it oneself, however, obligates one to do a thorough job. The judge may have members of the venire complete questionnaires before voir dire, which can facilitate more focused questioning. It is not enough for the judge to ask perfunctory or conclusory questions. Prospective ju- rors should be questioned individually and invited to give narrative answers about their work, interests, and attitudes on critical matters. This can be done without taking undue time, especially with cus- tomized, case-specific questionnaires. In addition, Rule 47 requires that the attorneys be allowed to supplement the examination direct- ly or by submitting questions to the judge. Attorneys will appreciate 16 The Elements of Case Management, Third Edition the opportunity to ask the jurors supplemental questions directly. Permitting them to do so need not take much time. The judge can limit the time for supplemental questions and not allow repetitious questions, and the extra time will be well spent if it helps avoid mis- trials by ferreting out potential problem jurors. More and more judges have come to recognize the value of giving at least basic instructions to the jury before the trial begins. (Some even give instructions before the voir dire, on the theory that pro- spective jurors will then be better able to respond to questioning.) Pre-instructions inform jurors about how the trial will be run, how they are to conduct themselves, how to treat the evidence received, and other ground rules. Pre-instructions also educate jurors about the case—the elements of the claims and defenses, and the questions they will have to decide. Helping the jury Since jurors are the people expected to decide the case, judges ought to make every effort to help them in this often difficult task. Assisting jurors has become increasingly important in an era of complex liti- gation. Judges cannot afford to be passive or permissive. They should take various steps to help the jury perform its function well. Judges should see to it that jurors are treated with respect and consideration. They are entitled to no less, having made a substan- tial sacrifice to perform a taxing public service. Trials should start on time. Lengthy recesses should be avoided. Jurors should not be sent out to wait while the lawyers argue; matters the jury should not hear can generally be taken up before the start or after the end of the trial day or during a recess. Bench conferences and other trial inter- ruptions should be minimized. Sentencings, pleas, and other matters should be scheduled so as not to disrupt the trial. The trial should move smoothly, without interruptions or sur- prises. It is helpful to confer with counsel at the end of each day to preview the next day’s witnesses and exhibits, to anticipate evidentia- ry and other problems, and to make sure the lawyers will not run out of witnesses. The lawyers should be encouraged to speak (and have their wit- nesses speak) clearly and in plain language. As witnesses testify about 17 The Elements of Case Management, Third Edition exhibits, lawyers should help jurors follow by using visual aids. The judge should not hesitate to explain to the jurors any procedures that might be confusing and to recap the progress of the case. Other aids to jury understanding are also worth considering. Most judges, for example, permit jurors to take notes (subject to ap- propriate instructions). Some judges prepare notebooks for the ju- rors containing the names and identification of witnesses and other helpful information. Some judges have found that allowing jurors to submit questions in writing can assist jury comprehension. Instructions, summations, and deliberations If the lawyers submit their requested jury instructions or charges at a pretrial conference, the judge will have time to organize and simplify them as the case progresses, and to supplement or modify them in response to developments during the trial and the lawyers’ supple- mental requests. This procedure enables judges to settle instructions quickly at the close of the evidence and move promptly to final argu- ments. Obviously, it is important to make sure the jury understands the jury instructions. The instructions should be written in plain lan- guage, not legalese. Judges should not hesitate to rewrite the lawyers’ requested instructions in simple, well-organized prose. Rather than being thrown together and read in random order, instructions should be carefully organized in a sequence that reflects the logic of the case. Instructions should be kept brief; a juror’s attention span is not un- limited. The court should not give an instruction, even if requested, unless it is needed—too many instructions, given out of habit, merely cause confusion. Federal Rule of Civil Procedure 51 permits the judge to instruct the jury before or after closing arguments. Many judges find that in- structing before the arguments saves time by making it unnecessary for the lawyers to preview the instructions in their arguments; this, in turn, reduces the likelihood of objections. Having heard the instruc- tions first, the jury may get more out of the attorneys’ arguments. The lawyers should be encouraged to keep their closing arguments brief—rarely should they exceed one hour per side. 18 The Elements of Case Management, Third Edition It is difficult for a jury to understand and remember the judge’s instructions after having heard them only once. Accordingly, most judges now give a copy of the charge to each juror to take into the jury room. Experience suggests that doing so does not increase the difficulty of reaching a verdict. Storing electronic copies of common jury instructions and adapting them as necessary to the particular case allows a judge to conveniently produce a set of instructions. The judge should make sure that before any exhibits are sent to the jury room, they have been carefully checked by the courtroom deputy and all counsel. It is critical that no extraneous documents, such as excluded exhibits, are seen by the jury. Reasonable people differ about the desirability of special verdicts or general verdicts combined with special interrogatories. These de- vices may reduce the risk of having to retry the entire case following a partially successful appeal, but they increase the risk of inconsistent verdicts. Special verdicts must, therefore, be drafted with great care and the aid of counsel. During deliberations, the jury may send questions to the judge or ask for further instructions. The judge should always consult with counsel before responding and respond only on the record. Where possible, the jury ought to be given the help it needs to arrive at a ver- dict, but within limits—for example, the judge should avoid getting involved in lengthy read-backs of testimony. When one is request- ed, the jury may be asked to narrow its request to specific testimony. Some judges instruct jurors at the beginning of the case that read- backs will not be available, so the jurors must listen carefully. When the jury advises that it is deadlocked, the judge faces a dif- ficult choice. A mistrial should not be declared until it is clear that the deadlock is hopeless. While it is appropriate to encourage the jury to try a bit longer—the longer the trial, the longer the jury should be given—the judge must not exert undue pressure. The judge may wish to consult instructions to deadlocked juries (“Allen charge”) that have been approved by the court of appeals. Bench trials Although a bench trial is subject to fewer formalities, it should not be allowed to proceed in a careless and disorganized fashion. Since 19 The Elements of Case Management, Third Edition the judge will be the one to decide the case, he or she has an interest in keeping it under control, limiting the testimony and exhibits to what is essential, and having the evidence presented in an orderly and comprehensible manner. Judges should not receive evidence on the assumption that it can be sorted out back in chambers. Once the trial is over, the judge will be occupied by other things, and by the time he or she gets back to it, the case will be cold. Except when there are serious issues of credibility, the judge can have the parties submit much of the direct testimony of their own witnesses in the form of narrative written statements. These can be received at trial in lieu of direct testimony, subject to objections, sup- plementation, and cross-examination. This will improve the quality of the record on both the direct and the cross-examination, save time, and help the judge reach a decision. As soon as the evidence has been received, the judge can have the lawyers argue the case as they would in a jury trial. Post-trial briefs should be avoided, except in cases involving complex legal issues. If at all possible, the judge should be prepared to dictate an opinion to the court reporter at the end of the closing arguments. 20 The Elements of Case Management, Third Edition Using the Court’s Resources Effective use of the human and material resources available to the judge underlies every stage of case management. While the precise use of judicial assistants, deputy clerks, and law clerks depends on each judge’s style, a few considerations apply universally. The position of courtroom deputy clerk has enormous (and often unrealized) potential. Courtroom deputy clerks should not simply receive and file papers. They can be administrative assistants, man- aging the judge’s calendar and communications with lawyers. Some judges assign this duty to their judicial assistants. In either case, it is important that lawyers understand the proper channel of commu- nication and that someone on the court staff be prepared to manage it. That person should let the lawyers know what is expected of them and should keep the judge apprised of developments in the case— such as whether it appears likely to settle and whether the lawyers are prepared. Law clerks, generally heavily burdened by the motion calendar and other research demands, must be used efficiently. Unless prop- erly instructed and supervised, they may invest vast amounts of time on research that is appropriate for law reviews but of little use to the court. Judges should always define the specific problems on which they need help, making sure the clerks understand the practical con- text in which the problems arise. Judges should touch base with law clerks to ensure that they are on the right track and discourage the generation of unnecessary memos and other papers. Many forms of technology are available to help judges be more efficient, revise their clerks’ work, and keep track of their docket and calendar. Personal computers in chambers and the court’s case man- agement/electronic case filing system (CM/ECF) are invaluable tools for caseload management. Evidence presentation aids and other types of courtroom technology can help attorneys to present their cases and jurors to understand the evidence. Judges should learn about the technologies available in their courts and make use of them. 21 The Elements of Case Management, Third Edition Related Readings The following publications provide additional information on case management. Copies are available on request. Awarding Attorneys’ Fees and Manag ing Fee Litigation, Third Edition (Federal Judicial Center 2015) Civil Litigation Management Manual, Second Edition (Judicial Conference of the United States 2010) Effective Use of Courtroom Technology (Federal Judicial Center and National Institute for Trial Advocacy 2001) Guide to Judicial Management of Cases in ADR (Federal Judicial Center 2001) Managing Class Action Litigation: A Pocket Guide for Judges, Third Edition (Federal Judicial Center 2010) Manual for Complex Litigation, Fourth (Federal Judicial Center 2004) Reference Manual on Scientific Evidence, Third Edition (Federal Judicial Center 2011) For bankruptcy judges: Case Management Manual for United States Bankruptcy Judges, Second Edition (Judicial Conference of the United States 2012) 22 The Elements of Case Management, Third Edition The Federal Judicial Center Board The Chief Justice of the United States, Chair Magistrate Judge Tim A. Baker, U.S. District Court for the Southern District of Indiana Judge Duane Benton, U.S. Court of Appeals for the Eighth Circuit Judge Nancy Freudenthal, U.S. District Court for the District of Wyoming Chief Judge Barbara J. Houser, U.S. Bankruptcy Court for the Northern District of Texas Judge Raymond Jackson, U.S. District Court for the Eastern District of Virginia Judge George Z. Singal, U.S. District Court for the District of Maine Judge David S. Tatel, U.S. Court of Appeals for the District of Columbia Circuit James C. Duff, Director of the Administrative Office of the U.S. Courts Director John S. Cooke Deputy Director Clara J. Altman About the Federal Judicial Center The Federal Judicial Center is the research and education agency of the federal judicial system. It was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the recommen- dation of the Judicial Conference of the United States. By statute, the Chief Justice of the United States chairs the Center’s Board, which also includes the director of the Administrative Office of the U.S. Courts and seven judges elected by the Judicial Conference. The organization of the Center reflects its primary statutory mandates. The Education Division plans and produces education and training for judges and court staff, including in-person programs, video programs, publications, curriculum packages for in-district training, and Web-based programs and resources. The Research Division examines and evaluates current and alternative federal court practices and policies. This research assists Judicial Conference committees, who request most Center research, in developing policy recommendations. The Center’s research also contributes substantially to its educational programs. The Federal Judicial History Office helps courts and others study and preserve federal judicial history. The International Judicial Relations Office provides information to judicial and legal officials from foreign countries and informs federal judicial personnel of developments in international law and other court systems that may affect their work. Two units of the Director’s Office—the Information Technology Office and the Editorial & Information Services Office—support Center missions through technology, editorial and design assistance, and organization and dissemination of Center resources. This manual describes techniques that judges have found effective in managing their cases at various stages of the litigation process. Federal Judicial Center pocket guide series Third edition One Columbus Circle NE Washington, DC 20002-8003 fjc.dcn • fjc.gov

=== Court’s standard form ===

PROPOSED SCHEDULING ORDER INSTRUCTIONS • Please remove this page from the copy that is filed with the court. • Please email a copy of the proposed scheduling order in an editable format to the assigned magistrate judge’s chambers. If a magistrate judge is not associated with the case, please email the copy to the district judge’s chambers. • WARNING – Do not use this proposed scheduling order for a patent, ERISA, or administrative review case under DUCivR 7-4. UNITED STATES DISTRICT COURT DISTRICT OF UTAH _____________________________________ Plaintiff, vs. Proposed Scheduling Order _______________________________ Case Number: (including assigned judge initials and referred magistrate judge initials, if applicable) _____________________________________ Defendant. . _______________________________ District Judge _______________________________ Magistrate Judge Under Fed. R. Civ. P. 16(b), the Local Rules of Practice, and the Order to Propose Schedule, if applicable, an Attorney Planning Meeting has been held and the Attorney Planning Meeting Report has been completed. The following deadlines may not be modified without a court order consistent with Fed. R. Civ. P. 16(b)(4) and DUCivR 83-4. DEADLINES ARE 11:59 P.M. ON THE DATE INDICATED UNLESS EXPRESSLY STATED OTHERWISE 1. PRELIMINARY MATTERS a. b. c. Fed. R. Civ. P. 26(f)(1) Conference: (date the conference was held) 00/00/00 Participants: (include the name of the party and attorney, if applicable) Fed. R. Civ. P 26(a)(1) Initial Disclosures: (the parties have exchanged initial disclosures or will exchange no later than the date provided) 00/00/00 Yes ☐ No ☐ d. Under Fed. R. Civ. P. 5(b)(2)(E), the parties agree to receive all items required to be served under Fed. R. Civ. P. 5(a) by the court’s electronic-filing system or email transmission. Electronic service constitutes notice and service as required by those rules. The right to service by USPS mail is waived. 2. PROTECTIVE ORDER a. b. c. d. No ☐ Yes ☐ The parties anticipate the case will involve the disclosure of information, documents, or other materials that will be designated as confidential. If the case will involve the disclosure of information, documents, or other materials that will be designated as CONFIDENTIAL, then good cause exists for the court to enter the court’s Standard Protective Order (SPO) under DUCivR 26-2: (describe the need for a protective order) If a protective order is needed and the parties are not using the court’s SPO, then the court’s SPO, in effect under DUCivR 26-2, will govern until a different protective order—proposed by the parties via motion under DUCivR 7-1(a)(4)(D)—is adopted by the court. The parties’ proposed protective order should identify a process to resolve all claims of waiver of attorney-client privilege or work-product protection, whether or not the information, documents, or other materials will be designated as CONFIDENTIAL or ATTORNEYS’ EYES ONLY, and this process must be included in the proposed protective order under Fed. R. Evid. 502(d): (describe the process) If the parties do not anticipate the case will involve the disclosure of information, documents, or the materials that will be designated as CONFIDENTIAL, the parties still should identify, in the space below, a process to resolve all claims of waiver of attorney-client privilege or work-product protection, whether or not the information, documents, or other materials will be designated as CONFIDENTIAL or ATTORNEYS’ EYES ONLY, and this process must also be included in the proposed Scheduling Order: (describe the process) 3. DISCOVERY PLAN a. Discovery Plan: The parties agree to the following discovery plan. Yes ☐ No ☐ • If the parties disagree, clearly indicate the disagreement in the space below: b. c. d. e. f. Discovery Subjects: (describe the subject areas in which discovery will be needed) Discovery Phases: • Will discovery be conducted in phases? If so, please explain. • Will discovery be limited to or focused on particular issues? If so, please explain and identify whether discovery will be accelerated on any issue and the due dates. Electronically Stored Information: (describe how the parties will handle discovery of electronically stored information) Privilege or Protection – Trial Preparation Material: (describe how the parties will handle claims of privilege or protection as to trial preparation material asserted after production) Generative Artificial Intelligence: (describe the parties’ agreement about using public Generative AI tools used to analyze any confidential information contained in a discovery production, including how the information will be destroyed upon completion of the litigation) 4. FACT DISCOVERY a. Fact Discovery Limitations— 1. Maximum number of depositions by Plaintiff: 2. Maximum number of depositions by Defendant: 3. Maximum number of hours for each deposition: (unless extended by agreement of parties) 10 or # 10 or # 7 or # 4. Maximum interrogatories by any party to any party: 5. Maximum requests for admissions by any party to any 25 or # # party: 6. Maximum requests for production by any party to any # party: b. Other Fact Discovery Deadlines— 1. Deadline to serve written discovery: 2. Deadline for fact discovery to close: 3. Deadline for supplementation of disclosures and responses under Fed. R. Civ. P. 26(e): (optional) 00/00/00 00/00/00 00/00/00 5. AMENDING OF PLEADINGS AND JOINING OF PARTIES1 a. Deadline to file a motion to amend pleadings— 1. Plaintiff: 2. Defendant: b. Deadline to file a motion to join additional parties— 1. Plaintiff: 2. Defendant: 6. EXPERT DISCOVERY 00/00/00 00/00/00 00/00/00 00/00/00 a. Filing of Notice of Designation required by DUCivR 26-1(a)(2)— 1. 2. Parties bearing the burden of proof: Parties not bearing the burden of proof: b. Service of Fed. R. Civ. P. 26(a)(2) Disclosures and Reports— 1. 2. 3. Parties bearing the burden of proof: Parties not bearing the burden of proof: Rebuttal reports, if any: c. Deadline for expert discovery to close: 00/00/00 00/00/00 00/00/00 00/00/00 00/00/00 00/00/00 7. OTHER DEADLINES AND TRIAL-RELATED INFORMATION2 a. Deadline for filing dispositive or potentially 00/00/00 dispositive motions: (including a motion to exclude experts when expert testimony is required to resolve the motion) b. Deadline for filing a request for a scheduling 00/00/00 conference for the purpose of setting a trial date if no dispositive motions are filed: SO ORDERED this _________ day of ______, 202X. BY THE COURT: _____________________________________ [Judge’s Name] [Type of Judge] 1 Counsel must still comply with the requirements of Fed. R. Civ. P. 15(a). 2 The court will enter the date in Section 7.b.

=== Effective Legal Writing ===

Be understood. Be persuasive. Effective Legal Writing David Nuffer Utah Chapter, Federal Bar Association St. George Utah May 2014 Be understood. Be persuasive. The Basics Start to Craft Avoid the Sirens Artistry 1 The Basics • Start Early • Spell Check • Grammar Check • Proofread • Read aloud • Read from back • Read in paper form • How many words can be eliminated? 2 The Basics (continued) • Apply the proper standards • Standards of review • Comply with DUCivR 56 • Never assume jurisdiction exists • Every case has a plaintiff and defendant; what are the roles or names in this case? Garner’s Usage Tip of the Day January 1, 2010 obviously, like other dogmatic words ("clearly," "undeniably," "undoubtedly"), is one that writers tend to rely on when they're dealing with difficult, doubtful propositions. Be wary of it. 3 Garner’s Usage Tip of the Day November 23, 2009 Officialese is the language of officialdom, characterized by bureaucratic turgidity and insubstantial fustian; inflated language that could be readily translated into simpler terms. Officialese is governed by four essential rules. First, use as many words as possible. Second, if a longer word (e.g.,"utilize") and a shorter word (e.g., "use") are both available, choose the longer. Third, use circumlocutions whenever possible. Fourth, use cumbersome connectives when possible ("as to," "with regard to," "in connection with," "in the event of," etc.). Among the linguistically unsophisticated, puffed‐up language seems more impressive. Thus, police officers never "get out of their cars"; instead, they "exit their vehicles." They never "smell" anything; rather, they "detect it by inhalation." They "proceed" to a "residence" and "observe" the suspect "partaking of food." They never "arrest a person"; rather, they "apprehend an individual." Rather than "sending" papers to each other, officials "transmit“ them (by hand‐delivery, not by fax). And among lawyers, rather than "suing," one "institutes legal proceedings against" or "brings an action against." 4 4 Starting to Craft • Outline • Think about the organization • Reflect the outline in format – headings, previews, summaries • Focus on what matters – remove weak arguments • Do everything Bryan Garner says 5 6 7 business of the parties, and ( d) the place where the relationship, if any, between the parties is centered. Restatement (Second) Conflict of Laws§ 145(2) (1971). Here, it is undisputed that the alleged injury occurred in Utah. This is the most significant factor in a choice of law analysis for a products liability action. See Kearns v. Amer. Honda Motor Co., 641 F. Supp. 420, 423-24 (D. Idaho 1986); Richard O'Brien Cos. v. Challenge-Cook Bros., Inc., 672 F. Supp. 466, 469 (D. Colo. 1987). "Next to the place where the injury occurred, the most important contact is the place where the relationship between the parties is centered. That place is ... where the product was purchased." Kearns, 641 F. Supp. at 423-24. Here, Plaintiff does not dispute that the product was used by the Decedent in Utah; thus it is clear that the relationship between the parties was centered in Utah. See Allison v. ITE Imperial Corp., 928 F.2d 137, 142 (5th Cir. 1991) ("the relationships between the parties in a products liability case is the State where the injured party came in contact with the product of the defendant"); Rottman v. Krabloonik, 834 F. Supp. 1269, 1271 (D. Colo. 1993) (same). It is also undisputed that the Decedent resided in Utah. Where the allegedly defective Tysabri® was designed is oflittle importance when the place of injury, the center of the parties' relationship, and the domicile of the plaintiff or decedent are all in the same state. Under such circumstances, courts uniformly apply the law of that state, not the state of manufacture. Richard O'Brien Cos., 672 F. Supp. at 469 ("the place the injury occurred, rather than the place of manufacture, provides the most compelling policy concerns"); White v. Winnebago Indus., 718 F. Supp. 1429, 1433 (N.D. Iowa 1989) (concluding that Tennessee had the most significant relationship to products 71068017.2 0038583- 00002 7 8 liability litigation where the injury occurred in Tennessee and the plaintiffs were Tennessee residents, although the allegedly defective product was manufactured in Iowa and defendant was an Iowa corporation); Crisman v. Cooper Indus., 748 S.W.2d 273, 278 (Tex. Ct. App. 1988) (holding that Florida's statute ofrepose applied to bar plaintiffs product liability claims against manufacturer of allegedly defective trailer that was involved in his wife's death where trailer entered the stream of commerce in Florida and where the accident took place in Florida, even though parties resided in different states and the trailer was manufactured in Illinois); Kearns, 641 F. Supp at 423-24 (holding that Idaho had the most significant relationship to a products liability action irrespective of the place of manufacture, where the product was purchased in Idaho and where the accident took place in Idaho); Allison v. !TE Imperial Corp., 928 F.2d 137 (5th Cir. 1991) (concluding that Tennessee law applied to products liability claims where injury occurred in Tennessee and the plaintiff came into contact with the allegedly defective product in Tennessee, despite the fact that product was manufactured in a different state and parties were domiciled in different states). Accordingly, this Court should conclude that the law of Utah applies, as it is the place of the injury, the center of the relationship of the parties, and the place ofresidence of the Decedent at the time of his alleged injury. 2 2 The Restatement also suggests that the "purpose sought to be achieved by the relevant tort rule" is another factor to be considered in determining the state of most significant relationship. R.2d (Conflicts)§ 145, cmt. c. Unquestionably, Utah's tort rule providing immunity from design defect claims for FDA-approved drugs is intended to promote the availability and affordability of drugs for Utah's citizens. Grundberg v. Upjohn Co., 813 P .2d 89, 99 (Utah 1991 ). As the Court in Grundberg noted, if Utah did not afford drugs comment k immunity, "[f]irst, drug manufacturers might stop producing valuable drugs because of lost profits resulting from lawsuits or the inability to secure adequate insurance. Second, consumers have a vested interest in prompt availability of new pharmaceutical products. Imposing strict liability for design defects might cause manufacturers to delay placing new products on the market, even after those products 71068017.2 0038583- 00002 8 9 business of the parties, and (d) the place where the relationship, if any, between the parties is centered. Restatement (Second) Conflict of Laws § 145(2) (1971). Here, it is undisputed that the alleged injury occurred in Utah. This is the most significant factor in a choice of law analysis for a products liability action.1 "Next to the place where the injury occurred, the most important contact is the place where the relationship between the parties is centered. That place is ... where the product was purchased."2 Here, Plaintiff does not dispute that the product was used by the Decedent in Utah; thus it is clear that the relationship between the parties was centered in Utah.3 It is also undisputed that the Decedent resided in Utah. Where the allegedly defective Tysabri® was designed is of little importance when the place of injury, the center of the parties' relationship, and the domicile of the plaintiff or decedent are all in the same state. Under such circumstances, courts uniformly apply the law of that state, not the state of manufacture. 4 Accordingly, this Court should conclude that the law of Utah applies, as it is the place of the injury, the center of the relationship of the parties, and the place of residence of the Decedent at the time of his alleged injury. 1 See Kearns v. Amer. Honda Motor Co., 641 F. Supp. 420,423-24 (D. Idaho 1986); Richard O'Brien Cos. v. Challenge-Cook Bros., Inc., 672 F. Supp. 466,469 (D. Colo. 1987). 2 Kearns, 641 F. Supp. at 423-24. 3 Utah. See Allison v. ITE Imperial Corp., 928 F.2d 137, 142 (5th Cir. 1991); Rottman v. Krabloonik, 834 F. Supp. 1269, 1271 (D. Colo. 1993). 4 Richard O'Brien Cos., 672 F. Supp. at 469; White v. Winnebago Indus., 718 F. Supp. 1429, 1433 (N.D. Iowa 1989); Crisman v. Cooper Indus., 748 S.W.2d 273, 278 (Tex. Ct. App. 1988); Kearns, 641 F. Supp at 423-24; Allison v. ITE Imperial Corp., 928 F.2d 137 (5th Cir. 1991). 10 Having made the requisite showings, the burden now shifts back to the individual defendants to establish that no disputed issues of material fact remain which would defeat the claim of qualified immunity. Having made the requisite showings, the burden now shifts back to the individual defendants to establish that no disputed issues of material fact remain which would defeat the claim of qualified immunity. 11 As discussed in Plaintiff’s opposition to motion, Defendant began its attacks against Plaintiff’s counsel by sending him a personal subpoena during the holidays on December 29, 2008 in an attempt, believes, to set up a motion to disqualify Plaintiff’s co‐trial counsel, and in an attempt to ruin his holidays. As further discussed in Plaintiff’s opposition to the motion, Defendant’s counsel engaged in Gestapo tactics in serving Plaintiff’s counsel with the subpoena in his law office without even giving a reasonable opportunity to accept service of the subpoena, or the professional courtesy of a telephone call. Plaintiff asserts that Defendant accuses Plaintiff of making “disingenuous arguments” in response to various points raise in Defendant’s submission. (Application, p. 1.) Defendant’s assertion is more pointed: “Plaintiff disingenuously argues that Defendant has not substantiated its assertion that Plaintiff has failed to produce the ‘order’ source code.” Defendant’s reply brief, (pp. 1‐2) In its brief in opposition Plaintiff implies that if any source code was produced for three Perl files at issue that is compliance with the Court’s September 28, 2009 order. Defendant respectfully submits that is not the case. 12 Plaintiff’s argument is a bit like suggesting that Rembrandt could not have applied proper methodology in his paintings because he did not make use of a “paint by numbers” The assertion that Dr. P “failed to show” his work blows right by audacious and nearly steamrolls over ridiculous . . . Even if it is necessary to reschedule the trial date, it is difficult to see how this is unfair to the defendant. "Unfairness" is often tossed out as a reason for the court to do, or not do, something. Like the cry of the loon, it is haunting, but often without substance. This paragraph appears in argument without any prior recitation of these facts Second, Defendant’s assumptions are wrong. In particular, Defendant’s Attorney’s assertion that “Defendant was not even at Plaintiff when Plaintiff developed its incremental sector tracking software,” and therefore “does not know, and could not know, anything about Plaintiff’s code for that function or the underlying source code,” is demonstrably incorrect. (8/26/11 Defendant’s Attorney’s Letter to Plaintiff’s Attorney; 9/21/11 Plaintiff’s Attorney’s Letter to Defendant’s Attorney at 2.) Incremental sector tracking was specifically requested by Company X as a deliverable, and the last Computer code drops Defendant made to Company X in 2002‐well before his departure from Plaintiff‐include incremental sector tracking, as evidenced by the emails on the Exhibit Disc. (See, e.g., Defendant’s 0007549, 101520‐21, 101991‐92, 109999‐ 01, 110711‐13, 116084‐85, 158566, 170105, 203584‐88, 204117‐ 18, 205103, 205150‐51, 205154‐55,220109, 223744,227291, 230546, and 232179‐80, collectively attached as Ex. P hereto (without exhibits).) 13 Despite the Court's ruling that Defendant Name Redacted (“Redacted”) is liable for breach of the parties' Settlement Agreement and Mutual Release signed in 20XX (the “20XX Settlement Agreement” or “Agreement”) and for copyright infringement, and that Plaintiff has presented strong evidence of Defendant's misappropriation of trade secrets, coupled with its decision to permit Plaintiff to conduct additional discovery regarding Defendant's activities while working for Company1, Company2 and/or Company3, particularly as they relate to Plaintiff's intellectual property rights and trade secrets under that Agreement, Defendant has objected to virtually all of Plaintiff's discovery issued pursuant to Magistrate Judge Nuffer's Order entered on June XX, 2011, impermissibly narrowed the scope of the discovery in providing limited substantive responses, failed to perform an adequate search for documents under Federal Rule of Civil Procedure 34, and thereby failed to produce all responsive documents. 14 Avoiding the Sirens • Convoluted arguments • Characterizations • Cuteness • Long sentences • Long paragraphs • The sound of your own voice Artistry • Flow • Is it enjoyable to read? • Does it read as if heard, and not studied? • Eliminate the need to re‐read anything. • Would an educated person understand every word? • Is a legally trained complete stranger to the case compelled by every word? • Let it sit; then come back a day or two later. 15 John Irving on being a writer – and a wrestler "Many of my wrestling friends find it odd that I'm a writer, just as many of my writer friends in the writing world find it odd that I was — for so many years — a wrestler and wrestling coach. But they seem very similar to me. In both cases you have to be devoted to tireless repetition and small details. For many more hours than you will be in competition, you will be with a nameless workout partner — a sparring partner, drilling the same outside single‐legged dive, inside collar tie — hundreds upon thousands of times. Well, how many times as a writer do you — or should you — rewrite the same sentence, the same paragraph, the same chapter? If you're good, you never tire of that." http://www.npr.org/2012/05/12/152361634/in‐one‐person‐a‐tangled‐gender‐bender Be understood. Be persuasive. Effective Legal Writing David Nuffer Utah Chapter, Federal Bar Association St. George Utah May 2014 16

=== PDF document ===

Creating the Best Transcript Possible From a presentation by the District of Utah Court Reporters October 2012 Creating the most accurate and complete transcript possible is part of an attorney’s obligation to the client. Federal Court Reporters serve as coaches to help provide the best permanent record of court events. An audio recording system does not alert you when the record is not clear. A court reporter exercises quality control at the moment the record is made. If the reporter cannot hear and understand, the jury and judge cannot hear and understand. Before Trial or Hearing • Discuss all the points in this document with your witness and trial team. • Provide technical terms and names specific to the trial so the Court Reporter may add them to their dictionary. • Witness lists and exhibit lists are also useful for the reporter. • Prepare your witness to speak slowly and clearly. • Pre arrange daily copy when desired. Reporters must schedule to work in shifts when • daily copy is required. If you are appearing before a magistrate judge and know you will need a transcript, ask the courtroom deputy the week before the hearing to schedule a court reporter. While in Court • Speak directly into the microphone. Do not move a mounted microphone away from your mouth. Move unmounted microphones on the table as near you as possible. • Stay near the podium microphone or use a lavaliere or hand mike. • Be precise when giving directions to a witness. “In the lower left hand corner” is easier to understand in a transcript than “over there.” Refer to exhibit numbers. • When the witness is at an easel, let the witness finish drawing or writing before asking questions. • Remember that an interpreter needs to hear you speak. • Slow down, especially when reading printed material. • Don’t talk over your witness, opposing counsel or the Judge. • Don’t be a “mush mouth,” blurring words and do not allow your voice to trail off at the end of questions or statements. • When the reporer says you speak “too fast,” this is not a compliment. • “Please repeat that” does not mean rephrase or explain; it means “repeat exactly what you said because it was unclear and I want the record to be accurate.” • When making an objection, stand up so the reporter is alerted and able to hear what you have to say. • Some courtroom acoustics are better than others. • Magistrate judge hearings are electronically recorded. Speaking clearly and slowly during digital recording ensures a better transcript. Stay near the microphone. State your name at the start of the hearing so the transcribing reporter can identify you.

=== Motions to Continue Criminal Trials ===

Motions to Continue in Criminal Cases: A motion to continue in a criminal case must comply with DUCrimR 12-1(h) by identifying the information needed to adequately conduct the requisite inquiry under United States v. Toombs, 574 F.3d 1262 (10th Cir. 2009). Note that an “ends of justice” exclusion is disfavored. "Th[e] [ends-of-justice] exception to the otherwise precise requirements of the Act was meant to be a rarely used tool for those cases demanding more flexible treatment." Toombs at 1269. Find another statutory basis in the checklist below. The following suggestions for motions relate to the identified subsections of DUCrimR 12-1(h) (1) The motion must state the dates on which the time limits of the Speedy Trial Act activated and will expire, as well as the amount of time elapsed under the defendant’s speedy trial computation (e.g., "the defendant was arrested April 1, 2011, an indictment or information is due within 30 days, by May 1, 2011, 10 days have elapsed under the defendant’s speedy trial computation as of the filing of this motion" or "the defendant appeared before a United States Magistrate Judge on May 1, 2011, a jury trial is to commence within 70 days, by July 10, 2011, 30 days have elapsed under the defendant’s speedy trial computation as of the filing of this motion"). (4) The motion must cite to the specific statutory provision, or provisions, under which the requested extension or continuance is excludable under the Speedy Trial Act. (5) The motion must clearly state the specific reasons for the requested extension or continuance, including factual assertions demonstrating the diligence of counsel and explanation why the act cannot be completed or the event cannot occur within the originally allotted time (e.g., “trial is scheduled to begin in 30 days; counsel was appointed to the case last week, has spoken with the defendant regarding the case and has discussed the potential for resolving the case with the government’s counsel; counsel will not have sufficient time to advise the defendant regarding the government’s plea offer, review all discovery, and adequately prepare for the upcoming trial date as a result of her/his recent appointment to the case”). (6) The motion must relate the reasons for extension to the amount of additional time requested (e.g., “a 30-day continuance is necessary, as not all discovery has been provided, the discovery is expected to be received within one week, counsel will need one week to review the discovery once it is received and to interview witnesses, and will need another two weeks to adequately prepare for the trial”) (8) If the motion is filed by defense counsel, the motion must clearly state that counsel has conferred with the defendant about the motion and that the defendant: (a) was advised by defense counsel of the reasons for seeking an extension or continuance; (b) understands that the time requested in the extension or continuance may be excluded from any calculation of time under the Speedy Trial Act; and (c) with this understanding and knowledge, agrees to or objects to the filing of the motion. (9) If the extension or continuance will affect other deadlines, those effects must be clearly identified (e.g., “the 30-day continuance sought will not change any other deadlines in the case other than the date of trial” or “the 30-day extension of the discovery deadline will extend the plea and motion deadlines by two weeks, as well as, the date of trial”). (10) The motion must state the precise period of extension or continuance and other relief requested. A motion under the Speedy Trial Act is not required to exclude the time between the scheduling of a change of plea hearing and the date of the change of plea hearing. A defendant’s request to change his plea constitutes a pretrial motion that automatically triggers an exclusion of time under 18 U.S.C. § 3161(h)(1)(D). See United States v. Loughrin, 710 F.3d 1111, 1120 (10th Cir. 2013). Walking through the following checklist as you prepare a motion for extension of time or continuance under the Speedy Trial Act will ensure the motion complies with the pleading requirements of DUCrimR 12-1(h) and includes all information needed for the requisite inquiry under United States v. Toombs, 574 F.3d 1262 (10th Cir. 2009): CHECKLIST FOR SPEEDY TRIAL ACT (STA) MOTIONS • Ensuring the STA Motion Asserts Sufficient Facts—Compliance with DUCrimR 12-1(h): (Facts relating to all of the following must be included in the STA motion) _____ (h)(1) identifies event and date activating STA clock (it is preferred to include the amount of time elapsed from STA clock). _____ (h)(2) identifies date of event to occur in absence of extension or continuance. _____ (h)(3) identifies all prior STA motions, their disposition, and whether time was excluded under the STA. _____ (h)(4) states whether the extension or continuance is excludable under the STA, including citation to specific subsection(s) of 18 U.S.C. § 3161(h). _____ (h)(5) states specific reason(s) for the extension or continuance, including why the act cannot be performed in the allotted time (avoids conclusory statement(s) and includes statement(s) regarding counsel’s diligence). (h)(5)(A) If the reason is a scheduling conflict with another case: _____ (i) identifies the case by caption, case number, and court; _____ (ii) describes action(s) taken in the other case to request a continuance or deferment; _____ (iii) states reason(s) why the other case should have priority; _____ (iv) states reason(s) why associate counsel cannot handle one of the cases, including why continuity of counsel is important to the cases; AND _____ (v) states any other relevant circumstances. (h)(5)(B) If the reason is the complexity of the case, including voluminous discovery: _____ states specific facts demonstrating case’s complexity. (h)(5)(C) If the reason is due to personal hardship of defendant or counsel: _____ states specific nature of hardship and when hardship might be resolved. _____ (h)(6) explains how the reason(s) offered justify the length of the requested extension or continuance (avoids conclusory explanation(s . _____ (h)(7) states whether opposing counsel agrees with or objects to the requested extension or continuance. _____ (h)(8) indicates whether defendant agrees with or objects to the requested extension or continuance (it is preferred that defendant countersign the motion and that the motion attach an affidavit of defendant stating that defendant (i) was advised by counsel regarding the motion, (ii) understands time may be excluded under the STA, and (iii) agrees to the motion’s filing). _____ (h)(9) states impact on the scheduled trial or other deadlines. _____ (h)(10) states precise relief requested. • Proper Exclusions Under the STA—18 U.S.C. § 3161(h): (One or more of the following must be present to exclude time under the STA) _____ (h)(1) Any period of delay resulting from other proceedings concerning the defendant, including, but not limited to: _____ (A) any examinations to determine the defendant’s mental competency or physical capacity; _____ (B) a trial on other charges against the defendant; _____ (C) any interlocutory appeal; _____ (D) any pretrial motion (from the filing through a hearing or other prompt disposition of the motion); _____ (E) any proceeding relating to the transfer of a case or the removal of any defendant from another district under the FED. R. CRIM. P.; _____ (F) transportation of any defendant from another district, or to and from places of examination or hospitalization (however time in excess of 10 days from the order and the defendant’s arrival is presumed unreasonable); _____ (G) consideration by the court of a proposed plea agreement; OR _____ (H) any period reasonably attributable to any proceeding concerning the defendant that is actually under advisement by the court (not to exceed 30 days); _____ (h)(2) Any period of delay during which prosecution is deferred for the purpose of allowing the defendant to demonstrate his good conduct (must be pursuant to written agreement between the Government and the defendant, and approved by the court). _____ (h)(3) Any period of delay resulting from the absence or unavailability of the defendant or an essential witness. _____ (h)(4) Any period of delay resulting from defendant’s mental incompetence or being physically unable to stand trial. _____ (h)(5) Any period of delay from the date a charge was dismissed to the date the time limitation would commence to run as to a subsequent charge (must be same offense or any offense required to be join with the original charge) had there been no previous charge. _____ (h)(6) A reasonable period of delay when a co-defendant’s time for trial has not run and no motion for severance has been granted. _____ (h)(7) Any period of delay resulting from a continuance granted on the basis of the ends of justice outweighing the best interest of the public and the defendant in a speedy trial. _____ (h)(8) Any period of delay as a result of an order on an official request for evidence that reasonably appears to be in a foreign country (not to exceed 1 year). • Considerations for an “Ends of Justice” Determination—18 U.S.C. § 3161(h)(7)(B): (One or more of the following must be present for an “ends of justice” determination) _____ (B)(i) Failure to grant a continuance would be likely to make proceeding impossible, or result in a miscarriage of justice. _____ (B)(ii) Case is so unusual or complex that it is unreasonable to expect adequate preparation for pretrial proceedings or trial within the established time limits. Because of: _____ number of defendants; _____ nature of the prosecution; AND/OR _____ existence of novel questions of fact or law. _____ (B)(iii) In a case in which arrest precedes indictment, the delay in the indictment’s filing was caused by: _____ the arrest occurring at a time that makes it unreasonable to expect return and filing of the indictment within the established time limits; AND/OR _____ the facts that the grand jury must base its determination on being unusual or complex. _____ (B)(iv) In a case that is not so unusual or so complex, the failure to grant a continuance would: _____ deny the defendant reasonable time to obtain counsel; _____ unreasonably deny the defendant or the Government continuity of counsel; AND/OR _____ deny counsel for the defendant or the attorney for the Government the reasonable time necessary for effective preparation, taking into account the exercise of due diligence.

=== instructions to e-file a .pdf copy for the record in CM/ECF ===

E-filing of Proposed Orders without a motion When directed to file a proposed order by itself (without a motion), counsel should use the “Notice of Filing” event under “Other Documents.”

=== Motion to Dismiss Order ===

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION ALFREDO GONZALEZ, v. Plaintiff, WELLS FARGO BANK, N.A.; AMERICA’S SERVICING COMPANY; MERIDIAS CAPITAL, INC.; U.S. BANK N.A.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; ALLISON KEACH; LORI KING; eTITLE INSURANCE AGENCY; LARA ANN HUFF; JACOB HUFF; and DOES 1-50, Defendants. MEMORANDUM DECISION AND ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS Case No. 2:12-cv-00286-DN District Judge David Nuffer Defendants Wells Fargo Bank, N.A. (“Wells Fargo”), America’s Servicing Company (“ASC”), U.S. Bank, N.A. (“US Bank”) and Mortgage Electronic Registration Systems, Inc. (“MERS”) move to dismiss Plaintiff Gonzalez’s complaint in its entirety based on the doctrine of res judicata, and alternatively Gonzalez’s failure to state a claim upon which relief can be granted (“Defendants’ Motion”).1 Co-Defendants Jacob Huff and Lara Ann Huff moved to join Defendants’ Motion (“Joinder”).2 Because the complaint fails to state a claim for relief, the Court does not address the res judicata issue. Defendants Jacob Huff and Lara Ann Huff’s Joinder is GRANTED and the Defendants’ Motion to Dismiss is GRANTED. 1 Motion to Dismiss, docket no. 8, filed April 13, 2012. 2 Lara Ann and Jacob Huff’s Joinder in Defendants Wells Fargo Bank, N.A., America’s Servicing Company, U.S. Bank, N.A. and Mortgage Electronic Registration System, Inc.’s Motion to Dismiss, docket no. 10, filed May 3, 2012. BACKGROUND On or about August 17, 2006 Gonzalez executed a deed of trust (“Trust Deed”) to secure the performance of his loan obligation under a promissory note (the “Note”).3 Meridias Capital, Inc. was the beneficiary of the Trust Deed.4 The Trust Deed secured property located in Salt Lake County, Utah (the “Subject Property”).5 Wells Fargo and its mortgage servicing division, ASC, serviced the Note.6 Gonzalez subsequently defaulted on his obligation to make timely monthly payments, resulting in a Notice of Default and Election to Sell recorded on September 24, 2008.7 On or about December 1, 2009 Gonzalez and ASC entered into a four-month trial period under the Home Affordable Modification Program (“HAMP”), which temporarily modified Gonzalez’s loan obligations.8 After the four-month trial period ended, Wells Fargo and ASC chose not to make the modification permanent and elected to terminate Gonzalez’s participation in the program.9 On April 22, 2011, the Subject Property was foreclosed upon and sold to US Bank.10 The Subject Property was thereafter purchased from US Bank by Defendants Lara Ann Huff and Jacob Huff (the “Huffs”).11 3 Memorandum in Support of Motion to Dismiss (Support Memo) at 5, docket no. 9, filed April 13, 2012. 4 Id. 5 Id. ¶ 2. 6 Complaint ¶ 20, docket no. 2-1, filed March 23, 2012. 7 Support Memo ¶ 3. Plaintiff does not dispute that the Notice of Default and Election to Sell were recorded, but argues these documents had no legal effect, as noted on page 13 of Plaintiff’s Opposition Memorandum. 8 Id. ¶ 4. Plaintiff contends this fact is not discussed his complaint, and thus is outside the pleadings. Plaintiff, however, refers to his participation in the HAMP program in paragraphs 47-48 on page 10 of Plaintiff’s Complaint. 9 Id. at 14. 10 Id. ¶ 5. Plaintiff does not dispute the existence of the foreclosure and sale of the Subject Property to US Bank, but argues these proceedings were illegal and void, as noted on page 13 on Plaintiff’s Opposition Memorandum. 11 Id. ¶ 6. Plaintiff does not dispute the Huff’s purchase of the Subject Property, but argues the Huffs did not acquire valid title because the previous proceedings were illegal and void, as noted on pages 13-14 of Plaintiff’s Opposition Memorandum. 2 STANDARD OF REVIEW – MOTION TO DISMISS In order to withstand a motion to dismiss under Bell Atlantic Corp. v. Twombly12, and Ashcroft v. Iqbal13 a plaintiff must allege enough facts, “taken as true, to state a claim to relief that is plausible on its face.”14 A plaintiff must “offer specific factual allegations to support each claim”15 and while the Court must “accept as true all of the allegations contained in a complaint” this requirement is “inapplicable to legal conclusions.”16 The determination of plausibility will be a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.”17 Therefore, “in ruling on a motion to dismiss, a court should disregard all conclusory statements of law and consider whether the remaining specific factual allegations, if assumed to be true, plausibly suggest the defendant is liable.”18 DISCUSSION First Cause of Action – Declaratory Judgment & Quiet Title Gonzalez requests fifteen (15) declarations from the Court, including declarations that the foreclosure and trustee’s sale were null and void.19 Each of Gonzalez’s requested declarations involve alleged past wrongs. A cause of action for declaratory judgment “cannot be used to redress alleged past wrongs.”20 Additionally, “declaratory judgments are designed to declare 12 550 U.S. 544 (2007). 13 556 U.S. 662 (2009). 14 Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011)(internal quotation marks omitted)(quoting Twombly, 550 U.S. at 570). 15 Kansas Penn, 656 F.3d at 1214. 16 Kansas Penn, 656 F.3d at 1214 (internal quotation marks omitted)(quoting Iqbal, 556 U.S. at 677). 17 Kansas Penn, 656 F.3d at 1214 (internal quotation marks omitted)(quoting Iqbal, 556 U.S. at 679). 18 Kansas Penn, 656 F.3d at 1214. 19 Complaint ¶ 101(i-j). 20 Scarborough v. LaSalle Bank, No. 2:10-cv-0624-CW, 2011 WL 1549432 at *3 n.3 (D. Utah Apr. 21, 2011) (unpublished)(quoting Tapia v. U.S. Bank, N.A., 718 F.Supp.2d 689, 695 (E.D. Va. 2010 . 3 rights so that parties can conform their conduct to avoid future litigation.”21 Declaratory relief is untimely and inappropriate in this case, because the “questionable conduct has already occurred or damages have already accrued.”22 Second Cause of Action – Fair Debt Collection Practices Gonzalez alleges that the Defendants violated various provisions of the Fair Debt Collection Practices Act (“FDCPA”).23 The FDCPA defines a “debt collector” as “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.”24 Excluded from this definition is “any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity . . . concerns a debt which was not in default at the time it was obtained by such person.”25 This provision excludes the collection of debts that are not in default. The Defendants in this case either serviced the Note, or acquired the note without the purpose of collecting or attempting to collect any debt owed or due. Gonzales admits in his complaint that Wells Fargo and ASC serviced the Note26, and thus their primary purpose was not to collect any debt. The servicing of the Note by Wells Fargo and ASC began before Gonzalez defaulted.27 Furthermore Gonzalez does not allege that US Bank or Mortgage Electronic 21 Scarborough, 2011 WL 1549432 at *3 n.3 (quoting Volvo Constr. Equip. N. Am., Inc. v. CLM Equip. Co., 386 F.3d 581, 593-94 (4th Cir. 2004 . 22 Scarborough, 2011 WL 1549432 at *3 n.3 (quoting Tapia, 718 F.Supp.2d, at 695). 23 Complaint ¶¶ 102-108. 24 15 U.S.C. § 1692a(6). 25 15 U.S.C. § 1692a(6)(F). 26 Complaint ¶ 20. 27 Id. 4 Registration Systems, Inc. (“MERS”) acquired the Note for collection purposes. Accordingly, the Defendants are not debt collectors pursuant to the FDCPA. Third Cause of Action – Utah Consumer Sales Practices Act Gonzalez alleges that Defendants violated the Utah Consumer Sales Practices Act (“UCSPA”) by making “false representations.”28 The UCSPA governs consumer transactions in an effort to protect consumers and promote “fair consumer sales practices.”29 The definition of “consumer transaction” pursuant to the UCSPA, however, does not mention mortgage loans.30 Furthermore, in a recent decision this court adopted a Magistrate Judge’s recommendation that “a mortgage loan is not a ‘consumer transaction’ within the scope of the UCSPA.”31 Similarly, the mortgage loan in this case is not a consumer transaction pursuant to the UCSPA, and thus claims under the UCSPA are inapplicable. Fourth Cause of Action – Breach of Duty Gonzalez’s allegations contained in this cause of action are only alleged against eTitle Insurance Agency.32 Fifth Cause of Action – Breach of Contract; Duty of Good Faith and Fair Dealing Gonzalez alleges the Defendants’ behavior “constitute[s] a breach of contract and of the covenant of good faith and fair dealing.”33 Gonzalez does not allege any specific facts to support this legal conclusion, and in his opposition memorandum states “Defendants violated these 28 Complaint ¶ 112. 29 Utah Code Ann. § 13-11-2. 30 Utah Code Ann. § 13-11-3. 31 Ayala v. Am. Home Mortg. Servicing, Inc., No. 2:11-cv-77-DB-PMW, 2011 WL 3319543 at *3 (D. Utah June 8, 2011)(unpublished)(Magistrate Judge’s Report and Recommendation adopted by No. 2:11-cv-77, 2011 WL 3319726 (D. Utah Aug. 1, 2011 (alterations omitted). 32 Complaint at 25. 33 Complaint ¶ 121. 5 promises and breached the modified contract”34 without referencing any specific promises or provisions of a contract. As mentioned earlier, in order to survive a motion to dismiss, a Plaintiff must “offer specific factual allegations to support each claim.”35 Gonzalez has not offered specific facts to support his legal conclusion for this cause of action. Sixth Cause of Action – Violations of RESPA Gonzalez alleges the Defendants violated the Real Estate Settlement Procedures Act (“RESPA”), and that he suffered damages as a result of these violations.36 Recently, this Court noted that the “RESPA requires borrowers to show actual damages as a result of a failure to comply with its provisions.”37 Gonzalez fails to allege any causal link between any violation of RESPA and any damages suffered. 34 Plaintiff’s Memorandum in Opposition to the Defendants’ Motion to – ERRATA at 29, docket no. 20, filed June 11, 2012. 35 Kansas Penn, 656 F.3d at 1214. 36 Complaint ¶¶ 123-124. 37 Rodeback v. Utah Fin., No. 1:09-cv-00134-TC, 2010 WL 2757243 at *3 (D. Utah July 13, 2010)(unpublished). 6 ORDER For the foregoing reasons, IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss38 and the Motion for Joinder39 are GRANTED. Plaintiff’s claims against Jacob Huff, Lara Ann Huff, Wells Fargo Bank, N.A., America’s Servicing Company, U.S. Bank, N.A. and Mortgage Electronic Registration System, Inc. are DISMISSED. Claims remain against Meridias Capital, Inc., Allison Keach, Lori King, eTitle Insurance Agency, and Does 1-50. Signed June 4, 2013. BY THE COURT ________________________________________ District Judge David Nuffer 38 Docket no. 8, filed April 13, 2012. 39 Docket no. 10, filed May 3, 2012 7

=== Remand Order ===

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION PERKUMPULAN INVESTOR CRISIS CENTER DRESSEL-WBG, v. Plaintiff, MINING CLAIMS LOCATED IN THE FAIRBANKS RECORDING DISTRICT, FOURTH JUDICIAL DISTRICT, STATE OF ALASKA, MORE PARTICULARLY IDENTIFIED AS MINING M 3-1 ET AL. MEMORANDUM DECISION AND ORDER TO REMAND FOR IMPROPER REMOVAL AND LACK OF SUBJECT MATTER JURISDICTION Case No. 2:12-cv-00952-DN in rem Defendants, District Judge David Nuffer JARED SHERER and MICHELLE SHERER, Removal Petitioners. This is an in rem case concerning mining claims. Perkumpulan Investor Crisis Center Dressel-WBG (Perkumpulan) originally filed this action in the Superior Court of Alaska, Fourth Judicial District at Fairbanks (the Alaska Court), and Jared and Michelle Sherer (the Sherers) removed it to this court.1 Perkumpulan filed a Motion to Remand2 this action to the Alaska Court on the basis of improper removal and a lack of subject matter jurisdiction.3 Furthermore, Perkumpulan requests an award of costs and expenses for improper removal, including its full attorneys’ fees pursuant to 28 U.S.C. § 1447(c).4 The Sherers have since filed a motion to 1 Notice of Removal, docket no. 1, filed Oct. 11, 2012. 2 Docket no. 4, filed Nov. 2, 2012. 3 Id. at 2. 4 Id. withdraw their removal.5 Perkumpulan filed a partial objection to Sherer’s withdrawal,6 asking that the case be remanded only after Perkumpulan’s costs and fees are awarded and paid.7 BACKGROUND Perkumpulan is an organization of Indonesian investors allegedly defrauded in a Ponzi scheme that Perkumpulan alleges was managed for several years by Michelle Sherer and her husband Donald Sherer.8 Perkumpulan is the assignee of the fraud claims of 3,481 investors, claiming losses of nearly $100 million which formed the basis for a RICO suit in the United States District Court for the Western District of Washington (the Washington Suit).9 Through the Washington Suit, Perkumpulan discovered the existence of mining claims, real property, and related assets in Alaska that had allegedly been purchased by stolen funds from the Ponzi scheme and which the Sherer family had allegedly attempted to personally retain.10 To reach those assets, Perkumpulan initiated an in rem action in the Alaska Court on September 20, 2012.11 On October 11, 2012, the Sherers filed a Notice of Removal12 pursuant to 28 U.S.C. §§ 1441 and 1446. Perkumpulan subsequently moved to remand on November 2, 2012. On March 19, 2013, defendants filed a motion to withdraw the removal “after considering and researching the arguments set forth by Plaintiff in its opposition.”13 Perkumpulan filed a 5 Withdrawal of Removal of Action, docket no. 14, filed Mar. 19, 2013. 6 Partial Objection to “Withdrawal of Removal of Action” (Objection to Withdrawal), docket no. 15, filed Mar. 20, 2013. 7 Id. at 4. 8 Memorandum in Support of Motion to Remand (Memorandum in Support) at 2, docket no. 5, filed Nov. 2, 2012. 9 Id. 10 Id. 11 See Alaska Court Records, http://www.courtrecords.alaska.gov/eservices/?x=gZIZTfXYZUjtHPaMuKHPtg. 12 Docket no. 1, filed Oct. 11, 2012. 13 Withdrawal of Removal of Action at 1. 2 partial objection to the withdrawal on March 20, 2013, requesting that “this case be remanded to Alaska State Court only after (1) the determination of the Plaintiff’s attorney’s fees, costs, and expenses and (2) the actual payment of said fees, costs and expenses by the Sherers.”14 The Sherers removed the case to this court as pro se litigants, although Michelle Sherer and her husband Donald Sherer are represented in the Washington suit by two different law offices;15 Jared Sherer assisted Utah attorney David Turcotte in transferring a number of mining claims in question in this case;16 Jared Sherer’s affidavit displays a level of understanding and ability with the legal system;17 and Perkumpulan states that Donald Sherer is a disbarred attorney.18 ANALYSIS Defendant’s Notice of Removal states that the action was removed pursuant to 28 U.S.C. §§ 1441 and 1446.19 However, Section 1441 clearly states that “any civil action brought in a State court . . . may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.”20 Section 1446 states that “A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal.”21 Because Utah and Alaska are distinct and separate federal districts, removal to this court is plainly outside the statute and clearly improper. 14 Objection to Withdrawal at 4. 15 Memorandum in Support at 3. 16 See Affidavit of Jared Sherer in Support of Opposition to Motion to Remand, docket no. 8-1, filed Nov. 16, 2012. 17 Id. 18 Memorandum in Support at 3. The Utah Bar website has record of a disbarred attorney named Donald R. Sherer. 19 Notice of Removal at 1. 20 28 U.S.C. § 1441(a) (emphasis added). 21 28 U.S.C. § 1446(a) (emphasis added). 3 Furthermore, in order for removal to be proper, this court must have original jurisdiction over the action brought in the state court.22 Jurisdiction “must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal.”23 The 10th Circuit has broadened the analysis, at least for diversity jurisdiction, to find the court’s jurisdiction on the face of either the petition or the removal notice.24 However, no facts or claims in the complaint support subject-matter jurisdiction. The Notice of Removal references 28 U.S.C. §§ 1441 and 1446, but the Sherers only argue the merits of their case, and never establish an argument for this court’s jurisdiction. Indeed, there is no basis presented for subject-matter jurisdiction, even if the removal to this specific district had been proper. Moreover, all defendants “must join in or consent to the removal of the action.”25 Because the right of removal is held jointly by all defendants, a removal notice by less than all defendants is procedurally defective.26 There is no indication that Jared and Michelle Sherer constitute all of the parties who should be deemed defendants in the case. Specifically, this is an in rem case against mining claims in Alaska and not against the Sherers. In the Alaska Court, the Sherers are listed as Non-Party Participants.27 Furthermore, the Sherers’ petition does not join all the mining claims before this court. In fact, PADRM Gold Mine, LLC filed an answer in the in rem action in the Alaska court on October 22, 2012,28 eleven days after the Sherers purported 22 28 U.S.C. § 1441(a). 23 Gully v. First Nat’l Bank in Meridian, 299 U.S. 109, 113 (1936). See also Ardison v. Villa, 248 F.2d 226, 227 (10th Cir. 1957). 24 Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995). 25 28 U.S.C. § 1446(b)(2)(A). See also Akin v. Ashland Chem. Co., 156 F.3d 1030, 1034–35 (10th Cir.1998). 26 Cornwall v. Robinson, 654 F.2d 685, 686 (10th Cir. 1981). 27 See Alaska Superior Court, Docket Information, http://www.courtrecords.alaska.gov/eservices/?x=mrG6bFDhSOvXbf4ppxuB9RCLna4DdoDRD15LzbCE5wnggvB 0sy4kUD*VoOXoYaTupdd5i8a2PTBEZf0rTUMgzA (last visited June 5, 2013). 28 Answer to Complaint In Rem, docket no. 5-1, filed Nov. 2, 2012. 4 to remove the case to this court. Not only were less than all required parties involved in removing the case, but the case has continued on in the Alaska Court without the presence of the Sherers.29 Clearly, because not all potential defendants joined in the removal, it is improper. In opposition to remand, the Sherers argue that this court should retain the case because of public policy reasons in the interest of justice. This is a venue and forum non conveniens argument.30 The Sherers also offer the hypothetical that they could have removed to federal court in Alaska, and then sought transfer to this district pursuant to 28 U.S.C. 1406(a).31 This argument fails because the district court in Alaska could not have transferred to this court because transfers are limited to a district that would properly have original jurisdiction,32 and what is more, the defendants did not choose that procedure. Finally, the defendants ask that the court use its “sua sponte powers” to retain the case “in the interests of justice.”33 The court has no power to act without subject-matter jurisdiction. Perkumpulan asks the court to award “the costs and expenses of this motion including reasonable attorneys’ fees.”34 This court does have jurisdiction to award costs and fees when remanding improperly removed cases.35 Perkumpulan alleges that removal was made “in bad faith, to seek to impede Plaintiff from pursuing rights of its members.”36 Perkumpulan states that Pia, Anderson, Dorius, Reynard & Moss, LLC (PADRM), the firm that has represented the 29 See Alaska Superior Court, Docket Information. 30 Opposition to Motion to Remand and for Attorneys’ Fees (Memorandum in Opposition) at 3, docket no. 8, filed Nov. 16, 2012. 31 Id. at 4–5. 32 See 28 U.S.C. § 1441(a). 33 Memorandum in Opposition at 5–6. 34 Memorandum in Support at 9. 35 28 U.S.C. § 1447(c). 36 Id. 5 Sherers, took title to patented mining claims in Alaska through an affiliate, PADRM Gold Mine, LLC.37 According to Perkumpulan, these mining claims were paid for with proceeds of the Ponzi Scheme and fraudulently conveyed to PADRM Gold Mine.38 PADRM Gold Mine filed several motions in the Alaska case on March 12, 2013, and Perkumpulan’s Alaska counsel responded that there was a stay on motions in Alaska, the Alaska court having no jurisdiction because of the removal.39 In response, counsel for PADRM Gold Mine, LLC wrote that after the Sherers and PADRM discussed the removal, the Sherers would withdraw their removal petition, eliminating the stay of motions in the Alaska case.40 In requesting costs and attorneys’ fees, Perkumpulan relies on the United States Supreme Court test outlined by Chief Justice Roberts in Martin v. Franklin Capital Corporation: The process of removing a case to federal court and then having it remanded back to state court delays resolution of the case, imposes additional costs on both parties, and wastes judicial resources. . . . The appropriate test for awarding fees under § 1447(c) should recognize the desire to deter removals sought for the purpose of prolonging litigation and imposing costs on the opposing party. . . . In light of these “large objectives,” the standard for awarding fees should turn on the reasonableness of the removal. Absent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal. Conversely, when an objectively reasonable basis exists, fees should be denied. In applying this rule, district courts retain discretion to consider whether unusual circumstances warrant a departure from the rule in a given case. . . . When a court exercises its discretion in this manner, however, its reasons for departing from the general rule should be “faithful to the purposes” of awarding fees under § 1447(c).41 Under this test, the defendants lack an objectively reasonable basis for seeking removal. As discussed above, the Sherers removed an in rem action against mining claims in Alaska to the 37 Objection to Withdrawal at 1. 38 Id. 39 Id. at 2. See also Jason Weiner letter, docket no. 15-1, filed Mar. 20, 2013. 40 Objection to Withdrawal at 2. 41 Martin v. Franklin Capital Corp., 546 U.S. 132, 140–41 (2005) (internal citations omitted). 6 wrong court in a separate and far-off federal district. Jurisdiction in this court is clearly absent. Furthermore, even if all these important deficiencies were not present, all the defendants did not join in removal. The case has continued in the Alaska Court regardless of the Sherers’s removal to this court, and the Sherers have actively participated in the Alaska proceedings by filing an Answer on April 8, 2013, during the pendency of the motions in this court. It is clear that the defendants lacked an objectively reasonable basis for seeking removal, and have since disregarded the proceedings in this court by participating in the Alaska Court. The Sherers request the court “consider the inexperience of the undersigned Pro Se parties.”42 Perkumpulan argues that Sherers’ refusal to hire an attorney should not insulate them from a fee award. This is especially true in this case where Donald Sherer (husband of Michelle Sherer and father of Jared Sherer) is a former attorney, and Michelle Sherer is represented by counsel in the Washington suit, including counsel located in Salt Lake City.43 Furthermore, all of the Sherers pleadings before this court have been lengthy and well formed, distinguishing them from average pro se filings. The Sherers even originally opposed remand and strategically briefed their opposition on the grounds of public policy and justice despite a lack of jurisdiction. The Sherers have proven obvious experience and capability within the law. Therefore, the court does not afford the defendant’s any pro se insulation, regardless of the availability of or refusal to hire counsel. Several circuits have held that district courts retain jurisdiction over the parties for purposes of the fee award continuing after remand,44 although the Tenth Circuit is silent. 42 Opposition to Partial Objection to “Withdrawal of Action” and Request for Attorneys’ Fees and Costs at 5, docket no. 16, filed Mar. 25, 2013. 43 Memorandum in Support at 8–9. 44 See Moore v. Permanente Med. Group, Inc., 981 F.2d 443, 448 (9th Cir. 1992) (district court retains jurisdiction to award fees after remand); Bryant v. Britt, 420 F.3d 161, 165 (2d Cir. 2005) (holding that “a district court has jurisdiction to resolve a motion for fees and costs under § 1447(c) after a remand order has issued”); 7 “It is well established that a federal court may consider collateral issues after the action is no longer pending. For example, district courts may award costs after an action is dismissed for lack of jurisdiction. This court has indicated that motions for costs or attorney's fees are independent proceedings supplemental to the original proceeding and not a request for modification of the original decree. Thus, even years after the entry of a judgment on the merits a federal court could consider an award of counsel fees.”45 This fee award is collateral to the decision to remand, and therefore this court retains jurisdiction over the parties for purposes of the fee award, separate from and continuing after the remand of this action to the Alaska Court. ORDER IT IS HEREBY ORDERED that Perkumpulan’s Motion to Remand46 is GRANTED. IT IS FURTHER ORDERED THAT Perkumpulan’s request for costs and attorneys’ fees are GRANTED in that: 1. Perkumpulan shall file a separate motion for and proof of costs and attorney’s fees within 14 days of this Order. 2. Sherers may respond within 14 days of the filing of Perkumpulan’s motion and proof of costs and attorneys’ fees. Signed June 5, 2013. BY THE COURT ________________________________________ District Judge David Nuffer Testing Serv., 99 F.3d 1253, 1260 (3d Cir. 1996 (holding that district courts have broad discretion in fee awards under 28 U.S.C. § 1447(c ; Stallworth v. Greater Cleveland Reg. Transit Auth., 105 F.3d 252, 254–57 (6th Cir. 1997) (holding that a district court may make an award of attorney’s fees and costs in a separate order after issuing a remand order); and Wisconsin v. Hotline Indus., Inc., 236 F.3d 363, 365–68 (7th Cir. 2000) (holding that a district court retains jurisdiction to consider collateral matters after remand, and attorneys’ fees may be awarded under a separate order, even when remand is based on the defendant’s voluntary stipulation). 45 Cooter & Gell v. Hartmarx, 496 U.S. 384, 395–96 (1990) (upholding Rule 11 sanctions imposed after the plaintiff voluntarily dismissed the action). 46 Docket no. 4, filed Nov. 2, 2012. 8

=== Summary Judgment Order ===

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION ASPEN SPECIALTY INSURANCE COMPANY, v. Plaintiff, MEMORANDUM DECISION AND ORDER GRANTING SUMMARY JUDGMENT ON DUTY TO DEFEND; STAYING PROCEEDINGS; AND DENYING MOTION TO STRIKE UTAH LOCAL GOVERNMENTS TRUST AND ULGIT MARKETING INC., Case No. 2:12-cv-00176 DN District Judge David Nuffer Defendant. Table of Contents Case Overview ................................................................................................................................ 1 Motion to Strike .............................................................................................................................. 1 Motion for Summary Judgment ...................................................................................................... 2 Issues and Claims in this Case and Motions ....................................................................... 2 Undisputed Facts ................................................................................................................. 3 Construction of Insurance Policies ..................................................................................... 4 Duty to Defend and Duty to Indemnify .............................................................................. 4 Duty to Indemnify Not Ripe for Determination ................................................................. 5 Duty To Defend .............................................................................................................................. 9 Analysis of the Policy ......................................................................................................... 9 Effect of Definition of Claims Expenses .......................................................................... 11 Effect of Exclusions on Duty to Defend ........................................................................... 13 ORDER ......................................................................................................................................... 14 CASE OVERVIEW This case is a dispute between an insurer and an insured, in which each seeks declaration of its rights and duties under the insurance agreement. The duty of the insurer to defend a suit in Utah State court and the duty of the insurer to pay claims in that case are both presented on opposing motions for summary judgment. This order grants summary judgment, declaring that the insurer has the duty to defend the state case, and otherwise stays the case until the conclusion of the state case. MOTION TO STRIKE The insurer filed a motion to strike1 the insured’s cross-motion for summary judgment,2 because “it was filed well after the dispositive motion deadline. Defendants did not request an extension or otherwise seek the Court’s permission to file their untimely motion . . . .”3 The motion to strike is denied. “Rule 56 expressly declares that ‘the court may . . . grant summary judgment for a nonmovant . . . or consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute.’”4 Failure to take this well-briefed opportunity to move this case toward resolution would be contrary to the mutual goal of court and counsel “to secure the just, speedy, and inexpensive determination of every action and proceeding.”5 1 Docket no. 38, filed April 15, 2013. 2 [ULGT’s] Cross Motion for Summary Judgment and Supporting Memorandum (Cross Motion 37) at v, docket no. 37, filed April 1, 2013. 3 Id. at 2. 4 Memorandum in Opposition to Aspen’s Motion to Strike Defendants’ Cross Motion for Summary Judgment at 2, docket no. 40, filed April 24, 3013. 5 Fed. R. Civ. P. 1 1 MOTION FOR SUMMARY JUDGMENT Issues and Claims in this Case and Motions Aspen, the insurer, filed this declaratory action, alleging nine causes of action. The defendants are Utah Local Governments Trust and ULGIT Marketing, Inc. which are collectively referred to as ULGT. ULGT claims there is no case or controversy as to Aspen’s first cause of action, relating to a distinct third party claim (QBE/Unigard Case).6 That absence of a real issue is dependent on the current posture of that case.7 Therefore that cause of action will be dismissed without prejudice. The eight other claims relate to a single third party claim (Jamison Counterclaim), and are at issue. Four causes of action seek a declaration that Aspen’s policy does not require a defense to the Jamison Counterclaim, and four seek to declare that Aspen has no duty to defend or indemnify on the Jamison Counterclaim. ULGT’s counterclaim “seeks a declaration from this Court that Aspen is obligated to provide coverage under the Policy and defense [sic] ULGT with respect to the [Jamison] counterclaims.”8 Both parties move for summary judgment on all claims remaining after adjudication of Aspen’s first cause of action. 6 “The first claim [in the Third Amended Complaint] seeks a declaration that Aspen is not obligated to indemnify ULGT with respect to the Unigard/QBE lawsuit – a proposition ULGT does not contest.” Cross Motion 37 at v. See Third Amended Complaint for Declaratory Judgment at 9, docket no. 30, filed December 14, 2012. 7 Cross Motion 37 at vi. 8 Answer to Third Amended Complaint and Counterclaim of Utah Local Governments Trust at 9, ¶ 6, docket no. 34, filed March 8, 2013. 2 Undisputed Facts The following factual statements from ULGT’s motion for summary judgment are not disputed.9 1. 2. ULGT is a Utah public agency insurance mutual. ULGT obtained a “Trustees Errors & Omissions Liability Insurance” Policy from Aspen. The Policy names ULGT (both Utah Local Governments Trust and ULGIT Marketing) as insureds. A copy of the Policy is docket entry 2-4 in this case, filed February 13, 2012. 3. ULGT currently is the plaintiff in a lawsuit against Don Jamison, which is pending in the Third Judicial District Court for the State of Utah (Jamison Case). Jamison previously was an insurance agent for Unigard Insurance Company (Unigard). In the Jamison Case, ULGT alleges Jamison improperly received millions of dollars that properly belong to ULGT. 4. Jamison responded to ULGT’s claims by, among other things, filing a counterclaim complaint (Jamison Counterclaim). A copy of the Jamison Counterclaim is docket entry 22-4 in this case, filed October 1, 2012. The Jamison Counterclaim asserts five causes of action and are titled: (1) Breach of Contract; (2) Breach of the Covenant of Good Faith and Fair Dealing; (3) Intentional and Negligent Infliction of Emotional Distress; (4) Punitive Damages; and (5) Attorneys Fees and Litigation Expenses. ULGT tendered the defense of the Jamison Counterclaim to Aspen, which Aspen accepted subject to a reservation of rights. Aspen then filed this declaratory judgment action, seeking to establish it has no defense or indemnity obligations with respect to the Jamison Counterclaim. 9 Plaintiff Aspen Specialty Insurance Company’s Opposition to Defendants’ Cross-Motion for Summary Judgment (Aspen Opposition 41) at 3-5, docket no. 41, filed May 2, 2013. Some of the text of these statements has been deleted because it is not material, and some text has been altered to resolve technical points of dispute. References to documents in the record have been added. 3 5. The Jamison Case is pending, and judgment has not been rendered on any of the Jamison Counterclaims. Construction of Insurance Policies “An insurance policy is merely a contract between the insured and the insurer and is construed pursuant to the same rules applied to ordinary contracts.”10 But insurance policies will be “construed liberally in favor of the insured and their beneficiaries so as to promote and not defeat the purposes of insurance.”11 “[P]rovisions that limit or exclude coverage should be strictly construed against the insurer.”12 Utah courts give the language in insurance policies its plain meaning.13 The wording is given the meaning it has for laypersons in daily usage.14 “[T]he terms of insurance contracts . . . should be read as a whole, in an attempt to harmonize and give effect to all of the contract provisions.”15 But, “if an insurance contract has inconsistent provisions, one which can be construed against coverage and one which can be construed in favor of coverage, the contract should be construed in favor of coverage.” 16 Duty to Defend and Duty to Indemnify Like most insurance agreements, the policy in this case includes a duty to defend, and a duty to indemnity. “An insurer’s duty to defend a lawsuit against its insured is both separate and 10 Alf v. State Farm Fire and Cas. Co., 850 P.2d 1272, 1274 (Utah 1993). 11 USF&G v. Sandt, 854 P.2d 519, 521 (Utah 1993)(quoting Richards v. Standard Acc. Ins., Co., 200 P. 1017, 1020 (Utah 1921 . 12 USF&G v. Sandt, 854 P.2d at 523. 13 Marriott v. Pac. Nat’l Life Assurance Co., 467 P.2d 981, 983 (Utah 1970). 14 Fuller v. Director of Finance, 694 P.2d 1045, 1046-47 (Utah 1985). 15 Nielsen v O’Reilly, 848 P.2d 664, 665 (Utah 1992). 16 USF&G, 854 P.2d at 523. 4 distinct from the insurer’s duty to indemnify its insured for liability that is imposed against the insured after trial.”17 These two duties are thus different in time and in scope. The duty to defend is assessed when a claim is asserted against the insured, but the duty to indemnify is determined only when the true scope of the insured’s liability has been adjudicated or agreed.18 The time gap permits the insured a defense when a claim is asserted, but reserves all issues on payment by the insurer until the nature of the claim is decided. “[A]n insurer’s duty to defend is broader than its duty to indemnify.”19 “When there are covered and non-covered claims in the same lawsuit, the insurer is obligated to provide a defense to the entire suit . . . .”20 “[A]n insurer may have a duty to defend an insured even if . . . the insurer is ultimately not liable to indemnify the insured.”21 Duty to Indemnify Not Ripe for Determination Because the duty to defend arises when the claim or suit initiates, a declaration of that duty is appropriate earlier than a declaration of the duty to indemnify or pay. The duty to indemnify can only be determined after final adjudication of the merits of the allegedly insured claim. “The duty to indemnify relates to liability actually imposed on the insured for claims falling within the scope of coverage.”22 For this reason, cases seeking declaratory relief often adjudicate first the duty to defend and defer consideration of the duty to indemnify. “Put simply, ‘[a] declaratory judgment action to determine an insurer’s duty to indemnify its insured, brought prior to a determination of the insured’s liability, is premature since the question to be 17 14 Couch on Insurance. § 200:3 18 Id. 19 Sharon Steel Corp. v. Aetna Cas. & Sur. Co., 931 P.2d 127, 133 (Utah 1997) 20 Benjamin v. Amica Mut. Ins. Co., 140 P.3d 1210, 1216 (Utah 2006)(citations and alteration omitted). 21 Fire Ins. Exch. v. Estate of Therkelsen, 27 P.3d 555, 560 (Utah 2001). 22 Mount Vernon Fire Ins. Co. v. Okmulgee Inn Venture, LLC, 451 Fed.Appx. 745, 749 (10th Cir. 2011)(emphasis added). 5 determined is not ripe for adjudication.’” 23 “[T]he duty to indemnify must await resolution of the underlying suits.”24 Illustrating the breadth of the duty to defend and the need to defer the determination of indemnification, Harbin v Assurance Co. of America25 held that an insurer had a duty to defend a case, even though the “state court action judgment . . . sought [recovery] for injuries resulting from an intentional assault” while “[t]he policy impose[d] no liability on the insurer for such injuries.”26 “[T]he claim may ultimately be established to be within policy coverage. While at the moment we cannot conceive of an unintentional assault, the possibility remains that a judgment may ultimately be entered in the state action imposing liability on the basis of unintentional conduct of the insured.”27 “Intent is to be determined . . . by the finder of the facts in the lawsuit brought by the claimant of the injuries.”28 “[R]ecovery may be had on grounds not asserted in the complaint. The possibility that recovery in the state court action may be within the policy coverage cannot be ignored.”29 Aspen cites a case30 setting out the framework for a court’s discretionary decision to grant or refuse (or defer) declaratory relief. “[T]he district court is not obliged to entertain every justiciable declaratory claim brought before it. The Supreme Court has long made clear that the 23 United Nat’l Ins. Co. v. Dunbar & Sullivan Dredging Co., 953 F.2d 334, 338 (7th Cir. 1992)(quoting Maryland Cas. Co. v. Chicago & Northwestern Transp. Co., 466 N.E.2d 1091, 1095–96 (1984 . 24 United Nat’l Ins. Co,. 953 F.3d at 338. 25 308 F.2d 748 (10th Cir. 1962). 26 Id. at 750. 27 Id. 28 Id. at 749-50. 29 Id. at 750. 30 State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979 (10th Cir. 1994) 6 Declaratory Judgment Act ‘gave the federal courts competence to make a declaration of rights; it did not impose a duty to do so.’”31 The case sets forth factors district courts should consider. • Will a declaration of rights, under the circumstances, serve to clarify or settle legal relations in issue? • Will it settle the controversy? • Is the declaratory remedy being used merely for the purpose of procedural fencing or to provide an arena for a race to res judicata? • Will use of a declaratory action increase friction between federal and state courts and improperly encroach upon state jurisdiction? • Is there an alternative remedy which is better or more effective?32 Under these criteria, Aspen’s duty to defend should be determined now, but the declaration of a duty to indemnify should be reserved. The duty to defend needs to be decided before the Jamison Case is over. Aspen needs to provide that defense. Proceeding on the duty to indemnify now would require ULGT/ULGIT to advocate the various theories of Jamison’s counterclaim in this action while simultaneously resisting those claims in state court. That would be a strange circumstance. And any decision in this case on the duty to indemnify based on a simulated understanding of the Jamison outcome could be entirely defeased by developments in the Jamison Case. Declaratory decision of the duty to pay should not precede resolution of the many uncertainties ahead in the Jamison litigation. Declaratory decision of the duty to pay by this court will not end the Jamison Case. Litigation of all the Jamison theories here would be a wasteful duplication of the state court process. The decision on the duty to indemnify should be deferred until judgment is entered (or settlement reached) in the Jamison Case. 31 Id. at 982 (quoting Pub. Affairs Assocs., Inc. v. Rickover, 369 U.S. 111, 112 (1962 . 32 Mhoon, 31 F.3d at 983. 7 None of the other cases on which Aspen relies help Aspen’s position that the duty to indemnify should be determined now. • Maryland Casusalty Co. v. Pacific Coal & Oil Co.33 holds that a declaratory action between an insured and insurer while a state court action is pending does state a cause of action under the Declaratory Judgment Act because there is an actual controversy. • American States Insurance Co. v. Kearns34 decided that a lower court was in error for dismissing rather than staying a declaratory action while a state action against the insured was pending. (Notably, that insurer defended the state action while pursuing the federal declaratory action.) • Allendale Mutual Insurance Co. v. Kaiser Engineers35 permitted a declaratory action regarding subrogation rights – not coverage – to move forward after judgment in a state case in favor of the insurer and against the insured, because the statute of limitations on the insurer’s subrogation claim would likely expire during the state appeal. “The contingent nature of the right or obligation in controversy will not bar a litigant from seeking declaratory relief when the circumstances reveal a need for a present adjudication.”36 No such circumstances exist here. • Seguros Tepeyac, S.A. v. Jernigan37 affirmed the validity of a declaratory judgment against the insurer as to future payments yet unmade to a third party who already held a judgment against the insured. • In re: Aramark Sports & Enertainment Services., LLC,38 decided under admiralty law and the Shipowner’s Liability Act of 1851,39 held that enforceability of an indemnity and exculpatory provision in a boat rental contract was ripe for declaratory decision even though the negligence claims between the owner/lessor and lessee and boat passengers were not yet resolved. But significantly, the court held the owner/lessor had to “defend against the claims [of the boat occupants] (and resolve them) before seeking indemnification from [the boat lessee].”40 Decision on the duty to indemnify will be reserved until resolution of the Jamison Counterclaims. 33 312 U.S. 270 (1941). 34 15 F.3d 142 (9th Cir.1994). 35 804 F.2d 592 (10th Cir. 1986). 36 Id. at 594. 37 410 F.2d 718, 729 (5th Cir. 1969). 38 No. 2:09–CV–637–TC, 2012 WL 3776859 (D. Utah Aug. 29, 2012), 39 46 U.S.C. §§ 30501–30512. 40 In re Aramark, 2012 WL 3776859, at *7. 8 DUTY TO DEFEND Analysis of the Policy The policy contains: • Declaration (two pages); • Schedule of Applicable forms (one page); • Trustees Errors & Omissions Liability Policy (seven pages, nine major sections); • Employment Practices Liability Insurance Coverage Endorsement (three pages, six major sections, replacing Exclusion E. in the Trustee’s Policy); and • Nine endorsements. The Trustees Errors & Omissions Liability Policy separately states the duty to indemnify and the duty to defend. The duties are described in two distinct sections. I. INSURING AGREEMENTS Trustees Errors and Omissions Liability Policy The Company will pay on behalf of the Insured loss which the Insured shall become legally obligated to pay as a result of a Claim first made against the Insured during the Policy Period or the Extended Reporting Period, if applicable, for a Wrongful Act which takes place during or prior to the Policy Period. Provided, however, as a condition precedent to any such coverage under this Insuring Agreement, the Insured shall report such Claim to the Company as soon as practicable but in no event later than sixty (60) days after the termination of the Policy Period or Extended Reporting Period, if applicable. V. DEFENSE AND SETTLEMENT The Company shall defend any Claim, even if any of the allegations of the Claim are groundless, false or fraudulent. The Company shall investigate the Claim and, with written consent of the Insured, shall settle or compromise any Claim as it deems appropriate. If the Insured refuses to consent to any settlement or compromise recommended by the Company and acceptable to the claimant, then the Company’s liability for the Claim shall not exceed the amount which the Company would have paid for Damages and Claim Expenses at the time the Claim could have been settled or compromised.41 41 Docket no. 2-4, filed February 13, 2012. 9 Both of these sections use the defined term “Claim” which appears in Section III, Definitions. III. DEFINITIONS B. Claim means: 1) a written demand for civil damages or other civil relief that appears reasonably likely to involve payment under this Policy commenced by the Insured’s receipt of such demand, 2) civil proceeding commenced by the service of a complaint or similar pleading, or [sic]42 The first clause of the “Claim” definition makes reference to coverage under the policy. The second clause does not. There is no dispute that the Jamison Counterclaim is a “civil proceeding commenced by the service of a complaint or similar pleading.”43 Therefore it appears from the plain language of the policy that Aspen is obligated to defend the Jamison Counterclaim. This is an unusual duty to defend provision. In reported cases which quote the duty to defend clause under consideration, the clauses have some reference to coverage, similar to the reference contained in the first clause of this policy’s definition of “Claim.” For example, in Benjamin v Amica Mutual Insurance Co.44 the clause read: If a claim is made or a suit is brought against an insured for damages because of bodily injury ... caused by an occurrence to which coverage applies, [Amica] will: .... 2. Provide a defense at [Amica’s] expense by counsel of [Amica’s] choice, even if the suit is groundless, false or fraudulent.45 In Fire Insurance Exchange v. Rosenberg, the clause stated: “At our expense and with attorneys of our choice, we will defend an insured against any covered claim or suit.46 The clauses 42 Id. 43 Id. 44 140 P.3d 1210 (Utah 2006). 45 Id. at 1214. 46 930 P.2d 1202, 1203 (Utah Ct. App. 1997). 10 considered in those cases wrap consideration of coverage into the duty to defend. Aspen’s policy does not. Because most policy language relates the duty to defend to coverage, cases speak of the need to compare the policy to the complaint, or even to external facts, if the policy requires that comparison. “[W]hen the terms of an insurance contract condition the duty to defend upon allegations contained on the face of the complaint, ‘extrinsic evidence is irrelevant to ... determin[e] ... whether a duty to defend exists.’”47 This is sometimes referred to as an “eight- corners” analysis.48 “On the other hand, when policy terms define the scope of the duty to defend in reference to something other than the allegations in the complaint, a court may look beyond the text of the complaint . . . .”49 This may be necessary if the policy qualifies the duty to defend by some external fact. In this policy, the insurer’s duty to defend any “civil proceeding commenced by the service of a complaint or similar pleading” does not refer to coverage under the policy or to any external fact. Therefore, under the Aspen policy section establishing a duty to defend, Aspen must defend the Jamison Counterclaim because ULGIT and ULGT are insured by Aspen. Effect of Definition of Claims Expenses Aspen argues that the definition of Claims Expenses in the policy defeases its broad duty to defend.50 C. Claims Expenses means that portion of loss consisting of reasonable and necessary fees (including attorneys’ fees and experts’ fees) and expenses incurred in the defense or 47 Equine Assisted Growth and Learning Ass’n v. Carolina Cas. Ins. Co., 266 P.3d 733, 736 (Utah 2011)(citing and quoting Fire Insurance Exchange v. Estate of Therkelsen, 27 P.3d 555, 561 (Utah 2001). 48 Equine Assisted Growth, 266 P.3d at 737-38. 49 Id. at 736. 50 Plaintiff Aspen Specialty Insurance Company’s Reply in Support of its Motion for Summary Judgment at 8, docket no. 39, filed April 18, 2013. 11 appeal of a Claim, but shall not include the wages, salaries, benefits or expenses of the Insureds. This definition alone would not exclude the Jamison Counterclaim from the duty to defend, because it is a “civil proceeding commenced by the service of a complaint or similar pleading” and thus qualifies as a Claim. Nothing in the duty to defend section or Claim definition refers to Claims Expenses. But Aspen also bases its argument on the entirely separate sections of EXCLUSIONS and INSURING AGREEMENTS. [T]he preamble to Section II, Exclusions, makes clear that the Exclusions may be used to negate a duty to defend. Specifically, Section II of the Policy states: The Company is not obligated to [sic] Damages or Claims Expenses for any Claim based upon, arising out of, directly or indirectly resulting from or in consequence of, or in any way involving: [various exclusions are listed] . . . . Aspen therefore has no duty to defend and/or pay “Claims Expenses” if any exclusion (or multiple exclusions) applies to preclude coverage for the claims at issue.51 Aspen’s fallacy is its attempt to tie the policy exclusions to its duty to pay established in Section I into the duty to defend established in Section V. Aspen claims “the preamble to Section II, Exclusions, makes clear that the Exclusions may be used to negate a duty to defend.”52 But the preamble to Section II, Exclusions says no such thing. Aspen quotes Section II, Exclusions (supra) but omits in its quotation the key word “pay.” The preamble actually reads: The Company is not obligated to pay Damages or Claims Expenses for any Claim based upon, arising out of, directly or indirectly resulting from or in consequence of, or in any way involving: 51 Aspen Opposition 41 at 25. 52 Id. 12 The policy exclusions in Section II apply to the duty to pay established in Section I, and do not, by the express language of the preamble to Section II, apply to the duty to defend established in Section V. The question of whether Aspen may not be obligated to indemnify for Claims Expenses arising out of excluded subject matter will be reserved for later decision,53 but Aspen is obligated to defend all Claims. Effect of Exclusions on Duty to Defend As has been stated before, most insurance agreements tie the duty to defend to the coverage of the policy. In this policy, Aspen is only obligated to defend unfiled demands if they (a) seek civil damages or other civil relief; (b) appear reasonably likely to involve payment under the policy; and (c) the insured has received the demand. But Aspen’s duty to defend civil proceedings has no such limitations. And the Exclusions in the policy deal only with the duty to pay, not the duty to defend. The language in reported cases about the duty to defend depending on “whether the complaint alleges a risk within the coverage of the policy”54 assumes that the policy terms subject the duty to defend to a limitation related to payment coverage. There is no generalized law outside the terms of insurance agreements limiting the duty to defend to the terms of payment coverage. The parties’ agreement controls. Given the broad language of the duty to defend which arises when suit is brought against the insured, it is not necessary to examine the payment coverage exclusions. 53 Allowing Aspen to repudiate defense of the Jamison Case (as it has done) and then assert it is not obligated to pay defense expenses incurred by ULGT involves many issues not briefed or ripe. 54 Benjamin, 140 P.3d at 1214 (citations and quotations omitted). 13 ORDER IT IS HEREBY ORDERED, ADJUDGED AND DECREED that ULGT’s Cross Motion for Summary Judgment55 is GRANTED IN PART AND DENIED IN PART and Aspen Specialty Insurance Company’s Motion for Summary Judgment56 is GRANTED IN PART AND DENIED IN PART. IT IS FURTHER ORDERED that Aspen Specialty Insurance Company has the duty to defend the Jamison Counterclaim. ULGT is granted summary judgment on its counterclaim that Aspen must defend “ULGT with respect to the counterclaims Jamison has asserted against ULGT.”57 The issue of attorneys’ fees and expenses on this claim is reserved. IT IS FURTHER ORDERED that Aspen’s first cause of action of the Third Amended Complaint for declaratory judgment is dismissed without prejudice. IT IS FURTHER ORDERED that the balance of this case is stayed pending resolution of the Jamison Case. The parties shall file status reports on the Jamison Case on January 31, April 30, July 31 and October 31 of each year, and within fourteen days of resolution of that case. This case will be administratively closed pending the resolution of the Jamison Case. 55 Docket no. 37, filed April 1, 2013. 56 Docket no. 31, filed February 28, 2013. 57 Answer to Third Amended Complaint and Counterclaim of Utah Local Governments Trust at 9, ¶ 6, docket no. 34, filed March 8, 2013. 14 IT IS FURTHER ORDERED that trial and related dates are STRICKEN. IT IS FURTHER ORDERED that Plaintiff’s motion to strike58 is DENIED. Signed June 4, 2013. BY THE COURT ________________________________________ District Judge David Nuffer 58 Docket no. 38, filed April 15, 2013. 15

=== Sample Motion to Invoke Right to Physical Presence at Sentencing ===

Case 4:18-cr-00023-DN-EJF Document 115 Filed 05/22/20 Page 1 of 3 Thomas Weber (12709) Weber Law 11629 S 700 E Ste. 160 Draper, UT 84020 Attorney: (801)897-1621 [email protected] Calendaring: (385)743-0185 [email protected] fax: (801)906-6440 IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH UNITED STATES OF AMERICA, : MOTION TO INVOKE OF Plaintiff, : PHYSICAL PRESENCE AT SENTENCING HEARING RIGHT TO -vs- : Francisco Perez Medina, : Case No. 4:18-cr-00023 Defendant. : The Defendant, Francisco Medina Perez, by and through counsel of record, Thomas Weber, invokes his right to be present physically at his sentencing hearing and accordingly requests the sentencing hearing set for Tuesday, May 26, 2020 be continued to a time when he can do so. Mr. Perez Medina bases his motion upon the following grounds: Case 4:18-cr-00023-DN-EJF Document 115 Filed 05/22/20 Page 2 of 3 1. He is aware of his right to be physically present at his sentencing hearing and to address the court directly prior to imposition of sentencing. Defendant hereby reasserts his desire to appear in person before the court to exercise his right of allocution. 2. Mr. Lopez-Hernandez is aware that under General Orders 20-011 and 20-012, in effect in this district, his right to be present physically at his sentencing hearing is limited due the Coronavirus Pandemic until June 15, 2020. In addition, he is aware those orders would allow him to participate by telephone or video link instead of in person at the sentencing hearing on Tuesday, May 26, 2020. 3. He asserts his right to appear in person and allocute prior to sentencing. He acknowledges that not waiving his right to physical presence and consenting to proceed with a telephonic or video 2 Case 4:18-cr-00023-DN-EJF Document 115 Filed 05/22/20 Page 3 of 3 hearing means that his sentencing hearing will need to be set later due to health and safety concerns arising from the Pandemic. 4. With all these considerations in mind, he knowingly and voluntarily invokes his right to appear in person at sentencing and speak directly to the district court at that time. Defendant requests the court reschedule the sentencing hearing in this matter to a date and time when he may appear in person before this court consistent with his rights. DATED this 5/22/2020. / s / Thomas D. Weber Thomas D. Weber Attorney for Francisco Perez Medina 3

=== Jury Courtroom Seating Chart ===

JUROR SEATING CHART FOR SALT LAKE CITY 70 69 68 67 66 65 64 63 62 61 60 59 58 57 43 44 45 46 47 48 49 43 50 51 52 53 54 55 56 42 41 40 39 38 37 36 35 34 33 32 31 30 29 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 13 12 11 10 9 8 7 6 5 4 3 2 1 BENCH JUROR SEATING CHART FOR SALT LAKE CITY (SOUTH SIDE ONLY) 35 34 33 32 31 30 29 43 22 23 24 25 26 27 28 21 20 19 18 17 16 15 8 7 9 6 10 11 12 13 14 5 4 3 2 1 BENCH JUROR SEATING CHART FOR 12-PERSON JURY IN ST. GEORGE Gallery 35 36 37 38 39 40 CSO 41 42 43 44 45 46 47 34 33 32 31 30 29 28 27 26 25 24 23 13 14 15 16 17 18 19 20 21 22 6 7 8 1 Jury Box 9 2 10 3 11 4 12 5 JUROR SEATING CHART FOR 13-PERSON JURY IN ST. GEORGE Gallery 36 37 38 39 40 41 CSO 42 43 44 45 46 47 48 35 34 33 32 31 30 29 28 27 26 25 24 14 15 16 17 18 19 20 21 22 23 7 8 1 9 2 Jury Box 10 3 11 4 12 5 13 6 JUROR SEATING CHART (WITH EXTRA CHAIRS) FOR 13-PERSON JURY IN ST. GEORGE Gallery 66 65 64 63 62 61 CSO 60 59 58 57 56 55 54 40 41 42 43 44 45 46 47 48 49 50 51 52 53 39 38 37 36 35 34 33 32 31 30 29 28 27 26 14 15 16 17 18 19 20 21 22 23 24 25 7 8 1 9 2 Jury Box 10 3 11 4 12 5 13 6 COUNSEL TABLES AND 12-PERSON JURY IN ST. GEORGE Plaintiffs C B A A B C D e f e n d a n t s 6 7 8 1 9 2 Jury Box 10 11 12 3 4 5 COUNSEL TABLES AND 13-PERSON JURY IN ST. GEORGE Plaintiffs C B A A B C D e f e n d a n t s 7 8 1 9 2 Jury Box 10 11 12 13 3 4 5 6

=== Sample Deposition Designation ver 1 ===

Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10663 Page 1 of 478 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH UNITED STATES OF AMERICA, Plaintiff, v. RONALD B. TALMAGE, and ANNETTE C. TALMAGE, Defendants, and ORDER RULING ON OBJECTIONS TO PRETRIAL DEPOSITION DESIGNATIONS WESTERN LAND & LIVESTOCK, LLC, and WESTERN RESERVE MORTGAGE, LLC, Case No. 1:16-cv-00019-DN-PMW District Judge David Nuffer Defendants and Counterclaim Plaintiffs, v. UNITED STATES OF AMERICA, Counterclaim Defendant. The parties served designations for deposition testimony to be presented at trial. The parties filed with the court their objections to the deposition designations and responses thereto.1 Based on the submissions, and for good cause appearing: IT IS HEREBY ORDERED that the objections are overruled or sustained as indicated in the attached forms. 1 Notice of Paul Judd Deposition Designation Form, docket no. 261, filed June 6, 2019; Notice of Sara Watkins Deposition Designation Form, docket no. 262, filed June 7, 2019; Notice of Korianton Talmage Deposition Designation Form, docket no. 263, filed June 7, 2019; Notice of Kumiko Talmage Deposition Designation Form, docket no. 264, filed June 7, 2019; Notice of Lillian Wilkins Deposition Designation Form, docket no. 265, filed June 7, 2019; Notice of Lisa Allen Deposition Designation Form, docket no. 266, filed June 7, 2019. Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10664 Page 2 of 478 IT IS FURTHER ORDERED that, in preparing the deposition testimony for presentation at trial, all objections in the depositions and any responses of counsel thereto should be removed and not presented. Signed June 25, 2019. BY THE COURT: ____________________________ David Nuffer United States District Judge 2 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10665 Page 3 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Depo Exs. 107-129 PLAINTIFF DESIGNATIONS DEFENDANT -DESIGNATIONS 7:1·PROCEEDINGS 7:2 7:3·THE VIDEOGRAPHER:· We will now go on the record. 7:4·My name is Mitch Popa, video specialist with the John 7:5·Young Group, 2635 Fairway Drive, Pocatello, Idaho. 7:6·The court reporter is Janet French of M&M Court 7:7·Reporting.· We are here today, August 30, 2017, at 7:8·approximately 10:08 a.m.· Our location is the 7:9·Larsen-Sant Public Library, 109 South 1st East, 7:10·Preston, Idaho 83263 to videotape the deposition of 7:11·Paul Judd. 7:12·This deposition is being taken at the 7:13·instance of the defendant in the United States 7:14·District Court for the District of Utah in the matter 7:15·of the United States of America, plaintiff, versus 7:16·Ronald B. Talmage, et al., Case No. 116-CV-00019. 7:17·Will the attorneys for the parties please 7:18·introduce themselves and state who they represent and 1 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10666 Page 4 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 7:19·then the court reporter will swear the witness. 7:20·MR. INGRAM:· William Ingram on behalf of the 7:21·Western parties, and I also have participating by 7:22·phone John Wadsworth who is the corporate 7:23·representative of the Western parties. 7:24·MS. GOLDEN:· Jennifer Golden on behalf of the 7:25·United States. 8:1· MR. HALVERSON:· Alex Halverson on behalf of the 8:2· United States. 8:3 8:4·PAUL L. JUDD, 8:5· first duly sworn to tell the truth relating to said 8:6· cause, testified as follows: 8:7 8:8· EXAMINATION 8:9· QUESTIONS BY MR. INGRAM: 8:10· ·Q.· ·Good morning, Mr. Judd. 8:11·A.· ·Good morning. 8:12· Q.· ·Thank you for coming today.·Can you please 8:13· state your full name and address for the record. 8:14·A.·Paul Linn Judd, 2616 North State Street, 8:15·Preston, Idaho. 8:16·Q.·And your telephone number? 2 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10667 Page 5 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 8:17·A.·(208) 240-8296. 8:18·Q.·Thank you.· Have you ever had your 8:19·deposition taken before? 8:20·A.·A long time ago.· One time. 8:21·Q.·When you say "a long time ago," is this 8:22·decades or less? 8:23·A.·Yeah, decades. 8:24·Q.·Okay.· Then it's probably a good idea for me 8:25 to go through a couple things.· You are under oath 9:1· today the same as if you were testifying in court. 9:2·Do you understand that? 9:3·A.· ·I do. 9:4·Q.·Okay.· We have a court reporter who will be 9:5· taking a record of everything that is said today -- 9:6· spoken, so if you can, let's try to avoid inaudible 9:7· responses like "uh-huhs," "unh- unhs," head shakes, 9:8· head nods just to help the court reporter make a clear 9:9· record. 9:10·Is that all right? 9:11·A.· ·Sure. 9:12·Q.· ·Okay.· Let's try not to speak over one 9:13· another.· Sometimes you may anticipate an answer to my 3 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10668 Page 6 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 9:14· question before I finish it.· Just so the record is 9:15· clear, if you wouldn't mind just letting me finish my 9:16· question before you give an answer.· On the same side 9:17· of that, if you are not done giving an answer, let me 9:18· know, and I will be quiet so that you can give your 9:19· complete answer for the record. 9:20· A.· ·Okay. 9:21· Q.· ·Is that fair? 9:22· If you need to take a break, let me know. 9:23· This isn't a marathon.· The only part of that though, 9:24· is if there is a pending question, I may ask you to 9:25· give an answer to that pending question before we take 10:1· a break.· But at any moment, if you need to take a 10:2· break, just let me know.· In fact, after we go for a 10:3· while, I'll probably ask that we take a break here and 10:4· there. 10:5· · · ·A.· ·Okay. 10:6· · · ·Q.· ·Occasionally you may have -- or there may be 10:7· an objection or some sort of comment made by counsel 10:8· for the United States.· That's fine.· Let them make 4 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10669 Page 7 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 10:9· their record there, whatever that may be, but once 10:10· they're done, I'll expect you to give me a complete 10:11· response to my question, if that's all right? 10:12· · · ·A.· ·Sure. 10:13· · · ·Q.· ·Okay.· If you don't understand something I'm 10:14· asking, let me know.· Otherwise I will assume that by 10:15· you giving an answer to my question, you understand 10:16· what I'm asking. 10:17· · · · · · Is that fair? 10:18· · · ·A.· ·Sure. 10:19· · · ·Q.· ·Okay.· Are you sleep deprived or on any sort 10:20· of medication or substance that would prevent you from 10:21· giving truthful testimony to the best of your 10:22· recollection today? 10:23· · · ·A.· ·No. 10:24· · · ·Q.· ·Any reason why we shouldn't proceed with the 10:25· deposition today? 11:1· · · ·A.· ·No. 11:2· · · ·Q.· ·Okay.· Have you ever been -- and I apologize 11:3· in advance for asking this, but ever convicted of a or 11:4· charged with a crime? 11:5· · · ·A.· ·No. 5 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10670 Page 8 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 11:6· · · ·Q.· ·Okay.· Starting with where you went to high 11:7· school, can you give me just a very brief synopsis of 11:8· your educational history? 11:9· · · ·A.· ·I graduated from Minico High School in 11:10· Rupert, Idaho.· Went to Ricks College and graduated 11:11· from Ricks College, which is now BYU-Idaho.· And then 11:12· in between that I went on an LDS mission, and then 11:13· other than that, I've worked all my life. 11:14· · · ·Q.· ·Did you obtain a degree from Ricks? 11:15· · · ·A.· ·Yes. 11:16· · · ·Q.· ·And what's your degree? 11:17· · · ·A.· ·I believe it was arts and sciences.· I don't 11:18· remember the exact title. 11:19· · · ·Q.· ·And if you can, give me just a brief 11:20· synopsis of your occupation. 11:21· · · ·A.· ·I'm a real estate broker in Idaho and Utah, 11:22· and I've been doing that for 30 years.· Before that, I 11:23· was in -- worked in Hercules Aerospace. 11:24· · · ·Q.· ·How long did you work in Hercules Aerospace? 11:25· · · ·A.· ·About 12 years. 6 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10671 Page 9 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 12:1· · · ·Q.· ·And then when you left Hercules, you got 12:2· into the real estate business? 12:3· · · ·A.· ·I'd been doing real estate part-time while 12:4· working full-time at Hercules, and when I made more 12:5· money in real estate, I quit Hercules. 12:6· · · ·Q.· ·How long have you been licensed in Utah? 12:7· · · ·A.· ·Approximately 25 years. 12:8· · · ·Q.· ·Okay.· And how long have you been licensed 12:9· in Idaho? 12:10· · · ·A.· ·About the same amount of time. 12:11· · · ·Q.· ·Okay.· And I believe you said you're 12:12· licensed as a broker? 12:13· · · ·A.· ·Yes. 12:14· · · ·Q.· ·Do you have agents who work under your 12:15· license? 12:16· · · ·A.· ·I do. 12:17· · · ·Q.· ·How many agents do you have? 12:18· · · ·A.· ·I have two in Utah and one in Idaho. 12:19· · · ·Q.· ·Okay.· And do you have a certain area that 12:20· you specialized in in terms of selling properties? 7 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10672 Page 10 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 12:21· · · ·A.· ·In Utah, it would be Eden, Liberty, and 12:22· Huntsville. 12:23· · · ·Q.· ·And is that strictly residential? 12:24· · · ·A.· ·Yeah, 99 percent. 12:25· · · ·Q.· ·Okay.· And how long have you been working 13:1· either as a real estate agent or broker in the 13:2· Liberty/Eden area? 13:3· · · ·A.· ·Twenty-five years. 13:4· · · ·Q.· ·Okay.· Does that include sales or does it 13:5· also include leasing? 13:6· · · ·A.· ·The only leasing I've really done was my 13:7· commercial project. 13:8· · · ·Q.· ·Okay.· Are you familiar with a property in 13:9· Liberty with the address 5150 North 3450 East, 13:10· Liberty, also referred to as Lot 2 of the Willow Creek 13:11· Subdivision Phase 3? 13:12· · · ·A.· ·Yes. 13:13· · · ·Q.· ·And how are you familiar with that property? 13:14· · · ·A.· ·Well, it was my land, and we had the Wadman 13:15· Corporation build a home on it. 13:16· · · ·Q.· ·When did you own the property? 8 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10673 Page 11 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 13:17· · · ·A.· ·I don't remember the exact date, but we 13:18· owned it for a number of years before we built a home 13:19· on it. 13:20· · · ·Q.· ·Do you remember approximately the year you 13:21· purchased it? 13:22· · · ·A.· ·No, I don't.· I mean, it would probably be 13:23· 10 years before we built our home. 13:24· · · ·Q.· ·Okay.· Do you remember when you built the 13:25· home on it? 14:1· · · ·A.· ·It was a brand new home, so it would have 14:2· been -- I don't remember exactly.· Probably 11, 12 14:3· years ago. 14:4· · · ·Q.· ·Okay. 14:5· · · ·A.· ·Approximately. 14:6· · · ·Q.· ·So probably about -- would that be 2006, 14:7· 2005 maybe you built the home? 14:8· · · ·A.· ·Yeah.· I'm not sure that's exact, but 14:9· that's -- 14:10· · · ·Q.· ·Okay. 14:11· · · ·A.· ·-- approximate. 14:12· · · ·Q.· ·And then before that, you acquired the 14:13· property in the mid to late '90s? 9 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10674 Page 12 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 14:14· · · ·A.· ·Yeah, somewhere along in there. 14:15· · · ·Q.· ·Okay.· How big is the property -- when you 14:16· owned it? 14:17· · · ·A.· ·It was originally about 9 acres, and then we 14:18· split a little bit -- we split a little bit off, so I 14:19· don't remember what it ended up being.· It was 7 or 8 14:20· acres when we sold it. 14:21· · · ·Q.· ·Okay.· And you said that there was a home 14:22· that was built on the property? 14:23· · · ·A.· ·Yes.· We had Wadman Corporation build a 14:24· home. 14:25· · · ·Q.· ·Did you build the home? 15:1· · · ·A.· ·Wadman Corporation built it -- 15:2· · · ·Q.· ·Okay.· And -- 15:3· · · ·A.· ·-- for us. 15:4· · · ·Q.· ·Oh, okay.· And what's - - 15:5· · · ·A.· ·He's a contractor. 15:6· · · ·Q.· ·Okay.· And you had contracted him to build 15:7· the home? 15:8· · · ·A.· ·Uh-huh. 15:9· · · ·Q.· ·Okay.· What about outbuildings?· Were there 15:10· any other outbuildings besides the home? 10 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10675 Page 13 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 15:11· · · ·A.· ·There was -- there's a very nice large shop 15:12· on it, and a local guy from Eden built that. 15:13· · · ·Q.· ·Okay.· When you say "a shop," is that also 15:14· like a barn or -- 15:15· · · ·A.· ·Well, we didn't have any animals, so I guess 15:16· I'd call it a shop.· I had tractors and snowmobiles 15:17· and four-wheelers and stuff like that in it. 15:18· · · ·Q.· ·And did you have that contractor build that 15:19· outbuilding for you as well? 15:20· · · ·A.· ·Yes, we did. 15:21· · · ·Q.· ·Okay.· When you owned the property, how big 15:22· was -- was the outbuilding of the shop? 15:23· · · ·A.· ·This is just an approximation. 15:24· · · ·Q.· ·Sure. 15:25· · · ·A.· ·I think around 2,000 square feet. 16:1· · · ·Q.· ·Okay. 16:2· · · ·A.· ·That could be right or wrong.· I'm not 16:3· exactly positive. 16:4· · · ·Q.· ·When did you sell the property? 16:5· · · ·A.· ·Well, we actually closed on the property 16:6· September 15, 2011. 11 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10676 Page 14 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 16:7· · · ·Q.· ·And who did you sell the property to? 16:8· · · ·A.· ·to John Wadsworth of Western Land & 16:9· Livestock or whatever that's called. 16:10· · · ·Q.· ·How were you first introduced to Western 16:11· Land & Livestock? 16:12· · · ·A.· ·Through a real estate broker by the name of 16:13· Darin Mich'l. 16:14· · · ·Q.· ·And who is Darryl Mich'l? 16:15· · · ·A.· ·Darin Mich'l -- he -- 16:16· · · ·Q.· ·Oh, excuse me.· Darin Mich'l. 16:17· · · ·A.· ·Yeah.· He owns -- I don't know if he was a 16:18· broker or an agent at that time, but he was a local 16:19· real estate professional working in that area. 16:20· · · ·Q.· ·Did you contact him or did he contact you? 16:21· · · ·A.· ·No, he contacted me. 16:22· · · ·Q.· ·And what did he tell you? 16:23· · · ·A.· ·He said he had someone who was looking to 16:24· lease the property and would I be interested. 16:25· · · ·Q.· ·Did he say who the person was that was 12 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10677 Page 15 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 17:1· interested in leasing the property? 17:2· · · ·A.· ·He did.· I don't know if -- I don't know if 17:3· he said that right off the bat, but he did tell me, 17:4· yes. 17:5· · · ·Q.· ·Okay.· At the time that Mr. -- is it 17:6· Mr. Mich'l? 17:7· · · ·A.· ·Mich'l, yeah. 17:8· · · ·Q.· ·At the time that Mr. Mich'l contacted you, 17:9· did you have the property listed for sale? 17:10· · · ·A.· ·I did. 17:11· · · ·Q.· ·And how long had you had the property listed 17:12· for sale? 17:13· · · ·A.· ·Oh, probably -- I'm guessing about two 17:14· years. 17:15· · · ·Q.· ·Did you have the property listed on the MLS? 17:16· · · ·A.· ·Yes. 17:17· · · ·Q.· ·Was there a sign out front? 17:18· · · ·A.· ·I don't remember.· Probably.· I'm not -- I 17:19· don't remember for sure. 17:20· · · ·Q.· ·Besides listing the property in the MLS and 17:21· having a sign out front, what other efforts did you 13 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10678 Page 16 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 17:22· have to -- or did you undertake to list the property? 17:23· · · ·A.· ·Well, that's how I did it through the MLS, 17:24· so... 17:25· · · ·Q.· ·Okay.· Before Mr. Mich'l approached you 18:1· about -- I assume -- were they his clients -- 18:2· · · ·A.· ·Yes. 18:3· · · ·Q.· ·-- that he represented? 18:4· · · · · · Okay.· But before he approached you 18:5· regarding his client and the interest to lease the 18:6· property, had you received any offers from other 18:7· potential buyers? 18:8· · · ·A.· ·I don't remember any other offers.· There 18:9· may have been.· If they were, they weren't acceptable. 18:10· · · ·Q.· ·Okay. 18:11· · · ·A.· ·I really don't remember. 18:12· · · ·Q.· ·In the two to three years that you had the 18:13· property listed or any time before that, had you 18:14· obtained an appraisal? 18:15· · · ·A.· ·Let me think about that.· I want to say yes. 18:16· As a matter of fact, yes, I did.· Yes, we did. 14 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10679 Page 17 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 18:17· · · ·Q.· ·Do you remember approximately what year that 18:18· was? 18:19· · · ·A.· ·It was probably 2009 or something like 18:20· that -- 2008 or 2009.· I don't really remember for 18:21· sure. 18:22· · · ·Q.· ·Do you remember who performed the appraisal? 18:23· · · ·A.· ·I don't. 18:24· · · ·Q.· ·Do you still have a copy of the appraisal 18:25· report today? 19:1· · · ·A.· ·Possibly somewhere. 19:2· · · ·Q.· ·Okay. 19:3· · · ·A.· ·So -- 19:4· · · ·Q.· ·Do you remember what the appraised value 19:5· was? 19:6· · · ·A.· ·It seems like it was -- as I recall, it 19:7· seems like it was 725,000. 19:8· · · ·Q.· ·Okay.· Are you familiar with a gentleman 19:9· named John Wadsworth? 19:10· · · ·A.· ·Did I meet with him? 19:11· · · ·Q.· ·Are you familiar with a person named John 19:12· Wadsworth? 19:13· · · ·A.· ·Yes. 19:14· · · ·Q.· ·And how do you know Mr. Wadsworth? 19:15· · · ·A.· ·Well, Darin Mich'l brought John Wadsworth 15 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10680 Page 18 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 19:16· over to our house, and I met with Darin and John. 19:17· · · ·Q.· ·How many times have you met John Wadsworth 19:18· in person? 19:19· · · ·A.· ·Probably two.· Maybe three, probably two. 19:20· · · ·Q.· ·Let's break those down.· Do you remember 19:21· when you first met him? 19:22· · · ·A.· ·Well, Darin brought him over to our house 19:23· and as I recall -- as I recall the situation, we were 19:24· supposed to meet at a particular time, and John came 19:25· over in time and Darin was late.· And so John and I 20:1· talked a little bit and then Darin showed up. 20:2· · · ·Q.· ·Do you remember what you talked about with 20:3· Mr. Wadsworth? 20:4· · · ·A.· ·That's been a long time ago. 20:5· · · ·Q.· ·To the best of your recollection. 20:6· · · ·A.· ·Mostly his interest in the property. 20:7· · · ·Q.· ·Do you remember -- do you remember any 20:8· particular representations he made about his interest 20:9· in the property or what he was intending to do with 16 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10681 Page 19 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 20:10· the property? 20:11· · · ·A.· ·No. 20:12· · · ·Q.· ·After Mr. Mich'l arrived, what did you do? 20:13· · · ·A.· ·Well, as I recall, John and I had pretty 20:14· much looked at the house and there may have been some 20:15· discussion about leasing the home at that time, but I 20:16· honestly don't remember whether it happened later or 20:17· not. 20:18· · · ·Q.· ·While Mr. Wadsworth was present with you at 20:19· the home, did you talk outside?· Did you enter the 20:20· building?· What did he do? 20:21· · · ·A.· ·Well, like I said, Darin was late -- didn't 20:22· show up on time, so I showed John around the house and 20:23· told him about the property and all that kind of 20:24· stuff -- introduced him to it. 20:25· · · ·Q.· ·Did you walk him all through the house? 21:1· · · ·A.· ·Yes. 21:2· · · ·Q.· ·Did you walk the property boundary line? 21:3· · · ·A.· ·I don't remember walking the property line. 21:4· We probably looked at the shop, but I don't remember 17 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10682 Page 20 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 21:5· walking -- I don't remember that. 21:6· · · ·Q.· ·Okay.· What did you observe about 21:7· Mr. Wadsworth as you were going through the property? 21:8· Was he inspecting? Was he -- 21:9· · · ·A.· ·Yeah. 21:10· · · ·Q.· ·-- doing other things? 21:11· · · ·A.· ·Yeah.· He was looking at it and asking some 21:12· questions. 21:13· · · ·Q.· ·In your experience, is it typical for a 21:14· potential buyer to want to inspect a home before they 21:15· make an offer to purchase it? 21:16· · · ·A.· ·Yeah, absolutely. 21:17· · · ·Q.· ·Okay.· Did he act like a typical buyer? 21:18· · · ·A.· ·Yeah. 21:19· · · ·Q.· ·So after you met Mr. Wadsworth in this first 21:20· meeting -- well, let me back up.· How long did this 21:21· first meeting last to the best of your recollection? 21:22· · · ·A.· ·Maybe a half hour. 21:23· · · ·Q.· ·Okay.· After you finished the meeting, when 21:24· was the next contact you had with Mr. Wadsworth? 21:25· · · ·A.· ·I'm not -- I don't exactly remember when 18 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10683 Page 21 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 22:1· that was.· It was probably a few weeks or a month 22:2· later.· I don't remember. 22:3· · · ·Q.· ·Did he contact you by phone or vice versa? 22:4· · · ·A.· ·I honestly don't remember. 22:5· · · ·Q.· ·Okay.· When was the next time you met him in 22:6· person? 22:7· · · ·A.· ·We -- the next time we met in person is -- 22:8· we came through the house -- as I recall, he did a 22:9· thorough inspection of it before entering into a lease 22:10· option agreement.· He may have taken pictures of it, 22:11· but I don't remember. 22:12· · · ·Q.· ·Okay.· Do you recall approximately when this 22:13· second meeting was? 22:14· · · ·A.· ·No.· I really -- I mean, it would have been, 22:15· like I said, a few weeks after the first meeting, 22:16· maybe a month.· I don't remember for sure. 22:17· · · ·Q.· ·And then you talked about a potential lease 22:18· or a lease option. 22:19· · · ·A.· ·Uh-huh. 22:20· · · ·Q.· ·Is that what you said? 22:21· · · ·A.· ·Yes. 19 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10684 Page 22 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 22:22· · · ·Q.· ·Who would have originally proposed the idea 22:23· of a lease option? 22:24· · · ·A.· ·I don't really recall for sure.· My guess is 22:25· it was either John or Darin.· I had leased my home 23:1· before.· The market had gone south, and we had moved 23:2· to Preston and so leasing it seemed like a pretty good 23:3· idea to me, and I'm pretty sure Darin was aware of 23:4· that.· And Darin may have brought it up, but I don't 23:5· remember. 23:6· · · ·Q.· ·And how long had you leased the property 23:7· before the lease option? 23:8· · · ·A.· ·Oh, we had had one family in there it seems 23:9· like for about a year.· I'm not exactly sure on that, 23:10· but... 23:11· · · ·Q.· ·Do you remember what you were charging for 23:12· rent? 23:13· · · ·A.· ·It was somewhere around 2,000 a month. I 23:14· don't know. 23:15· · · ·Q.· ·Do you remember if the tenant was 23:16· responsible for payment of utilities or the landlord? 20 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10685 Page 23 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 23:17· · · ·A.· ·I believe they were.· I'm not certain, but I 23:18· believe they were. 23:19· · · ·Q.· ·Okay.· In relation -- well, I assume there 23:20· was a lease option agreement that was eventually 23:21· entered into -- 23:22· · · ·A.· ·Uh-huh. 23:23· · · ·Q.· ·-- is that correct? 23:24· · · ·A.· ·Yes. 23:25· · · ·Q.· ·In relation to when that agreement was 24:1· entered, when do you recall that meeting taking place 24:2· with Mr. Wadsworth -- the second meeting? 24:3· · · ·A.· ·Well, it would have been -- it would have 24:4· been just before we signed the lease option, because 24:5· John was checking it out and -- this may not be 24:6· correct.· It seems like I recall either taking 24:7· pictures of it or making notes.· It was pretty much -- 24:8· a very new home.· And he wanted to be -- I wanted to 24:9· be sure if there was any damage that we had recorded, 24:10· you know, what -- the condition of the home. 24:11· · · ·Q.· ·What was the purpose of that second meeting 21 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10686 Page 24 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 24:12· then? 24:13· · · ·A.· ·To -- for -- as I recall for John to do the 24:14· inspection of the home and to say, "Okay.· This is the 24:15· condition of it." 24:16· · · ·Q.· ·And this is why you say you have a 24:17· recollection of him taking pictures throughout the 24:18· home or inspecting it? 24:19· · · ·A.· ·Well, I don't know if it was taking pictures 24:20· or taking notes.· There was some process so we agreed 24:21· on the condition of the home.· Whatever that was, I 24:22· don't remember. 24:23· · · ·Q.· ·Okay. 24:24· · · ·A.· ·It could have been taking notes, but I don't 24:25· remember. 25:1· · · ·Q.· ·Was anybody else present with Mr. Wadsworth 25:2· for that meeting? 25:3· · · ·A.· ·I don't remember anybody being there. 25:4· · · ·Q.· ·What about the first meeting?· Besides 25:5· Mr. Wadsworth and Mr. Mich'l, was anybody else present 25:6· for the -- 25:7· · · ·A.· ·No, nobody else was present. 22 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10687 Page 25 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 25:8· · · ·Q.· ·Okay.· After those two meetings, do you ever 25:9· recall meeting with John Wadsworth again in person? 25:10· · · ·A.· ·No, I don't recall. 25:11· · · ·Q.· ·After that, did you continue to communicate 25:12· with him either by telephone or by email? 25:13· · · ·A.· ·Yeah, I think by email.· There was some 25:14· communication, because there were payments made and 25:15· different things.· Yeah, so I think we communicated by 25:16· email.· I don't remember talking to John on the phone, 25:17· but I do remember emails. 25:18· · · ·Q.· ·Just so I'm clear, you don't remember 25:19· talking on the phone, just written communications with 25:20· him? 25:21· · · ·A.· ·Yeah, I don't -- it may have happened. I 25:22· just don't remember it. 25:23· · · ·Q.· ·Okay.· Are you familiar with a person named 25:24· Ron Talmage? 25:25· · · ·A.· ·I am now, yeah. 26:1· · · ·Q.· ·And how are you familiar with Mr. Talmage? 26:2· · · ·A.· ·Well, sometime after they lease optioned it 23 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10688 Page 26 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 26:3· and -- I don't remember that time frame, but the 26:4· first -- the first meeting I recall seeing Ron is -- 26:5· because I have a real estate company up there, I drive 26:6· from Preston and take care of my real estate company. 26:7· The first time I remember Ron is I drove by my -- what 26:8· was my house -- at that time it still was my house, 26:9· and he was out working on a skid loader in the shop. 26:10· And so curiosity got the best of me, and I pulled over 26:11· and asked him who he was and all that kind of stuff. 26:12· · · ·Q.· ·And let me back up real quick.· You said 26:13· when "they" lease optioned the property, who is the 26:14· they you are referring to? 26:15· · · ·A.· ·John. 26:16· · · ·Q.· ·Okay.· So you saw Mr. Talmage outside doing 26:17· something on skid steer and you had a conversation 26:18· with him? 26:19· · · ·A.· ·Uh-huh. 26:20· · · ·Q.· ·And what was the substance of that 26:21· conversation? 26:22· · · ·A.· ·Well, he had a really cool skid steer.· He 24 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10689 Page 27 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 26:23· had done some modifications to it, and I thought it 26:24· was pretty awesome, so I thought I'd stop and see what 26:25· this guy is doing. 27:1· · · ·Q.· ·Other than talking about the skid steer, 27:2· what did you talk about besides that? 27:3· · · ·A.· ·I had a 70 -- about a 72-inch snowblower, 27:4· and Preston doesn't get much snow and so I just 27:5· said -- he was obviously in the house at that time, so 27:6· I says, "Hey, you get a lot of snow in Liberty. I 27:7· don't get much.· My snowblower will work on that skid 27:8· loader.· Are you interested in buying it?"· And 27:9· subsequently he bought that -- that snowblower. 27:10· · · ·Q.· ·Okay.· We'll come back to that. 27:11· · · · · · Other than that communication about the skid 27:12· steer and snowblower, was there anything else that you 27:13· discussed at that time? 27:14· · · ·A.· ·No. 27:15· · · ·Q.· ·Subsequent to that meeting, did you ever 27:16· meet him again in person? 25 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10690 Page 28 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 27:17· · · ·A.· ·I don't remember ever meeting him again. 27:18· · · ·Q.· ·Okay.· What about communicating by telephone 27:19· or email?· Do you ever remember communicating with 27:20· him? 27:21· · · ·A.· ·No.· No, I never communicated with him. 27:22· · · ·Q.· ·Are you familiar with a person named Annette 27:23· Talmage? 27:24· · · ·A.· ·No. 27:25· · · ·Q.· ·Okay.· So I assume you've never met her, 28:1· never spoken with her? 28:2· · · ·A.· ·No. 28:3· · · ·Q.· ·Okay.· Never communicated with her via email 28:4· or in writing? 28:5· · · ·A.· ·I never remember having any -- meeting her 28:6· or having any communication with her at all. 28:7· · · ·Q.· ·Okay.· What, if anything, did you know about 28:8· the relationship between Ron Talmage and Western Land 28:9· & Livestock? 28:10· · · ·A.· ·I really didn't know anything about the 28:11· relationship between them. 28:12· · · ·Q.· ·What about the relationship between Ron 26 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10691 Page 29 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 28:13· Talmage and John Wadsworth? 28:14· · · ·A.· ·I really had no idea what the relationship 28:15· is there. 28:16· · · ·Q.· ·Okay.· Were you privy to the terms of any 28:17· agreement with Western Land & Livestock that allowed 28:18· the Talmages to occupy the property? 28:19· · · ·A.· ·No. 28:20· · · ·MR. INGRAM:· Sorry about that. 28:21· · · ·Q.· ·(BY MR. INGRAM)· Were you ever privy to any 28:22· sort of representations that the Talmages ever made to 28:23· Western Land & Livestock or John Wadsworth that 28:24· allowed them to occupy the property? 28:25· · · ·A.· ·No. 29:1· · · ·Q.· ·Okay.· Have you ever heard of a person by 29:2· the name of Liu Hsu Chen or Mrs. Chen? 29:3· · · ·A.· ·No. 29:4· · · ·MR. INGRAM:· Let's mark this as our first exhibit 29:5· today. 29:6· · · · · · (Exhibit 107 marked.) 29:7· · · ·MR. INGRAM:· On this one I don't know why the 27 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10692 Page 30 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 29:8· first page is missing, but I assume -- 29:9· · · ·THE WITNESS:· I already have this.· Do I need 29:10· this?· Okay. 29:11· · · ·Q.· ·(BY MR. INGRAM)· So I've handed you a 29:12· document that we have marked as an Exhibit No. 107. 29:13· This is a document that has some numbers at the 29:14· bottom, and we call these Bates numbers, IRS RBT 3171, 29:15· and you should have pages 3171 through 76 -- on the 29:16· last page. 29:17· · · ·A.· ·I do. 29:18· · · ·Q.· ·Do you recognize this document? 29:19· · · ·A.· ·I do. 29:20· · · ·Q.· ·What is this? 29:21· · · ·A.· ·This is the lease option to purchase the 29:22· property. 29:23· · · ·Q.· ·Do you know who drafted this agreement? 29:24· · · ·A.· ·Well, I would think that it probably came 29:25· from John or John's attorneys.· I didn't draft it. 30:1· · · ·Q.· ·Even though they drafted it, did you or your 30:2· attorney have an opportunity to review and make 30:3· comments on it? 28 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 29:23–30:4, Rule 602 Mr. Judd has personal knowledge that he did not draft the lease agreement, and that he did not have an attorney at this time. OVERRULED as to 29:23, 29:25 (“I didn’t draft it.”), and 30:2-4; SUSTAINED as to 29:24-25, and 30:1 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10693 Page 31 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 30:4· · · ·A.· ·Well, I didn't have an attorney. 30:5· · · ·Q.· ·At this time, you did not? 30:6· · · ·A.· ·Did not have an attorney. 30:7· · · ·Q.· ·Okay.· Did you have an opportunity to make 30:8· edits or changes yourself before signing? 30:9· · · ·A.· ·Yeah.· We -- we had to work out a few 30:10· things. 30:11· · · ·Q.· ·Okay. 30:12· · · ·A.· ·And one of the things we had to work out was 30:13· if he actually closed that 25 percent of his lease 30:14· payments he would get credit for. 30:15· · · ·Q.· · Okay.· And we'll come back to that. 30:16· · · · · · Do you recognize these signatures on the 30:17· last page, page 7? 30:18· · · ·A.· ·I do.· That's me, my wife's, and -- I can't 30:19· read it, but I guess that's John's. 30:20· · · ·Q.· ·Okay.· Do you recall when this agreement was 30:21· signed? 30:22· · · ·A.· ·Probably the 15th day of March, I'm 30:23· guessing. 29 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10694 Page 32 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 30:24· · · ·Q.· ·Do you remember how a signed agreement was 30:25· delivered to you? 31:1· · · ·A.· ·I don't.· I don't.· It was probably email. 31:2· · · ·Q.· ·Okay.· I noticed -- it looks like there 31:3· is -- at the top a line looks like it appears from the 31:4· fax machine.· There is a number here. 31:5· · · ·A.· ·Yeah. 31:6· · · ·Q.· ·(208) 852-1909.· That looks like an Idaho 31:7· number.· Do you recognize that number? 31:8· · · ·A.· ·No.· But I've had different phone numbers 31:9· over the years.· That's probably my phone number, but 31:10· I don't know that for sure.· I guess it is. 31:11· · · ·Q.· ·At the time you entered into the lease 31:12· option, were you operating your business out of Idaho? 31:13· · · ·A.· ·Yeah, I still do. 31:14· · · ·Q.· ·Okay.· There is another number here where it 31:15· says 2, and then it's a 775 number. 31:16· · · · · · Do you see that? 31:17· · · ·A.· ·Uh-huh. 31:18· · · ·Q.· ·Do you recall whose fax number that was? 30 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10695 Page 33 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 31:19· · · ·A.· ·I don't. 31:20· · · ·Q.· ·Okay.· Who did you understand was the tenant 31:21· or buyer that was a party to this agreement? 31:22· · · ·A.· ·John Wadsworth. 31:23· · · ·Q.· ·Okay.· If you look at paragraph 28 on page 6 31:24· of the agreement, there is a notice provision there. 31:25· If there was any written notice that was required to 32:1· be sent to the tenant, where did you understand it was 32:2· going to be sent? 32:3· · · ·A.· ·Western Land & Livestock, PO Box -- if I 32:4· were sending something to him? 32:5· · · ·Q.· ·Correct? 32:6· · · ·A.· ·To Western Land & Livestock , PO Box 1453, 32:7· Cheyenne, Wyoming. 32:8· · · ·Q.· ·Who negotiated the lease option on behalf of 32:9· Western Land & Livestock? 32:10· · · ·A.· ·John. 32:11· · · ·Q.· ·Who did you understand represented Western 32:12· Land & Livestock? 32:13· · · ·A.· ·John. 32:14· · · ·Q.· ·Who did you understand owned Western Land & 32:15· Livestock? 32:16· · · ·A.· ·Well, I wasn't sure.· I assumed it was John. 31 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10696 Page 34 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 32:17· · · ·Q.· ·How did you communicate with Mr. Wadsworth 32:18· to negotiate the lease option?· Was that in person? 32:19· over the phone? email? 32:20· · · ·A.· ·The only thing I recall was emails.· We may 32:21· have spoken on the phone, but I don't really remember 32:22· if we did or not. 32:23· · · ·Q.· ·Other than Mr. Wadsworth, did anybody else 32:24· negotiate the lease option on behalf of Western Land? 32:25· · · ·A.· ·No.· Not that I recall. 33:1· · · ·Q.· ·Did the Talmages negotiate the lease option 33:2· with you? 33:3· · · ·A.· ·No. 33:4· · · ·Q.· ·When you entered into the lease option, what 33:5· representations did John Wadsworth make to you about 33:6· who would occupy the property? 33:7· · · ·A.· ·I don't remember what representations he 33:8· made.· My understanding was John was Western Land & 33:9· Livestock and whatever he did with it is okay with me. 33:10· · · ·Q.· ·Did he make to you any representations about 33:11· subleasing the property? 33:12· · · ·A.· ·I don't recall that. 32 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10697 Page 35 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 33:13· · · ·Q.· ·Okay.· I assume later you became aware of 33:14· Ron Talmage, I guess, who was occupying the property? 33:15· · · ·A.· ·Yeah. 33:16· · · ·Q.· ·Did you approve of that occupation? 33:17· · · ·A.· ·Yeah, I was fine with it.· I mean, nobody 33:18· ever asked me "Is it okay if I do that?" but I was 33:19· fine with that. 33:20· · · ·Q.· ·Did you have any sort of understanding of 33:21· any arrangement that Ron or Annette Talmage had that 33:22· would allow them to occupy the property? 33:23· · · ·A.· ·No. 33:24· · · ·Q.· ·Okay.· Who did you understand remained your 33:25· point of contact for Western Land & Livestock? 34:1· · · ·A.· ·My only point of contact was John. 34:2· · · ·Q.· ·When you entered into the lease option, I 34:3· note here in -- it looks like paragraphs 4 through 6 34:4· are terms regarding the lease option. 34:5· · · · · · Do you see that? 34:6· · · ·A.· ·Uh-huh.· Are you talking about page 2? 33 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10698 Page 36 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 34:7· · · ·Q.· ·Page 1.· Page 2 of the fax, but -- 34:8· · · ·A.· ·Okay. 34:9· · · ·Q.· ·It looks like page 1 -- 3171.· What 34:10· representations do you recall that John Wadsworth made 34:· about exercising the lease option -- or the purchase 34:12· option?· Excuse me. 34:13· · · ·A.· ·Well, we -- we entered a lease option 34:14· agreement, and he had the right to do it or not do it. 34:15· If he did it, 25 percent of his lease payments he got 34:16· credit for, and if he didn't, then he's out and he 34:17· loses that money. 34:18· · · ·Q.· ·Who did you understand was the person or the 34:19· entity that had the contractual right to exercise the 34:20· purchase option? 34:21· · · ·A.· ·John. 34:22· · · ·Q.· ·I think I asked you this before, and I 34:23· apologize if I had forgotten the answer, but who 34:24· initially proposed the lease with an option to 34:25· purchase? 35:1· · · ·A.· ·I don't know if it was John or Darin. I 34 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10699 Page 37 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 35:2· don't remember.· It could have been Darin, but I'm not 35:3· positive. 35:4· · · ·Q.· ·Why did you agree to lease the property with 35:5· the purchase option instead of just outright selling 35:6· it? 35:7· · · ·A.· ·Because I didn't have a buyer.· I'm living 35:8· in Preston.· And it is costing me a couple thousand 35:9· dollars a month to have the home in Liberty plus 35:10· utilities, so, you know, a lease option seemed like a 35:11· pretty good idea to me. 35:12· · · ·Q.· ·How did you arrive in terms of -- let me 35:13· back up.· Paragraph 2 has a provision regarding lease 35:14· payments. 35:15· · · · · · Do you see that? 35:16· · · ·A.· ·Uh-huh. 35:17· · · ·Q.· ·And it says "The total lease payments for 35:18· the term hereof shall be the sum of $39,600 payable in 35:19· an initial installment of $26,400, which installment 35:20· shall be payable on or before March 15, 2010, and 35:21· thereafter monthly installments of $2,200 commencing 35 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10700 Page 38 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 35:22· March 15, 2011, until the termination of this 35:23· agreement." 35:24· · · · · · How did you arrive at the amount and terms 35:25· for these lease payments described in paragraph 2? 36:1· · · ·A.· ·You know, I don't really recall that. I 36:2· mean, it was a really nice house on 7 acres with a 36:3· huge shop, and I guess we both agreed that that was a 36:4· fair amount. 36:5· · · ·Q.· ·Did you believe that $2200 per month was 36:6· above or below market rent? 36:7· · · ·A.· ·Considering the house and the location, I 36:8· felt it was fair. 36:9· · · ·Q.· ·Do you think you could have gotten more rent 36:10· out of it than that if you wanted? 36:11· · · ·A.· ·Probably not. 36:12· · · ·Q.· ·Okay.· Do you recall ever representing to 36:13· John Wadsworth that you believed 2200 per month was 36:14· below market rent? 36:15· · · ·A.· ·I -- no, I don't believe -- I don't remember 36:16· that. 36:17· · · ·Q.· ·Okay.· Who paid the lease payments? 36 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10701 Page 39 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 37:4–6, Rule 602 Mr. Judd has personal knowledge about the security deposit because it was paid to him with a Western Land & Livestock check (Depo. Ex. 108). OVERRULED Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 36:18· · · ·A.· ·Oh, I think -- I mean, I got copies of them. 36:19· I think it was Western Land & Livestock.· I got copies 36:20· of the checks here somewhere. 36:21· · · ·Q.· ·Okay.· Why don't we get to that in just a 36:22· little bit. 36:23· · · ·A.· ·Okay. 36:24· · · ·Q.· ·Let me ask you a couple more questions 36:25· first.· There is a damage deposit or a security 37:1· deposit in paragraph 3. 37:2· · · · · · Do you see that? 37:3· · · ·A.· ·Uh-huh. 37:4· · · ·Q.· ·Do you recall who paid that security 37:5· deposit? 37:6· · · ·A.· ·I believe it was Western Land & Livestock. 37:7· · · ·Q.· ·Okay.· And how did you receive these 37:8· payments?· Were they by check or automatic deposit? 37:9· · · ·A.· ·The first one I believe I just got a check. 37:10· · · ·Q.· ·Okay. 37:11· · · ·A.· ·And then the subsequent ones, I don't 37:12· remember if I got a check or it was direct deposit. 37:13· I'm not sure on that. 37:14· · · ·Q.· ·I've got some documents here.· Let's take a 37 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10702 Page 40 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 37:15· look at these and see if this refreshes your 37:16· recollection. 37:17· · · ·MR. INGRAM:· We will mark this as Exhibit 37:18· No. 108. 37:19· · · · · · (Exhibit 108 marked.) 37:20· · · ·Q.· ·(BY MR. INGRAM)· Do you recognize these 37:21· documents? 37:22· · · ·A.· ·Yeah, I do. 37:23· · · ·Q.· ·And these appear to be a couple of checks, 37:24· both to Paul Judd, 2616 North State Street, Preston, 37:25· Idaho.· Was that your address in March of 2010? 38:1· · · ·A.· ·We were living in Preston I believe then. 38:2· · · ·Q.· ·Was this your address in 2010? 38:3· · · ·A.· ·So -- do you mean my address where I live or 38:4· the address of the home? 38:5· · · ·Q.· ·There -- it looks like pay to the order -- 38:6· · · ·A.· ·Oh, yeah, that is our -- okay.· That is our 38:7· home address. 38:8· · · ·Q.· ·Okay. 38:9· · · ·A.· ·Yes, that is our home address. 38:10· · · ·Q.· ·Thank you.· Now, it looks like -- can you 38 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10703 Page 41 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 38:11· read the name here on the remitter up at the top left? 38:12· · · ·A.· ·You mean, Western Land & Livestock? 38:13· · · ·Q.· ·Yes. 38:14· · · ·A.· ·Yeah. 38:15· · · ·Q.· ·And there are notes here on the bottom, and 38:16· the first one says "Prepaid lease payment, Western 38:17· Land & Livestock LLC" in the amount of $26,400. 38:18· · · · · · Do you remember receiving that check? 38:19· · · ·A.· ·Yeah, I believe I do. 38:20· · · ·Q.· ·Okay.· And was that for the -- I guess, the 38:21· part of the lease payment, this was the initial 38:22· installment -- 38:23· · · ·A.· ·Yes. 38:24· · · ·Q.· ·-- for the lease? 38:25· · · ·A.· ·Yes. 39:1· · · ·Q.· ·Okay.· Do you remember discussing why there 39:2· was a term to pay it all up front in advance? 39:3· · · ·A.· ·No.· I really don't, but it seemed like a 39:4· great deal to me. 39:5· · · ·Q.· ·Okay.· Do you remember how you received the 39:6· check?· Was that by mail or some other form -- 39 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10704 Page 42 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 39:7· · · ·A.· ·It was probably by mail, but I don't 39:8· honestly remember. 39:9· · · ·Q.· ·Okay.· I assume you deposited it -- 39:10· · · ·A.· ·Yes. 39:11· · · ·Q.· ·-- and the check cleared? 39:12· · · ·A.· ·So initially -- I didn't know who John or 39:13· Western Land & Livestock was, so I hired an attorney 39:14· to do some background on them, and me and my 39:15· attorney -- he tried to do a little bit of research 39:16· too and really didn't find anything out.· So I asked 39:17· him, "Well, what should I do?· Should I lease it or 39:18· not lease it?"· He said, "He's paying you this much 39:19· money up front, I would do it."· So I said -- that was 39:20· my attorney's advice, so that's what I did. 39:21· · · ·Q.· ·Okay.· The second check for $2500 -- this 39:22· says under the notes "Security deposit, Western Land & 39:23· Livestock LLC." 39:24· · · · · · Do you recall that that was the purpose -- 39:25· · · ·A.· ·Yes. 40 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10705 Page 43 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 40:1· · · ·Q.· ·-- for this second check? 40:2· · · · · · And did you receive that at the same time as 40:3· this initial lease payment? 40:4· · · ·A.· ·I'm guessing I did.· I don't know. 40:5· · · ·Q.· ·Okay.· And I assume you deposited the check 40:6· and it cleared? 40:7· · · ·A.· ·Yeah. 40:8· · · ·MR. INGRAM:· Okay.· Let's mark this as Exhibit 40:9· No. 108. 40:10· · · · · · You don't have a stapler, do you? 40:11· · · ·THE COURT REPORTER:· Yes, I do.· Just a second. 40:12· · · ·MS. GOLDEN:· Bill, I think the last one was 108. 40:13· · · ·MR. INGRAM:· Oh, excuse me.· 109.· Thank you. 40:14· · · · · · (Exhibit 109 marked.) 40:15· · · ·Q.· ·(BY MR. INGRAM)· We have marked this as 40:16· Exhibit No. 109.· Do you recognize what appear to be 40:17· deposit slips? 40:18· · · ·A.· ·Yes. 40:19· · · ·Q.· ·And whose deposit slips -- excuse me.· Whose 40:20· deposit slips are these? 40:21· · · ·A.· ·Well, they were my deposit slips. 41 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10706 Page 44 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 40:22· · · ·Q.· ·Okay.· And it looks like there is a series 40:23· of amounts on each of these deposit slips.· Let me 40:24· take you to where I see the first one is in terms of 40:25· date.· On the top right-hand side, there is one that 41:1· appears to be dated March 15, 2010. 41:2· · · · · · Do you see that? 41:3· · · ·A.· ·Yes. 41:4· · · ·Q.· ·In the amount of $28,900? 41:5· · · ·A.· ·Uh-huh. 41:6· · · ·Q.· ·Do you recall what that deposit comprised 41:7· of? 41:8· · · ·A.· ·Well, that's the first installment of the 41:9· payments -- lease payments, plus also the security 41:10· deposit. 41:11· · · ·Q.· ·Okay.· And then after that, it looks like 41:12· beginning with March 8, 2011, and then continuing, it 41:13· looks like in April, May, and then it looks like I've 41:14· got a July and August on the next page there are a 41:15· series of deposits in the amount of 2200. 41:16· · · ·A.· ·Uh-huh. 42 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10707 Page 45 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 41:17· · · ·Q.· ·What were those deposits? 41:18· · · ·A.· ·Those were the monthly payments. 41:19· · · ·Q.· ·Monthly payments under the terms of the 41:20· lease option? 41:21· · · ·A.· ·Right. 41:22· · · ·Q.· ·And do you remember how you saved -- or 41:23· excuse me -- how you received those payments? 41:24· · · ·A.· ·I don't really remember. 41:25· · · ·Q.· ·Was that by check? 42:1· · · ·A.· ·I don't remember. 42:2· · · ·Q.· ·Okay.· The reason why I say that is it looks 42:3· like on each of deposit slips there is a reference to 42:4· a number of checks -- one. 42:5· · · · · · Does that refresh your recollection on how 42:6· you received payment? 42:7· · · ·A.· ·It's been quite a while. 42:8· · · ·Q.· ·Sure. 42:9· · · ·A.· ·I don't -- I don't really remember.· They 42:10· came.· I deposited them and we were fine. 42:11· · · ·Q.· ·Do you have any reason to dispute receiving 42:12· payments by check? 42:13· · · ·A.· ·No. 43 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10708 Page 46 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 42:14· · · ·Q.· ·Okay.· Do you recall who remitted the 42:15· checks? 42:16· · · ·A.· ·Well, if I -- if it was checks and they 42:17· weren't direct deposit, then it would have been 42:18· Western Land & Livestock. 42:19· · · ·Q.· ·Okay.· And I assume on each of these 42:20· deposits that reflects your receipt of payment and 42:21· deposited that amount into your bank account for the 42:22· monthly rent; is that correct? 42:23· · · ·A.· ·Yes. 42:24· · · ·Q.· ·Okay.· Let's go back to Exhibit No. 107, if 42:25· you will.· If you turn to paragraph 6, there is a 43:1· paragraph entitled "purchased price." 43:2· · · · · · Do you see that? 43:3· · · ·A.· ·Yes. 43:4· · · ·Q.· ·And then it says "The total purchase price 43:5· for the property is $575,000." 43:6· · · ·A.· ·Uh-huh. 43:7· · · ·Q.· ·How did you arrive at that purchase price? 43:8· · · ·A.· ·That's what John was willing to pay. 43:9· · · ·Q.· ·Did you believe that 575,000 was above or 43:10· below market value? 44 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10709 Page 47 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 43:11· · · ·A.· ·You know, the real estate market had tanked 43:12· up there pretty bad, and that's why I had to go down 43:13· from 725,000 down to 575, so I guess it is market 43:14· value. 43:15· · · ·Q.· ·Do you remember what you had initially 43:16· listed the property at? 43:17· · · ·A.· ·No, but it was probably pretty close to the 43:18· 725.· I had a certified appraisal on it. 43:19· · · ·Q.· ·Why were you still willing to sell or price 43:20· at 575 as opposed to the 700,000 and change -- 43:21· · · ·A.· ·Because, they weren't -- nobody was 43:22· interested in that and I -- I owed a lot of money, 43:23· because I had bought a house in Preston, and I wanted 43:24· to get that off my back. 43:25· · · ·Q.· ·Did you think Western Land & Livestock was 44:1· getting a good deal? 44:2· · · ·A.· ·Yeah. 44:3· · · ·Q.· ·Under paragraph 10, page 2, there is a 44:4· provision regarding utilities and property taxes. 44:5· · · · · · Do you see that? 44:6· · · ·A.· ·Uh-huh. 45 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10710 Page 48 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 44:7· · · ·Q.· ·Who did you understand would be responsible 44:8· for paying utilities? 44:9· · · ·A.· ·The -- John. 44:10· · · ·Q.· ·Had the landlord been responsible for paying 44:11· utilities, how would this have affected the monthly 44:12· payments?· So in other words, if you were responsible 44:13· for making utility payments, would the amount of rent 44:14· gone up? 44:15· · · ·A.· ·Of course. 44:16· · · ·Q.· ·Okay.· If you turn, if you will, to the next 44:17· page, there is a subparagraph 11-O. 44:18· · · · · · Do you see that? 44:19· · · ·A.· ·Oh, on page 4? 44:20· · · ·Q.· ·Yes.· It and starts out with the first 44:21· sentence "Tenant will do no remodeling of property 44:22· without landlord's written permission." 44:23· · · · · · Do you see that? 44:24· · · ·A.· ·Uh-huh. 44:25· · · ·Q.· ·During the term of the lease while you still 45:1· owned the property -- while you were landlord, were 45:2· you aware of any remodeling or improvements that took 45:3· place on the property? 46 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10711 Page 49 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 45:4· · · ·A.· ·Yes.· Not on the house. 45:5· · · ·Q.· ·And what do you remember taking place? 45:6· · · ·A.· ·Oh, they did -- they did some things to the 45:7· shop.· They had horses and so they -- I don't remember 45:8· what all they did, but on the east side of it, they 45:9· put an extra wing out for shade for the horses and a 45:10· few things like that.· I think they did something to a 45:11· tack room.· They put some air- conditioning in there, I 45:12· believe.· It was mainly things just to comfort their 45:13· animals. 45:14· · · ·Q.· ·What do you remember about expanding the 45:15· barn?· Was the dimension of it expanded or was it just 45:16· kind of these out lean-to structures? 45:17· · · ·A.· ·You know, I never went back in the barn, 45:18· So -- other than talking to Ron that one day out in 45:19· front of there, I -- I know for sure that the lean-to 45:20· was expanded quite a bit.· He may have expanded the 45:21· barn.· I don't recall if that happened or when that 47 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10712 Page 50 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 45:22· happened.· I just don't remember for sure. 45:23· · · ·Q.· ·What about any sort of remodeling or 45:24· improvements inside of the home?· Were you aware of 45:25· anything – 46:1· · · ·A.· ·No. 46:2· · · ·Q.· ·-- going on? 46:3· · · ·A.· ·Nope. 46:4· · · ·Q.· ·Did you ever give written permission for the 46:5· approval of the -- of the work that you saw done? 46:6· · · ·A.· ·No. 46:7· · · ·Q.· ·Did you have any problem with the work that 46:8· was done? 46:9· · · ·A.· ·No. 46:10· · · ·Q.· ·Why ,as a landlord, would you have allowed 46:11· these improvements to be done without written 46:12· approval? 46:13· · · ·A.· ·Because if they didn't complete the lease 46:14· and buy it, it was improving -- it was increasing my 46:15· property value. 46:16· · · ·Q.· ·Okay.· Now, during the term of the lease, 46:17· whenever there was an issue with the property, who was 46:18· your point of contact with Western Land & Livestock? 48 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED 46:10-46:15, Rule 402, 403 The Government argues in this case that the Talmages directed certain construction projects performed at the Liberty Property, which it argues is inconsistent with them being lessees/tenants. However, the work discussed here was done while Mr. Judd still owned the Liberty Property. This testimony from Mr. Judd is relevant to show that it is not unusual for a lessor/landlord to allow a lessee/tenant to make changes to the leased property. Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10713 Page 51 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 46:19· · · ·A.· ·I don't ever remember any issues coming up. 46:20· It would have been John, but I don't remember any 46:21· issues coming up. 46:22· · · ·Q.· ·Do you remember at any point in time anybody 46:23· else other than John Wadsworth being your point of 46:24· contact -- 46:25· · · ·A.· ·No. 47:1· · · ·Q.· ·-- for Western Land? 47:2· · · · · · And I think we talked about this before. 47:3· How would you communicate with John Wadsworth about 47:4· the lease? 47:5· · · ·A.· ·I believe it was through email. 47:6· · · ·Q.· ·Okay. 47:7· · · ·MR. INGRAM:· We are now at Exhibit 110.· We will 47:8· mark this as Exhibit 110. 47:9· · · · · · (Exhibit 110 marked.) 47:10· · · ·Q.· ·(BY MR. INGRAM)· This appears to be an email 47:11· chain between [email protected] and 47:12· [email protected]. 47:13· · · · · · Do you recognize that mstar.net email 47:14· address? 47:15· · · ·A.· ·That's my email. 47:16· · · ·Q.· ·And is that the email you used in 2010? 49 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10714 Page 52 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 47:17· · · ·A.· ·Yes. 47:18· · · ·Q.· ·Okay.· Do you remember receiving and sending 47:19· these emails? 47:20· · · ·A.· ·Not really. 47:21· · · ·Q.· ·Okay.· Do you have any reason to dispute 47:22· having received and sent them? 47:23· · · ·A.· ·No. 47:24· · · ·Q.· ·Okay.· Now, the first one appears to be from 47:25· Western Livestock.· The second one appears to be from 48:1· you.· It says "Hi, John."· Do you remember why you 48:2· sent this email to John on February 23, 2010? 48:3· · · ·A.· ·I'll just have to read it and see what it 48:4· says. 48:5· · · ·Q.· ·Okay.· Why don't you take a moment real 48:6· quick to do that and refresh your recollection. 48:7· · · ·A.· ·Honestly, John and I were working out the 48:8· details. 48:9· · · ·Q.· ·Okay.· Details of what? 48:10· · · ·A.· ·The lease, the monthly payment, the 48:11· percentage he was going to get if he closed. 48:12· · · ·Q.· ·Now, it looks like -- there is an email from 50 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10715 Page 53 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 48:13· John a day earlier where it says "Hi, Paul.· Nice 48:14· talking today." 48:15· · · · · · Do you remember speaking with John Wadsworth 48:16· on or about February 22? 48:17· · · ·A.· ·I really don't. 48:18· · · ·Q.· ·Okay.· Could that have been either your 48:19· first or second meeting on the property? 48:20· · · ·A.· ·It's possible. 48:21· · · ·Q.· ·Okay.· Other than what we've already talked 48:22· about in terms of your meeting with Mr. Wadsworth, 48:23· does this refresh your recollection about any other 48:24· sort of meeting you may have had with him? 48:25· · · ·A.· ·It really doesn't. 49:1· · · ·Q.· ·Okay.· He asks "What address do you want 49:2· payments sent to?"· Did you have an understanding of 49:3· what he was referring to? 49:4· · · ·A.· ·Well, yeah.· It would be the terms of the 49:5· lease agreement. 49:6· · · ·Q.· ·Okay. 49:7· · · ·A.· ·I told him to hold off a second.· We are not 49:8· to that point yet. 49:9· · · ·Q.· ·Okay.· Now, in your response, you say 51 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10716 Page 54 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 49:10· "Please do not send my" -- "send me any checks yet." 49:11· · · · · · Do you see that? 49:12· · · ·A.· ·Yes. 49:13· · · ·Q.· ·And then in the third sentence, you state "I 49:14· still need to do a credit check and reference 49:15· verification of you and your wife and your company." 49:16· · · · · · What's the verification you were referring 49:17· to? 49:18· · · ·A.· ·I didn't know who John or Western Land & 49:19· Livestock was.· I had no -- no idea who these people 49:20· were.· That's why I hired the attorney to see what he 49:21· could -- see if he could find anything out. 49:22· · · ·Q.· ·Okay.· And after you hired your attorney and 49:23· performed the verification you could, were you 49:24· satisfied that Mr. Wadsworth and Western Land were 49:25· legit at least for you? 50:1· · · ·A.· ·Well, my attorney's advice was this:· He 50:2· said, "Look, John is paying you" -- 20,000 or 29,000 50:3· or whatever it was up front.· I said, "What should I 52 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10717 Page 55 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 50:4· do?· I don't know John.· I don't know Western Land & 50:5· Livestock.· I don't know anybody, what should I do?" 50:6· And his advice to me was, "Well, you're getting a 50:7· check, and you're getting it up front, and it's almost 50:8· a year in advance, you could verify somebody else, and 50:9· they could lie about everything."· He said, "This is 50:10· cold, hard cash."· He said, "If I were you, I'd do 50:11· it," so I followed my attorney's advice. 50:12· · · ·Q.· ·Okay.· Now, in the second paragraph, you 50:13· talk about some of the terms of the lease. 50:14· · · ·A.· ·Uh-huh. 50:15· · · ·Q.· ·And there is a sec -- or excuse me -- a 50:16· third sentence in the second paragraph, "At your 50:17· request, we agreed to change the contract to a lease 50:18· option and extended the contract from 12 months to 18 50:19· months." 50:20· · · ·A.· ·Sure. 50:21· · · ·Q.· ·Who is the "your" you are referring to? 50:22· · · ·A.· ·Let's see. 50:23· · · ·Q.· ·Whose request? 53 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10718 Page 56 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 50:24· · · ·A.· ·Yeah, let me look at that.· It's the third 50:25· sentence? 51:1· · · ·Q.· ·Yes. 51:2· · · ·A.· ·In the second paragraph.· Well, that would 51:3· be John. 51:4· · · ·Q.· ·Okay.· And then in the third paragraph, you 51:5· also state, "You also requested that 25 percent of any 51:6· and all lease option payments would be credited to you 51:7· upon purchasing of our Liberty home at the end of the 51:8· 18-month lease option period." 51:9· · · · · · Who was the "you" you were referring to 51:10· there? 51:11· · · ·A.· ·John. 51:12· · · ·Q.· ·Okay.· And you had talked before about this 51:13· 25 percent of lease option payments being credited. 51:14· · · · · · What was this you were talking about? 51:15· · · ·A.· ·If he went on to close on our home, then he 51:16· would get 25 percent of his lease option payment -- a 51:17· credit, which he did get. 51:18· · · ·Q.· ·And it looks like in paragraph 6 of the 51:19· lease to purchase option agreement, it says at the end 54 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10719 Page 57 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 51:20· "The seller shall credit towards the purchase price at 51:21· closing an amount equal to 25 percent of the lease 51:22· payments trade" -- "made by buyer to seller." 51:23· · · ·A.· ·Yes. 51:24· · · ·Q.· ·Is that what you are referring to? 51:25· · · ·A.· ·Yes. 52:1· · · ·MR. INGRAM:· Okay.· Let's mark this next one as 52:2· Exhibit 111. 52:3· · · ·THE COURT REPORTER:· 110? 52:4· · · ·MR. INGRAM:· I think we are on 111. 52:5· · · ·MR. HALVERSON:· Yeah, that's right. 52:6· · · ·MS. GOLDEN:· Yeah. 52:7· · · · · · (Exhibit 111 marked.) 52:8· · · ·Q.· ·(BY MR. INGRAM)· Exhibit 111 appears to be a 52:9· series of emails between [email protected] and 52:10· [email protected] during the months of 52:11· February and March 2010. 52:12· · · · · · Do you remember sending and receiving these 52:13· emails with John Wadsworth? 52:14· · · ·A.· ·No, not really. 52:15· · · ·Q.· ·Do you have any reason to dispute sending 52:16· and receiving these? 55 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10720 Page 58 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 52:17· · · ·A.· ·No. 52:18· · · ·Q.· ·Okay.· It looks like pages -- or page 5, at 52:19· least, appears to be the same email we looked at 52:20· before.· Let's turn to the -- the Bates number that 52:21· has 5279. 52:22· · · · · · Do you see that? 52:23· · · ·A.· ·Uh-huh. 52:24· · · ·Q.· ·And little more than halfway down there is 52:25· an email dated February 25, 2010.· It says "Paul Judd 53:1· wrote." 53:2· · · · · · Do you see that? 53:3· · · ·A.· ·Uh-huh. 53:4· · · ·Q.· ·And it's addressed to John.· Why did you 53:5· send this email to John? 53:6· · · ·A.· ·Probably because -- it sounds like I just 53:7· got out of the my attorney's office, and he had some 53:8· recommendations. 53:9· · · ·Q.· ·Okay.· You start out "I think we are ready 53:10· to go.· Just a few minor additions to the contract, 53:11· and we can get this done." 53:12· · · · · · What was the contract you were referring to? 53:13· · · ·A.· ·Oh, it would be the lease option I would 53:14· imagine. 56 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10721 Page 59 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 53:15· · · ·Q.· ·Were there draft versions that were 53:16· exchanged between you and Mr. Wadsworth for the lease 53:17· option? 53:18· · · ·A.· ·It seems like there may have been. 53:19· · · ·Q.· ·Do you have a recollection of how many 53:20· versions went back and forth? 53:21· · · ·A.· ·No, but it wasn't much. 53:22· · · ·Q.· ·Okay.· Other than Mr. Wadsworth, did you 53:23· exchange any versions of a draft lease option with 53:24· anybody else? 53:25· · · ·A.· ·The only possible other person may have been 54:1· my attorney. 54:2· · · ·Q.· ·Okay. 54:3· · · ·A.· ·And I'm not sure I did that either. 54:4· · · ·Q.· ·You have in your email you continue with a 54:5· series of minor additions that you had proposed.· Why 54:6· were you proposing these additions to John? 54:7· · · ·A.· ·I don't remember what those additions were, 54:8· so... 54:9· · · ·Q.· ·And my question is a little bit different. 57 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10722 Page 60 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Exhibits Ruling OVERRULED Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE 54:9–14, Rule 602 Mr. Judd’s personal knowledge is established by him sending the referenced email (Depo. Ex. 111), and at 54:15-17, where he states that he asked Mr. Wadsworth about the proposed additions because Mr. Wadsworth was his only point of contact for negotiation of the lease. 54:18–23, Rule 602 Same as the prior objection—Mr. Judd’s explanation is that he reached out to Mr. Wadsworth because Mr. Wadsworth was his contact for negotiation of the lease. OVERRULED Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 54:10· Why were you asking John about these proposed 54:11· additions? 54:12· · · ·A.· ·About his proposed additions? 54:13· · · ·Q.· ·About your proposed additions. 54:14· · · ·A.· ·I honestly don't remember that conversation. 54:15· · · ·Q.· ·Do you recall why John -- was John your 54:16· point of contact? 54:17· · · ·A.· ·John is the only one I ever talked to. 54:18· · · ·Q.· ·Okay.· Is that why you had reached out to 54:19· him about the minor additions? 54:20· · · ·A.· ·I mean, I'm not supposed to speculate, but 54:21· it's probably -- if my attorney may have said, "Well, 54:22· you need to get a security deposit" or "You need to do 54:23· this" or do something like that.· I don't know. 54:24· · · ·Q.· ·Okay.· Do you recall if these are the terms 54:25· that ended up in the final lease option agreement -- 55:1· in one form or another? 55:2· · · ·A.· ·Yeah, it looks like it. 55:3· · · ·Q.· ·Okay. 55:4· · · ·A.· ·I'd say they were. 55:5· · · ·Q.· ·On page 5210, you end the email and there is 58 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10723 Page 61 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 55:6· a last paragraph. 55:7· · · ·A.· ·I don't think I have a 5210. 55:8· · · ·Q.· ·Excuse me.· 5280.· My apologies. 55:9· · · · · · 5280 -- you end this with "I also look 55:10· forward to meeting you on the 12th March 2010." 55:11· · · · · · Do you see that? 55:12· · · ·A.· ·Uh-huh. 55:13· · · ·Q.· ·Does that refresh your recollection about 55:14· when you met with John a second time? 55:15· · · ·A.· ·I mean, possibly.· But it's really -- it's 55:16· really hard.· That's a long time ago for me to 55:17· remember that exact meeting. 55:18· · · ·Q.· ·Sure. 55:19· · · ·A.· ·If that says we are going to meet on the 55:20· 12th, then we probably met on the 12th. 55:21· · · ·Q.· ·In any event, you have no reason to dispute 55:22· having met with John again on March 12th? 55:23· · · ·A.· ·My guess that would be is to guess -- to 55:24· look at the condition of the home and take some kind 55:25· of notes before we entered the lease. 59 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10724 Page 62 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 56:1· · · ·Q.· ·Thank you.· If you can go back to page 56:2· 5279 -- 56:3· · · ·A.· ·Okay. 56:4· · · ·Q.· ·You have under "Attorney notes 1A."· You see 56:5· that?· John needs to give you two things, a copy of 56:6· the operating agreement for Western Land & Livestock 56:7· LLC and articles of organization.· Why did you request 56:8· these organizational documents? 56:9· · · ·A.· ·I've never heard of John or Western Land & 56:10· Livestock.· I had absolutely no idea who these people 56:11· were. 56:12· · · ·Q.· ·Do you recall if these documents were ever 56:13· provided to you? 56:14· · · ·A.· ·No.· As I recall, my attorney said he really 56:15· couldn't find anything out. 56:16· · · ·Q.· ·Okay.· Do you recall if John ever sent them 56:17· to you? 56:18· · · ·A.· ·I don't believe I ever got them. 56:19· · · ·Q.· ·Okay.· There is another email on the page 56:20· before 5278, and it is dated March 2, 2010, 56:21· [email protected] wrote. 60 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10725 Page 63 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 56:22· · · · · · Do you see that? 56:23· · · ·A.· ·Uh-huh. 56:24· · · ·Q.· ·You have a communication with him and then 56:25· on the next page, you end with a post script.· You see 57:1· "PS"?· "It's weird, but I have had three real estate 57:2· agents contract me about lease optioning our home 57:3· since our home went off the market." 57:4· · · · · · Tell me about those real estate agents who 57:5· reached out to you. 57:6· · · ·A.· ·Honestly, I don't remember.· You know, there 57:7· is a lot of local real estate brokers up there, and I 57:8· don't -- I don't really remember too much about that. 57:9· · · ·Q.· ·How common is it in that area for people to 57:10· lease option purchases of property? 57:11· · · ·A.· ·It's not uncommon.· In a tough real estate 57:12· market where property values are going down, that's a 57:13· logical option for people. 57:14· · · ·Q.· ·Do you have any recollection about these 57:15· three real estate agents who contacted you who they 61 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10726 Page 64 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 57:16· were?· What they asked you about? 57:17· · · ·A.· ·I really don't. 57:18· · · ·Q.· ·Why did you apprise Mr. Wadsworth of these 57:19· inquiries? 57:20· · · ·A.· ·Because they happened. 57:21· · · ·Q.· ·You continue on page 5277, the first page -- 57:22· · · ·A.· ·Uh-huh. 57:23· · · ·Q.· ·And there is an email from you dated March 57:24· 4, 2010. 57:25· · · · · · Do you see that, "Paul Judd wrote"? 58:1· · · ·A.· ·Sure. 58:2· · · ·Q.· ·And it says "John I have to put this on hold 58:3· for a couple days.· I just received a call from an 58:4· agent who had showed our home to a professional person 58:5· several months ago." 58:6· · · · · · Do you recall why you had to put 58:7· negotiations on hold? 58:8· · · ·A.· ·Yeah, because I'd rather sell it than lease 58:9· it. 58:10· · · ·Q.· ·And I assume, did that sale go through or 58:11· that -- 58:12· · · ·A.· ·No. 62 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10727 Page 65 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 58:13· · · ·Q.· ·Okay.· And in the end, you ended up signing 58:14· the lease option? 58:15· · · ·A.· ·Yes. 58:16· · · ·Q.· ·Okay.· And then you have here an email from 58:17· you dated March 8, 2010.· "John, I'm ready to sign the 58:18· lease option this morning." 58:19· · · · · · Do you see that? 58:20· · · ·A.· ·What page is that on? 58:21· · · ·Q.· ·This is on the very first page at the very 58:22· top. 58:23· · · ·A.· ·Oh, yeah. 58:24· · · ·Q.· ·Okay.· And at that point in time, I assume 58:25· the lease option was executed shortly thereafter? 59:1· · · ·A.· ·Yeah, I think it was on the 15th. 59:2· · · ·MR. INGRAM:· Okay.· Why don't we take a 59:3· five-minute break. 59:4· · · ·THE WITNESS:· I could use some water. 59:5· · · ·MR. INGRAM:· Let's see if we can find you some 59:6· water then. 59:7· · · ·THE VIDEOGRAPHER:· Going off the record.· The 59:8· time is 11:04. 59:9· · · · · · (Recess taken from 11:04 a.m. to 11:12 a.m.) 59:10· · · · · · (Exhibit 112 marked.) 63 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10728 Page 66 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 59:11· · · ·THE VIDEOGRAPHER:· Back on the record.· The time 59:12· is 11:11 a.m. 59:13· · · ·Q.· ·(BY MR. INGRAM)· Mr. Judd, I've handed you 59:14· an exhibit that we have marked as Exhibit No. 112. 59:15· This, again, appears to be a series of emails between 59:16· pauljudd&mstar.net and [email protected] 59:17· during the months of February and March 2010. 59:18· · · · · · Do you remember sending and receiving these 59:19· emails? 59:20· · · ·A.· ·Vaguely. 59:21· · · ·Q.· ·The bottom emails appear to be a 59:22· continuation of the same string we've been looking at 59:23· before.· And if I can turn your attention to page 3 of 59:24· the document, which is Wadsworth 5265, do you see 59:25· that? 60:1· · · ·A.· ·Yes. 60:2· · · ·Q.· ·There is an email from you dated March 4, 60:3· 2010, at 10:56 a.m. 60:4· · · · · · Do you see that? 60:5· · · ·A.· ·I do. 60:6· · · ·Q.· ·And then this is addressed to John, and you 64 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10729 Page 67 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 60:7· say "Connie and I are signing the lease agreement 60:8· today." 60:9· · · · · · Is Connie your wife? 60:10· · · ·A.· ·Yes. 60:11· · · ·Q.· ·Okay.· "I will fax it or email it to you for 60:12· your signature.· Where do I either email it or fax it 60:13· to?" 60:14· · · · · · Does that refresh your recollection on how 60:15· you communicated the signed agreement? 60:16· · · ·A.· ·Yeah.· I mean, it's kind of consistent with 60:17· what I've been saying.· We emailed. 60:18· · · ·Q.· ·Okay.· You say here "There are other agents 60:19· calling me about leasing our Liberty home, and I want 60:20· to concentrate on other things." 60:21· · · · · · Does that refresh your recollection about 60:22· other agents reaching out to you about leasing the 60:23· home? 60:24· · · ·A.· ·You know, I -- I don't really remember that 60:25· too much. 61:1· · · ·Q.· ·Okay.· It looks like John responds to you 65 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10730 Page 68 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 61:2· the same day.· "Thanks Paul.· Please fax it to (775) 61:3· 580-8501.· I'll fax the signed copy to (208) 61:4· 247-8296." 61:5· · · · · · Doesn't that refresh your recollection about 61:6· how you sent the signed agreement? 61:7· · · ·A.· ·If that's what it says, that's what we did. 61:8· · · ·Q.· ·Do you have any reason to dispute sending 61:9· and receiving signatures via fax? 61:10· · · ·A.· ·No. 61:11· · · ·Q.· ·Okay.· He says "I'll go ahead and have two 61:12· checks mailed to your Preston, Idaho, address from the 61:13· bank, one for the prepaid lease and one for the 61:14· security deposit.· You should receive them prior to 61:15· the 12th." 61:16· · · · · · Does that refresh your recollection about 61:17· how the checks were sent to you? 61:18· · · ·A.· ·Yeah. 61:19· · · ·Q.· ·That was by mail? 61:20· · · ·A.· ·Yes. 61:21· · · ·Q.· ·Okay. 61:22· · · ·A.· ·Yes. 66 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10731 Page 69 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 61:23· · · ·Q.· ·John continues.· He says -- in that same 61:24· email on page 3, he continues.· He says "I need you to 61:25· walk me through the utilities situation.· Who is the 62:1· water, sewer provider?· Who is the garbage provider? 62:2· Will the gas appliances need to be relit or are they 62:3· currently lit?" 62:4· · · · · · Do you see that? 62:5· · · ·A.· ·Where are you at? 62:6· · · ·Q.· ·This is on page 3, Wads 5265.· And at the 62:7· very top, there is an email dated March 4, 2010 -- 62:8· · · ·A.· ·Okay. 62:9· · · ·Q.· ·-- 12:53.· Do you see that? 62:10· · · ·A.· ·Uh-huh. 62:11· · · ·Q.· ·And then in the last paragraph of John's 62:12· email, "I need you to walk me through the utilities 62:13· situation." 62:14· · · ·A.· ·Right. 62:15· · · ·Q.· ·So he sends that to you, and in response, on 62:16· the next page, page 2 -- if you can go to the 62:17· proceeding page. 62:18· · · ·A.· ·Oh, the previous page? 67 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10732 Page 70 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 62:19· · · ·Q.· ·Yeah, the previous page, page 2. 62:20· · · ·A.· ·Uh-huh. 62:21· · · ·Q.· ·There's an email dated March 8, 2010, at 62:22· 10:13 a.m.· "Paul Judd wrote," and it says "John, I 62:23· faxed a signed copy of the lease option agreement to 62:24· your office this morning.· The cover sheet goes 62:25· through the utilities, who to call, et cetera." 63:1· · · · · · What was the cover sheet that goes through 63:2· the utilities that you were referring to there? 63:3· · · ·A.· ·Well, it would say who to contact. 63:4· Telephone numbers of utility companies and water 63:5· companies and all that kind of stuff. 63:6· · · ·Q.· ·And why did you send that information to 63:7· John? 63:8· · · ·A.· ·Because if he's going to pay them, he needs 63:9· to know -- he needs to know who he is going to pay. 63:10· · · ·Q.· ·Okay.· You continue there and you state "I 63:11· do not have your cell phone number or I would have 63:12· called you before I faxed it." 68 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10733 Page 71 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 63:13· · · · · · Do you recall if Mr. Wadsworth ever provided 63:14· you his cell phone number? 63:15· · · ·A.· ·I don't recall. 63:16· · · ·Q.· ·Okay.· Later, it looks like that same day, 63:17· above that email there is an email from John dated 63:18· March 8, 2010, 11:41 a.m. 63:19· · · · · · Do you see that? 63:20· · · ·A.· ·Uh-huh. 63:21· · · ·Q.· ·It says "Thanks Paul.· We will fax the 63:22· counter signed lease to your to (208) 247-8296 fax." 63:23· · · · · · Does that refresh your recollection about 63:24· whether that number was your fax number? 63:25· · · ·A.· ·It probably was. 64:1· · · ·Q.· ·Okay.· He says "On the utilities, please 64:2· have them put in the name of Western Land & Livestock 64:3· and have the bills sent to Western Land & Livestock 64:4· LLC, PO Box 1453, Cheyenne, Wyoming." 64:5· · · · · · Do you see that? 64:6· · · ·A.· ·Uh-huh. 64:7· · · ·Q.· ·Do you recall if you ever followed 64:8· Mr. Wadsworth's request to have utilities put in the 69 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10734 Page 72 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 64:9· name of Western Land & Livestock? 64:10· · · ·A.· ·My belief is we did. 64:11· · · ·Q.· ·Okay.· Do you recall if utilities were ever 64:12· changed into the name of anybody else besides Western 64:13· Land & Livestock? 64:14· · · ·A.· ·They were not. 64:15· · · ·Q.· ·Okay.· And then finally on the first page of 64:16· this document, it looks like towards the bottom there 64:17· is an email from you where it says "Paul Judd wrote." 64:18· · · · · · Do you see that? 64:19· · · ·A.· ·Uh-huh. 64:20· · · ·Q.· ·"John, I received both checks today, 64:21· Saturday." 64:22· · · · · · Was this in reference to the prepaid rent 64:23· and security deposit that we looked at earlier? 64:24· · · ·A.· ·Yes. 64:25· · · ·MR. INGRAM:· Let's mark this next one as Exhibit 65:1· No. 113. 65:2· · · · · · (Exhibit 113 marked.) 65:3· · · ·Q.· ·(BY MR. INGRAM)· Again, these appear to be 65:4· a -- some emails between [email protected] and 65:5· [email protected] dated March 18 and 19, 70 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10735 Page 73 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 65:6· 2010. 65:7· · · · · · Do you remember sending and receiving these 65:8· emails? 65:9· · · ·A.· ·I'm sure I sent them. 65:10· · · ·Q.· ·Okay.· Do you remember your purpose in 65:11· sending these emails to Mr. Wadsworth? 65:12· · · ·A.· ·Well, there was a problem with an access 65:13· door to the jetted tub, and I had agreed to fix that. 65:14· And just -- just items, I guess I had agreed to fix -- 65:15· take care of. 65:16· · · ·Q.· ·The very first email is on the second page, 65:17· and it's dated March 18, 2010, 5:45 p.m.· And it says 65:18· "Paul, here is a summary of the notes confirming the 65:19· condition of each area of the home," and then there is 65:20· a list of items in each room of the home. 65:21· · · ·A.· ·Sure. 65:22· · · ·Q.· ·Do you have an understanding of why John 65:23· Wadsworth was sending this to you? 65:24· · · ·A.· ·Yeah because, like I said before, we wanted 65:25· to note the condition of the home.· And I couldn't 71 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10736 Page 74 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 66:1· remember whether it was a picture or notes, but 66:2· obviously it was notes. 66:3· · · ·Q.· ·Did you receive this email subsequent to 66:4· that inspection that Mr. Wadsworth had conducted? 66:5· · · ·A.· ·This was a result of the inspection he did. 66:6· · · ·Q.· ·Okay.· Thank you.· You respond, it looks 66:7· like, on March 19 at 2:12 p.m. 66:8· · · · · · Do you see that? 66:9· · · ·A.· ·I do. 66:10· · · ·Q.· ·And it says "John, I was over to the Liberty 66:11· home yesterday.· The access door to the jetted has 66:12· been repaired." 66:13· · · · · · Is that what you are referring to earlier? 66:14· · · ·A.· ·Yes. 66:15· · · ·Q.· ·Okay.· "There were four or five guys working 66:16· on corrals and paining the basement floor." 66:17· · · · · · Did you mean "painting"? 66:18· · · ·A.· ·Painting.· Yeah, painting. 66:19· · · ·Q.· ·Okay.· What did you observe about paint that 66:20· was happening on the basement floor? 72 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10737 Page 75 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 66:21· · · ·A.· ·I think they were just putting a sealant on 66:22· it. 66:23· · · ·Q.· ·Okay.· You continue a little later.· You say 66:24· "People were painting the basement floor and the 66:25· cement walls."· As a landlord, why did you allow this 67:1· to happen? 67:2· · · ·A.· ·It seems like John said something about 67:3· there might be some pets in the basement, and I said, 67:4· "Okay.· The only way I agree to that is if it's 67:5· sealed, because I don't want" -- "if you don't buy 67:6· this, I don't want a dog smell in my basement." 67:7· · · ·Q.· ·I got you.· The last two sentences -- or 67:8· excuse me -- the last sentence you say "I just want to 67:9· make sure they do not do any wall changing or 67:10· additions in the home without my approval." 67:11· · · · · · Why did you want to confirm your approval 67:12· for wall changes or additions to the home? 67:13· · · ·A.· ·Because I don't anybody doing anything on my 67:14· home without my permission. 73 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10738 Page 76 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 67:15· · · ·Q.· ·Later were you aware of any improvements or 67:16· changes that were done in the home that you did not 67:17· approve of? 67:18· · · ·A.· ·As far as I know, the painting of that floor 67:19· and those walls was the only thing that was done in 67:20· the house.· I'm not aware of anything else. 67:21· · · ·MR. INGRAM:· Okay.· Let's mark this next one as 67:22· Exhibit No. 114. 67:23· · · · · · (Exhibit 114 marked.) 67:24· · · ·Q.· ·(BY MR. INGRAM)· This, again, looks like 67:25· another email -- another email exchange between you 68:1· and John Wadsworth in April and May 2010. 68:2· · · · · · Do you remember receiving and sending these 68:3· emails? 68:4· · · ·A.· ·Yeah. 68:5· · · ·Q.· ·John asks you in an email dated April 2, 68:6· 2010, "Paul, hope you are doing well.· Does the 68:7· fencing look good to you?" 68:8· · · · · · And then you respond, "John, it is my 68:9· understanding the homeowners association was giving 74 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10739 Page 77 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED 68:18-21, Rule 402, 403 The Government argues in this case that the Talmages directed certain construction projects performed at the Liberty Property, which it argues is inconsistent with them being lessees/tenants. However, the work discussed here was done while Mr. Judd still owned the Liberty Property. This testimony from Mr. Judd is relevant to show that it is not unusual for a lessor/landlord to allow a lessee/tenant to make changes to the leased property. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 68:10· the renters a little bit of hard time about their 68:11· vinyl fence, slash, corral." 68:12· · · · · · What were you referring to there? 68:13· · · ·A.· ·It seems like John had some vinyl fences put 68:14· in for his horses.· And he probably asked me that and 68:15· I didn't have a problem with it.· When he put the wing 68:16· on the barn for his horses, then he needed some bigger 68:17· corrals for it. 68:18· · · ·Q.· ·Why as a landowner or a property owner were 68:19· you okay with the installation of that vinyl fence? 68:20· · · ·A.· ·Because it looked great and it was 68:21· increasing my property value. 68:22· · · ·MR. INGRAM:· Okay.· Let's mark this as Exhibit 68:23· No. 115. 68:24· · · · · · (Exhibit 115 marked.) 68:25· · · ·Q.· ·(BY MR. INGRAM)· This looks like an email on 69:1· the -- on the second page -- 69:2· · · ·A.· ·Uh-huh. 69:3· · · ·Q.· ·-- it says from Paul Judd to 69:4· [email protected], copy Western Livestock, dated 69:5· May 18, 2010.· And then the first page is a response 75 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10740 Page 78 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 69:6· from an Allen Lewis. 69:7· · · · · · Do you remember sending and receiving these 69:8· emails? 69:9· · · ·A.· ·Yes.· When I sent it to Allen Lewis, I sent 69:10· it to his wife. 69:11· · · ·Q.· ·Who is Vince Betty? 69:12· · · ·A.· ·Vincent and Betty Bennett were part of the 69:13· Willow Creek Home Owners Association. 69:14· · · ·Q.· ·And what was the Willow Creek Home Owners 69:15· Association? 69:16· · · ·A.· ·A homeowners association. 69:17· · · ·Q.· ·Okay.· Was that the HOA for where the 69:18· property was located? 69:19· · · ·A.· ·Yeah.· But we didn't consider ourselves part 69:20· of that. 69:21· · · ·Q.· ·Okay.· When you said "we," you mean the -- 69:22· · · ·A.· ·Connie and I did not consider that property 69:23· part of that homeowners association. 69:24· · · ·Q.· ·Okay. 69:25· · · ·A.· ·So. 70:1· · · ·Q.· ·What was your purpose in sending this email 70:2· on May 18th, 2010? 70:3· · · ·A.· ·To Allen -- to his wife? 76 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10741 Page 79 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 70:4· · · ·Q.· ·To vincebetty@digis, yes. 70:5· · · ·A.· ·Well.· Allen may have been the president of 70:6· the homeowners association.· I don't know.· But they 70:7· were in the leadership of it, and they had been 70:8· giving -- whoever the renter was they had been giving 70:9· him a hard time about that vinyl fence.· And I was 70:10· basically telling them, "Look, this is none of your 70:11· business.· We are not part of the homeowners 70:12· association, so knock it off." 70:13· · · ·Q.· ·Why did you copy Western Livestock on this 70:14· email? 70:15· · · ·A.· ·Well, John should know, you know.· I mean, 70:16· John should know this conversation was going on. 70:17· · · ·Q.· ·So in other words, copying Western Land & 70:18· Livestock was your effort to -- 70:19· · · ·A.· ·Inform him. 70:20· · · ·Q.· ·-- apprise John of what was going on? 70:21· · · ·A.· ·Yeah. 70:22· · · ·MR. INGRAM:· Okay.· Let's mark this one as 70:23· Exhibit No. 116. 70:24· · · · · · (Exhibit 116 marked.) 77 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10742 Page 80 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 70:25· · · ·Q.· ·(BY MR. INGRAM)· This is another series of 71:1· emails between [email protected] and Western 71:2· Livestock. 71:3· · · · · · Do you remember sending and receiving these 71:4· emails in May of 2010? 71:5· · · ·A.· ·I -- they look familiar to me. 71:6· · · ·Q.· ·Okay.· There is an email up at the very top 71:7· of the first page dated May 22, 2010. 71:8· · · · · · Do you see that? 71:9· · · ·A.· ·Uh-huh. 71:10· · · ·Q.· ·It says "John, Ron would like to purchase my 71:11· Caterpillar SR21 seven-foot wide hydraulic 71:12· snowblower." 71:13· · · · · · Is this the snowblower that you were 71:14· referring to earlier? 71:15· · · ·A.· ·Yes. 71:16· · · ·Q.· ·Why did you inform John about Ron's interest 71:17· in the snowblower? 71:18· · · ·A.· ·Something going on with the property so -- 71:19· with the place, so I figured I should do it. 71:20· · · ·Q.· ·Okay.· You continue here in the middle of 78 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10743 Page 81 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 71:21· this first paragraph where he says "He emailed me 71:22· concerning the sprinkler system and the kennel 71:23· permit." 71:24· · · · · · Do you see that? 71:25· · · ·A.· ·I do. 72:1· · · ·Q.· ·Why were you acquiring -- or informing John 72:2· about the sprinkler system and the kennel permit? 72:3· · · ·A.· ·I don't really remember, other than the fact 72:4· that at that point in time Ron must have been living 72:5· in the house and he needed a kennel permit.· So seeing 72:6· as how John and Western Land & Livestock was 72:7· ultimately going to own the home, whatever happens to 72:8· the home, John ought to know about. 72:9· · · ·Q.· ·Okay.· Did you have a problem with the 72:10· kennel? 72:11· · · ·A.· ·No. 72:12· · · ·Q.· ·You continue in the second paragraph "I do 72:13· not know that it is going to be effective in taking 72:14· care of the snow that slides off of the roof over the 72:15· corrals." 72:16· · · · · · Do you see that? 79 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10744 Page 82 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 72:17· · · ·A.· ·Yes. 72:18· · · ·Q.· ·Is this in reference to the snowblower? 72:19· · · ·A.· ·Yes. 72:20· · · ·Q.· ·Okay.· And as I understand it, what you are 72:21· saying here is that as the snow melts and it blows 72:22· off, it will pile up, turn to ice, and so the 72:23· snowblower might not work that well? 72:24· · · ·A.· ·Might not work. 72:25· · · ·Q.· ·Again, why were you informing John Wadsworth 73:1· about the situation regarding snow removal? 73:2· · · ·A.· ·Because it is going to be John's house. 73:3· · · ·MR. INGRAM:· Okay.· Let's mark this as Exhibit 73:4· No. 117. 73:5· · · · · · (Exhibit 117 marked.) 73:6· · · ·Q.· ·(BY MR. INGRAM)· This is another email 73:7· exchange between [email protected] and 73:8· [email protected] dated August 5, 2010. 73:9· · · · · · Do you remember receiving and sending these 73:10· emails? 73:11· · · ·A.· ·Uhm, kind of. 73:12· · · ·Q.· ·On August 5, 2010, you say, "John, Liberty 80 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10745 Page 83 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 73:13· Pipeline sent me this bill for culinary water on the 73:14· Liberty home." 73:15· · · · · · What were you referring to? 73:16· · · ·A.· ·The water bill. 73:17· · · ·Q.· ·Why did you ask John instead of somebody 73:18· else to make arrangements for payment? 73:19· · · ·A.· ·Because John agreed to take over the 73:20· utilities. 73:21· · · ·Q.· ·There is a response -- and so -- sorry.· You 73:22· continue here, "Would you make arrangements for 73:23· someone to pay the Liberty water bill?" 73:24· · · · · · Is that the arrangements you were just 73:25· talking about? 74:1· · · ·A.· ·I'm sure it -- yeah. 74:2· · · ·Q.· ·Okay.· Do you recall receiving John's 74:3· response on August 5?· "Thanks for the update Paul. A 74:4· check payment was sent to Liberty Pipeline today. 74:5· Will also contact them to update the mailing address." 74:6· Do you see that? 74:7· · · ·A.· ·I mean, I'm sure this happened.· Do I 74:8· specifically remember it?· No. 81 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10746 Page 84 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 74:9· · · ·Q.· ·Okay.· You don't have any reason to dispute 74:10· receiving it? 74:11· · · ·A.· ·No. 74:12· · · ·Q.· ·After this exchange with John, do you recall 74:13· whether you had any other issues with the Liberty 74:14· Pipeline bill? 74:15· · · ·A.· ·Not -- not to my recollection. 74:16· · · ·Q.· ·Okay.· Now, at some point in time the 74:17· purchase option was exercised; is that correct? 74:18· · · ·A.· ·Yes. 74:19· · · ·Q.· ·Do you recall when that was communicated to 74:20· you? 74:21· · · ·A.· ·Yeah.· Well, we closed on it 9/15/2011. 74:22· · · ·Q.· ·Do you remember how that was communicated to 74:23· you? 74:24· · · ·A.· ·What I remember is a couple days before we 74:25· were supposed to close, the communication between me 75:1· and John went very silent, and so I text him or 75:2· emailed -- we didn't text back then.· I emailed him or 75:3· in some way I said, "Look, John, if you don't 82 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10747 Page 85 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 75:4· communicate with me and you exceed the limit, the home 75:5· is going on the market the next day." 75:6· · · ·Q.· ·Do you remember who ultimately communicated 75:7· the purchase option to you -- or exercised the option? 75:8· · · ·A.· ·The only one I ever talked to was John. 75:9· · · ·Q.· ·Okay.· And so I assume the answer to my next 75:10· question, I probably already know, but I'll ask it 75:11· anyway.· Did anybody other than John Wadsworth 75:12· communicate, exercise -- 75:13· · · ·A.· ·No. 75:14· · · ·Q.· ·-- the purchase option to you? 75:15· · · ·A.· ·No. 75:16· · · ·Q.· ·Did the Talmages communicate and exercise of 75:17· the purchase option to you? 75:18· · · ·A.· ·No. 75:19· · · ·MR. INGRAM:· Let's mark this one as Exhibit 75:20· No. 118. 75:21· · · · · · (Exhibit 118 marked.) 75:22· · · ·Q.· ·(BY MR. INGRAM)· This is an email dated May 75:23· 1, 2011, from [email protected] to Western Land & 75:24· Livestock. 83 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10748 Page 86 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 75:25· · · · · · Do you see that? 76:1· · · ·A.· ·Uh-huh. 76:2· · · ·Q.· ·Why did you send this email to John? 76:3· · · ·A.· ·All my communication went through John. 76:4· · · ·Q.· ·Now, I noticed that this is only sent to 76:5· Western Land & Livestock.· Why did you not copy 76:6· anybody else on this email? 76:7· · · ·A.· ·Because I'm in communications with John. 76:8· · · ·Q.· ·Why did you not copy the Talmages on this 76:9· email? 76:10· · · ·A.· ·I don't think I had any contact 76:11· information -- I don't remember having any contact 76:12· information with the Talmages.· I may have, but I 76:13· don't remember. 76:14· · · ·Q.· ·You say "Connie and I were wondering if 76:15· Western Land & Livestock LLC and, slash, or Ron and 76:16· Annie have made a decision on buying our home in 76:17· Liberty." 76:18· · · · · · Do you see that? 76:19· · · ·A.· ·I do. 76:20· · · ·Q.· ·So you noticeably include these conjunctions 84 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10749 Page 87 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 76:21· and, slash, or.· Did you know whether the Talmages 76:22· actually had authority to exercise the purchase 76:23· option? 76:24· · · ·A.· ·No.· They didn't have -- there is nothing in 76:25· that contract that gives them the right to do it.· But 77:1· I don't know if maybe John was going to sell it to 77:2· them after he bought it from me. 77:3· · · ·Q.· ·Was this just an assumption on their part 77:4· that they may have some decision making power? 77:5· · · ·MS. GOLDEN:· Objection.· Calls for speculation. 77:6· · · ·THE WITNESS:· Okay. 77:7· · · ·MR. INGRAM:· You can answer. 77:8· · · ·THE WITNESS:· What was the question again? 77:9· · · ·Q.· ·(BY MR. INGRAM)· Was that just an assumption 77:10· on your part that they may or may not have some 77:11· decision making power? 77:12· · · ·A.· ·I never -- I never believed that they had 77:13· any decision making powers to buying the home or not 77:14· buying the home, but I don't know what John -- you 85 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10750 Page 88 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 77:25–78:2, Rule 602 Mr. Judd has personal knowledge about who he understood was making lease and purchase decisions on behalf of Western Land & Livestock because he negotiated and communicated directly—and solely—with Mr. Wadsworth on Western Land’s behalf. See 77:17-24. OVERRULED Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 77:15· know, I don't know what John's relationship is with 77:16· those guys, so... 77:17· · · ·Q.· ·Who did you understand was the only person 77:18· authorized to make decisions and act on behalf of 77:19· Western Land & Livestock? 77:20· · · ·A.· ·John. 77:21· · · ·Q.· ·Who was the only person who ever 77:22· communicated authority to act on behalf of Western 77:23· Land & Livestock? 77:24· · · ·A.· ·John. 77:25· · · ·Q.· ·Who made all decisions regarding the lease 78:1· and purchase of the property? 78:2· · · ·A.· ·John. 78:3· · · ·Q.· ·You said here at the bottom "Ron and Annie 78:4· have done a lot of really nice things to our Liberty 78:5· home." 78:6· · · · · · What were the really nice things you were 78:7· referring to? 78:8· · · ·A.· ·Well, the vinyl fence and -- and they 78:9· also -- there was -- on the side of our house -- I'm 78:10· assuming it was Ron and those guys because they were 78:11· living there.· They had put some black poly or weed 86 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10751 Page 89 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 78:12· barrier or whatever.· They put a bunch of gravel along 78:13· the side of the house.· That was really nice.· It kept 78:14· the weeds down and the vinyl fence was nice.· So from 78:15· the outside, they were taking good care of it.· It was 78:16· looking nice.· There was some improvements being made. 78:17· · · ·Q.· ·Is that why you as the landlord approved of 78:18· those? 78:19· · · ·A.· ·Yeah. 78:20· · · ·Q.· ·Okay.· You continue here "I have also 78:21· appreciated doing business with you, John." 78:22· · · · · · What business had you conducted with John? 78:23· · · ·A.· ·The only business is just this house. 78:24· · · ·Q.· ·Other than John Wadsworth, had you conducted 78:25· any business concerning the property with anybody 79:1· else? 79:2· · · ·A.· ·Well, I had some guys fix the trap door to 79:3· the jetted tub. 79:4· · · ·Q.· ·In terms of conducting business regarding 79:5· the house, anybody other than John Wadsworth? 79:6· · · ·A.· ·No. 87 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10752 Page 90 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 79:7· · · ·MR. INGRAM:· We are on 119. 79:8· · · · · · (Exhibit 119 marked.) 79:9· · · ·Q.· ·(BY MR. INGRAM)· We've handed you and we've 79:10· marked it as Exhibit 119.· This is an email from 79:11· [email protected] to Paul Judd dated May 2, 79:12· 2011. 79:13· · · · · · Do you remember receiving this email? 79:14· · · ·A.· ·Just like everything else, it -- I assume 79:15· this is right.· Yes, I kind of remember it. 79:16· · · ·Q.· ·It says "Paul, thanks for your email.· WLL 79:17· plans on exercising the option to purchase the 79:18· property before the option expires." 79:19· · · · · · Do you see that? 79:20· · · ·A.· ·Yes. 79:21· · · ·Q.· ·By this email, who did you understand would 79:22· exercise the purchase option? 79:23· · · ·A.· ·John. 79:24· · · ·Q.· ·And it says -- he continues "I'll let you 79:25· know as soon as the timeline is nailed down." 80:1· · · · · · Who did you understand would exercise the 88 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10753 Page 91 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 80:2· option on behalf of Western Land & Livestock? 80:3· · · ·A.· ·John. 80:4· · · ·Q.· ·Based upon this email and John's 80:5· representation, what did you do to prepare for the 80:6· purchase of the property? 80:7· · · ·A.· ·I don't think I did anything.· It says he'll 80:8· let me know when you nail it down and then we schedule 80:9· the closing. 80:10· · · ·Q.· ·Do you remember putting together a real 80:11· estate purchase contract? 80:12· · · ·A.· ·Oh, yes.· Of course. 80:13· · · ·Q.· ·Okay. 80:14· · · ·A.· ·Yes.· I'm sorry.· Yes. 80:15· · · ·Q.· ·Do you remember who put together the real 80:16· estate purchase contract? 80:17· · · ·A.· ·That would probably be me. 80:18· · · ·Q.· ·Okay.· Do you recall who asked you to put 80:19· together the REPC? 80:20· · · ·A.· ·John. 80:21· · · ·Q.· ·If I refer to the real estate purchase 80:22· contract as a REPC -- 80:23· · · ·A.· ·That's fine. 80:24· · · ·Q.· ·-- do you understand what I'm talking about? 80:25· · · ·A.· ·Yes. 89 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10754 Page 92 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 81:1· · · ·Q.· ·And I assume you put together REPCs in the 81:2· past based upon your real estate experience? 81:3· · · ·A.· ·Sure.· Lots of them. 81:4· · · ·MR. INGRAM:· Okay.· Let's mark this as Exhibit 81:5· 120. 81:6· · · · · · (Exhibit 120 marked.) 81:7· · · ·Q.· ·(BY MR. INGRAM)· I've handed you what we 81:8· have marked as Exhibit 120, Mr. Judd. 81:9· · · · · · Do you recognize this document? 81:10· · · ·A.· ·Yes. 81:11· · · ·Q.· ·And what is this? 81:12· · · ·A.· ·The real estate purchase contract. 81:13· · · ·Q.· ·Is this the REPC that you prepared? 81:14· · · ·A.· ·Yes. 81:15· · · ·Q.· ·Okay.· It looks like there is a series of 81:16· initials on each page and then some signatures on the 81:17· last two pages.· Do you remember -- or excuse me.· Do 81:18· you recognize these signatures and initials on all the 81:19· pages? 81:20· · · ·A.· ·They look like John's, so... 81:21· · · ·Q.· ·What about the other signatures?· Do you 90 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10755 Page 93 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 81:22· recognize those? 81:23· · · ·A.· ·Well, those are my wife and I's. 81:24· · · ·Q.· ·Okay.· Do you recall when this agreement was 81:25· initialed and signed? 82:1· · · ·A.· ·It looks like the 14th of September 2011. 82:2· · · ·Q.· ·Do you remember how a signed copy of the 82:3· REPC was delivered to you?· Was that via fax or email? 82:4· · · ·A.· ·Yeah, it was either fax or email.· I don't 82:5· know. 82:6· · · ·Q.· ·Okay.· According to this REPC, who did you 82:7· understand was the buyer? 82:8· · · ·A.· ·Western Land & Livestock and John. 82:9· · · ·Q.· ·Okay.· And who negotiated this real estate 82:10· purchase contract on behalf of Western Land & 82:11· Livestock? 82:12· · · ·A.· ·Well, we pretty much negotiated it through 82:13· the lease option with John. 82:14· · · ·Q.· ·Anybody else? 82:15· · · ·A.· ·No. 82:16· · · ·Q.· ·Who did you understand represented Western 82:17· Land & Livestock in this real estate purchase contract 82:18· transaction? 91 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10756 Page 94 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 82:19· · · ·A.· ·John. 82:20· · · ·Q.· ·Other than Mr. Wadsworth, did anybody else 82:21· negotiate this REPC on behalf of Western Land & 82:22· Livestock? 82:23· · · ·A.· ·No. 82:24· · · ·Q.· ·Now, in Section 2 of the REPC under purchase 82:25· price, there is a total $575,000. 83:1· · · · · · Do you see that? 83:2· · · ·A.· ·Yes. 83:3· · · ·Q.· ·Did that come from the lease option purchase 83:4· price that we looked at earlier? 83:5· · · ·A.· ·Yes. 83:6· · · ·Q.· ·Okay.· There is a $12,400 earnest money 83:7· deposit and then up at the top of the agreement, it 83:8· says "In the form of credit from seller." 83:9· · · · · · Do you see that? 83:10· · · ·A.· ·Right. 83:11· · · ·Q.· ·Where did that come from? 83:12· · · ·A.· ·Well, he got 25 percent of the payments each 83:13· month and then there was a $2500 security deposit to 83:14· be re -- reimbursed to him. 83:15· · · ·Q.· ·So this was the 25 percent credit that we 83:16· had discussed earlier? 83:17· · · ·A.· ·Yes. 92 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10757 Page 95 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 83:18· · · ·Q.· ·Okay. 83:19· · · ·A.· ·I believe that also -- I believe that also 83:20· includes the security deposit. 83:21· · · ·Q.· ·Okay.· And then it looks there -- under the 83:22· purchase price, it's broken out into a new loan, under 83:23· subsection 2B. 83:24· · · · · · Do You see that -- 83:25· · · ·A.· ·Uh-huh. 84:1· · · ·Q.· ·-- in the amount of $534,000 and change? 84:2· · · ·A.· ·Right. 84:3· · · ·Q.· ·Do you recall any representation to you 84:4· about financing a new loan? 84:5· · · ·A.· ·The only thing I recall is he had a company 84:6· he was working with. 84:7· · · ·Q.· ·Okay. 84:8· · · ·A.· ·That's about all I remember. 84:9· · · ·Q.· ·Do you recall Mr. Wadsworth making any 84:10· representation to you about what that financing would 84:11· be? 84:12· · · ·A.· ·No, I don't recall that. 84:13· · · ·Q.· ·Okay.· Did you ever view or receive any 84:14· documents regarding that financing? 84:15· · · ·A.· ·I don't remember receiving any. 93 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10758 Page 96 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 84:16· · · ·Q.· ·As the seller of the property, did you even 84:17· really care where the financing came from so long as 84:18· the check cleared? 84:19· · · ·A.· ·No, not really.· I mean -- 84:20· · · ·Q.· ·I think you had answered this earlier, but 84:21· let me just confirm.· When did the purchase close? 84:22· · · ·A.· ·Well, I think -- whatever the date it is on 84:23· that settlement statement -- the 15th of September. 84:24· · · ·Q.· ·Okay.· And do you recall who conducted the 84:25· closing -- what title company? 85:1· · · ·A.· ·No, I really don't. 85:2· · · ·Q.· ·Meridian Title Company; does that ring a 85:3· bell? 85:4· · · ·A.· ·That sounds familiar now, yeah. 85:5· · · ·Q.· ·Okay.· Do you recall who selected Meridian 85:6· Title to conduct the closing? 85:7· · · ·A.· ·That would have been John. 85:8· · · ·Q.· ·And was that he who provided information to 85:9· contact Meridian Title? 85:10· · · ·A.· ·Yeah. 85:11· · · ·Q.· ·Okay.· Who do you -- during this time, who 94 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10759 Page 97 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 85:12· did you typically use for a title company to 85:13· facilitate closings? 85:14· · · ·A.· ·Well, I would normally use -- I've been in 85:15· Utah a lot of years now so I've got to think about it. 85:16· I'd either use First American Title.· I would use 85:17· Amer Card & Title. 85:18· · · ·Q.· ·Why did you agree to use Meridian Title 85:19· instead of them? 85:20· · · ·A.· ·It worked for John.· It's fine with me. I 85:21· didn't care. 85:22· · · ·Q.· ·Okay.· Now, I assume there was a closing 85:23· that took place at somebody's office? 85:24· · · ·A.· ·Yeah.· I just don't remember where that 85:25· happened. 86:1· · · ·Q.· ·Okay.· The seller of the property, it looks 86:2· like was you and your wife, Paul and Connie Judd. 86:3· · · · · · Do you recall who appeared at the closing on 86:4· your behalf to execute the closing documents? 86:5· · · ·A.· ·We did. 86:6· · · ·Q.· ·That would be you and your wife? 86:7· · · ·A.· ·Connie and I did, yes. 95 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10760 Page 98 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 86:8· · · ·Q.· ·Okay.· Do you remember -- was there anybody 86:9· else at the closing besides you and your wife? 86:10· · · ·A.· ·I don't recall anybody else. 86:11· · · ·Q.· ·Okay.· Was this a separate closing from the 86:12· buyer? 86:13· · · ·A.· ·I believe it was a separate closing. 86:14· · · ·Q.· ·Okay.· So whoever showed up on behalf of the 86:15· buyer, you don't know who that was? 86:16· · · ·A.· ·Yeah, I don't remember that at all, so... 86:17· · · ·MR. INGRAM:· Okay.· Let's mark this as Exhibit 86:18· No. 121, 86:19· · · · · · (Exhibit 121 marked.) 86:20· · · ·Q.· ·(BY MR. INGRAM)· I've handed you what we 86:21· have marked as Exhibit 121. 86:22· · · · · · Do you recognize this document? 86:23· · · ·A.· ·Yeah. 86:24· · · ·Q.· ·And what is this document? 86:25· · · ·A.· ·These are the closing statements. 87:1· · · ·Q.· ·And who prepared the closing statement? 87:2· · · ·A.· ·Meridian Title. 96 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10761 Page 99 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 87:3· · · ·Q.· ·There is a signature on the second to last 87:4· page upped sellers, Paul L. Judd, Connie Judd. 87:5· · · · · · Do you see that? 87:6· · · ·A.· ·Yes. 87:7· · · ·Q.· ·Are these your signatures? 87:8· · · ·A.· ·Yes. 87:9· · · ·Q.· ·And do you remember signing this on or about 87:10· September 14, 2011? 87:11· · · ·A.· ·Well, I'm sure we did.· Yeah. 87:12· · · ·Q.· ·And then there is a settlement agent here, 87:13· Jeff Seaman.· Do you ever -- do you remember -- 87:14· · · ·A.· ·I don't remember. 87:15· · · ·Q.· ·-- him being the closing officer? 87:16· · · ·A.· ·I don't remember that at all. 87:17· · · ·Q.· ·How many closings have you participated in? 87:18· · · ·A.· ·Hundreds. 87:19· · · ·Q.· ·Okay. 87:20· · · ·A.· ·So -- 87:21· · · ·Q.· ·Other than you and your wife and Mr. Seaman, 87:22· do you recall anybody else who was present for the 87:23· closing and your signature of these documents -- on v24· these documents? 97 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10762 Page 100 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 87:25· · · ·A.· ·No, I don't. 88:1· · · ·Q.· ·Okay.· And according to the -- you see there 88:2· is a section "D" on the first page.· Who did you 88:3· understand was the purchaser of the property? 88:4· · · ·A.· ·Well, Western Land & Livestock and John. 88:5· · · ·MR. INGRAM:· Okay.· We will mark this one as 88:6· Exhibit No. 122. 88:7· · · · · · (Exhibit 122 marked.) 88:8· · · ·Q.· ·(BY MR. INGRAM)· Do you recognize this 88:9· document? 88:10· · · ·A.· ·Well, it is a closing -- a closing document. 88:11· I don't -- 88:12· · · ·Q.· ·Do you recognize the signatures on page 1? 88:13· · · ·A.· ·Yeah, those are our signatures. 88:14· · · ·Q.· ·Okay.· Do you remember signing this document 88:15· on or around September -- 88:16· · · ·A.· ·I'm sure we did. 88:17· · · ·Q.· ·-- 14, 2011? 88:18· · · ·A.· ·Yeah. 88:19· · · ·Q.· ·Okay. 88:20· · · · · · (Exhibit 123 marked.) 88:21· · · ·Q.· ·(BY MR. INGRAM)· I've handed you what we 88:22· have marked as Exhibit 123. 98 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10763 Page 101 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 88:23· · · · · · Do you recognize this document? 88:24· · · ·A.· ·It looks familiar. 88:25· · · ·Q.· ·And what is this document? 89:1· · · ·A.· ·It's a warranty deed. 89:2· · · ·Q.· ·And what is a warranty deed? 89:3· · · ·A.· ·A warranty deed is the condition of the 89:4· title that you pass on to a buyer. 89:5· · · ·Q.· ·Okay.· And there is some signatures on this 89:6· document.· Do you recognize those signatures? 89:7· · · ·A.· ·Yeah, those are my wife's and I's. 89:8· · · ·Q.· ·And you remember signing this warranty deed 89:9· on or about September 14, 2011? 89:10· · · ·A.· ·I'm sure we did. 89:11· · · ·Q.· ·Okay.· And it looks like you were con -- you 89:12· as sellers are conveying -- or as grantors are 89:13· conveying a piece of property to a grantee.· And who 89:14· is the grantee that you were conveying the property 89:15· to? 89:16· · · ·A.· ·Western Land & Livestock. 89:17· · · · · · (Exhibit 124 marked.) 99 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10764 Page 102 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 89:18· · · ·Q.· ·(BY MR. INGRAM)· Okay.· I've handed you what 89:19· we have marked as Exhibit 124.· This is an owner's 89:20· affidavit and indemnity. 89:21· · · · · · Do you see that? 89:22· · · ·A.· ·Uh-huh. 89:23· · · ·Q.· ·And it looks like there is a series of 89:24· initials on this document and then it culminates on 89:25· page 2 into some signatures. 90:1· · · · · · Do you see that? 90:2· · · ·A.· ·Yes, I do. 90:3· · · ·Q.· ·Do you recognize those initials and 90:4· signatures? 90:5· · · ·A.· ·Those are my wife and I's signatures --. 90:6· · · ·Q.· ·And do you remember - - 90:7· · · ·A.· ·Initials. 90:8· · · ·Q.· ·Do you remember initialing and signing this 90:9· document on or about September 14, 2011? 90:10· · · ·A.· ·No, but I'm sure we did. 90:11· · · ·Q.· ·Okay.· If you look at paragraph 13 -- 90:12· · · ·A.· ·Uh-huh. 90:13· · · ·Q.· ·-- you see there is a representation here -- 90:14· well, let me back up.· In your experience as a broker 100 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10765 Page 103 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 90:15· and real estate agent, what's the purpose of an 90:16· owner's affidavit and indemnity agreement? 90:17· · · ·A.· ·You know, I haven't seen very many of these. 90:18· I guess it just -- describes conditions of the 90:19· property. 90:20· · · ·Q.· ·Okay.· And in paragraph 13, there is a 90:21· statement that says "There are no tenants, leases, or 90:22· parties in possession of the property except as set 90:23· out below." 90:24· · · · · · Do you see that? 90:25· · · ·A.· ·Uh-huh. 91:1· · · ·Q.· ·And there is some handwriting there. 91:2· · · · · · Do you recognize that handwriting? 91:3· · · ·A.· ·I'm sure that's mine. 91:4· · · ·Q.· ·And can you read what it says there? 91:5· · · ·A.· ·"Western Land & Livestock LLC is currently 91:6· leasing this property." 91:7· · · ·Q.· ·Is that an accurate statement at the time -- 91:8· of your understanding at the time you signed this 91:9· document? 91:10· · · ·A.· ·Yeah. 91:11· · · ·Q.· ·Okay. 101 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10766 Page 104 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 91:12· · · ·Q.· ·If you are turn to page 1 -- or excuse me. 91:13· · · ·MR. INGRAM:· I'll mark this as Exhibit 125. 91:14· · · · · · (Exhibit 125 marked.) 91:15· · · ·Q.· ·(BY MR. INGRAM)· Do you recognize this 91:16· document? 91:17· · · ·A.· ·I do. 91:18· · · ·Q.· ·And what is this document? 91:19· · · ·A.· ·This is a seller's property disclosure. 91:20· · · ·Q.· ·And what is a seller's property condition 91:21· disclosure? 91:22· · · ·A.· ·It's the seller telling the buyer they -- 91:23· answering the questions about the property. 91:24· · · ·Q.· ·Okay.· And do you recall who prepared this 91:25· document? 92:1· · · ·A.· ·I'm sure I did. 92:2· · · ·Q.· ·Okay.· And there is a series of initials and 92:3· signatures on this document. 92:4· · · · · · Do you see that? 92:5· · · ·A.· ·Uh-huh. 92:6· · · ·Q.· ·Do you recognize those initials and 92:7· signatures? 92:8· · · ·A.· ·Those are mine and my wife's and John's. 102 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10767 Page 105 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 92:9· · · ·Q.· ·Okay.· Do you remember initialing and 92:10· signing this document on or about August 31, 2011? 92:11· · · ·A.· ·Well, I don't remember it specifically, but 92:12· I did do it, so... 92:13· · · ·Q.· ·At some point in time, did you receive an 92:14· initial and executed copy back from John Wadsworth? 92:15· · · ·A.· ·I did. 92:16· · · ·Q.· ·Okay.· Do you know how Western Land and 92:17· Liberty financed the purchase of the property? 92:18· · · ·A.· ·He got a loan. 92:19· · · ·Q.· ·Do you know where the money came from? 92:20· · · ·A.· ·Some loan company that he's affiliated with. 92:21· · · ·Q.· ·Did he or anybody else make any sort of 92:22· representations about where the money came from? 92:23· · · ·A.· ·He probably mentioned the name of who he was 92:24· getting a loan from, but that's about it. 92:25· · · ·Q.· ·Do you know anything about a company called 93:1· Western Reserve Mortgage LLC? 93:2· · · ·A.· ·No. 103 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10768 Page 106 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 93:3· · · ·Q.· ·Okay.· Have you ever heard of a company 93:4· called Heng Cheong Pacific Limited? 93:5· · · ·A.· ·No. 93:6· · · ·Q.· ·Have you ever heard of a company called New 93:7· Century Properties Limited? 93:8· · · ·A.· ·No. 93:9· · · ·Q.· ·Have you ever heard of a company called 93:10· World-Wide Investment Services or WWIS? 93:11· · · ·A.· ·No. 93:12· · · ·Q.· ·After you sold the property to Western Land 93:13· & Livestock, do you know what happened to it after 93:14· that? 93:15· · · ·A.· ·Well, I drove by there once in a while, you 93:16· know, and continued improvements were made on the 93:17· property, so -- but as far as what else happened -- I 93:18· mean -- and then later on, you know, last year or 93:19· whatever I heard these horror stories about everything 93:20· going on there, so... 93:21· · · ·Q.· ·Let me back up a little bit.· After you 93:22· closed on the purchase of the property, did you ever 104 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10769 Page 107 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 93:23· have any further communications with John Wadsworth? 93:24· · · ·A.· ·Not to my knowledge. 93:25· · · ·Q.· ·Did you ever have any further communications 94:1· with anybody on behalf of Western Land & Livestock? 94:2· · · ·A.· ·No. 94:3· · · ·Q.· ·What about Ron or Annette Talmage? 94:4· · · ·A.· ·No, not to my knowledge. 94:5· · · ·Q.· ·Okay.· Now, you had said before that -- you 94:6· said somebody at some point in time contacted you. 94:7· · · · · · Do you remember ever being contacted by an 94:8· IRS agent or revenue officer? 94:9· · · ·A.· ·I do.· As a matter of fact, a lady by the 94:10· name of Yvonne Olson called me -- contacted me. 94:11· · · ·Q.· ·And do you recall when you were contacted by 94:12· her? 94:13· · · ·A.· ·You know, I really don't.· It was probably a 94:14· year or -- she kind of contacted me.· She said "I can 94:15· send you a subpoena or you can send me all these 94:16· documents," so I spent a couple weeks getting all 105 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED 94:5-95:19, Rule 402, 403 This is relevant both to lay foundation for the testimony at 95:20-97:2, and to show the information that was made available to the Government during the course of its investigation in this matter. Importantly, the Western Parties have filed a Motion to Exclude Testimony of Yvonne Olson [Dkt. 252], which contends that Ms. Olson’s testimony should be excluded on the grounds that she can only testify about what witnesses reported to her and the documents they provided to her. Mr. Judd is one such witness. It is more appropriate for him to testify directly about what he told Ms. Olson than for her to testify about what he told her (which would be hearsay). Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10770 Page 108 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 94:17· these documents together and I sent them to her.· And 94:18· then I really never heard from her again. 94:19· · · ·Q.· ·When you were contacted by her, was that by 94:20· telephone or did she meet you in person? 94:21· · · ·A.· ·It was by telephone. 94:22· · · ·Q.· ·Okay.· Did she make any representation to 94:23· you about why she was asking for documents? 94:24· · · ·A.· ·She -- I don't really recall.· She may have 94:25· said just a little bit, but I don't totally recall. 95:1· · · ·Q.· ·And did you ever meet with her person 95:2· subsequent to that or was that only over the phone? 95:3· · · ·A.· ·No, I don't.· That's the only time. 95:4· · · ·Q.· ·In any of those conversations, did you -- 95:5· did the IRS agent ever explain to you why they were 95:6· contacting you or asking for information? 95:7· · · ·A.· ·If she did, it was a very brief.· It didn't 95:8· go into a whole lot of specifics. 95:9· · · ·Q.· ·You mentioned -- well, do you recall what 106 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10771 Page 109 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 95:10· information you provided to the IRS in your telephone 95:11· communications with her? 95:12· · · ·A.· ·Not in telephone.· I mean, she asked for 95:13· this whole packet of stuff and - - actually, I had to 95:14· do quite a bit of research.· She wanted to know about 95:15· when this check came in, when that check came in.· It 95:16· took me several weeks to go back and -- I had 95:17· forgotten most of it, so it took me several weeks to 95:18· go back through and get all this pile of stuff and get 95:19· it to her. 95:20· · · ·Q.· ·In your communications with her, did you 95:21· identify Western Land & Livestock LLC? 95:22· · · ·A.· ·Did I identify it? 95:23· · · ·Q.· ·Yes. 95:24· · · ·A.· ·I'm sure I did. 95:25· · · ·Q.· ·Did you provide them the name of John 96:1· Wadsworth? 96:2· · · ·A.· ·I believe -- I believe I did, yes. 96:3· · · ·Q.· ·Did you describe your interactions and 96:4· business with Mr. Wadsworth regarding the property? 107 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10772 Page 110 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 96:5-97:2, Rule 402, 403 Same response as to 94:5-95:19. OVERRULED 96:5· · · ·A.· ·I don't remember.· Probably a little bit. 96:6· · · ·Q.· ·And you had mentioned something about an IRS 96:7· summons.· Did you receive a summons? 96:8· · · ·A.· ·No.· She said -- as I recall, she said, 96:9· "Look, I can either" -- see, I don't understand all 96:10· this legal language.· But she said something to the 96:11· effect I can either summons you or you can just send 96:12· me all these documents, so I said, "Okay.· I'll send 96:13· you all these documents." 96:14· · · ·Q.· ·And what documents did you send her? 96:15· · · ·A.· ·Everything that has my name on it, The 96:16· sellers disclosure, the REPC, the -- all that stuff. 96:17· · · ·Q.· ·These would be the documents we've been 96:18· looking at today? 96:19· · · ·A.· ·Yeah. 96:20· · · ·Q.· ·Other than the documents we've already 96:21· looked at and marked as exhibits, do you recall 96:22· sending her any other documents or information? 96:23· · · ·A.· ·I don't recall doing that. 108 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10773 Page 111 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 96:24· · · ·Q.· ·Okay.· Have you since had any communication 96:25· with her or any other attorney with the department of 97:1· justice? 97:2· · · ·A.· ·No. 97:3· · · ·Q.· ·Okay.· I think I'm almost done, but I'd like 97:4· to take a quick break, if that's all right? 97:5· · · ·A.· ·Yeah, that's all right. 97:6· · · ·THE VIDEOGRAPHER:· Going off the record.· The 97:7· time is 11:55. 97:8· · · · · · (Exhibit 126 marked.) 97:9· · · ·THE VIDEOGRAPHER:· Back on the record.· The time 97:10· is 12:15. 97:11· · · · Q.· (BY MR. INGRAM)· Mr. Judd, we marked a 97:12· document as Exhibit No. 126 in front of you.· This 97:13· came from a file in your possession.· It says to -- 97:14· it's a fax cover sheet to Paul Judd, fax (208) 97:15· 247-8296, dated March 8, 2010. 97:16· · · · · · Do you see that? 97:17· · · ·A.· ·Uh-huh. 97:18· · · ·Q.· ·Do you recall receiving this fax cover 97:19· sheet? 97:20· · · ·A.· ·Well, no, but obviously I did. 109 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10774 Page 112 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 97:21· · · ·Q.· ·Okay.· And who -- who sent this to you? 97:22· · · ·A.· ·John. 97:23· · · ·Q.· ·Okay.· And he references here "Paul, please 97:24· find attached a counter signed copy of a lease option 97:25· purchase agreement."· Is that in reference to the· 98:1· lease option that we looked at earlier today? 98:2· · · ·A.· ·Yeah. 98:3· · · ·Q.· ·Okay. 98:4· · · ·A.· ·That's what it looks like. 98:5· · · ·Q.· ·And then it says "Check payments for the 98:6· prepaid lease amounts and the security deposit were 98:7· ordered today to be sent to your 2616 North State 98:8· Street, Preston, Idaho address." 98:9· · · · · · Do you see that? 98:10· · · ·A.· ·Uh-huh. 98:11· · · ·Q.· ·And is it your understanding those reference 98:12· the checks that we looked at earlier for the -- 98:13· · · ·A.· ·Yes. 98:14· · · ·Q.· ·-- prepaid lease and security deposit? 98:15· · · · · · It says "Please have utilities that require 98:16· authorization from you put in the name of Western Land 110 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10775 Page 113 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 98:17· & Livestock LLC with bills mailed to Western Land & 98:18· Livestock LLC, PO Box 1453, Cheyenne, Wyoming." 98:19· · · · · · Did you follow through with that request? 98:20· · · ·A.· ·Oh, I'm sure I did. 98:21· · · ·Q.· ·Okay. 98:22· · · · · · (Exhibit 127 marked.) 98:23· · · ·Q.· ·(BY MR. INGRAM)· We've marked this document 98:24· as Exhibit 127.· This looks like a letter to John 98:25· Wadsworth, Western Land & Livestock LLC, dated March 99:1· 8, 2010. 99:2· · · · · · What is this document? 99:3· · · ·A.· ·It says that Connie and I have signed the 99:4· lease option and faxed it back to him. 99:5· · · ·Q.· ·Who prepared this letter? 99:6· · · ·A.· ·I'm sure it's me. 99:7· · · ·Q.· ·Okay.· And is that your signature -- 99:8· · · ·A.· ·Yes. 99:9· · · ·Q.· ·-- at the bottom? 99:10· · · · · · Okay. 99:11· · · ·A.· ·And it gives him the name of all the utility 99:12· companies so he -- so we can get things put in his 99:13· name. 111 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10776 Page 114 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 99:14· · · ·Q.· ·Okay.· Was -- did you provide him this 99:15· information of the utility companies -- 99:16· · · ·A.· ·I did. 99:17· · · ·Q.· ·-- pursuant to his request? 99:18· · · ·A.· ·Yes. 99:19· · · ·Q.· ·It says "What time do you meet" -- "What 99:20· time do you want to meet on the 12th at our Liberty 99:21· home?"· Does that refresh your recollection of when 99:22· you met with him that second time? 99:23· · · ·A.· ·Well, yeah.· That's consistent with all the 99:24· other things that have been written. 99:25· · · ·Q.· ·Okay. 100:1· · · ·A.· ·So... 100:2· · · ·Q.· ·You talk about -- answer about the 100:3· utilities.· You've got Questar Gas and then later you 100:4· say "The water company is Liberty Pipeline Company. I 100:5· have to write a letter authorizing them to change the 100:6· water into your name." 100:7· · · · · · Whose name were you referring to? 100:8· · · ·A.· ·To either John or Western Land & Livestock. 112 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10777 Page 115 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 100:9· · · ·Q.· ·Okay.· And to the best of your recollection, 100:10· did you follow through with that letter to Liberty 100:11· Pipeline? 100:12· · · ·A.· ·Well, I had to have or they couldn't have 100:13· got it in their name. 100:14· · · ·MR. INGRAM:· Okay.· We'll mark this as Exhibit 100:15· 127. 100:16· · · ·Q.· ·(BY MR. INGRAM)· This looks like -- 100:17· · · · · · (Exhibit 128 marked.) 100:18· · · ·MS. GOLDEN:· I think you mean 128. 100:19· · · ·MR. INGRAM:· Oh, excuse me.· 128 -- is that what 100:20· we are on? 100:21· · · ·THE WITNESS:· Yeah. 100:22· · · ·MR. INGRAM:· You are right.· 128.· Sorry. 100:23· · · ·Q.· ·(BY MR. INGRAM)· 128 -- this looks an 100:24· invoice for professional services from McKenzie and 100:25· McKenzie, PA. 101:1· · · · · · Do you see that? 101:2· · · ·A.· ·Right. 101:3· · · ·Q.· ·And who is McKenzie and McKenzie, PA? 101:4· · · ·A.· ·It's the local attorney. 101:5· · · ·Q.· ·Is this the attorney that you engaged to do 113 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10778 Page 116 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 101:6· a verification of John Wadsworth and Western Land & 101:7· Livestock? 101:8· · · ·A.· ·It is. 101:9· · · ·MR. INGRAM:· Okay.· Mark this as 128. 101:10· · · ·MS. GOLDEN:· I think 129. 101:11· · · ·MR. INGRAM:· 129.· Sorry.· 129. 101:12· · · · · · (Exhibit 129 marked.) 101:13· · · ·Q.· ·(BY MR. INGRAM)· I've handed you what we've 101:14· marked as Exhibit 129.· This is an email from Western 101:15· Land & Livestock @gmail.com to Paul Judd dated August 101:16· 31, 2011. 101:17· · · · · · Do you see that? 101:18· · · ·A.· ·Uh-huh. 101:19· · · ·Q.· ·Do you remember receiving this email? 101:20· · · ·A.· ·Yeah, I believe I do. 101:21· · · ·Q.· ·And do you remember who you received it 101:22· from? 101:23· · · ·A.· ·Well, from John. 101:24· · · ·Q.· ·Okay.· And then there is a series -- it says 101:25· "Attached is a spreadsheet that shows the updated 102:1· credit calculation." 114 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10779 Page 117 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 102:2· · · · · · Do you know what Mr. Wadsworth was referring 102:3· to? 102:4· · · ·A.· ·Well, it would be the payments made and the 102:5· credit he gets for them, I guess. 102:6· · · ·Q.· ·Was this the 25 percent credit we referred 102:7· to earlier? 102:8· · · ·A.· ·Yeah, I'm guessing that's it. 102:9· · · ·Q.· ·Okay.· Did you negotiate with anybody other 102:10· than John Wadsworth regarding the calculation of the 102:11· credit amount? 102:12· · · ·A.· ·No, I didn't. 102:13· · · ·Q.· ·When was the last time you ever observed or 102:14· communicated with either Ron Talmage or Annette 102:15· Talmage? 102:16· · · ·A.· ·I -- I don't recall ever meeting or ever 102:17· having a conversation with Annette.· So I don't 102:18· believe I've ever talked to her. 102:19· · · ·Q.· ·About what Ron? 102:20· · · ·A.· ·You know, the only time I absolutely 102:21· positively remember talking to Ron is when I sold him 102:22· the snowblower. 115 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10780 Page 118 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 102:23· · · ·Q.· ·Do you know how -- well, was the snowblower 102:24· ever purchased? 102:25· · · ·A.· ·Yeah. 103:1· · · ·Q.· ·Do you know how that was paid for? 103:2· · · ·A.· ·I -- probably a check, but I don't remember. 103:3· · · ·Q.· ·Do you remember -- or do you know where the 103:4· money came from? 103:5· · · ·A.· ·No, I don't really remember. 103:6· · · ·Q.· ·Okay. 103:7· · · ·A.· ·To tell you the truth, I don't know. 103:8· · · ·Q.· ·Are you aware of any allegations about Ron 103:9· Talmage perpetrating a Ponzi scheme or defrauding 103:10· victims of millions of dollars? 103:11· · · ·A.· ·Well, fast forward, you know, to last year, 103:12· I heard all kinds of crazy things. 103:13· · · ·Q.· ·Okay.· When was the first time you started 103:14· hearing about these crazy things? 103:15· · · ·A.· ·Okay.· So -- and I don't have the exact time 103:16· frame here.· So because I go to Eden, because I have a 116 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED 103:8–104:1, Rules 602, 701, 802 Mr. Judd does not relay any statements made by anyone to him here, so there is in fact no hearsay statement in this testimony. Even if there were such a statement, it is not hearsay because it is not offered for the truth of the matter asserted. For the same reason, this testimony is not improper under Rule 701: Mr. Judd does not actually offer any opinion here, he simply relays the fact that there were “crazy, bizarre stories” circulating about Ron Talmage. Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10781 Page 119 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Exhibits Ruling Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Finally, Mr. Judd has personal knowledge about this because he testifies that he heard the stories directly from his neighbor after he personally visited the Liberty Property and saw the state that it was in. Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 103:17· strip mall and a real estate company over there, one 103:18· day I drove my home in Liberty and there was caution 103:19· tape around two sides of it and the lawn was dead and 103:20· there was magazines all over the -- newspapers and 103:21· magazines all over the steps.· That's a darn nice 103:22· house. 103:23· · · · · · So I called my neighbor and said, "What the 103:24· heck is going on here?"· And then I started hearing 103:25· these really crazy, bizarre stories about just all 104:1· kind of things, you know. 104:2· · · ·Q.· ·Do you recall when that was that you 104:3· observed the magazines and the caution tape out? 104:4· · · ·A.· ·Yeah, not really.· Probably at least a year 104:5· ago.· I don't know exactly when. 104:6· · · ·Q.· ·Okay.· Have you personally -- other than 104:7· observing the property at that one point in time, have 104:8· you had any sort of personal interaction with Ron 104:9· Talmage at all? 104:10· · · ·A.· ·No. 117 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10782 Page 120 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 104:11· · · ·Q.· ·What about John Wadsworth? 104:12· · · ·A.· ·No. 104:13· · · ·Q.· ·Are you aware of the circumstances regarding 104:14· an eviction from the Liberty property? 104:15· · · ·A.· ·Yeah.· You told me about it. 104:16· · · ·Q.· ·Other than what I've told you about, 104:17· anything you've heard about the eviction? 104:18· · · ·A.· ·No.· I just heard a lot of rumors and stuff 104:19· from the neighbors and all kinds of crazy stories. 104:20· · · ·MR. INGRAM:· Okay.· Mr. Judd, I have no further 104:21· questions at this time, and I'll pass the witness. 107:5· · · ·Q.· ·What did you do to prepare for this 107:6· deposition? 107:7· · · ·A.· ·I came prepared to tell the truth. 107:8· · · ·Q.· ·Did you review any documents in preparation? 107:9· · · ·A.· ·Well, last night I looked over the real 107:10· estate purchase contract and the HUDs and the lease 107:11· option agreement, but that's it. 118 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10783 Page 121 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 107:12· · · ·Q.· ·Okay.· I see that in the folder you've got 107:13· there you've got a few other papers that we've -- that 107:14· Mr. Ingram and I have had a chance to look at. 107:15· · · ·A.· ·Yeah. 107:16· · · ·Q.· ·So did you have a chance to look over that 107:17· folder? 107:18· · · ·A.· ·No, not really. 107:19· · · ·Q.· ·Just the documents that you named? 107:20· · · ·A.· ·Yeah. 107:21· · · ·Q.· ·Did you speak to Mr. Ingram prior to this 107:22· deposition? 107:23· · · ·A.· ·No. 107:24· · · ·Q.· ·Did you communicate with him in any other 107:25· way, like by email or by phone? 108:1· · · ·A.· ·Nope. 108:2· · · · · · I thought somebody was going to give me a 108:3· reminder call.· I was kind of surprised when nobody 108:4· called up and said, "Hey, are you going to be there 108:5· today?" 108:6· · · ·Q.· ·Well, we are glad you showed up. 108:7· · · · · · Did you talk to John Wadsworth at all prior 108:8· to this deposition? 119 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10784 Page 122 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 108:9· · · ·A.· ·Absolutely not. 108:10· · · ·Q.· ·Right.· And just to be clear, I'm talking 108:11· about other than the conversations, you know, in 108:12· connection with the lease option agreement. 108:13· · · ·A.· ·I haven't had any conversation or any 108:14· correspondence with John at all. 108:15· · · ·Q.· ·When was the last time you spoke or 108:16· corresponded with Mr. Wadsworth? 108:17· · · ·A.· ·Probably right before the closing.· I mean, 108:18· I guess.· I'm trying to remember, but... 108:19· · · ·Q.· ·Understood.· And earlier today you had -- 108:20· you've been shown various exhibits that are emails 108:21· between yourself and [email protected]. 108:22· · · ·A.· ·Uh-huh. 108:23· · · ·Q.· ·Who did you -- whose address did you 108:24· understand the westernlivestock@gmail to be? 108:25· · · ·A.· ·Well, the only one I know of at Western 109:1· Livestock is John. 109:2· · · ·Q.· ·Is that the only person you corresponded 120 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10785 Page 123 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 109:3· with at that address? 109:4· · · ·A.· ·Yeah.· I never talked - 109: I don't know who 109:5· else is part of that, so that's the only person. 109:6· · · ·Q.· ·Did John ever mention if anybody else used 109:7· the [email protected] address? 109:8· · · ·A.· ·No. Depo Ex. 120 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 109:9 Q. I believe earlier this morning too you had 109:10 also looked at a couple of documents where there 109:11 were -- where you testified about signatures on it, 109:12 so, for example, I'm thinking of the lease option 109:13 agreement -- 109:14 A. Uh-huh. 109:15 Q. -- which was Exhibit 107; the real estate 109:16 purchase contract, which was Exhibit 120. 109:17 A. Uh-huh. 109:18 Q. And I believe for some of those you 109:19 mentioned that you thought it was John Wadsworth's 109:20 signature or initials. How do you know that it's 109:21 Mr. Wadsworth's signature or initials? 121 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10786 Page 124 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 109:22 A. Well, I don't for sure. I mean, how -- how 109:23 would I know? 109:24 Q. Did you see Mr. Wadsworth physically sign 109:25 those documents? 110:1 A. No. Because most of it was through email. 110:2 Q. How many times have you seen John 110:3 Wadsworth's signature in general? 110:4 A. The amount of times that are on these 110:5 documents. 110:6 Q. Are you familiar with his signature? 110:7 A. No. No, not -- not really. 110:8 Q. And how well do you know Mr. Wadsworth? 110:9 A. I didn't know him at all. Never heard of 110:10 him or Western Land & Livestock. That's why I had my 110:11 attorney -- that's why I hired an attorney to, you 110:12 know, do some investigation and try to tell me 110:13 something. 110:14 Q. Okay. And just so the record is clear on 110:15 this one, are you a handwriting expert in any way? 110:16 A. No. Not at all. 122 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10787 Page 125 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 110:22 How did you find out that Mr. Talmage was 110:23 living there? 110:24 A. John would have probably told me that -- is, 110:25 I guess, how I would have found that out. 111:1 Q. So when you drove by and saw the -- Ron 111:2 working to skid steer, did you already know at the 111:3 time that he was living there? 111:4 A. I don't -- I assumed he was because he was 111:5 there and he had -- he had a big - - something in the 111:6 shop, a big Class A motor home or whatever that he was 111:7 working -- so I assumed that was him, so... 111:8 Q. Do you have a sense if you knew he was 111:9 living there -- if John -- you said you think John 111:10 told that you he was living there. So do you have a 111:11 sense if he told you before or after that time with 111:12 the skid steer? 111:13 A. I don't really remember, you guys. Sorry. 111:21 Q.· ·Were you aware at all that John Wadsworth or 111:22· Western Land & Livestock might be subletting the Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 123 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10788 Page 126 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 111:23· property to somebody else during the lease period? 111:24· · · ·A.· ·No, I didn't have any understanding of how 111:25· Western Land & Livestock worked or what the connection 112:1 was with anybody or whatever, so he might have people 112:2 that worked for him or something stay there. I don’t 112:3 really – ever understand what this whole thing was 112:4 about. 112:21 Q. (BY MS. GOLDEN) If you can take a look at 112:22 paragraph 8. Looking here it says "In 2010, Ronald B. 112:23 Talmage approached me and told me about the real 112:24 property in Liberty, Utah, which is the subject of the 112:25 foreclosure action in this case. Ronald B. Talmage 113:1 encouraged me to purchase the property and told me 113:2 that his business associate Mrs. Chen would be willing 113:3 to lease the property for 5,000 per month." And then 113:4 later on it says "I leased it to Ronald B. Talmage, 113:5 slash, Mrs. Chen through an oral lease because Ronald 113:6 B. Talmage said that Mrs. Chen did not want anything Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED Object to 112:21-113:13 under Fed. R. Evid. 602 and 701. Mr. Judd is testifying that he never heard about Mrs. Chen or a supposed oral lease. He has personal knowledge of what he does and does not know. Mr. Judd is not offering an opinion. The reference to another document (a declaration from John Wadsworth) merely provides context for the questions posed to Mr. Judd. 124 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10789 Page 127 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 113:7 in writing." 113:8 Did you ever hear anything about this oral 113:9 lease? 113:10 A. I've never heard anything about that. 113:11 Q. Did Mr. Wadsworth mention anything to you 113:12 about Mrs. Chen ever? 113:13 A. Never. 113:14 Q. Did anybody else from Western Land & 113:15 Livestock ever mention anything about Mrs. Chen? 113:16 A. I never talked to anybody else from Western 113:17 Land & Livestock. 116:13 Q. So just sitting here today, what do you know 116:14 about Western Land & Livestock? 116:15 A. Really virtually nothing. 116:16 Q. Do you know what kind of company it is? 116:17 A. Nope. 116:18 Q. Do you know what it does? 116:19 A. Nope. 116:20 Q. Do you know who owns it? 116:21 A. I assumed John did. 116:22 Q. When you looked into the records and you 116:23 worked with your attorney to do that, did it come up Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 125 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10790 Page 128 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 116:24 with -- did it come up with a -- did you come up with 116:25 any records of who owned the company? 117:1 A. You know, he didn't really come up with much 117:2 at all, and so my attorney and I had the discussion, 117:3 well, they are offering me, I don't know, like a -- 117:4 about a year's pay in advance, and I asked my attorney 117:5 "What should I do? I don't know anything about these 117:6 guys." He said, "Well, my advice is you take it. 117:7 This is hard, cold cash. People can give you all 117:8 kinds of documents and lie through their teeth," so he 117:9 said, "I advise you to do it." 117:10 Q. And when you said you assumed John owned 117:11 Western Land, you didn't get -- you weren't able to 117:12 get verification of that? 117:13 A. No, neither was my attorney. 117:14 Q. I think earlier we talked about an email 117:15 where you had asked John for copies of an operating 117:16 agreement and articles of organization for Western 126 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10791 Page 129 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 117:17 Land, and I can't recall. Did you -- did you end up 117:18 getting copies of those documents? 117:19 A. I never got anything. 117:20 Q. And I think you mentioned that you built a 117:21 home on the Liberty property around 2005 or 2006. 117:22 A. Yeah, somewhere in. 117:23 Q. Thereabouts? 117:24 A. Somewhere in there. 117:25 Q. Is that when -- were you living there after 118:1 you built that house? 118:2 A. We lived there for about a year and then we 118:3 moved to Preston. 118:4 Q. Is it accurate to say you moved out then 118:5 around maybe 2006 or 2007? 118:6 A. Yeah, some -- somewhere in that time frame. 118:7 Q. And then after you moved out, you leased it 118:8 to one family for about a year? 118:9 A. Uh-huh. 118:10 Q. And just to clarify, you didn't lease it to 118:11 anyone else besides Western Land & Livestock, other 118:12 than that one family? 118:13 A. That's all. 119:1 Q. Similarly, in your experience is it common Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 127 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10792 Page 130 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 119:2 for a landlord to require -- to require approval 119:3 before subletting the property to somebody? 119:4 A. Yeah. But I wasn't aware of any subletting, 119:5 so... 119:6 Q. Well, what -- if you -- let me try -- I'm 119:7 trying to think of a good way to ask this question. 119:8 So if you weren't aware of any subletting, what did 119:9 you -- what was your understanding of what the 119:10 arrangement was that had the Talmages living there, if 119:11 it wasn't subletting? 119:12 A. You know, I thought it was maybe somebody 119:13 that worked for John or friends of his or something. 119:14 I have -- to this day, I have absolutely no 119:15 understanding of what all these people are or what 119:16 they do or how they connect. 119:17 ·Q.· ·Do you know how John Wadsworth heard of the 119:18· Liberty property before he approached you for this 119:19· lease to purchase option? 119:20· · · ·A.· ·Well, I thought it was through Darin Mich'l, 119:21· the real estate agent or broker. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED Objection to the purported completeness designations at 119:17-121:1. These are not proper completeness designations under Rule 32(a)(6), and should be affirmative or counter designations that are subject to objections by the United States. 128 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10793 Page 131 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 119:22· · · ·Q.· ·And then it's Darin Mich'l who introduced 119:23· you to Mr. Wadsworth? 119:24· · · ·A.· ·Yes. 119:25· · · ·Q.· ·When you signed this lease to purchase 120:1 option agreement, who did you understand would be 120:2· living at the property? 120:3· · · ·A.· ·I understand that John was buying it through 120:4· Western Land & Livestock and that friends or employees 120:5· or whatever -- he might not -- he might not be living 120:6· there, but some acquaintances of his might, and I 120:7· didn't really have a problem with that. 120:8· · · ·Q.· ·How did you come to that understanding that 120:9· friends or acquaintances might be staying there? 120:10· · · ·A.· ·John may have said that.· I don't know. 120:11· · · ·Q.· ·Do you recall the names of any specific 120:12· people that John said were living -- might be living 120:13· there? 120:14· · · ·A.· ·No, I don't. 120:15· · · ·Q.· ·Do you know where John Wadsworth or Western 120:16· Land was getting the money to pay you the rent? Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE The United States has made objections to the designation, so whether it is treated as a completeness designation or an affirmative/counter designation is of no moment. Exhibits Ruling Object to 120:15-19 under Rule 602. Mr. Judd has personal knowledge that the checks for rent payments came from 129 OVERRULED Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10794 Page 132 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Western Land & Livestock. See Trial Ex. 108. Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 120:17· · · ·A.· ·Nope.· Well, I mean, I assume it was from 120:18· Western Land & Livestock.· I assume it was from his 120:19· company.· That's where the checks are from. 120:20· · · ·Q.· ·And just to confirm, did Ronald Talmage have 120:21· any involvement with this lease option agreement? 120:22· · · ·A.· ·No. 120:23· · · ·Q.· ·Did Annette Talmage? 120:24· · · ·A.· ·Never met her. 120:25· · · ·Q.· ·Did Mrs. Chen? 121:1·A.· ·I don't know who she is. 123:24 Q. So during the period that this lease option 123:25 agreement was in effect, did you ever visit the 124:1 Liberty property? 124:2 A. I drove by there. 124:3 Q. How many times did you do that? 124:4 A. Oh, not very often. Just occasional, 124:5 especially in the winter. Do you know how much snow 124:6 they get there? It's the last place on earth I want 124:7 to go. 124:8 Q. Do you have a rough sense of how often it 124:9 was -- like, was it once a month? Once every two 124:10 months? 130 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10795 Page 133 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 124:11 A. Once every two or three months, I guess. I 124:12 don't -- maybe not even that much. I'm not sure. 124:13 Q. When you drove by, would you stop or was it 124:14 literally just a drive-by -- 124:15 A. No, I just drove by. 124:16 Q. Did you have a chance to observe if anybody 124:17 was at the property when you were driving by? 124:18 A. Well, the one time Ron was there, so I 124:19 stopped. 124:20 Q. Okay. That was the time we discussed with 124:21 the skid steer? 124:22 A. I -- you know, I don't remember people being 124:23 around there. I mean, it's at the end of a dirt -- 124:24 it's the end of a road, so I'd just drive by, pull up, 124:25 turn around just kind of looking to make sure 125:1 everything was okay. 125:2 Q. Do you recall seeing anybody besides Ron 125:3 there? 125:4 A. I don't even recall seeing Ron there most of 125:5 the time. 131 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10796 Page 134 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 125:6 Q. Other than the one time you saw Ron with the 125:7 skid steer outside, you don't recall seeing anybody 125:8 else when you drove by the Liberty property? 125:9 A. No. 125:10 Q. Do you know -- do you know who was living 125:11 there when you did the drive- bys? 125:12 A. At some point in time, I became familiar 125:13 that Ron was living there. I didn't know who Ron was, 125:14 so... 125:15 Q. Do you know if anyone besides Ron was living 125:16 there? 125:17 A. No. 125:18 ·Q.· ·Do you know if John Wadsworth ever lived at 125:19· the Liberty property? 125:20· · · ·A.· ·I don't -- I don't have any idea.· I don't 125:21· know. 125:22· · · ·Q.· ·I think earlier you mentioned you noticed 125:23· some improvements being done to the property like a 125:24· shop and an -- 125:25· · · ·A.· ·Uh-huh. 126:1 ·Q.· ·-- extension to the barn. 126:2· · · · · · Do you have any idea who did those Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED Objection to the purported completeness designations at 125:18-126:17. These are not proper completeness designations under Rule 32(a)(6), and should be affirmative or counter designations that are subject to objections by the United States. The United States has made objections to the designation, so whether it is treated as a completeness designation or an affirmative/counter designation is of no moment. Object to 126:1-4 under Rule 602 and Rule 701. 132 OVERRULED Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10797 Page 135 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 126:3· improvements? 126:4· · · ·A.· ·Well, I assume John was doing those 126:5· improvements. 126:6· · · ·Q.· ·Did you have to approve the improvements? 126:7· · · ·A.· ·I think the contract said I would have to 126:8· approve them, but it was -- from when I looked at it, 126:9· it was great.· It was adding to my property value. I 126:10· didn't care. 126:11· · · ·Q.· ·What was the approval process like? 126:12· · · ·A.· ·I don't remember anybody ever asking me 126:13· about whether they could do this.· Or he may have said 126:14· a little bit, but I was fine with it. 126:15· · · ·Q.· ·Were there any -- ever any improvements that 126:16· you weren't happy with? 126:17· · · ·A.· ·No. 128:9 Q. Do you know if John Wadsworth was concerned 128:10 about privacy? 128:11 MR. INGRAM: Objection. Lack of foundation. 128:12 Calls for speculation. 128:13 MS. GOLDEN: You can answer. I'm just asking to 128:14 the extent that you know. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Mr. Judd has personal knowledge of the “improvements” referenced in this testimony and his opinion is rationally based on his perception of them. Exhibits Ruling OVERRULED Object to 128:9-10 and 128:13-22 under Fed. R. Evid. 602 and 701. Mr. Judd is testifying to his impression that Mr. Wadsworth is a private person, formed from his personal interactions with Mr. Wadsworth. Mr. Judd’s opinion is rationally based on his perception. The strength of that basis is a matter of weight, not admissibility. 133 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10798 Page 136 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 128:15 THE WITNESS: John is a private guy. 128:16 Q. (BY MS. GOLDEN) And what gave you the 128:17 impression that he's a private guy? 128:18 A. He just, you know, didn't want -- those 128:19 documents didn't come forth, and he could've gave them 128:20 to me if he wanted to. He didn't. He didn't give 128:21 them -- you know, my attorney didn't get them, so he's 128:22 a private guy. 128:23 Q. Do you know if there was any concern about 128:24 Western Land & Livestock's privacy? 128:25 A. I don't know. 129:1 Q. Did John Wadsworth ever say anything to you 129:2 specifically about privacy concerns during the course 129:3 of the lease option agreement? 129:4 A. I don't remember him saying anything about 129:5 that. Probably his actions speak louder than his 129:6 words. 132:2 Q. Let's take a look at Exhibit 114, which 132:3 appears to be a couple of emails between yourself and Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED Object to 129:1-129:6 under Fed. R. Evid. 602 and 701. Mr. Judd is testifying to whether Mr. Wadsworth mentioned anything to him about privacy. Mr. Judd’s impression that Mr. Wadsworth is a private person was formed from his personal interactions with Mr. Wadsworth. Mr. Judd’s opinion is rationally based on his perception. The strength of that basis is a matter of weight, not admissibility. Depo Ex. 114 134 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10799 Page 137 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 132:4 westernlivestock@gmail taking place between April and 132:5 May 2010. 132:6 A. Okay. 132:11 Q. (BY MS. GOLDEN) In the first email dated 132:12 May 19, 2010, you mentioned that the homeowners 132:13 association was giving the renters a little bit of a 132:14 hard time about their vinyl fence, slash, corral. 132:15 A. Uh-huh. 132:16 Q. Who are the renters that you are referring 132:17 to? 132:18 A. Well, I'm assuming that would have been the 132:19 Talmages, because that's the only people I know that 132:20 ever rented it or were ever in there. I don't even 132:21· know, so -- it's not really -- it's not really -- I 132:22 can't say they were the only people. I don't know if 132:23 they were renting it or if John was just letting them 132:24 stay there. I don't know what the relationship 132:25 between John and the Talmages was, so I don't know 133:1 that they were renters. 133:2 Q. So that was just your -- the renters is you 135 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10800 Page 138 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 133:3 guessing? 133:4 A. Yeah, because I don't know for sure. 133:21 Q. Did John Wadsworth ever share the Talmages 133:22 contact information with you, such as phone number or 133:23 email? 133:24 A. No. 133:25 Q. Do you know why he didn't do that? 134:1 A. No. Depo Exs. 116, 133 136 134:2 Q. Let's take a look at Exhibit 116. It 134:3 appears to be a series of emails from May 21 to May 134:4 22, 2010. And on page 5213, in the bottom email it 134:5 says from Ron Talmage, and it has an email address 134:6 [email protected]. 134:7 A. Where? Oh, down there. 134:8 Q. Uh-huh. 134:9 A. Yeah. 134:10 Q. Are you familiar with that email address? 134:11 A. No. 134:12 Q. Do you recall emailing with Ron at that 134:13 email address? 134:14 A. I really don't recall that. 134:15 Q. So this email does -- just looking at this 134:16 document, it appears to say -- it says from Ron Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10801 Page 139 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 134:17 Talmage to Paul Judd, and then the email above that 134:18 dated May 22, 2010, is from, you know, 134:19 [email protected] -- 134:20 A. Sure. 134:21 Q. -- and then your -- you know, to Western 134:22 Livestock, cc Ron Talmage. 134:23 A. Sure. 134:24 Q. Does that refresh your recollection at all 134:25 about whether or not you emailed with Mr. Talmage? 135:1 A. Well, this is probably real, you know, so -- 135:2 what is it talking about? He's talking about the -- 135:3 him purchasing my blade -- my snowblower, so that's 135:4 the conversation I already told you that him and I 135:5 had. 135:6 Q. Why were you offering to sell Ron the 135:7 snowblower? 135:8 A. Because we don't get snow in Preston 135:9 usually. 135:10 Q. Do you recall how much you sold it for? 135:11 A. Somewhere -- it was probably over $2,000. I 135:12 don't remember exactly how much. 137 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10802 Page 140 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 135:13 Q. Okay. I'll direct your attention to page 135:14 5215. 135:15 A. 5215. Okay. 135:16 Q. The top paragraph there it says -- you are 135:17 talking -- I think you are talking about the 135:18 snowblower. It says "I paid 4,800 for it. I will let 135:19 it go for 3,700." 135:20 A. That's possible. It could have -- it's been 135:21 a long time. That's possible. 135:22 Q. All right. Does that reflect -- does that 135:23 refresh your recollection at all as to how much you 135:24 sold the snowblower for? 135:25 A. No, but that could correct. I don't know. 136:1 I really don't know. 136:2 Q. All right. Then on page 5214, it looks 136:3 like -- I'm looking at the top email. It looks like 136:4 this is from Ron. He says "I'm very interested." 136:5 This is in regards to the snowblower. "3,700 sounds 136:6 like a fair price too. I'll probably ask John to 136:7 arrange for the payment to you." 136:8 Do you know why Ron said he'll ask for John 138 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10803 Page 141 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 136:9 to arrange the payment? 136:10 A. No, I don't know. 136:11 Q. And then throughout this email chain, there 136:12 is a couple of references to kennel documents for, it 136:13 looks like, Ron and Annette. It is on page 5213. 136:14 Then there is a PS -- you write "PS. I'll be putting 136:15 the signed documents on the kennel in the mail to Ron 136:16 this morning." And then on -- in the very last page, 136:17 5215, in the "PS," you also ask "Do you want the 136:18 kennel documents faxed or emailed to you?" 136:19 Why were you preparing kennel documents for 136:20 Ron and Annette? 136:21 A. Well, if they were living in the house, 136:22 which apparently they were then, that would be 136:23 required by the county to have that. And so somebody 136:24 asked me to agree to that, and I was fine with it, 136:25 so... 137:1 Q. All right. Is it your understanding that 137:2 Ron and Annette kept dogs on the property? 137:3 A. Yes. 139 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10804 Page 142 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 137:4 Q. In looking at this email chain too, it also 137:5 looks like you're arranging some kind of meeting with 137:6 Ron. Like on page -- at the top of page 5214, it says 137:7 "Apparently Annie has plans on us for the 1st of June, 137:8 you know, otherwise the 2nd of June is wide open if 137:9 that might work." And then if you look further down 137:10 that page when -- it looks your emailing. The first 137:11 paragraph it's got some references to scheduling. 137:12 Do you have any recollection of what kind of 137:13 meeting you were arranging with Ron? 137:14 A. Yes. I found all the manuals for the 137:15 sprinkler key box with the duct tape on it. It 137:16 probably had something to do with -- original. I 137:17 don't really recall to tell you the truth. 137:18 Q. I'm going to show you a document that is 137:19 being marked as Exhibit 133, and it is Bates-stamped 137:20 WADS 005210. 137:21 A. Oh. 140 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10805 Page 143 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 137:22 Q. You don't have that one yet. It is a new 137:23 one. 137:24 (Exhibit 133 marked.) 137:25 Q. (BY MS. GOLDEN) Do you recognize -- do you 138:1 recognize this document? 138:2 A. Yeah. I mean, it looks like -- yes, I'd say 138:3 this looks right. 138:4 Q. What is the document? 138:5 A. This email looks like it corresponds with 138:6 what we would have had. 138:7 Q. And when you say "we," that's you and 138:8 John -- 138:9 A. John. 138:10 Q. -- Wadsworth? 138:11 A. Yes. 138:12 Q. And it looks like you were making the bill 138:13 of sale out for the snowblower to Western Land & 138:14 Livestock. Do you recall doing that? 138:15 A. I'm going to say that's probably what 138:16 happened. I don't remember. 138:17 Q. Do you know why you were billing Western 138:18 Land & Livestock? 138:19 A. Because that's who was going to pay for it. 138:20 And that's who did pay for it. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 141 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10806 Page 144 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Object to 139:3-14 under Fed. R. Evid. 602. Depo Exs. 117, 134 OVERRULED Mr. Judd is testifying to his recollection of statements he made in an email (Exhibit 117). The Western Parties do not object to Exhibit 117, and indeed, have listed it on their pretrial disclosures. Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 139:3 Q. Let's take a look at Exhibit 117. It is a 139:4 couple of emails dated August 5, 2010. 139:5 A. I've got to find 117. 10, 11 -- oh, here's 139:6 117. Okay. 139:7 Q. I'm looking at the second email. It looks 139:8 like that's from you. You're talking about the water 139:9 bill. You said "Ron must not be receiving it." 139:10 Why did you expect Ron would get the bill? 139:11 A. Well, that's probably something that -- I 139:12 mean, I don't really remember, but it was probably 139:13 something that John had told Ron to do or something. 139:14 I really don't know. I don't remember. 139:15 Q. In the post script of that email, you say 139:16 "I've stopped by Liberty home twice this summer and 139:17 talked with the people taking care of our lawn." 139:18 Who was taking care of the lawn? 139:19 A. I believe it was a lawn service of some 139:20 type. 142 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10807 Page 145 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 139:21 Q. And then lastly, you close out by saying "I 139:22 hope things are well for both you and Ron and family." 139:23 A. Sure. 139:24 Q. What was the meaning of that sentence? 139:25 A. Well, John is buying my property. Ron is 140:1 living there. Why wouldn't I -- I hope they are doing 140:2 well. 140:3 Q. So it's your understanding that Ron was 140:4 living there at the time? 140:5 A. Yes. 140:6 Q. I'm going to hand you a document that's 140:7 being marked as Exhibit 134. Bates-stamped WADS 140:8 005164. 140:9 (Exhibit 134 marked.) 140:10 Q. (BY MS. GOLDEN) This appears to be an email 140:11 chain between March 2 and March 4, 2011, between 140:12 [email protected] and [email protected]. 140:13 Do you recognize this document? 140:14 A. No. It's obviously an email to me, but I 140:15 don't -- 140:16 Q. Do you have any reason to doubt that this -- 143 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10808 Page 146 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 140:17 these are -- 140:18 A. No. 140:19 Q. -- accurate emails -- 140:20 A. No. 140:21 Q. -- that you sent and received? 140:22 A. No. Not -- yeah, I don't -- 140:23 Q. In the bottom email dated March 2, 2011, you 140:24 say "From what I have heard, Ron and Annie seem to be 140:25 getting along in Liberty pretty well." 141:1 What did you mean by that sentence? 141:2 A. Well, I know everybody in that neighborhood, 141:3 so when I go -- you know, when I'd go around, I'd ask 141:4 how things were going and they said they seem to be 141:5 doing fine. 141:6 Q. Who did you ask around? 141:7 A. Well, I -- I know every single person in 141:8 every single house, so -- you know, if I run into 141:9 somebody, I said, "Hey, how is it going with those 141:10 guys?" so... 141:11 Q. Do you recall any specific Liberty neighbors 141:12 that you spoke to about Ron and Annie? 144 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10809 Page 147 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 141:13 A. Well, maybe Scott Ashton, but I -- it could 141:14 have been Scott Ashton. It could have been Vince and 141:15 Betty Betta. It could have been any of the neighbors 141:16 that live there. If I go eat lunch at a restaurant 141:17 and Scott is there or something, I'd say, "Hey, how is 141:18 that going there? How is the neighbors?" so... 141:19 Q. You mentioned that -- further on "It's hard 141:20 to believe Ron and Ann have been in Liberty for one 141:21 year already." 141:22 A. Yeah. 141:23 Q. Was it your understanding at that time then 141:24 that Ron and Annie had been living at the Liberty 141:25 property for about a year as of March 2011? 142:1 A. You know, possibly. 142:12 I'll direct your attention to Exhibit No. 118, which 142:13 appears to be an email from yourself to Western Land & 142:14 And livestock dated May 1, 2011. 142:15 A. Uh-huh. 142:16 Q. And then so in the first sentence you are Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Depo Ex. 118 145 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10810 Page 148 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 142:17 asking if Western Land & Livestock LLC and/or Ron and 142:18 Annie have made a decision on buying the Liberty 142:19 property. 142:20 A. Uh-huh. 142:21 Q. Why did you expect that Ron and Annie might 142:22 be interested in buying the property? 142:23 A. Because I have no idea what the relationship 142:24 between John and Ron and Annie is. There is some kind 142:25 of a relationship there. John might want to keep it 143:1 himself. He might want to sell it. I just don't know 143:2 what -- what those guys are talking about. 143:3 Q. And did Mr. Wadsworth ever tell you anything 143:4 about what the -- what his relationship was with the 143:5 Talmages? 143:6 A. They were so private about all that stuff. 143:7 Q. And when you say "they," who are you 143:8 referring to? 143:9 A. John -- John was private. 143:10· · · ·Q.· ·Do you know if Western Land & Livestock was 143:11· affiliated in any way with the Talmages? 146 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10811 Page 149 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 143:12· · · ·A.· ·Oh, I have no idea. 143:13· · · ·Q.· ·And why were you asking John Wadsworth if 143:14· Ron and Annie were interested in buying the home as 143:15· opposed to asking Ron and Annie directly? 143:16· · · ·A.· ·Because my contract is with John. Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 143:21 Q. How did you know that Ron and Annie wanted 143:22 to experience a Liberty winter? 143:23 A. Okay. This is -- I'm trying to remember. 143:24 It's probably something John said to me. And that was 143:25 more in relationship of whether they wanted to 144:1 continue living there or not. Liberty winters are 144:2 pretty tough, you guys. If you haven't been there, 144:3 it's not for everybody, so. 144:8 Q. So earlier I think you mentioned that you 144:9 didn't -- you would never assume that Ronald Talmage 144:10 had any decision making authority. 144:11 A. Right. 144:12 Q. But you also said you don't -- I think you 144:13 said multiple times you don't want what kind of 147 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10812 Page 150 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 144:14 arrangement, if any, Mr. Wadsworth and Ron Talmage 144:15 had; is that right? 144:16 A. Yes. 144:17 Q. So anything you knew, you know, about Ron 144:18 Talmage, did you hear that from Mr. Wadsworth? 144:19 A. Yeah. 144:20 Q. Did Mr. Talmage himself ever tell you 144:21 anything about his relationship with Mr. Wadsworth? 144:22 A. No. We never discussed that. I only met 144:23 Ron one time that I can remember of for sure and -- 144:24 so... Depo Ex. 120 144:25· · · ·Q.· ·Let's take a look at Exhibit 120, which you 145:1· previously identified as the real estate purchase 145:2· contract for the Liberty property. 145:3· · · ·A.· ·Uh-huh. 145:4· · · ·A.· ·I'm not sure where that's at.· Oh, okay. 145:5· · · ·Q.· ·Some of this might be repeats of prior 145:6· questions -- 145:7· · · ·A.· ·Sure. 145:8· · · ·Q.· ·-- but I just want to make sure I've got it 145:9· straight for myself. 148 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10813 Page 151 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 145:10· · · · · · In the course of this real estate purchase 145:11· contract, who were you negotiating with on the buyer's 145:12· end? 145:13· · · ·A.· ·John. 145:14· · · ·Q.· ·And who did you understand was buying the 145:15· Liberty property? 145:16· · · ·A.· ·John. 145:17· · · ·Q.· ·And do you know why John was buying the 145:18· property? 145:19· · · ·A.· ·I really don't.· I guess it was an 145:20· investment.· I guess. 145:21· · · ·Q.· ·Did John ever say anything about it being an 145:22· investment or any other reasoning for why he was 145:23· buying the property? 145:24· · · ·A.· ·Yeah, he may have, but I don't recall 145:25· clearly. 149 146:1 Q. Who did you understand would be living at 146:2 the property after the sale? 146:3 A. Well, it could have been John or some 146:4 associate of his or somebody -- somebody associating 146:5 with him. 146:6 Q. Did you ever hear of specific names of OVERRULED 145:21–25, Rule 802 Mr. Judd is not relaying any statement here, he is just confirming that a statement was made to him. In that regard, even if there is a hearsay statement at issue here, it is not being offered for the truth of the matter asserted—it is being offered to lay foundation for Mr. Judd’s testimony at 145:19-20. Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10814 Page 152 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 146:7 associates who might be living at the property? 146:8 A. I don't remember hearing any specific names. 146:9 Q. Do you know at the time of this contract if 146:10 the Talmages would -- were still living at the 146:11 property? 146:12 A. They probably were. I think they were. 146:18· · · ·Q.· ·Did Ronald Talmage have any involvement with 146:19· the real estate purchase contract? 146:20· · · ·A.· ·None. 146:21· · · ·Q.· ·Did Annette Talmage? 146:22· · · ·A.· ·I don't -- never even met her. 146:23· · · ·Q.· ·Do you know if a Mrs. Chen or an older Asian 146:24· woman was involved with the sale at all? 146:25· · · ·A.· ·Never heard of them. 147:1· · · ·Q.· ·And do you know how John Wadsworth or 147:2· Western Land was paying the purchase price for the 147:3· Liberty property? 147:4· · · ·A.· ·He said he was getting a loan. 147:5· · · ·Q.· ·All right.· And I think earlier you said 150 OVERRULED 147:1–4, Rule 802 This statement is offered to establish the basis for Mr. Judd’s understanding of how the purchase price was being funded. Furthermore, the statement expresses Mr. Wadsworth’s intent to obtain a loan, which is admissible under Rule 803(3), and is consistent with Mr. Wadsworth’s testimony and credibility Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10815 Page 153 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Exhibits Ruling Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE challenged elsewhere by the Government. (See Rules 801(d)(1)(B) and 608(b)(2 . Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 149:14 After you sold the Liberty property in 2011, 149:15 did you ever visit it at all? 149:16 A. I stopped by the one time and talked to him. 149:17 I drove by it a few times. 149:18 Q. Well, when was the one time you stopped by 149:19 again? 149:20 A. When I sold him -- when we talked about the 149:21 snowblower. 149:22 Q. Oh. 149:23 A. When he was out working on his skid Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 147:6· that that was -- you recall that that was some company 147:7· John was affiliated with? 147:8· · · ·A.· ·Had some association with. 147:9· · · ·Q.· ·Do you remember the name of that company at 147:10· all? 147:11· · · ·A.· ·I don't. 147:12 Q. Were you aware of a later loan that 147:13 Mr. Wadsworth apparently obtained in February 2012 in 147:14 the amount of $234,470? 147:15 A. I don't know anything about that. 147:16 Q. Are you familiar with an entity called 147:17 Fortus Property Group, LLC? 147:18 A. No. 151 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10816 Page 154 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 149:24 loader -- or the skid loader. I guess I don't know if 149:25 it is his or not. 150:1 Q. Do you recall about how many times you drove 150:2 by the Liberty property after you sold it? 150:3 A. You know, a handful. I mean -- so -- 150:4 Q. Did you ever see anybody out there? 150:5 A. I don't remember seeing anybody out there. 151:3 Q. When you drove by, did you notice any 151:4 improvements on the property? 151:5 A. What frame -- what time frame are we talking 151:6 about? 151:7 Q. We are talking about after the sale, so 151:8 after September 2011. 151:9 A. Yeah, they continued to do improvements. 151:10 Q. What kind of improvements? 151:11 A. Oh, they did something with the garden -- 151:12 and I don't know what the time frame was. They did 151:13 something with the garden area. They put some 151:14 windmills in. They put a shed in. Over the period of 152 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10817 Page 155 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 151:15 time, between now and when I discovered it was just -- 151:16 in disrepair or whatever -- neglected, somebody had 151:17 been doing things to it. 152:2 Q. I'm going to hand you a document that's 152:3 being marked as Exhibit 136. It's Bates-stamped WADS 152:4 005143 to 5144. 152:5 (Exhibit 136 marked.) 152:6 THE WITNESS: I think I'm getting this down. 152:7 MS. GOLDEN: Practice makes perfect. 152:8 MR. INGRAM: Which one is this again? 152:9 MS. GOLDEN: This is 136. 152:10 Q. (BY MS. GOLDEN) Do you recognize this 152:11 document at all? 152:12 A. Not particularly. I'm sure it's a 152:13 legitimate document, but not particularly. I don't 152:14 really remember. 152:15 Q. This appears to be various emails, mostly in 152:16 August 2011 between yourself and 152:17 westernlivestock@gmail. 152:18 A. Uh-huh. 152:19 Q. Do you have any reason to doubt that these 152:20 are accurate copies -- Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Object to 152:2-153:18 under Fed. R. Evid. 602. Depo Exs. 136, 137 OVERRULED Mr. Judd is testifying to his recollection of emails he sent or received and his recollection of statements he made in those emails. As to the statements made in Exhibit 136, the Western Parties have not objected to that exhibit. Mr. Judd also testifies that he has no reason to doubt that Exhibit 136 contains accurate copies of the emails he sent and received. 153 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10818 Page 156 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 152:21 A. No. 152:22 Q. -- of those emails? 152:23 A. I don't have any reason to doubt that. 152:24 Q. If we look at page 5144 in the email dated 152:25 August 2, 2011, it looks like you are writing to John. 153:1 You said "How are things going for you? Ron told me I 153:2 would be hearing from you in July to set up a closing 153:3 date in August." 153:4 Do you recall talking to Ron at all about 153:5 the closing for the sale? 153:6 A. I don't recall that. 153:7 Q. Do you have any idea why you would have 153:8 written "Ron told me I would be hearing from you"? 153:9 A. No, I really don't. I'm not saying I didn't 153:10 have any other conversation with Ron. What I'm saying 153:11 is the only one that sticks out in my mind is when we 153:12 talked about the snowblower. 153:13 Q. I got you. Well, does this email refresh 153:14 your recollection as to times you might have talked to 153:15 Ron Talmage about the sale or lease of the Liberty 153:16 property? 154 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10819 Page 157 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 153:17 A. You know, not really. Like I said, I hardly 153:18 ever talked to Ron. 153:19 Q. I'm going to hand you a document that's 153:20 being marked as Exhibit 137, Bates-stamped WADS 005140 153:21 to 005141. 153:22 (Exhibit 137 marked.) 153:23 Q. (BY MS. GOLDEN) This appears to be -- it's 153:24 emails between yourself and Western Land. The first 153:25 one appears to be an email from yourself to Western 154:1 Land. The second one from a Lori Singleton to you 154:2 dated -- one is dated August 2011, the other January 154:3 2011. 154:4 Do you recognize this document? 154:5 A. It looks familiar. 154:6 Q. All right. Can you describe what the 154:7 document is for me? 154:8 A. It looks like John and I are having a 154:9 discussion about which title companies to use. It 154:10 looks like to me. 154:11 Q. Do you recall the second email as well? 154:12 A. When you say the second one, are you talking 155 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10820 Page 158 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 154:13 about page 2? 154:14 Q. Yes. 154:15 A. Okay. Let's see. Yeah, I remember this 154:16 conversation. Are you talking about the title 154:17 insurance, or are you talking about the last 154:18 paragraph? What are you referring to? 154:19 Q. Both of them. 154:20 A. Well -- 154:21 Q. Well, I just -- I just want to make sure you 154:22 recall these? 154:23 A. Yeah, I recall them. Uh-huh. 154:24 Q. All right. Do you have any reason to think 154:25 that these aren't accurate -- 155:1 A. No, I don't have any -- 155:2 Q. -- emails? 155:3 A. I don't have any reason to doubt them. 155:4 Q. Let's take a look at -- let's start with the 155:5 August 2011 email that's on page 5140. 155:6 A. Uh-huh. 155:7 Q. In the first paragraph you say to John, "I 155:8 have appreciated the care you and Ron and Annie have 155:9 taken care of our home over the past 17 months." 156 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10821 Page 159 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 155:10 What did you mean by that? 155:11 A. Well, my home was in good condition. And 155:12 Ron is living in there, so somebody is keeping it in 155:13 good condition. My guess is it's Ron and Annie. And 155:14 I shouldn't say the -- I don't know about the inside, 155:15 because I never got in the inside, so the outside was 155:16 excellent. 157:20 Q. I'm going to hand you document that's being 157:21 marked as Exhibit 139, Bates- stamped WADS 005121 to 157:22 005124. 157:23 (Exhibit 139 marked.) 157:24 Q. (BY MS. GOLDEN) This appears to be an email 157:25 from yourself to Western Land & Livestock dated August 158:1 28, 2011. 158:2 Do you recognize this document? 158:3 A. Not really, but I'm not saying it isn't 158:4 right. 158:5 Q. Do you have any reason to doubt that this 158:6 isn't an accurate copy of an email that you sent? 158:7 A. No. I -- I can't imagine I'd blow something Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Object to 157:20-158:15, and 158:21- 159:1 under Fed. R. Evid. 602. Depo Ex. 139 OVERRULED Mr. Judd is testifying to his recollection of an email he sent and his recollection of statements he made in that email. As to the statements made in Exhibit 139, the Western Parties have not objected to that exhibit. Mr. Judd also testifies that he has no reason to doubt that Exhibit 139 is an accurate copy of the email that he sent. 157 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10822 Page 160 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 158:8 up that big, but it's possible. 158:9 Q. Well, let's focus on the first page here, 158:10 5121. It says -- you say "John, I was told by Ron 158:11 Talmage the purchase of our home was a cash deal." 158:12 Do you recall Ron telling you the purchase 158:13 of the Liberty home was a cash deal? 158:14 A. I -- I don't recall that. It could have 158:15 happened. I don't recall that. 158:16 Q. Did you communicate at all with Ron Talmage 158:17 about the sale of the Liberty property? 158:18 A. I do not remember communicating with him 158:19 about it at all. I'm not saying it didn't happen. I 158:20 don't remember it -- having any conversation with him. 158:21 Q. Do you have any idea why at this instance 158:22 you appear to be asking Ron and not John about the 158:23 house? 158:24 A. No, I don't know why. Maybe I couldn't get 158:25 ahold John. I don't know. That's the most likely 159:1 case. 158 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10823 Page 161 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Depo Ex. 140 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 160:23 Q. I'm going to hand you a document that's 160:24 being marked as Exhibit 140, Bates-stamped WADS 005085 160:25 to 005087. 161:1 (Exhibit 140 marked.) 161:2 Q. (BY MS. GOLDEN) This appears to be various 161:3 emails either to or from you dated September 8 and 9, 161:4 2011. 161:5 Do you recognize this document? 161:6 A. It's kind of like all of them. Not 161:7 particularly, but I'm sure they are right. 161:8 Q. Do you have any reason to doubt that these 161:9 aren't accurate copies of your emails? 161:10 A. No. I don't have any reason to doubt that. 161:11 Q. On page 5087 -- 161:12 A. Uh-huh. 161:13 Q. -- it looks like you are asking -- the post 161:14 script to John. "Do you or Ron want me to walk the 161:15 property boundaries with you?" Why were you including 161:16 Ron on this question? 161:17 A. Because I don't know where John is, and Ron 159 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10824 Page 162 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 161:18 is on the property and he has a relationship with -- 161:19 he had some kind of a relationship with -- with John, 161:20 so to me that would make sense. John can't be there. 161:21 Do you want your associate or friend or whatever you 161:22 are to walk the property line? 163:4 Q. Overall during the course of your dealings 163:5 with John Wadsworth, was he typically communicative? 163:6 A. Yeah. I mean, he's kind of hard to get a 163:7 hold of sometimes. He's busy guy, but, yeah. 163:8 Q. Was he responsive to any calls or emails 163:9 that you put in? 163:10 A. Well, pretty much. 163:11 Q. If you could not get ahold of John, who 163:12 would you try to contact instead? 163:13 A. Nobody. 163:14 MR. INGRAM: What was that? 163:15 THE WITNESS: Nobody. I didn't have any other 163:16 contact information from anybody. There was nobody I 163:17 could get ahold of. 163:21 (Exhibit 142 marked.) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 160 Depo Ex. 142 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10825 Page 163 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 163:22 Q. (BY MS. GOLDEN) This appears to be a series 163:23 of emails either to you or from you between September 163:24 19 and September 21, 2011. 163:25 Do you recognize these emails? 164:1 A. Same as all the rest of them. I mean, I'm 164:2 sure they are right. 164:3 Q. Well, we got to get it on the record. 164:4 A. Sure. 164:5 Q. Do you have any reason to doubt that these 164:6 are accurate copies of emails? 164:7 A. No, I don't have any reason to doubt it. 164:8 Q. Looking at the first page, 5051, the second 164:9 email down it says "Paul Judd wrote." You know, "I'll 164:10 need to take all of my keys with me next time I go to 164:11 Liberty and see which ones go with the Liberty home 164:12 and shop. I'll let you and Ron know when I'm going 164:13 there." 164:14 Why are you offering to let John and Ron 164:15 know when you are going to the Liberty property? 164:16 A. So if someone is there, I can make 161 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10826 Page 164 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Depo Ex. 143 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 164:17 arrangements to give somebody the keys. 164:18 Q. And specifically why is Ron included? 164:19 A. Because Ron lives there. 165:4 Q. I'm going to hand you a document that's 165:5 being marked as Exhibit 143, Bates-stamped WADS 165:6 005040. 165:7 (Exhibit 143 marked.) 165:8 Q. (BY MS. GOLDEN) This appears to be emails 165:9 either to or from you, dated October 10 and 11, 2011. 165:10 Do you recognize this document? 165:11 A. The same as all the rest of them. Maybe. 165:12 Q. Do you have any reason to doubt that these 165:13 are accurate copies of emails that you -- 165:14 A. Not. 165:15 Q. -- sent or received? 165:16 The second email on this page you write 165:17 "John and Ron" and then you let them know you are 165:18 coming to Liberty on 13th October at 5:00 p.m. "I'll 165:19 bring all keys and my garage door opener." 165:20 Why were emailing John and Ron about that? 162 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10827 Page 165 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 165:21 A. John is not around and Ron is. I was to 165:22 give somebody the keys. I've got to give somebody 165:23 those things. 165:24 Q. Was Ron living there at the time? 165:25 A. I'm guessing he was. 166:1 Q. Did you eventually drop off the keys and the 166:2 garage door opener at the property? 166:3 A. I'm sure I would have done that. 166:4 Q. Do you recall who was there when you dropped 166:5 off that stuff? 166:6 A. I don't remember. 166:7 Q. Again, this top email here appears to be 166:8 from [email protected] to you. 166:9 Does seeing this refresh your recollection 166:10 at all as to, you know, whether you communicated with 166:11 Ron Talmage at all by email? 166:12 A. Yeah, you know, it really doesn't. I'm just 166:13 trying to get keys to people. 169:11 Q. (BY MS. GOLDEN) All right. Mr. Judd, I'm 169:12 going to show you a document that's being marked as Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Depo Ex. 145 163 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10828 Page 166 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 169:13 Exhibit 145. It was previously filed with the court 169:14 in this case at Docket No. 83- 17. 169:15 MR. INGRAM: Sorry. 145 you said? 169:16 MS. GOLDEN: 145. 169:17 MR. INGRAM: Thank you. 169:18 (Exhibit 145 marked.) 169:19 Q. (BY MS. GOLDEN) Do you recognize this 169:20 document? 169:21 A. You know, I don't. I might have seen it. I 169:22 don't know. 169:23 Q. Just to be clear, it is a document that on 169:24 the second page says "Affidavit of Paul Judd." 169:25 A. Well, then I've seen it -- then I've seen 170:1 it. I just don't remember it. 170:2 Q. On page 4, is that your signature? 170:3 A. Yes, that is my signature. 170:4 Q. To the best of your knowledge then is this 170:5 an accurate copy -- 170:6 A. I'm sure. 170:7 Q. -- of the affidavit that you signed in this 170:8 case? 170:9 A. I'm sure it is, yeah. I wouldn't have 170:10 signed it if it wasn't accurate. 164 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10829 Page 167 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 170:11 Q. How did this affidavit come about? 170:12 A. I don't know. 170:13 Q. Did you draft the affidavit? 170:14 A. No, I didn't draft it. 170:15 Q. Who drafted it? 170:16 A. I don't have any idea. 170:17 Q. How was it sent to you before you signed it? 170:18 THE WITNESS: Did you send it to me? 170:19 MS. GOLDEN: Well, Mr. Ingram is nodding for the 170:20 record, so it looks like Mr. Ingram -- 170:21 Q. (BY MS. GOLDEN) So do you recall that 170:22 Mr. Ingram sent you the affidavit? 170:23 A. That's my best guess. 170:24 Q. Just to clarify, you don't know who drafted 170:25 it? 171:1 A. I don't. It said William B. Ingram on here 171:2 and Strong & Hanni, so I'm guessing it is those guys. 171:3 Believe me, I couldn't spell that good, and 171:4 I wouldn't know how to write it. 171:5 Q. Did you speak to Mr. Ingram before signing 171:6 this affidavit? 165 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10830 Page 168 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 171:7 A. I'm sure we had a conversation. I'm sure he 171:8 explained this to me. 171:9 Q. What did the two of you talk about? 171:10 A. Gosh, I'm not -- I don't even remember that 171:11 conversation at all to tell you the truth. Probably 171:12 asked me these questions, and I probably answered 171:13 them. 171:14 Q. Did Mr. Ingram tell you why he was asking 171:15 for an affidavit from you? 171:16 A. As I recall, he said something about 171:17 representing John on the home in Liberty, and we 171:18 needed to answer these questions or something to that 171:19 effect. 171:20 Q. Do you recall if Mr. Ingram told you 171:21 anything about this case, as in the case that we are 171:22 here on the deposition for? 171:23 A. I don't remember him talking very much about 171:24 it, no. 171:25 Q. Before signing the affidavit, did you speak 172:1 to John Wadsworth? 172:2 A. I have not spoken to John Wadsworth. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 166 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10831 Page 169 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 172:3 Q. Did you speak to anybody else affiliated 172:4 with Mr. Wadsworth or Western Land & Livestock? 172:5 A. I don't know anybody else there, no. 172:6 Q. Do you recall if after Mr. Ingram sent you 172:7 the affidavit, if you made any changes to the document 172:8 before signing it? 172:9 A. I don't recall. 173:2 Q. Okay. I'm going to hand you a document 173:3 that's being marked as Exhibit 146. The Bates stamp 173:4 is IRS-RBT-003505 to 3506. 173:5 (Exhibit 146 marked.) 173:6 MS. GOLDEN: At least from my end, there is not 173:7 many more documents. You can rest assured that it is 173:8 moving towards the end. 173:9 THE WITNESS: Thank you. 173:10 Q. (BY MS. GOLDEN) I'll represent to you that 173:11 these are notes from Revenue Office Yvonne Olson, and 173:12 I'm going to direct your attention to the entry there 173:13 dated August 19, 2015. 173:14 A. Where is that at? 173:15 Q. Starting after the big block box. 173:16 A. Okay. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling MOOT. Exhibits 146 and 147 were not received at trial and are not part of the trial record. Object to Depo Exs. 146 and 146 under Fed. R. Evid. 802 and 901. Depo Exs. 146, 147 If Exhibits 146 and 147 are offered, they will be offered to prove the fact that Mr. Judd made certain statements to the IRS, not the truth of the matter asserted in those statements. They also shed light on Mr. Judd’s motive and bias, and provide context for the questions posed to Mr. Judd. The Rule 901 objection is waived under Rule 26(a)(3)(B). The Western Parties did not make it when objecting to the United States’ pretrial disclosures. If needed, IRS Revenue Officer Yvonne Olson can authenticate Exhibits 146 and 147 at trial. 167 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10832 Page 170 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 173:17 Q. Yeah. So you can see it says "Other third 173:18 party contact Paul Judd previous homeowner." 173:19 A. Uh-huh. 173:20 Q. I'll give you a second to read this over. 173:21 A. You want me to read -- you want me to read 173:22 my statement to her? 173:23 Q. You don't have to read it out loud. I just 173:24 want to give you a chance to look it over because I'm 173:25 going to ask you some questions about it. 174:1 A. Yeah, that's what I said all along. 174:2 Q. And then it continues to the next page. And 174:3 I apologize. It appears to be faded out a little bit, 174:4 but if you can read -- you know, just read over that 174:5 to the best you can make out the words. 174:6 A. Is this her comments? 174:7 Q. Yes. These are her notes from talking to 174:8 you. 174:9 A. Let me tell you. That was a pain in the 174:10 butt. It took me a long time to find all this stuff 174:11 for her. 168 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10833 Page 171 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 174:12 Q. Well, I appreciate you looking -- looking 174:13 for everything and getting that together. 174:14 A. He believes they were something -- yeah. 174:15 There was something -- oh, yeah. Some of this is 174:16 pretty hard to read. 174:17 Q. Right, I know. Just to the best that you 174:18 can. 174:19 A. I mean, this is pretty much of what I've 174:20 said all along. I don't see anything different here. 174:21 Q. All right. So to the best of your 174:22 recollection, is this entry here an accurate summary 174:23 of your conversation -- 174:24 A. Yeah, I think so. 174:25 Q. -- with Yvonne Olson? 175:1 A. Yeah, I believe it is. 175:2 Q. Looking at the first paragraph on page 3506, 175:3 "he said John Wadsworth didn't live in the home. He 175:4 said Ronald and Annette Talmage lived there." 175:5 Does that accurately reflect -- reflect your 175:6 understanding about the Liberty property? 169 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10834 Page 172 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 175:7 A. That's what happened. I just don't -- to 175:8 begin with, I don't know that John was ever there or 175:9 not. But sometime then the Talmages moved in. So I 175:10 can't say whether -- right off the beginning John was 175:11 there or not. I don't know. But obviously Talmage 175:12 was there the vast majority of the time and maybe all 175:13 the time. I don't know about right at the very 175:14 beginning. 175:15 Q. And the fourth paragraph down on that 175:16 page -- it's a little bit faded out. The last 175:17 sentence I think says "He said he finds Ronald and 175:18 Annette Talmage to be very secretive people." 175:19 A. Oh, yeah. 175:20 Q. What gave you the impression that the 175:21 Talmages were secretive people? 175:22 A. Well, the blinds were always pulled shut. 175:23 They had cameras around their house, a thing on the 175:24 door that says if you can -- if you can see this, you Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED Object to 175:15-176:11 under Fed. R. Evid. 802. Mr. Judd is testifying to his present recollection, not repeating prior statements. Mr. Judd references statements that neighbors made to him, but these are offered to show the basis for his testimony. 170 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10835 Page 173 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 175:25 can see the barrel of my gun. I mean, you know -- so 176:1 they kept to themselves. You know, they just -- all 176:2 the neighbors said they were very, very secretive. 176:3 And I never saw anybody outside when I did go by. 176:4 Q. Was some of the stuff you mentioned about 176:5 the property -- how did you know that the blinds were 176:6 pulled shut and the cameras and sign outside the door? 176:7 Is that something you observed personally? 176:8 A. No. That's something everybody told me. 176:9 Well, the blinds pulled shut -- yes, I saw the blinds 176:10 pulled shut. And the rest of it is what all the 176:11 neighbors told me. 176:12 Q. And do you recall which neighbors told you? 176:13 A. That would have been probably Scott, 176:14 probably -- I can't think of what her name is. I'm 176:15 having a brain drain here. 176:16 Q. That's okay. 176:17 A. Anyway, one of the neighbors that lived 176:18 right next -- right next to them. 176:19 Q. Was that Michelle Post? 171 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10836 Page 174 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 176:20 A. No. 176:21 Q. Or Natalie Post? 176:22 A. No. 176:23 Q. The Wescots? 176:24 A. No. Cole -- Athena Steadman. Athena 176:25 Steadman. 177:1 Q. Athena Steadman? 177:2 A. She was in the house right next to them. 177:3 Well, that's not really true. She was in the house 177:4 behind them but is adjacent to. 177:5 Q. You said Scott. I think you are referring 177:6 to Scott Ashton? 177:7 A. It could have been. 177:8 Q. That's a name you said earlier. 177:9 A. It could have been. But I only talked to 177:10 Athena Steadman for sure. I mean, it's a little, 177:11 small community. It's not like this stuff doesn't get 177:12 around, you know. 177:13 Q. I'm going to show you a document that's 177:14 being marked as Exhibit 147. 177:15 A. Okay. 177:16 (Exhibit 147 marked.) 177:17 Q. (BY MS. GOLDEN) It's Bates-stamped 177:18 IRS-RBT-003533 to 003534. I'll represent to you that Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 172 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10837 Page 175 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 177:19 these are notes of Revenue Office Yvonne Olson, and 177:20 the particular entry here that I wanted to direct your 177:21 attention to is dated September 9 -- 29, 2015, and it 177:22 appears to be another entry about a conversation with 177:23 yourself. 177:24 A. Okay. 177:25 Q. So I'll give you a second to read this over 178:1 too. 178:2 A. Okay. 178:3 Q. To the best of your recollection, is this 178:4 entry an accurate summary of your conversation with 178:5 Yvonne Olson around September 29, 2015? 178:6 A. The only thing that I would say that is 178:7 maybe not accurate is where it says every time he 178:8 stopped by, it was Ron and Talmage living in the home. 178:9 Q. Okay. 178:10 A. I never saw him outside, so I don't know. 178:11 I'm assuming they lived in the home -- they were 178:12 living in the home. I'm just saying they weren't out 178:13 a lot. 173 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10838 Page 176 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 178:14 Q. So I think your correction was that -- you 178:15 know, when you drove by, you mostly saw the outside -- 178:16 A. Yeah. 178:17 Q. -- so you didn't necessarily see the 178:18 Talmages on -- 178:19 A. I never saw the inside. 178:20 Q. You never saw the inside. All right. Was 178:21 it your understanding though that Ronald and Annette 178:22 Talmage were living in the home? 178:23 A. Yeah, that was my understanding. 178:24 Q. And that same paragraph, it says "Asked if 178:25 he'd ever meet with Ronald and Annette Talmage. He 179:1 said, 'Yes, he'd meet with them on several 179:2 occasions.'" 179:3 Is that accurate? 179:4 A. The only one I remember for absolutely sure 179:5 was the one with the snowblower. Possibly when I gave 179:6 them the keys to the house, but I don't remember any 179:7 other ones. 179:8 Q. Okay. Does seeing this entry refresh your 174 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10839 Page 177 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 179:9 recollection on any conversations you might have had 179:10 with Ronald or Annette Talmage? 179:11 A. I don't know if I ever -- I don't think I 179:12 ever had a conversation with Annette. 179:13 Q. Does it refresh your recollection on any 179:14 conversations you might have had with Ron? 179:15 A. I think it's pretty consistent, so, no, not 179:16 really. 179:17 I'm sorry. I keep throwing these papers 179:18 away. 179:19 Q. That's fine. So what made you thing the 179:20 Talmages were tight lipped? That's in the same 179:21 paragraph here. You said they were pretty tight 179:22 lipped and didn't say much. 179:23 A. Because like when I approached him with the 179:24 snowblower, very standoffish. The day I had the 179:25 conversation about it -- you know, it wasn't a 180:1 conversation, like, "How is it going? How do you like 180:2 living here?" It was mostly because he likes Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 175 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10840 Page 178 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 180:3 equipment, strictly on the snowblower. You know, very 180:4 little -- not normal banter or communication you would 180:5 have with somebody. Depo Exs. 141-142, 144 184:1· · FURTHER EXAMINATION 184:2· QUESTIONS BY MR. INGRAM: 184:3· · · ·Q.· ·Now, you talked before about only once 184:4· leasing the property.· Did you mean only once 184:5· leasing -- there is only one property that you leased, 184:6· but there actually had been a couple leases? 184:7· · · ·A.· ·Yeah. 184:8· · · ·Q.· ·Okay. 184:9· · · ·A.· ·Well, I have a commercial strip mall in 184:10· Eden, and you asked me if I'd leased anything.· That's 184:11· why I said houses or commercial, because I have leased 184:12· my strip mall.· But in regards to that house, that one 184:13· house was leased two different times. 184:14· · · ·Q.· ·Okay.· You were asked about only once 184:15· entering into a lease option.· How many lease options 184:16· have you participated in, not as a party but as an 184:17· agent or a broker? 176 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10841 Page 179 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 184:18· · · ·A.· ·None.· I don't remember any. 184:19· · · ·Q.· ·Is a lease option to purchase, is that 184:20· something common or uncommon in your experience? 184:21· · · ·A.· ·Well, when you get into a tough market and 184:22· things are hard to sell, it becomes a lot more common. 184:23· · · ·Q.· ·Okay.· Was there anything atypical about 184:24· this lease to purchase option? 184:25· · · ·A.· ·No, not really. 185:1· · · ·Q.· ·You were asked about John Wadsworth's 185:2· signatures on the lease option as well as the REPC and 185:3· other documents.· Do you have any reason to question 185:4· whether those are John's signatures? 185:5· · · ·A.· ·I don't have any reason to question it. 185:6· · · ·Q.· ·Okay.· You were asked about subleasing the 185:7· property.· Do you remember that? 185:8· · · ·A.· ·I think you asked me about that -- I think, 185:9· but I'm not sure. 185:10· · · ·Q.· ·Did you understand there was any provision 185:11· in the lease to purchase agreement that precluded 177 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10842 Page 180 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 185:12· Western Land & Livestock from subleasing the property? 185:13· · · ·A.· ·I -- I don't think the contract -- I don't 185:14· remember off the top of my head.· I don't think the 185:15· contract says you can sublease it.· You'd have to read 185:16· through it and see.· I don't remember that being a 185:17· provision of it, but as far as renting it to somebody 185:18· or something like that -- I don't know if that's 185:19· exactly the same thing or not, but... 185:20· · · ·Q.· ·Did you care? 185:21· · · ·A.· ·I don't care.· He paid me a year in advance, 185:22· and his checks didn't bounce, and they were improving 185:23· my property.· Works for me. 185:24· · · ·Q.· ·You were asked a lot about the Talmages 185:25· living on the property and your understanding about 186:1· them living there.· That seemed to be a common theme 186:2· today.· How many times did you actually witness Ron 186:3· Talmage on the property? 186:4· · · ·A.· ·A couple at the most.· Two or three. I 186:5· don't know.· Not much. 178 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10843 Page 181 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 186:6· · · ·Q.· ·Okay.· And this was over a period of how 186:7· long? 186:8· · · ·A.· ·Well, from -- from when they started renting 186:9· there until when it closed. 186:10· · · ·Q.· ·So about a year and a half? 186:11· · · ·A.· ·Yeah. 186:12· · · ·Q.· ·Okay. 186:13· · · ·A.· ·But you know what, you guys?· I could be 186:14· wrong on that.· I mean, it could be three or four 186:15· times.· I don't know.· It could be two or three, 186:16· whatever. 186:17· · · ·Q.· ·Do you know how often Ron Talmage was 186:18· occupying the property? 186:19· · · ·A.· ·The vast majority of the time I went there I 186:20· never saw anybody there. 186:21· · · ·Q.· ·Okay.· So in terms of do you know how often 186:22· he is occupying the property or for what periods of 186:23· time?· Do you have any idea? 186:24· · · ·A.· ·I don't. 186:25· · · ·Q.· ·Okay.· Do you know that -- whether anybody 187:1· else was staying on the property -- 187:2· · · ·A.· ·I don't know. 179 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10844 Page 182 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 187:3· · · ·Q.· ·-- such as Annette Talmage or Mrs. Chen? 187:4· · · ·A.· ·I -- I don't know. 187:5· · · ·Q.· ·Okay.· You were asked about dogs on the 187:6· property. 187:7· · · ·A.· ·Sure. 187:8· · · ·Q.· ·As a landlord, did you have any problem with 187:9· dogs being kept on the property? 187:10· · · ·A.· ·No. 187:11· · · ·Q.· ·As a landlord, did you have a problem with 187:12· the kennel being on the property? 187:13· · · ·A.· ·No. 187:14· · · ·Q.· ·You were asked about John Wadsworth being a 187:15· private individual.· Do you think there is anything 187:16· wrong with Mr. Wadsworth being private? 187:17· · · ·A.· ·It's irritating. 187:18· · · ·Q.· ·Is there anything wrong with him? 187:19· · · ·A.· ·No.· I don't know if there was anything 187:20· irritating.· It irritated the hell out of me. 187:21· · · ·Q.· ·Other than irritating you, do you think 187:22· there is anything wrong with it? 180 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10845 Page 183 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 187:23· · · ·A.· ·No.· I like my privacy too. 187:24· · · ·Q.· ·You were asked about the commission with 187:25· Darin Mitchell -- or Mich'l. 188:1· · · ·A.· ·Mich'l, yeah. 188:2· · · ·Q.· ·Excuse me.· And how -- I think you said you 188:3· were irritated that you had promised him a commission 188:4· for work that you expected him to do. 188:5· · · ·A.· ·Uh-huh. 188:6· · · ·Q.· ·Who did you understand actually performed 188:7· that work -- or that Darrell -- that you understood 188:8· Darrell would have -- or should have performed? 188:9· · · ·A.· ·I would have thought Darin would be more 188:10· involved through the process, you know.· And he kind 188:11· of introduced us and came up for the inspection and 188:12· then he kind of just disappeared out of the scene. 188:13· And it wasn't disclosed to me that he was already 188:14· being paid by John.· So I'm going "Well, what am I 188:15· paying you $5,000 for?" 188:16· · · ·Q.· ·And I believe there was a question about you 181 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10846 Page 184 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 188:17· proposing to pay John.· Why -- 188:18· · · ·A.· ·I considered that. 188:19· · · ·Q.· ·And why did you consider paying John that 188:20· commission? 188:21· · · ·A.· ·Because John was doing things Darin should 188:22· have been involved in.· In my opinion, Darin should 188:23· have been more involved in the process. 188:24· · · ·Q.· ·And when you say John doing things Darrell 188:25· should have been, what kind of things are you talking 189:1· about? 189:2· · · ·A.· ·Talking about the lease.· Talking about the 189:3· payments.· Talking about the money down.· You know, I 189:4· don't -- someone shouldn't get paid $7,000 for saying, 189:5· "Well, here you go.· Here is John." 189:6· · · ·Q.· ·If you can turn to Exhibit 141, if you will, 189:7· that was an email change. 189:8· · · ·A.· ·I'm going to mess up your whole pile again 189:9· here.· Maybe.· Okay. 189:10· · · ·Q.· ·You got that? 189:11· · · ·A.· ·Yeah. 189:12· · · ·Q.· ·So on -- if you go to page 2, this was an 182 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10847 Page 185 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 189:13· email from you dated -- or it looks like -- excuse 189:14· me -- from Western Livestock dated September 13, 2011. 189:15· · · · · · Do you see that? 189:16· · · ·A.· ·Yes, I do. 189:17· · · ·Q.· ·And about two-thirds of the way down it says 189:18· "As part of the close tomorrow." 189:19· · · · · · Do you see that? 189:20· · · ·A.· ·No.· Let's see -- 189:21· · · ·Q.· ·"As part of the close tomorrow, please be 189:22· prepared to endorse and send via certified mail the 189:23· Liberty water certificate directly to the Liberty 189:24· water company so they can issue a new share in the 189:25· name of the LLC." 190:1· · · ·A.· ·Uh-huh. 190:2· · · ·Q.· ·"Please endorse the certificate to Western 190:3· Land & Livestock.· Please pay attention to the exact 190:4· spelling of the LLC name.· You misspelled the name 190:5· several times." 190:6· · · ·A.· ·I misspelled it several times? 190:7· · · ·Q.· ·I don't know.· That's what the email says. 190:8· · · ·A.· ·Oh. 183 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10848 Page 186 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 190:9· · · ·Q.· ·So then we go to Exhibit No. 142, if you 190:10· will. 190:11· · · ·A.· ·I misspell everything, so that's not a 190:12· shock.· 142 -- there is 143.· 142 -- there is 140. 190:13· There is 143.· There is 139.· 139, 140, 143, 144. 190:14· Here's one -- which one did you say. 190:15· · · ·Q.· ·142. 190:16· · · ·A.· ·Ah, here we go. 190:17· · · ·Q.· ·Okay.· So if you turn to the second page -- 190:18· · · ·A.· ·Uh-huh. 190:19· · · ·Q.· ·-- there is an email dated September 19, 190:20· 2011, and you say "Hi, John.· I just wanted you to 190:21· know I sent the water stock certificate to Liberty 190:22· pipeline today." 190:23· · · ·A.· ·Uh-huh. 190:24· · · ·Q.· ·Do you see that? 190:25· · · ·A.· ·Uh-huh. 191:1· · · ·Q.· ·Do you recall sending a certificate endorsed 191:2· over to Western Land & Livestock? 191:3· · · ·A.· ·Well, no, but if I said I did it, I did it. 191:4· · · ·Q.· ·Okay.· Do you have any reason to dispute 191:5· that's what happened? 184 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10849 Page 187 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 191:6· · · ·A.· ·No. 191:7· · · ·Q.· ·Okay.· And if you were to be shown a -- an 191:8· endorsed water stock certificate to Western Land & 191:9· Livestock, would that be consistent with your 191:10· understanding of what happened with that water stock 191:11· certificate? 191:12· · · ·A.· ·Yes, it would. 191:13· · · ·Q.· ·We went through a whole bunch of emails, 191:14· including one email from an HOA -- or regarding the 191:15· HOA.· This was Exhibit No. 144 dated June of 2012. 191:16· · · ·A.· ·141, 140, 143.· Okay.· 144. 191:17· · · ·Q.· ·Now, this was after the close of the 191:18· purchase; correct? 191:19· · · ·A.· ·Uh-huh. 191:20· · · ·Q.· ·And why did you continue to reach out to 191:21· Mr. Wadsworth regarding the HOA and the Liberty 191:22· property? 191:23· · · ·A.· ·So he would have an understanding that in my 191:24· opinion he's not a member of the homeowners 191:25· association, and it's none of their business. 185 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10850 Page 188 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 192:1· · · ·Q.· ·And why were you reaching out to 192:2· Mr. Wadsworth as opposed to somebody else? 192:3· · · ·A.· ·Because he owns the property. 192:4· · · ·Q.· ·Okay.· Now, you've sat through today and 192:5· you've been asked a lot of questions about John 192:6· Wadsworth, about Ron Talmage, about your 192:7· understanding.· As you've sat through, in the end what 192:8· involvement did Ron Talmage have in leasing and 192:9· purchasing the property from you? 192:10· · · ·A.· ·Nothing at all. 192:11· · · ·MR. INGRAM:· No further questions. 192:12· · · ·MS. GOLDEN:· Just a few more questions. 192:13 192:14· FURTHER EXAMINATION 192:15· QUESTIONS BY MS. GOLDEN: 192:16· · · ·Q.· ·You've looked at a lot of emails involving 192:17· [email protected], which I think -- which I 192:18· believe you testified that's what you used to 186 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10851 Page 189 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 192:19· correspond with John Wadsworth.· How did you come to 192:20· the understanding that that email address was John's? 192:21· · · ·A.· ·Because we were corresponding back and forth 192:22· and he was answering.· Why would I think it was 192:23· anybody else's? 192:24· · · ·Q.· ·Did he tell you it was his email address? 192:25· · · ·A.· ·No.· But he has a question.· I email him. 193:1· He emails me back.· There is communication going back 193:2· and forth, so I wouldn't have any reason to doubt it. 193:3· · · ·MS. GOLDEN:· Okay.· I have no further questions. 193:4· · · ·MR. INGRAM:· Thank you, Mr. Judd.· I think off 193:5· the record you were given an opportunity to read and 193:6· sign.· After we are done today, the court reporter 193:7· will, if you would like, provide you a complete 193:8· transcript of our questions and your answers today, 193:9· and you will have an opportunity to review that and 193:10· make any corrections and sign on that. 193:11· · · · · · Would you like to -- 187 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10852 Page 190 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling DEFENDANT COUNTER- DESIGNATIONS 193:12· · · ·THE WITNESS:· You know what? 193:13· · · ·MR. INGRAM:· -- do that? 193:14· · · ·THE WITNESS:· I've told the truth.· I -- so I'm 193:15· fine with. 193:16· · · ·MR. INGRAM:· All right. 193:17· · · ·THE WITNESS:· -- waiving that. 193:18· · · ·THE VIDEOGRAPHER:· Going off the record.· The 193:19· time is 3:32. 193:20· · · · · · (The deposition concluded at 3:32 p.m.) 193:21· · · · · · (Signature waived.) PLAINTIFF COUNTER- DESIGNATIONS 105:21 Q. And earlier this morning we talked about 105:22 your experience as a real estate broker. 105:23 A. Uh-huh. 105:24 Q. Do you remember that? 105:25 Are you testifying as an expert witness in 106:1 this case? 106:2 A. I don't think so. I'm just testifying as a 106:3 homeowner, as far as I know. 188 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10853 Page 191 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 106:4 Q. Okay. Well, I just wanted to get a little 106:5 more on your background as a real estate broker. Can 106:6 you tell me just a rough estimate of how many houses 106:7 you've sold during your time as a broker? 106:8 A. Oh, a couple hundred. 106:9 Q. How many in Utah? 106:10 A. Well, my guess would be 150. I don't know 106:11 for sure. That's just a guess. 106:12 Q. That's fine. I'm just trying to get a rough 106:13 sense. 106:14 A. Yeah. 106:15 Q. Can you give an estimate of how many houses 106:16 you've sold in the Liberty/Eden Utah area? 106:17 A. Well, that would be the hundred -- 106:18 approximately 150. 106:19 Q. And do you recall approximately how many 106:20 houses you've leased as a real estate broker? 106:21 A. Yeah, one. 106:22 Q. Was that the Liberty property? 106:23 A. Yeah. 106:24 Q. Okay. How many lease options have you done? 189 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10854 Page 192 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 106:25 A. Two -- well, on houses? 107:1 Q. On houses. 107:2 A. One. 107:3 Q. Was that also the Liberty property? 107:4 A. Yes. 129:22 Was it your understanding that Western Land 129:23 & Livestock would be letting others occupy the home? 129:24 A. Possibly. 129:25 Q. Did you ever get any phone numbers of 130:1 contact persons for people living at the Liberty 130:2 property? 130:3 A. I don't remember getting any. 130:4 Q. Going down to the very last paragraph on 130:5 this page, it seems like you are writing to John and 130:6 then you say "I will be spending the night in the 130:7 Liberty home Friday night. It is a great place. You 130:8 or your friends will love it." 130:9 A. Sure. 130:10 Q. What did you mean by "you or your friends"? 130:11 A. Well, I don't know what John is going to do 130:12 with it. I don't know if John is going to have 190 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10855 Page 193 of 478 Case Name: United States of America v. Ronald Talmage, et al.__ Case Number: 1:16-cv-19 Deposition of Paul Judd taken August 30, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 130:13 visit -- who John is going to be -- it could be his 130:14 kids. It could be his wife. It could be relatives. 130:15 I don't know. 130:16 Q. Did John specifically ever mention if people 130:17 would be staying at the property? 130:18 A. I -- somehow I got the impression it could 130:19 be -- it could be, like -- maybe somebody associated 130:20 with him, but nothing specific. Instructions: One form should contain all designations for a witness. Plaintiff Designations (column 1) and Defendant Designations (column 2) will show the full deposition text that the party proposes to read in its case-in-chief. Completeness designations are proposed by the other party, under Fed. R. Civ. P. 32(a)(6), to be read with the designations. Counter–designations are read following the designations and completeness designations, similar to cross examination. This form should be provided in word processing format to the other party, who then will continue to fill in the form. The form is then returned to the proposing party for review, resolution of disputes, and further editing. The parties should confer and file a final version in PDF format using the event “Notice of Filing” and also submit a final word processing copy to the court at [email protected], for ruling. All objections which the objecting party intends to pursue should be listed, whether made at the deposition, as with objections as to form, or made newly in this form, if the objection is of a type that was reserved. 191 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10856 Page 194 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling DEFENDANT -DESIGNATIONS PLAINTIFF DESIGNATIONS 4:3 SARA ANN WATKINS, 4:4 called as a witness herein, having been first duly sworn, 4:5 was examined and testified as follows: 4:19 Q. Good morning, Ms. Watkins. 4:20 Could you state your full name. 4:21 A. Sara Ann Watkins. 5:3 Q. BY MS. GOLDEN: Do you have any former names? 5:4 A. Like my maiden name? 5:5 Sara Ann Sweet. 5:6 Q. Anything else? 5:7 A. Huh-uh. 9:25 Q. Do you know Annette Talmage? 10:1 A. Yes. 10:2 Q. How do you know her? 10:3 A. That's my mother. 10:4 Q. How would you characterize your current 10:5 relationship with Annette Talmage? 10:6 A. Nonexistent. 10:7 I actually haven't talked to her since -- it 1 Defendants object to the entirety of Ms. Watkins’ testimony for the reasons stated in their pretrial objections and will motion the Court to exclude the same from evidence. If Ms. Watkins’ testimony is admitted, then Defendants designate the identified testimony. 2 The United States responds to the bulk of the Western Parties’ Rule 802 and Rule 701 objections in its responses to the Western Parties’ motions in limine to exclude the testimony of Sara Watkins (Dkt. Nos. 247, 248). 1 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10857 Page 195 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 10:8 was Easter 2016, was it? 10:9 '17, 2017; I'm sorry. 10:10 Q. That's the last time that you spoke to her? 10:11 A. Uh-huh. 10:12 And I haven't seen her since my grandma's 10:13 funeral, February 2016. 10:14 Q. What did you and your mom talk about the last 10:15 time that you spoke? 10:16 A. The last time I talked to her, I just mentioned 10:17 to her that I had been contacted by the tax attorneys, 10:18 just to let her know, and then after that, she says, Okay, 10:19 just be honest with them. 10:20 And then after that, she cut off all 10:21 communications, because I wouldn't change my personal 10:22 information, emails and stuff. 10:23 Q. I see. 10:24 Did she say anything else when you told her 10:25 that you had been contacted by the tax attorneys? 11:1 A. Not during this specific time. 11:2 She's told me things previously when we 11:3 lived in Utah near her. 11:4 Q. I see. 2 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10858 Page 196 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 11:5 When did you live in Utah near her? 11:6 A. We moved in June -- it was actually June 30th, 11:7 2010. 11:8 Ron didn't know that we knew they lived 11:9 there. My mom was secretive about it. It's kind of 11:10 bogus, you know. 11:11 Q. How long did you live in Utah near Ron and 11:12 Annette? 11:13 A. Until, I want to say, April 2012. 11:14 Q. And then after that you moved to -- did you move 11:15 to Arizona? 11:16 A. I moved back to Arizona, yes. 11:17 Q. How well did you keep in touch with your mom 11:18 right now? 11:19 A. During that time or now? What did you say? 11:20 Q. I asked generally, but let's do both. 11:21 How well did you keep in touch with your mom 11:22 during that time in Utah? 11:23 A. So every time she would - - they lived on the 11:24 other side of the mountain in Eden. She had told me that, 3 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10859 Page 197 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 11:25 but I wasn't supposed to tell anybody. So she would call 12:1 me when she would come into town because I lived in Ogden 12:2 where all of the shopping was. And she would come pick me 12:3 up, and we'd hang out during the day. I had my little 12:4 baby at the time, and so we'd go shopping and just spend 12:5 time together. So it would be probably once a week, and 12:6 any time she was in town, she would try to call me. 12:7 Q. When you lived in Utah, did you also email or 12:8 call your mom a lot? 12:9 A. I tried calling her, but she often didn't answer. 12:10 So most of the communication was -- just when I would see 12:11 her, we would talk, and I would ask questions, because it 12:12 was so vague, everything, you know. 12:13 Q. Was your mom the one who initiated the phone 12:14 calls and the meet-ups and -- 12:15 A. Yes, because Ron wouldn't let her -- often 12:16 wouldn't let her call us, so she would do it secretly. 12:17 Q. And then what about recently, as in after you 4 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10860 Page 198 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 12:18 left Utah? How well did you keep in touch with your mom? 12:19 A. I'm trying to think. It's been so long. That 12:20 was such a blurry time. 12:21 She would try to call me still, often, but 12:22 Ron kind of dictated the phone calls, so it wasn't often. 12:23 I saw her during my sister's wedding, but 12:24 she didn't come visit regularly that I remember, so. 12:25 Q. What sort of stuff did you talk about during 13:1 those times after you left Utah? 13:2 A. Um, it wasn't particularly when we lived here. 13:3 It was during Utah that she really was more open. And 13:4 there was kind of a blowup, and so she really stopped 13:5 talking to us. 13:6 But before that, when she'd come to visit me 13:7 in Ogden, we'd go on drives or just talk, and I would try 13:8 to ask her, because it seemed really weird how she was 13:9 sneaking around, not normal at all, and it really bothered 13:10 me. So I'd ask her, Why are you sneaking around? Are you 13:11 guys living here? Where do you live? 5 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10861 Page 199 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 13:12 And she finally told me that she lived in 13:13 Eden, Utah, and she kind of explained where she lived. 13:14 And I -- okay, I tried to -- you know, but 13:15 she never showed me because I was not allowed to go to her 13:16 house or know that they lived there. So I asked her, did 13:17 you buy the house? Just asking her kind of what was going 13:18 on, because I was really confused. 13:19 And she said, Well -- she was kind of vague 13:20 about it. 13:21 But then I asked her -- 13:22 Sorry. I'm so nervous. 13:23 Q. That's okay. 13:24 A. I'm just trying to say what really -- so I just 13:25 asked her if she -- how they got the house. 14:1 And she said that a friend -- they had given 14:2 money to a friend, Ron did, and that he had purchased the 14:3 house for them. 14:4 And I remember asking her, Can you trust 14:5 this friend? 14:6 And she said, Yeah, and she told me who it Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Exhibits Ruling OVERRULED (see [267] Order) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Object to 13:12-13 under Fed. R. Evid. 802. All objections under Rule 802 herein are made for the reasons set forth more fully in the Western Parties’ Motion in Limine to Exclude Hearsay Testimony of Sara Watkins (May 30, 2019), which is incorporated at each Rule 802 objection herein by reference. The United States responds to the bulk of the Rule 802 objections to Ms. Watkins’ testimony in its response to the Western Parties’ motion in limine to exclude the “hearsay” testimony of Sara Watkins (Dkt. No. 247) (“Watkins Hearsay Motion”). Object to 13:19-20 under Fed. R. Evid. 802. OVERRULED (see [267] Order) Ms. Watkins is describing Annette Talmage’s demeanor rather than repeating statements. This testimony is not hearsay. See Fed. R. Evid. 801(c). Object to 14:1-17 under Fed. R. Evid. 602 and 802. Ms. Watkins does not have any personal knowledge of this matter; her only basis for this testimony is the inadmissible hearsay statements of Annette Talmage. Ms. Watkins has personal knowledge of her conversation with her mother, Annette Talmage, her interactions with 6 OVERRULED (see [267] Order) Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10862 Page 200 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 14:7 was, which was John. That's all I knew of his name, John 14:8 and Amy. I don't know their last name, nothing. 14:9 And I had heard her talk about them before. 14:10 They had spent, maybe, Christmas with them, because -- 14:11 they gave them a Honey Baked Ham gift card, and she had 14:12 given it to me because we were in college during that 14:13 time, and she figured we really needed the money or the 14:14 food. So I know that they were close. 14:15 And I don't know if they -- I know they went 14:16 to their house a couple times when I lived there. They 14:17 lived in Heber -- I guess she had told me -- Utah. 14:18 Q. Was that the first time when your mom mentioned 14:19 about the house and how she gave John and Amy -- 14:20 A. The first and only time. 14:21 Q. That was the only time she mentioned those two 14:22 people? 14:23 A. Yeah, and that was coming from Ron. 14:24 She, obviously, like, had no -- I really Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Exhibits Ruling Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE her mother, and the Liberty Property generally based on her visits. Therefore, Ms. Watkins’ knowledge has been established under Rule 602. The United States addresses the Western Parties’ Rule 802 objections to Annette’s statements in its response to the Watkins Hearsay Motion. This testimony is also not hearsay under Rule 801(c) because it is being offered to prove that Annette Talmage held herself out as a beneficial owner of the Liberty Property, not that the matters asserted are necessarily true. Object to 14:18-20 under Fed. R. Evid. 802. OVERRULED (see [267] Order) Ms. Watkins is describing when her mother, Annette Talmage, made the statements to her. This testimony is not hearsay. See Fed. R. Evid. 801(c). 7 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10863 Page 201 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 14:25 don't think she really had any direct business with them. 15:1 She just kind of -- I don't know -- Ron told her. I don't 15:2 know how they -- how she knew, but -- 15:3 I'm sorry. 15:4 Q. Let's talk about the property a little bit more, 15:5 then. 15:6 You said there was -- that was the property 15:7 in Eden, Utah, that they were living at? 15:8 A. Yes, uh-huh. 15:9 Q. Is that sometimes known as Liberty, Utah? 15:10 A. Yeah. From what I remember, Eden is like a 15:11 little corner of Liberty, and then it goes into Liberty 15:12 and then Huntsville. So it's kind of like three little 15:13 towns together. 15:14 I've been back there before. Me and my 15:15 husband actually -- we had gotten so tired of the games 15:16 with them saying it wasn't their house, but then we'd go 15:17 to the house -- Ron would say that in front of us, but we 15:18 knew better because my mom had told me. And so we tried Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Object to 15:16-18 under Fed. R. Evid. 802. OVERRULED (see [267] Order) The United States addresses the Western Parties’ Rule 802 objections to Annette’s statements in its response to the Watkins Hearsay Motion. As to Ron and Annette Talmage’s statements that the Liberty property “wasn’t their house,” they are not offered for the truth of the matter 8 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10864 Page 202 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE asserted, but rather, to show how the Talmages described the arrangements for the Liberty Property. Those statements are not hearsay under Rule 801(c). Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 15:19 to look for their house, and it's obvious because they 15:20 have the dog on the mailbox and all that crazy stuff. I 15:21 mean, it looks like Ron's house that he had in Corbett -- 15:22 or is it -- Corbett, Oregon. 15:23 Q. In what way did it look like the Corbett house? 15:24 A. As we know, Ron really likes Irish setters, and 15:25 so he had an Irish setter on the mailbox. So I asked my 16:1 mom, I think I found your house, you know, so it was 16:2 pretty obvious it was their house. 16:3 Q. I see. 16:4 So you mentioned that your mom never invited 16:5 you over to the house? 16:6 A. Ron wouldn't -- Ron didn't know I knew where they 16:7 lived. I wasn't allowed to know. None of us were. 16:8 Q. And when you drove around looking for their 16:9 house, what motivated you to do that? 16:10 A. Just to find out more truth about the situation. 16:11 My mom really was just secretive about 16:12 how -- I don't know. About everything. 9 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10865 Page 203 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 16:13 So my husband was like, one day during 16:14 Christmas, we should give them a gift and let them know we 16:15 know so we don't have to play games anymore. We dropped 16:16 off a gift, and Ron freaked out and that, like, started my 16:17 mom into submission, pretty much, about everything. 16:18 Q. You mentioned a few times that your mom was 16:19 always very secretive. 16:20 A. Very. 16:21 Q. And you just mentioned submission. What do you 16:22 think was going on there? 16:23 A. I think he's very controlling about what she 16:24 does. I mean, that's an understatement, really. Since 16:25 she married him, we had never spent a holiday together. 17:1 He just doesn't -- he's not very close to family kind of 17:2 thing. We kind of lost our mom that way. He didn't think 17:3 it was important. My mom did, but eventually, she -- 17:4 obviously, we're here today, not speaking to her, so. 17:12 Q. BY MS. GOLDEN: Just so we're clear for the 17:13 record, when you're talking about "he" just now, that's Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 10 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10866 Page 204 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 17:14 Ron Talmage? 17:15 A. Ron Talmage, my stepdad. 17:16 Q. When you drove around looking for Ron and 17:17 Annette's house, did anybody else come with you? 17:18 A. My husband did, Joseph Watkins. 17:19 Q. At the time that you dropped off -- was it the 17:20 Christmas gift -- 17:21 A. Uh-huh. 17:22 Q. -- how long were you there? 17:23 A. Oh, they weren't there, so we dropped it on their 17:24 front step. We were -- I mean, we were trying to make a 17:25 point that we're done playing games, let's just be honest. 18:1 Let's, you know, be open and be family, but they 18:2 retaliated really bad. 18:3 Q. Afterward, did somebody -- it sounds like 18:4 somebody might have contacted you? 18:5 A. My mom had contacted me and was freaking out 18:6 because Ron was freaking out that we knew where they 18:7 lived, but she had been saying that she would tell him 11 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10867 Page 205 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 18:8 that we knew for a long time and never would, so we just 18:9 kind of made the gesture for her. 18:10 Q. Other than the time you dropped off the Christmas 18:11 gift, was that -- have you otherwise been to the property? 18:12 A. I have one time. I'm trying to think when that 18:13 was. I want to say the summer of 2016, when all of this 18:14 started, because I remember -- 18:15 MR. INGRAM: Sorry. Summer of when? 18:16 THE WITNESS: I think -- I'm not positive -- 18:17 summer of 2016, we drove up, and they finally let us stay 18:18 there, but we had to stay in the house the whole time. It 18:19 was weird. 18:20 Q. BY MS. GOLDEN: How long did you stay at the 18:21 house that time? 18:22 A. A week. 18:23 Q. What was the atmosphere like? 18:24 A. How it is all the time. We stayed in the 18:25 basement, did our own thing, and they did their own thing. 19:1 We'd have dinner together, but we didn't go out and do 19:2 anything. 12 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10868 Page 206 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 19:3 Q. Who else was at the property? 19:4 A. My three kids and my husband. 19:5 Q. So just your family and then your mom and Ron? 19:6 A. Yeah. Yes. 19:7 And it just more proved to me that it was 19:8 their house, everything that is in it. OVERRULED (see [267] Order) Object to 19:7-20:8 under Fed. R. Evid. 602 and 701. Ms. Watkins does not have any personal knowledge of who owned the Liberty Property; she expressly that she just “felt” like it was the Talmages’ house. There is also no testimony from Ms. Watkins to establish that her opinion in this regard is rationally based on her perception or helpful to clearly understanding a fact in issue. This testimony is purely speculation. Immediately before this portion, Ms. Watkins testified that she and her family stayed at the Liberty Property with the Talmages, and that it appeared that the Talmages owned the property. 18:10– 19:6 She further testified that, based on the numerous renovations made by the Talmages, she believed that the property belonged to the Talmages. 19:16–17. This testimony establishes her personal knowledge under Rule 602 and, under Rule 701, establishes that her opinions are rationally based on her perception. The United States provides a more detailed response to the Rule 701 objection in its response to the Western Parties’ motion in limine to exclude the opinion testimony of Ms. Watkins (Dkt. No. 248) (“Watkins Opinion Testimony Motion”). 13 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10869 Page 207 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 19:15 Q. You can continue talking. That's fine. 19:16 A. I'm trying to think how I knew it was their 19:17 house. I mean, they did so many renovations to it. 19:21 THE WITNESS: Ron would not spend the money on 19:22 his home if it wasn't his own. 19:25 Q. BY MS. GOLDEN: Let me ask the question then. 20:1 It sounds like you're describing that you 20:2 felt that -- 20:3 A. Right. 20:4 Q. -- that Ron and Annette, it was their house? 20:5 A. Yeah. 20:6 Q. Can you tell us -- have I described that 20:7 accurately? 20:8 A. Yeah, yes. 20:11 Q. BY MS. GOLDEN: All right. Let me reframe. 20:12 Based on your familiarity with the property 20:13 and the time that you visited, what was your sense of who 20:14 lived at the house? 20:15 A. Ron and my mom. 20:16 Q. Did anybody else live there? 20:17 A. No. 20:18 Their dogs, and that was like their Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 14 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10870 Page 208 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 20:19 children, and that's just putting it mildly. 20:20 Q. What gave you the sense that Ron and Annette 20:21 lived at the Liberty property? 20:22 A. Well, their love for dogs. Their Irish setters 20:23 were everywhere. The green -- Ron really loves green. He 20:24 had showed us his -- back behind his house, how they were 20:25 supplied for if something happened, end-of-the-world type 21:1 catastrophe. I think there was a generator or something 21:2 he had back there. All of these things that cost money. 21:3 The windmill they had installed. 21:7 Q. BY MS. GOLDEN: You mentioned various 21:8 improvements -- 21:9 A. Yes. 21:10 Q. -- including the generator and windmill. Do you 21:11 know if Ron or Annette Talmage paid for these Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED (see [267] Order) Object to 21:3 under Fed. R. Evid. 602. There is no testimony to establish that Ms. Watkins has personal knowledge of who installed the windmill, or of any other circumstances or facts concerning the windmill. Ms. Watkins personally observed the windmill when she visited the Liberty Property. Her testimony is that, based on her perception of the improvements and decorations, the Talmages owned and renovated the Liberty Property. 18:10– 19:6, 19:16–17. Thus, the Western Parties’ objection is more appropriately characterized as a Rule 701 objection. The United States addresses the Western Parties’ Rule 701 objections in its response to the Watkins Opinion Testimony Motion. The strength of Ms. Watkins’ opinion is a matter of weight rather than admissibility. It is also rational to conclude that the people living at a place installed a fixture. Object to 21:10-19 under Fed. R. Evid. 602 and 701. Ms. Watkins expressly states that she is making assumptions concerning these matters. She has no 15 OVERRULED (see [267] Order) Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10871 Page 209 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 21:12 improvements? 21:13 MR. INGRAM: Objection; calls for speculation. 21:14 THE WITNESS: I don't know. I would assume they 21:15 did, since they were showing it off, but. 21:16 Q. BY MS. GOLDEN: Based on your familiarity with 21:17 the property, do you know if anybody else lived at the 21:18 property besides Ron and Annette? 21:19 A. Nobody else did, ever. 21:20 Q. Did Ron or Annette say why they were living 21:21 there? 21:22 A. I'm trying to think if she did. 21:23 They thought it was a quiet place, I think, 21:24 that they wouldn't be bothered by the IRS. 21:25 Obviously, they think they are invisible, 22:1 so. 22:2 Q. Did you get a sense of if Ron or Annette owned 22:3 the property? 22:4 A. I did. Exhibits Ruling OVERRULED (see [267] Order) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE personal knowledge of the matters discussed, and there is no basis to demonstrate that her assumptions qualify as admissible opinions under Rule 701. Ms. Watkins’ belief regarding who directed improvements to the Liberty Property is rationally based on her perception that only the Talmages lived at the Liberty Property, her visits to the property, and her intimate familiarity with the Talmages. This basis is proper, and the Western Entities’ objection is an issue of weight rather than admissibility. Object to 22:2-4 under Fed. R. Evid. 602 and 701. Same as the previous objections. Additionally, Ms. Watkins later testified (discussed infra) that the basis for her assumption here was solely the inadmissible hearsay statements of her mother, Annette Talmage. First, this passage merely asks Ms. Watkins if she formed an opinion, to which she responds affirmatively. This is well within her personal knowledge and expresses no substantive opinion at all. Second, as stated above, Ms. Watkins’ belief regarding who directed improvements to the Liberty Property is based on her perception that only the Talmages lived at the Liberty Property, her visits to the property, and her intimate familiarity with the Talmages. 16 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10872 Page 210 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 22:7 THE WITNESS: My mom told me that. 22:8 Q. BY MS. GOLDEN: Let me just make it clear for the 22:9 record. 22:10 What was the basis for your sense that Ron 22:11 and Annette owned the property? 22:12 A. Well, from that conversation. 17 Exhibits Ruling OVERRULED (see [267] Order) OVERRULED (see [267] Order) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE This establishes the basis for her personal knowledge under Rule 602, and the Western Entities’ objection is an issue of weight rather than admissibility. The Rule 701 objection is addressed in the response to the Watkins Opinion Testimony Motion. Notably, Ms. Watkins’ opinion is based on her personal observations from visiting the Liberty Property, not just Annette’s statements. It is also rational to conclude that the people living at a place made the improvements. Object to 22:7 under Fed. R. Evid. 802. See United States’ response to Watkins Hearsay Motion. Object to 22:10-23:1 under Fed. R. Evid. 602, 701, and 802. Ms. Watkins has no basis for this assumption/opinion other than the inadmissible hearsay statement of her mother, Annette Talmage. See the United States’ responses to the Watkins Hearsay Motion and the Watkins Opinion Testimony Motion. As stated above, Ms. Watkins’ belief that the Talmages owned the Liberty Property is based on her visits to the Liberty Property. This establishes her personal knowledge under Rule 602, and the Western Entities’ objection is an issue of weight rather than admissibility. Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10873 Page 211 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 22:14 THE WITNESS: That conversation we initially had 22:15 where I asked her, and she had said that a friend had 22:16 bought it; they had given the money to a friend to buy the 22:17 house. And I asked her if it was someone she could trust, 22:18 and she said yes, and that's when she said it was John and 22:19 Amy. 22:20 That's the only time she's ever said that, 22:21 and that -- I believed her because she was very secretive 22:22 and does not tell me things, doesn't tell anyone anything, 22:23 and so for her to come out with this information, I 22:24 believed her, and so everything afterwards, I could tell, 18 Exhibits Ruling OVERRULED (see [267] Order) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Ms. Watkins was also present when Annette made the statements in question, which establishes her personal knowledge. Finally, as set forth above, these statements are also being offered as evidence of how Annette Talmage represented the ownership arrangements with respect to the property and the effect of her statements on Ms. Watkins, making the statements non-hearsay. Fed. R. Evid. 801(c); Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419, 1434 (10th Cir. 1993). Object to 22:10-23:1 under Fed. R. Evid. 602, 701, and 802. Ms. Watkins has no basis for this assumption/opinion other than the inadmissible hearsay statements of her mother, Annette Talmage. See the United States’ responses to the Watkins Hearsay Motion and the Watkins Opinion Testimony Motion. As stated above, Ms. Watkins’ belief that the Talmages owned the Liberty Property is based on her visits to the Liberty Property. This establishes her personal knowledge under Rule 602, and the Western Entities’ objection is an issue of weight rather than admissibility. Ms. Watkins was also present when Annette made the statements in question, which establishes her personal knowledge. Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10874 Page 212 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 22:25 okay, she's telling the truth because of the home 23:1 improvements, the things that have made it their home. 23:5 Q. BY MS. GOLDEN: Well, I'll going to repeat. 23:6 The question was, what gave you the sense 23:7 that Ron and Annette owned the property? 23:8 A. I'm sorry. 23:9 The improvements they made. The way they 23:10 took care of it. 23:11 Q. Did you ever find out anything about how Ron or 23:12 Annette were paying for the property? 23:13 A. I had been told that Kory would bring them money, 23:14 and then they would -- that's how they lived. 23:15 Q. Who told you that? 23:16 A. My mom. 23:17 Q. Did you find out how Kory was bringing the money? 23:18 A. No, she wouldn't tell me. I don't even know that 23:19 she knew how he was bringing it. 23:20 Q. Did you find out anything else about the living 23:21 arrangements at the Liberty property? Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED (see [267] Order) Object to 23:9-25 under Fed. R. Evid. 602 and 802. Ms. Watkins has no personal knowledge of this matter. It is based solely on the inadmissible hearsay statements of her mother, Annette Talmage. See United States’ response to Watkins Hearsay Motion. Annette’s statements regarding Kory bringing the Talmages money are non-hearsay because they are offered to show Annette’s intent and understanding. See Fed. R. Evid. 801(c). As stated above, Ms. Watkins’ belief regarding who directed improvements to the Liberty Property is based on her perception that only the Talmages lived at the Liberty Property, her visits to the property, and her intimate familiarity with the Talmages. This establishes the basis for her personal knowledge under Rule 602, and the Western Entities’ objection is an issue of weight rather than admissibility. For more detail, see United States’ response to Watkins Opinion Testimony Motion. 19 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10875 Page 213 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 23:22 A. She did -- all she said was that it was in his 23:23 name, John's name, and that's why I asked her if she could 23:24 trust him to put it in his name, just as a question to 23:25 her, you know. 24:4 Q. Did your mom ever mention why the property was 24:5 put in somebody else's name? 24:6 A. She never did. I just assumed it was because 24:7 they don't want to be tracked by the IRS. I know that was 24:8 always their goal was not to be tracked by the IRS, 24:9 because she said they harassed them. I can't imagine why, 24:10 but, yes. 24:11 Q. And earlier, somebody's name came up, Kory. 24:12 Can you elaborate on who that is? 24:13 A. Kory is Ron's son. They were really, really, 24:14 really close, and I know Kory came to the property a lot. 24:15 Often it would make us upset because he was 24:16 allowed to come and visit with his family, and Annie's 24:17 kids were not. Annette, my mom. 24:18 Q. Did you ever meet Kory? Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED (see [267] Order) Object to 24:4-10 under Fed. R. Evid. 602, 701, and 802. Ms. Watkins has no basis for this assumption/opinion other than the inadmissible hearsay statements of her mother, Annette Talmage. Ms. Watkins’ belief is that the Talmages placed the Liberty Property in someone else’s name to avoid the IRS; this belief is based on her intimate familiarity with her mother and stepfather (Ronald Talmage), her visits to the Liberty Property, her knowledge that the Talmages wanted to avoid the IRS, and her mother’s expressed belief that the IRS “harassed them.” That establishes Ms. Watkins had personal knowledge, and her opinion is rationally based on her perception. Therefore, this testimony is proper under Rules 602 and 701. Annette’s statements are further offered for the fact that she made these representations and to show her intent and belief, not the truth of the matter asserted. Thus, they are not hearsay under Rule 801(c). 20 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10876 Page 214 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 24:19 A. I've met Kory maybe twice. Once in Utah, and it 24:20 was at a restaurant. 24:21 At that time Ron didn't know that we knew 24:22 they lived there, so. 24:23 Q. Do you recall approximately when those meetings 24:24 with Kory were? 24:25 A. Like when we met, or when he'd come visit? 25:1 Q. When you met Kory. 25:2 A. I want to say 2011, sometime in the summer, 25:3 maybe, because he only came in the summer. 25:4 Q. Was that both times you met Kory? 25:5 A. No, I want to say their wedding, possibly, that I 25:6 remember. 25:7 Q. Whose wedding was that? 25:8 A. My mom and Ron's wedding. 25:9 Q. And what year was that? 25:10 A. 2002, June, right after I graduated high school. 25:11 Q. And how did you know that Kory would visit Ron 25:12 and Annette at the Utah house? 25:13 A. My mom would tell me. 25:14 Q. Do you know how often he visited? 25:15 A. It was every summer for - - I want to say a month, OVERRULED (see [267] Order) Object to 25:11-18 under Fed. R. Evid. 602 and 802. Ms. Watkins has no basis for this assumption/opinion other than the inadmissible hearsay statements of her mother, Annette Talmage. Ms. Watkins’ knowledge is based on interactions with her mother. They properly establish the basis of her knowledge for purposes of Rule 602. The testimony is not hearsay under Rule 801(c) because Ms. Watkins is testifying as to her understanding, not repeating her mother’s statements. The testimony also provides context for Ms. Watkins’ testimony immediately prior that Kory visited the Liberty Property a lot, which upset her because her family was not allowed to visit to the same degree (24:11-17). Thus, Annette Talmage’s statements are non-hearsay because they are offered to show their effect on the listener (Ms. Watkins). 21 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10877 Page 215 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 25:16 because she would be stressed about it and upset that her 25:17 kids couldn't come. And so she would talk to me about it, 25:18 and I wouldn't see her much during that time, yeah. 26:2 Q. I might get back to that later, but focusing on 26:3 the Utah property -- 26:4 A. Yes. 26:5 Q. -- you mentioned that there were Irish setters 26:6 there? 26:7 A. Yes. 26:8 Q. And that -- is that -- is Ron an Irish setter 26:9 enthusiast? 26:10 A. To put it mildly, yes. He has paintings of Irish 26:11 setters everywhere. He had an Irish setter on his 26:12 vehicles, like an emblem at the end. 26:13 He loves his Irish setters more than his 26:14 kids. I'm sorry; he does. 26:15 We had to be quiet at nighttime because the 26:16 dogs were sleeping. 26:17 Q. Did your mom share in that hobby with the Irish 26:18 setters? 26:19 A. No, my mom doesn't like dogs. Sorry; she 26:20 doesn't. So, it's weird. 22 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10878 Page 216 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 26:21 Q. Well, do you know if there were dogs at the -- 26:22 you mentioned the Corbett property where Ron and Annette 26:23 used to live. Were there dogs as well? 26:24 A. Yes. 26:25 Q. How about horses? Were there horses in the 27:1 Oregon property? 27:2 A. Yes. 27:3 Q. Do you know if there were horses on the Liberty 27:4 property? 27:5 A. Yes, there was. 27:6 That's my mom's passion, was horses, and so 27:7 that's another -- you know, maybe it's speculation, but 27:8 they completely renovated that barn and stables for my 27:9 mom's horses. 27:10 Q. The barn and stable you're describing, what 27:11 property is that at? 27:12 A. The one at the Liberty, Utah, property. 27:13 Q. Did Ron like horses as well? 27:14 A. Yes, he did. 27:15 Q. Have you heard anything about the sales contracts 27:16 or other agreements concerning the Liberty Property? 27:17 A. No, just that one time. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Object to 27:15-17 under Fed. R. Evid. 802. OVERRULED (see [267] Order) See United States’ response to Watkins Hearsay Motion. 23 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10879 Page 217 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 27:18 Q. Did you ever hear anything about a lease? 27:19 A. No. 27:20 I think maybe Ron would say that they were 27:21 renting, because he didn't want us to know. 27:22 But I had already known from my mom telling 27:23 me that they owned it. But to us, when it finally came 27:24 out, you know, and we knew that they -- when we were able 27:25 to visit that one time -- 28:1 They were just renting it, the property; 28:2 that's what he would say. But he didn't know that we 28:3 really knew that they owned it; we never said anything 28:4 like that when we dropped off that gift. We just knew 28:5 they lived there. 28:6 Q. How did Ron describe the lease when he was 28:7 telling it to you? 28:8 A. I want to say that he said Mrs. Chen was on the 28:9 lease, and he was renting from her. 28:10 Is it Mrs. Chen? 28:11 Q. Who is Mrs. Chen? 28:12 A. His boss. 28:13 Q. Do you know what her full name? Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED (see [267] Order) OVERRULED (see [267] Order) Object to 27:20-23 under Fed. R. Evid. 602, 701, and 802. Ms. Watkins has no basis for this opinion/assumption other than the inadmissible hearsay statements of Ronald and Annette Talmage. This questions asks Ms. Watkins whether she “heard” any other statements regarding a lease agreement. Her response is that she did so only once. Ms. Watkins has knowledge of what she did and did not hear for purposes of Rules 602 and 701. For more detail, see the United States’ responses to the Watkins Hearsay Motion and the Watkins Opinion Testimony Motion. Furthermore, any declarant statements are not hearsay because they are being offered for the Talmages’ intent and the effect on Ms. Watkins, not for the truth of the matter asserted. Object to 28:1-12 under Fed. R. Evid. 602, 701, and 802. Ms. Watkins has no basis for this opinion/assumption other than the inadmissible hearsay statements of Ronald and Annette Talmage. As stated above, Ms. Watkins’ belief that the Talmages owned the Liberty Property is based on her visits to the Liberty Property, her perception that 24 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10880 Page 218 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Exhibits Ruling Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE only the Talmages lived at the Liberty Property, and her intimate familiarity with the Talmages. This establishes the basis for her personal knowledge under Rule 602, and the Western Entities’ Rule 701 objection is an issue of weight rather than admissibility. Ronald and Annette Talmage’s statements are not hearsay under Rule 801(c) because they are offered to show the Talmages’ intent and plan, not the truth of the matter asserted. For more detail, see the United States’ responses to the Watkins Hearsay Motion and the Watkins Opinion Testimony Motion. Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 28:14 A. No, I don't. 28:15 I did meet her one time. 28:16 Q. When did you meet her? 28:17 A. She came to Utah during the summer with Kory, and 28:18 we went to a rodeo, and that's the only time I met her. 28:19 Q. What was she like? 28:20 A. Very nice, quiet, very sweet. She brought my 28:21 kids a gift. 28:22 Q. Can you describe what she looks like? 28:23 A. She's a really small lady, Asian or Japanese -- 28:24 actually, I don't know. Very small frame. Dark hair. I 28:25 want to say her hair was short, to her shoulders or 29:1 something. 29:2 Q. About how old was she? 29:3 A. Sixties. I don't know. 29:4 Q. What year was it that you met her and went to the 29:5 rodeo? 29:6 A. I think it was 2016 -- or not '16. I'm sorry; 29:7 2011, that summer. 29:8 Q. Did Mrs. Chen speak English? 29:9 A. I don't think so. 29:10 She didn't really talk to me. 29:11 Q. Did you -- did she speak other languages? 25 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10881 Page 219 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 29:12 A. She didn't speak really at all. I would talk to 29:13 her, and she would kind of nod. I think she knew basic 29:14 English, but not much. Ron's daughter Lisa was there 29:15 also. 29:19 Q. Did you ever hear anything about what kind of 29:20 business Mrs. Chen was in with Ron? 29:21 A. All we ever were told is that she owned his 29:22 business, that his partner died, and she took over, and he 29:23 worked for her now. That's what we've always been told. 29:24 Q. Did you -- do you know anything about what kind 29:25 of business it is? 30:1 A. I know that he does some kind of business 30:2 investing -- that's all I know -- in Japan. 30:3 Q. When Mrs. Chen -- when Mrs. Chen visited, was 30:4 this in Utah? 30:5 A. Yes. 30:6 Q. Was anybody else there? 30:7 A. Lisa Allen, Ron's daughter, and Ron, and my 30:8 family, my husband and my three kids -- or two kids, 30:9 sorry. My family had two at the time. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 26 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10882 Page 220 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 30:14 Q. Do you know when Ron and Annette left the 30:15 property? 30:16 A. I think it was December 2016, because she was 30:17 contacting me sometimes up to that point. I was afraid 30:18 that her and Ron would do something drastic to themselves, 30:19 and so it was a very dramatic time. She would call to 30:20 assure me they were okay. 30:21 Q. Did she continue calling -- did your mom continue 30:22 calling after she left the Utah property? 30:23 A. Yes, until -- that Easter was the last time I 30:24 talked to her, that next year. 30:25 Q. Do you know why Ron and Annette left the Liberty 31:1 property? 31:3 THE WITNESS: She told me that they were being 31:4 threatened and that people were forcing them to leave 31:5 their home, and they didn't want to leave their home. 31:6 She had told me Kory had came and got an RV Exhibits Ruling OVERRULED (see [267] Order) OVERRULED (see [267] Order) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Object to 30:25-31:25 under Fed. R. Evid. 602, 701, and 802. Ms. Watkins has no basis for this opinion/assumption other than the inadmissible hearsay statements of Annette Talmage. She specifically states that she does not “know anything else” about this subject beyond what Annette purportedly told her. The statements made by Annette Talmage are admissible under Rule 803(3). Annette is describing to her daughter her then-existing state of mind: that she felt “betrayed” by John and Kory and felt forced to leave the Liberty Property. This also explains Annette’s motives for leaving the Liberty Property. Ms. Watkins has personal knowledge of the conversation with Annette. The Rule 701 objection is improper; Ms. Watkins does not offer an opinion. As to John’s role with the Liberty Property (31:24- 25), see United States’ response to Watkins Hearsay Motion. Object to 30:25-31:25 under Fed. R. Evid. 602, 701, and 802. Ms. Watkins has no basis for this opinion/assumption other than the inadmissible hearsay statements of Annette Talmage. She specifically states that she does not “know anything else” about this subject beyond what Annette purportedly told her. 27 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10883 Page 221 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 31:7 or something that was there and that the police 31:8 department -- or sheriff's department had came and 31:9 threatened them. That they weren't going to leave their 31:10 home. That's all she said. 31:11 I mean, it was kind of a blur in that they 31:12 wouldn't leave without -- her statement was if they left, 31:13 it would be in a body bag, so I don't know eventually why 31:14 they were forced to leave. All I know is they were crazy 31:15 at that time for sure. 31:16 Q. BY MS. GOLDEN: All of this information that 31:17 you're describing about the threats, that's stuff you 31:18 heard from your mom? 31:19 A. Yes. She honestly felt like she was the victim. 31:20 She had felt betrayed by John and Kory. 31:21 Q. Well, other than what you've described, do you 31:22 know anything else about John's role concerning the 31:23 Liberty property? 31:24 A. I don't. I just know he was a good friend, and 31:25 they trusted him to help them out. The statements made by Annette Talmage are admissible under Rule 803(3). Annette is describing to her daughter her then-existing state of mind: that she felt “betrayed” by John and Kory and felt forced to leave the Liberty Property. This also explains Annette’s motives for leaving the Liberty Property. Ms. Watkins has personal knowledge of the conversation with Annette. The Rule 701 objection is improper; Ms. Watkins does not offer an opinion. As to John’s role with the Liberty Property (31:24- 25), see United States’ response to Watkins Hearsay Motion. 28 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10884 Page 222 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 32:8 Q. Other than the visits that you described, do you 32:9 know if Kory has anything to do with the Liberty property? 32:10 A. The only thing that I assume is that he was 32:11 bringing money for him to purchase it. Exhibits Ruling OVERRULED (see [267] Order) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Object to 32:8-33:11 under Fed. R. Evid. 602, 701, and 802. By Ms. Watkins express testimony this is merely an assumption that she made—she has no personal knowledge or rational basis for her assumption here. Ms. Watkins explains her basis for this belief in lines 32:15–32:22. She has personal knowledge of statements made to her by Annette Talmage. Annette’s statements are admissible under Rule 801(c) and Rule 803(3) to show her intent and understanding of how the Talmages paid for their expenses while living at the Liberty Property. Annette’s statements that she felt “betrayed” by John and Kory are admissible under Rule 803(3) to show her then-existing state of mind and her motives for leaving the Liberty Property. Ms. Watkins does not offer an opinion under Rule 701, but rather, is conveying what she learned from Annette. 32:15 Q. BY MS. GOLDEN: Why do you think that he was 32:16 bringing -- why were you assuming that he was bringing 32:17 money? 32:18 A. My mom pretty much said that. Because they 32:19 didn't have a bank account, I don't think, or they had 33:12 Q.· ·Have you heard about anybody else in connection 33:13· with the Liberty property other than the people that we 33:14· have talked about today? 33:15· · · A.· ·No. 33:16· · · Q.· ·Is there anybody else that you ever saw there 33:17· that we haven't talked about? Object to 32:8-33:11 under Fed. R. Evid. 602, 701, and 802. By Ms. Watkins express testimony this is merely an assumption that she made—she has no personal knowledge or rational basis for her assumption here (beyond the inadmissible hearsay statements by Annette Talmage). 29 OVERRULED (see [267] Order) Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10885 Page 223 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Exhibits Ruling Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 33:18· · · A.· ·No, because I only went there, actually, inside 33:19· that one time, visiting. Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Ms. Watkins explains her basis for this belief in lines 32:15–32:22. She has personal knowledge of statements made to her by Annette Talmage. Annette’s statements are admissible under Rule 801(c) and Rule 803(3) to show her intent and understanding of how the Talmages paid for their expenses while living at the Liberty Property. Annette’s statements that she felt “betrayed” by John and Kory are admissible under Rule 803(3) to show her then-existing state of mind and her motives for leaving the Liberty Property. Ms. Watkins does not offer an opinion under Rule 701, but rather, is conveying what she learned from Annette. Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 32:20 credit cards -- they used Amazon a lot. And I'd ask her 32:21 how they were getting by, and it was Kory that was helping 32:22 them. 32:23 Q. Now, you mentioned earlier that you felt betrayed 32:24 by -- or was it you felt betrayed by John and Kory or your 32:25 mom? 33:1 A. It was my mom. 33:2 I never met John at all. 33:3 Q. Did your mom mention why she felt betrayed by 33:4 John and Kory? 33:5 A. Because they had trusted them with -- and they 33:6 were coming in and -- she said they were lying. I don't 33:7 know. I didn't know all of the things that I know now, 33:8 so -- just from reading court documents and stuff -- but 33:9 she felt betrayed because he came and took the RV, and it 33:10 was theirs. She felt betrayed because John was trying to 33:11 take their home. 34:17 Q. Well, let's try to get some background on Ron 34:18 Talmage. 34:19 I take it you are familiar with him? 34:20 A. Yeah. 30 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10886 Page 224 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 34:21 Q. How do you know Ron Talmage? 34:22 A. I first met Ron Talmage when he flew down to meet 34:23 my mom. They were talking. 34:24 She had just divorced her third husband. 34:25 She wasn't even divorced; he had left. 35:1 I want to say it was October or November of 35:2 2001. They were talking on ldssingles.com. 35:3 He would come visit, and my mom would go 35:4 often with him, and that's when I first met him, though, 35:5 was one of his visits. I want to say around 35:6 Christmastime, maybe. 35:7 Q. What year? 35:8 A. 2001. 35:9 Q. At that time, where was your mom living? 35:10 A. We were living in Joseph City, Arizona. I was 35:11 still in high school, my senior year. 35:12 Q. What is your relationship to Ron now? 35:13 A. He's my stepfather. 35:14 Q. And I think I asked you this before already, but 35:15 what year did Ron and Annette get married? 31 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10887 Page 225 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 35:16 A. June 2002. 35:17 Q. After that, did they live in Arizona? 35:18 A. No, they lived in Oregon at the Corbett property. 35:19 Q. Can you describe what their relationship is like 35:20 to the best of your knowledge? 35:21 A. My mom and Ron? 35:22 Q. Yes. 35:23 A. Oh, boy. Sorry. 35:24 He's very controlling. My mom's very 35:25 submissive to him. She's very forgiving and just makes 36:1 excuses for him. They seemed like they were okay. 36:2 I really don't know. I didn't live with 36:3 them. 36:4 Victoria lived -- saw it more one-on-one. 36:5 But when I would be there, she was very 36:6 submissive to him when I'd visit them and very controlling 36:7 about where she went with us and what time we ate and came 36:8 down to visit, because we would stay in the apartment 36:9 until their house was done. We still didn't stay in their 36:10 house, but we'd go to the cottage back and forth and -- 36:11 only on his terms, though. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 32 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10888 Page 226 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 36:20 Q. Do you know anything about any legal issues that 36:21 Ron has? 36:22 A. She had mentioned that there was some things 36:23 going on with the tax -- or IRS. But she -- she was very 36:24 secretive about it at first, and then she kind of needed 36:25 someone to talk to, so she would tell us little things, 37:1 and I would also ask a lot, because I wanted to know how 37:2 she was doing, how -- it was just all secretive, very 37:3 secretive, from the beginning. 37:4 Q. Again, that's your mom you're talking about -- 37:5 A. Yes. 37:6 Q. -- when you say "she"? 37:7 A. Yes, my mom. 37:8 Q. What did your mom tell you about the tax issues 37:9 or legal issues? 37:10 A. That they are -- she didn't -- I don't know that 37:11 she really knew. All she said is they are wrongly being 37:12 accused of owing taxes, but like I said, they are always 37:13 the victim, so. 37:14 Q. Do you know if Ron has a history of hiding 37:15 assets? 37:16 A. I don't know that. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Object to 37:8-13 under Fed. R. Evid. 802. OVERRULED (see [267] Order) Annette’s statements are admissible under Rule 801(c) and Rule 803(3) to show her awareness of potential liabilities and her intent behind the arrangements for the Liberty Property and her feeling that she was “wrongly being accused.” 33 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10889 Page 227 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 37:17 What I do know is he has a history of hiding 37:18 things from everybody. He's very secretive about 37:19 everything. 37:20 Q. What kind of things? 37:21 A. Just about, like, money, and where things come 37:22 from, and the fact that they don't own anything, and what 37:23 they're doing. 37:24 I know they went to a lot of dog shows and 37:25 horse shows, and he would lie about it. But my mom would 38:1 tell me, and it made us upset, obviously, because my 38:2 sister was living there, and they would have her with new 38:3 families every time they were gone, which was all the time 38:4 almost. 38:5 Q. Where were they going? 38:6 A. To the dog shows. 38:7 Horse trials, I think. 38:9 THE WITNESS: I know. I'm sorry. 38:10 At one time they went to Japan. I don't 38:11 know. 38:12 During this time, I was newly married and 38:13 had -- or was pregnant. So I went to their house a couple Object to 38:21 under Fed. R. Evid. 802. See United States’ response to Watkins Hearsay Motion. This statement is also admissible under Rule 801(c) to show Ron Talmage’s intent and how he presented himself (i.e., as not owning any assets). OVERRULED (see [267] Order) 34 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10890 Page 228 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 38:14 times, the one in Oregon, two times. 38:15 Q. BY MS. GOLDEN: You mentioned earlier that -- 38:16 when you were describing Ron, you mentioned something 38:17 about how they don't own anything. What did you mean by 38:18 that? 38:19 A. Like the vehicles, we would go for a ride, and my 38:20 husband would say, This is a nice vehicle. 38:21 Oh, we don't own it. 38:22 But there's an Irish setter on there, on the 38:23 hood. 38:24 Same with just everything. They didn't own 38:25 it, but it clearly showed that it was Ron's, his style, 39:1 his green color, his Irish setters. 39:2 Q. Do you know if Ron has a history of putting, you 39:3 know, property or money in other people's names? 39:4 A. I don't, no. Exhibits Ruling OVERRULED (see [267] Order) OVERRULED (see [267] Order) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Object to 38:21 under Fed. R. Evid. 802. See United States’ response to Watkins Hearsay Motion. This statement is also admissible under Rule 801(c) to show Ron Talmage’s intent and how he presented himself (i.e., as not owning any assets). Object to 38:24-39:1 under Fed. R. Evid. 602, 701, and 802. Ms. Watkins has no personal knowledge about these matters and does not provide testimony sufficient to show that her assumptions or opinions are rationally based on her perception. Indeed, Ms. Watkins expressly states that she does not have knowledge of whether Ron Talmage had a history of putting property or money in other people’s names. See United States’ responses to Watkins Hearsay Motion and Watkins Opinion Testimony Motion. In addition, the Talmages’ statements that they “didn’t own” assets are admissible under Rule 801(c) to show their intent and how they presented themselves. Further, Ms. Watkins’ answer at 39:4 is that she does not know if Mr. Talmage has a history of putting property or money in other people’s names. Under Rules 602 and 701, Ms. Watkins is able to testify as to what she does or does not know. 35 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10891 Page 229 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 39:7 THE WITNESS: I know at this time, when they 39:8 owned the Liberty property, that they were – Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 39:11 THE WITNESS: They had moved a lot before that to 39:12 different places, and then when they finally found a 39:13 permanent home, she thought that they could settle down. 39:14 She was trying to talk me into moving to 39:15 Utah, and I told her that I don't want to move there if I 39:16 don't know that they'll stay there, and she said they 39:17 would stay there. 36 Exhibits Ruling OVERRULED (see [267] Order) OVERRULED (see [267] Order) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Object to 39:7-13 under Fed. R. Evid. 602, 701, and 802. Again, Ms. Watkins has no personal knowledge about whether the Talmages owned the Liberty Property. See United States’ responses to Watkins Opinion Testimony Motion and Watkins Hearsay Motion. Ms. Watkins’ belief that the Talmages owned the Liberty Property is rationally based on her visits to the property, her perception that only the Talmages lived at the property, and her intimate familiarity with the Talmages. This establishes her personal knowledge and perception under Rule 602 and Rule 701. The Rule 802 objection is unfounded because there are no other people’s statements in 39:7-13. Object to 39:7-13 under Fed. R. Evid. 602, 701, and 802. Again, Ms. Watkins has no personal knowledge about whether the Talmages owned the Liberty Property. These statements are based on nothing more than the inadmissible hearsay statements purportedly made by Annette Talmage. See United States’ responses to Watkins Opinion Testimony Motion and Watkins Hearsay Motion. Ms. Watkins’ belief that the Talmages owned the Liberty Property is rationally based on her visits Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10892 Page 230 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 39:18 Q. BY MS. GOLDEN: Earlier we talked briefly about 39:19 how Ron's business -- 39:20 You mentioned that he did investing? 39:21 A. Uh-huh. 39:22 Q. Do you know anything more about what kind of 39:23 investing? 39:24 A. No. 39:25 My husband had asked him questions, but he 40:1 was very vague about everything. 40:2 Q. Who else was involved with Ron's business? 40:3 A. All that I knew was Kory and John. 40:4 Q. Do you know what Kory's role was? 40:5 A. I -- all I know is that he worked for him. 40:6 Q. Kory worked for Ron? 40:7 A. Yeah, that's what my mom told me. This never 40:8 really came from Ron, just my mom telling me. 40:9 Q. Do you know what John's role was in the business? Exhibits Ruling OVERRULED (see [267] Order) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE to the property, her perception that only the Talmages lived at the property, and her intimate familiarity with the Talmages. This establishes her personal knowledge and perception under Rule 602 and Rule 701. The Rule 802 objection is unfounded because there are no other people’s statements in 39:7-13. Object to 40:2-41:8 under Fed. R. Evid. 602, 701, and 802. Ms. Watkins has no personal knowledge about who was “involved with Ron’s business.” These assumptions/opinions are based on nothing more than the inadmissible hearsay statements purportedly made by Annette Talmage and Ms. Watkins’ sister. Ms. Watkins has personal knowledge gleaned from interactions with her mother and sister. She is not offering an opinion under Rule 701. Ms. Watkins’ statements are not hearsay either because she is describing her own understanding, or she is conveying statements made by her mother and sister that are offered to show John Wadsworth’s and Kory Talmage’s motives and bias in this case. Both John and Kory claim they never worked for Ron and had a distant relationship with him, but other people got the opposite impression. Moreover, any statements as to whether John Wadsworth and/or Kory Talmage 37 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10893 Page 231 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 40:12 THE WITNESS: My mom had said that he just worked 40:13 with them, and that when they would go to the dinners in 40:14 Heber, that it was just with the business partner, but I 40:15 didn't know -- I don't know what they did or anything. 40:16 Q. BY MS. GOLDEN: This information about the 40:17 business, that's coming from your mom as well? 40:18 A. Yes. 40:19 Q. Okay. Did anybody else ever tell you anything 40:20 about Ron's business? 40:21 A. My little sister did. 40:22 Q. And what did she tell you? 40:23 A. She would just tell me that John and Amy would 40:24 come up to the farm and visit. 40:25 Q. What farm? 41:1 A. They called it "the farm" in Corbett, Oregon. 41:2 They were really good friends. My mom said 41:3 he was younger than Ron, like in his 40s or something. 38 Exhibits Ruling OVERRULED (see [267] Order) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE worked for Ron are admissible under rule 801(c) because they go towards John Wadsworth and Kory Talmages’s motive and bias. Object to 40:2-41:8 under Fed. R. Evid. 602, 701, and 802. Ms. Watkins has no personal knowledge about who was “involved with Ron’s business.” These assumptions/opinions are based on nothing more than the inadmissible hearsay statements purportedly made by Annette Talmage and Ms. Watkins’ sister. Ms. Watkins has personal knowledge gleaned from interactions with her mother and sister. She is not offering an opinion under Rule 701. Ms. Watkins’ statements are not hearsay either because she is describing her own understanding, or she is conveying statements made by her mother and sister that are offered to show John Wadsworth’s and Kory Talmage’s motives in this case. Both John and Kory claim they never worked for Ron and had a distant relationship with him, but other people got the opposite impression. Moreover, any statements as to whether John Wadsworth and/or Kory Talmage worked for Ron are admissible under rule 801(c) because they go towards John Wadsworth and Kory Talmages’s motive and bias. Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10894 Page 232 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 41:4 That he was a good friend, and she really got along with 41:5 Amy. 41:6 I don't know why I remember Amy's name, but 41:7 that's always stuck with me. I heard their name often 41:8 from my mom. 41:9 Q. Do you recall when you first heard John and Amy's 41:10 names? 41:11 A. I don't, actually. 41:12 It had to have been before they actually 41:13 purchased the property in Liberty, just because they would 41:14 visit in Oregon. 41:15 And I was really close to my sister who 41:16 lived there, and I would talk to her often, and she would 41:17 tell me. 41:18 Q. What your sister's name? 41:19 A. Victoria Hubbard. 41:20 Q. Did you hear how often John and Amy visited at 41:21 the Oregon property? 41:22 A. I didn't. 41:23 Q. On Ron's business, again, do you know if Ron 41:24 worked with foreign investors? 41:25 A. Yes, I knew his business was in Japan. That's 42:1 all I knew. OVERRULED (see [267] Order) Object to 41:23-42:1 under Fed. R. Evid. 602. Ms. Watkins does not have personal knowledge of the nature of Ron Talmage’s business. Ms. Watkins says that she “knew [Mr. Talmage’s] business was in Japan.” This statement itself establishes her personal knowledge. See also 29:24-30:2 (“I know that he does some kind of business investing -- that’s all I know -- in Japan.”). The argument that Ms. Watkins lacks in-depth knowledge of Ron Talmage’s business goes to weight rather than admissibility. 39 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10895 Page 233 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 42:2 Q. How would you characterize your relationship with 42:3 Ron Talmage? 42:4 A. I thought it was okay. I liked him at some 42:5 times, and other times I really don't like him because 42:6 he's taken my mom away from our family. But he sometimes 42:7 was really nice. He was really good to my kids, but I 42:8 felt like he treated us very different, my mom's children. 42:9 Q. Do you keep in touch with Ron at all? 42:10 A. No, I don't. 42:11 Q. Was there ever a point where you kept in touch 42:12 with him, such as by phone or email? 42:13 A. No, when my mom would call -- for a while, they 42:14 stopped calling us by phone. It was with an email, and it 42:15 would be -- FaceTime is, I think, what we did. 42:16 And he would always be there listening, 42:17 trying to make sure my mom didn't -- because my mom says 42:18 things often that she's not supposed to say, because she's 42:19 just like that. She's kind of -- I don't know. 40 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10896 Page 234 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 42:20 Q. Why is it something that she's not supposed to 42:21 say? 42:22 A. I think she thinks it's okay to say, but then 42:23 Ron's always -- you can see that he's disapproving of it. 42:24 He'll cut off the conversation in the middle of a 42:25 sentence -- very weird -- all the time. 43:1 Q. Did Ron talk to you during the FaceTime? 43:2 A. Sometimes he'd say hi, but he wouldn't really 43:3 talk to me. It was very surface conversations -- how are 43:4 the kids? How's school? -- but we could never talk about 43:5 anything deep, ever, when he was around. 43:6 Q. When was the last time you had any contact with 43:7 Ron? 43:8 A. It was the same time with my mom, Easter 2016. 43:9 They called to wish us a happy Easter, and I told her that 43:10 the IRS had called me, and she said, Okay, just be honest. 43:11 And I guess that made Ron mad, and so that's what stopped 43:12 the conversations with my mom. 43:13 Q. What was Ron's reaction when you mentioned that 41 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10897 Page 235 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 43:14 the IRS had called you? 43:15 A. I want to say that he -- at that conversation, I 43:16 don't know that it was FaceTime, because I thought I heard 43:17 him in the background just upset. I couldn't hear what he 43:18 was saying, but after that, I never talked to my mom 43:19 again, so. 43:20 My sister had continued talking to her, 43:21 Stacee Magee. 45:12 Q. Earlier you said there was some kind of blowup 45:13 between you and Ron and Annette. What was that? 45:14 A. When we lived in Utah? That was the first time. 45:15 Are you talking about after the IRS call? 45:16 Q. I'm not sure. 45:17 I think -- I just recall that you said that 45:18 there was a blowup. 45:19 A. Okay. The blowup was really after we dropped off 45:20 the gift. Ron had made my mom cut off all contact for a 45:21 long time. 45:22 It was not until -- I'm trying to think. It 45:23 was about seven months that I hadn't talked to her. 42 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10898 Page 236 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Object to 45:24-46:2 under Fed. R. Evid. 802. OVERRULED (see [267] Order) Annette Talmage’s statement is admissible under Rule 803(3) to show her motive and her emotional relief. Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 45:24 So -- and after that, she said that she had 45:25 come to an understanding and that she needs to be close to 46:1 Ron, and honest, and that it was actually good that we 46:2 dropped off the gift because now they're closer. Weird 46:3 stuff like that. 46:4 Q. You talked about the two places that Ron and 46:5 Annette have lived, the Oregon property and then the 46:6 Liberty, Utah, property. 46:7 Do you know of other places that they have 46:8 lived? 46:9 A. Yes. 46:10 Somewhere in Colorado. Not Littleton. What 46:11 is it called? 46:12 She kept trying to get us to move to these 46:13 places, you know, because they thought they would stay for 46:14 a little bit. She just wanted us to come -- she just 46:15 wanted her kids closer. 46:16 At these times, I know she was -- I'm pretty 46:17 sure she was renting from these people. I don't know who 46:18 it was. 46:19 And the other one was in Washington. I 43 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10899 Page 237 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 46:20 think White Salmon, Washington, was the first one, and 46:21 then it was in Colorado. I could look up the name, and 46:22 I'd remember what it was. 46:23 Q. Does Loveland, Colorado, ring a bell? 46:24 A. I think it -- it was a bigger city that -- she 46:25 didn't tell me the exact location in Colorado, except for 47:1 the city that was around it. 47:2 Q. I see. 47:3 When did Ron and Annette live in Colorado? 47:4 A. I have no idea. 47:5 It was after -- I know they lived in 47:6 Washington for a short while, and then they went to 47:7 Colorado for a short while, and then they ended up in 47:8 Liberty. That's what I know. 47:9 Q. So those two places were between the Oregon 47:10 property and the Liberty property? 47:11 A. Yes, uh-huh. 47:12 I want to find out what that city was. Is 47:13 that okay? 47:14 Q. Yes. 47:15 A. I know they built a Mormon temple there. Maybe 47:16 that's why they went. 44 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10900 Page 238 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Exhibits Ruling OVERRULED (see [267] Order) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Object to 47:18-48:1 under Fed. R. Evid. 602, 701, and 802. Ms. Watkins has no personal knowledge of this matter; her opinion/assumption is based on nothing more than the inadmissible hearsay statements purportedly made by Annette Talmage. Ms. Watkins is describing her own knowledge that the Talmages used to live in Colorado, that they were renting the place, and that they “never really settled there.” This is not opinion testimony under Rule 701. To the extent Ms. Watkins does offer an opinion, her impression that the Talmages did not own their home in Colorado is rationally based on the short amount of time that they remained in Colorado. Annette’s statement is not being offered for the truth of the matter asserted, but rather, to lend context to Ms. Watkins’ testimony and her basis for personal knowledge. Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 47:17 Fort Collins. 47:18 Q. At Fort Collins, Colorado, do you know if they 47:19 rented or owned the place that they lived? 47:20 A. I want to say that they were renting to own 47:21 maybe. 47:22 Q. How did you know that? 47:23 A. She had said that they were -- someone they knew 47:24 there had a house that they were living in, but then they 47:25 decided not to stay. They never really settled there, but 48:1 that they could possibly be there permanently. 48:7 Q. You've mentioned that you met Kory Talmage, Ron's 48:8 son, a couple of times? 48:9 A. Uh-huh, yes. 48:10 Q. Just to make sure I got that right, once was in 48:11 2011, you think, and then the other time was -- 48:12 A. I'm thinking it was their wedding. 48:13 Q. Ron and Annette's wedding? 45 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10901 Page 239 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 48:14 A. Yeah, in Salt Lake. 49:1 Q. Do you keep in touch with Kory at all? 49:2 A. No. 49:3 The only one I keep in touch with in Ron's 49:4 family is his sister and his mom. 49:5 Q. Who are they? 49:6 A. Carol and Carolyn -- I'm sorry. Carol Black and 49:7 Carolyn Talmage. 49:8 Q. Carol Black, is that Ron's mom? 49:9 A. Ron's sister. 49:10 Carolyn Talmage is his mom. 49:11 Carolyn called me asking if I knew where my 49:12 mom was, and we kind of developed, like, a friendship over 49:13 this loss that we're having, because I didn't know where 49:14 she was, and she kind of talked -- we talked a little bit 49:15 about the situation. 49:16 Ron's mom called me crying asking if I knew 49:17 where they were, and I didn't. 49:18 And she just would sob about she doesn't 49:19 know what happened to her son, because she raised a really 49:20 good son, went on a mission, Eagle Scout, she didn't know 46 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10902 Page 240 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 49:21 what she did wrong, and it was really sad, actually, to 49:22 see a 90-year-old woman cry. 49:23 It's disgusting that he would do that to 49:24 her. I'm sorry. 49:25 Q. That's okay. 50:1 When was the time that -- Carolyn Talmage, 50:2 that's Ron's mom? 50:3 A. Uh-huh. 50:4 Q. When did Carolyn Talmage call you? 50:5 A. Well, actually, I had emailed her through 50:6 Facebook, so I messaged her, because I didn't have her 50:7 phone number, and I wanted to ask her if she kinda knew 50:8 what was going on -- this was in June 2017 -- to see if we 50:9 can kind of connect any information. 50:10 And she told me she was worried about my mom 50:11 because of her brother. She just worried, and she had 50:12 told me kind of what was going on with John and him. 50:13 Q. Wait a minute. I think -- I'm not sure if we're 50:14 talking -- are we talking about you messaged Ron's mom or 50:15 Ron's sister? 50:16 A. Ron's sister. 47 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10903 Page 241 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 50:17 Q. You messaged Ron's sister on Facebook? 50:18 A. With my phone number, and she called me. And we 50:19 talked about the situation. 50:20 She asked if I knew where my mom was, and I 50:21 said no, and we kind of gained a friendship over that. 50:22 Q. That's you and Ron's sister Carolyn? 50:23 A. Yes, Carolyn. 51:14 Q. BY MS. GOLDEN: So it's clear for the record, 51:15 it's -- Carolyn Black is Ron's sister? 51:16 A. Yes. 51:17 Q. And then Carol Talmage is -- 51:18 A. His mom. 51:19 Q. His mom? 51:20 A. Yes. 51:21 Q. And it's Carolyn you messaged on Facebook? 51:22 A. Yes, and gave her my number and asked her to 51:23 please call me. 51:24 I didn't know if they liked us. I had a 51:25 feeling from Ron and my mom that -- she didn't tell me, 52:1 but she said something was going on with Carolyn saying 52:2 lies to Ron's mom about Ron stealing money. That's all 48 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10904 Page 242 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 52:3 she said. 52:4 And so I had been under the impression that 52:5 Ron's family didn't like us, just little things like that, 52:6 but -- so I wasn't sure if she would call me. 52:7 She called me, and we kind of just talked, 52:8 and we've talked a few times since then just keeping 52:9 updates on -- to see if there is any progress in my mom 52:10 and Ron or, you know, what's going on with all of this 52:11 stuff. 52:12 Q. How often do you talk to Carolyn? 52:13 A. I think I've talked to her maybe four times total 52:14 on the phone. Once was after her mom called me crying. 52:15 It was late at night. I was worried about her. 52:16 Q. Were there other times that you talked to Carol, 52:17 Ron's mom? 52:18 A. I did talk to her one other time around the same 52:19 time that I talked to Carolyn, just to see how she was 52:20 doing, because I had met her a few times. She was very 52:21 nice. 49 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10905 Page 243 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 54:2 Q. About Ron's other children, I think there's Lisa 54:3 Allen, and then you've also mentioned Lillian. 54:4 A. Lillian. 54:5 Q. And Lillian you didn't meet? 54:6 A. I've never met Lillian. 54:7 Q. And Lisa, did you meet her? 54:8 A. I met her twice also, once at the rodeo and one 54:9 time we met and ate dinner in downtown Salt Lake. I don't 54:10 remember if that was at the same time. I'm not sure. 54:11 Q. Who all was at the dinner? 54:12 A. Ron's mom, his sister Carolyn, Lisa and her 54:13 husband and kids, and me and my husband and my kids. 55:4 Q. BY MS. GOLDEN: I want to try to clarify some of 55:5 the information we talked about -- 55:6 A. Okay. 55:7 Q. -- earlier this morning. 55:8 You mentioned dropping -- that you and your 55:9 husband dropped off a Christmas gift for Ron and Annette 55:10 at the Liberty, Utah property? 55:11 A. Yes. 55:12 Q. When was that? 50 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10906 Page 244 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Object to 55:14-21 under Fed. R. Evid. 602, 701, and 802. OVERRULED (see [267] Order) Ms. Watkins is testifying as to when she when she had certain conversations with Annette Talmage and the frequency of these conversations. She is not repeating inadmissible hearsay or giving an opinion, and she is testifying as to something she personally witnessed. 55:13 A. December 2011. December 24th. 55:14 Q. And we also talked about some conversations you 55:15 had with your mom regarding the ownership of the Liberty 55:16 property? 55:17 A. Correct. 55:18 Q. When did that occur? 55:19 A. Just -- I don't know the exact date, just in our 55:20 many conversations when we would go on drives when she 55:21 would come to town. 55:22 Q. That was in person, then? 55:23 A. Yes. 55:24 Q. Was that while you were living in Utah? 55:25 A. Yes. 56:1 We lived in Ogden just over the mountain 56:2 from where she lived, so. 56:3 Q. Can you remind me, approximately, what time you 56:4 lived in Utah again? 56:5 A. June 30th, 2010, till April 2012. 56:6 MR. INGRAM: When in 2012? 56:7 THE WITNESS: April. Might have been -- we might 56:8 have left a little sooner; I'm not sure. 56:9 But she had stopped talking to us in 51 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10907 Page 245 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 56:10 February of that year completely. 56:11 Q. BY MS. GOLDEN: Can you recall approximately how 56:12 many times you had the drives with your mom where you 56:13 talked about the Liberty property ownership? 56:14 A. Just the one time that I remember. 56:15 Q. Do you remember -- can you remember at all what 56:16 year, what month, that conversation was? 56:17 A. It was probably in 2011, because after that 56:18 Christmas, it was very -- he cut her off, because we found 56:19 out -- or he knew we knew. 56:20 Q. So you think that you had the conversation about 56:21 the property ownership in 2011? 56:22 A. Yeah. 56:23 Q. And then later that Christmas was when you 56:24 dropped off the gift? 56:25 A. Yes, because we were tired of the games. We just 57:1 wanted it to be real. 57:2 Q. And you spent some time talking about why you 57:3 believed that Ron and Annette owned the Liberty property. 57:4 Can you just clarify one more time what the Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED (see [267] Order) Object to 57:2-58:3 under Fed. R. Evid. 602 and 701. Again, Ms. Watkins has no personal knowledge about who owned the Liberty Property. See United States’ response to Watkins Opinion Testimony Motion. Ms. Watkins’ testimony is that she believed Ron and Annette Talmage to be the 52 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10908 Page 246 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Exhibits Ruling OVERRULED (see [267] Order) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE owners of the Liberty Property based on the décor of the home and Mr. Talmage’s deep interest in Irish Setters. Her opinion is rationally based on what she perceived, and therefore, admissible under Rules 602 and 701. Object to 57:2-58:3 under Fed. R. Evid. 602 and 701. Again, Ms. Watkins has no personal knowledge about who owned the Liberty Property, and these are accordingly inadmissible assumptions. See United States’ response to Watkins Opinion Testimony Motion. Ms. Watkins’ testimony is that she believed Ron and Annette Talmage to be the owners of the Liberty Property based on the décor of the home and Mr. Talmage’s deep interest in Irish Setters. Her opinion is rationally based on what she perceived, and therefore, admissible under Rules 602 and 701. Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 57:5 source of your information is and how you came to that? 57:6 A. Why I felt that way? 57:7 Q. Yes. 57:8 A. So Ron is very big into Irish – 57:14 Q. Can you clarify how you came to the belief that 57:15 Ron and Annette owned the Liberty property? 57:16 A. Ron was really big into Irish setters. On the 57:17 mailbox was an Irish setter. Also, they had a dog run in 57:18 the back that was built on, which was the same as they had 57:19 in Corbett for his dogs. 57:20 They had -- they had their horse stables 57:21 with their horses that they had renovated. 57:22 Their year supply room in the backyard that 57:23 had their generator and supplies and everything just 57:24 reminded me of what they usually would have in their 57:25 Corbett home. 58:1 Ron's green color and the Irish setters. 58:2 Q. Anything else? 58:3 A. No. 58:4 Q. How did you know what Ron and Annette would 53 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10909 Page 247 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 58:5 usually have in their Corbett home? 58:6 A. Because it showed on their vehicles, in their 58:7 house. They would always have green. It was his favorite 58:8 color. His cars were green. He had one that was silver. 58:9 He loved Irish setters so much, he had like a -- I think a 58:10 statue made out of one of them that had died. And their 58:11 Corbett property. It was everywhere. 58:12 And he loved his Irish setters a lot. He 58:13 would put them to bed at a certain time every night, feed 58:14 them. You had to be quiet, and you had to go to bed. So 58:15 that's how you know that Ron really -- that's how I know 58:16 that -- it was his life. He made everything a part of the 58:17 Irish setter -- the Irish setters are a part of everything 58:18 in his life. 58:19 Q. Did you visit the Corbett, Oregon, property? 58:20 A. Yes. 58:21 Q. About how many times? 58:22 A. I want to say three or four times. 58:23 Q. And then about the conversations that you had Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Object to 58:23-59:23 under Fed. R. Evid. 602, 701, and 802. Ms. Watkins has no knowledge of these matters beyond the inadmissible hearsay statements purportedly made by Annette Talmage. 54 OVERRULED (see [267] Order) Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10910 Page 248 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Exhibits Ruling Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Ms. Watkins is describing Annette Talmage’s demeanor during a conversation the two of them had, and why she believed what Annette told her. Ms. Watkins is also describing Annette’s general secretiveness, and that Annette would occasionally let her guard down when tired or fed up. Ms. Watkins’ testimony proves her personal knowledge. There is no opinion being offered under Rule 701, and to the extent there is, it is rationally based on Ms. Watkins’ perception and familiarity with Annette. There are no statements by Annette in 58:23-59:23, and thus, no inadmissible hearsay. As to the admissibility of Ms. Watkins’ opinion on ownership and Annette’s statements regarding ownership, see United States’ responses to Watkins Opinion Testimony Motion and Watkins Hearsay Motion. Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 58:24 with your mom about the owner of the Liberty property -- 58:25 A. Yes. 59:1 Q. -- what was -- what was her tone when she was 59:2 describing the situation to you? 59:3 A. Just very -- what's the word for her? -- she 59:4 tried to give me bits and pieces without saying it 59:5 straight; right? So she could say that she doesn't say 59:6 anything, but she would -- that's just -- tell me just 59:7 basically, and if I asked more questions, it was kind of 59:8 like, no, she wouldn't answer it. 59:9 Q. Did you believe what she was telling you? 59:10 A. Yes, because she didn't tell me anything. She 59:11 wouldn't tell us anything at that point. She was very, 59:12 very secretive. 59:13 If I got her to where she was maybe tired, 59:14 like she would talk to me more when she was tired of all 59:15 of it, and usually at these times, she would tell me more 59:16 things, or if it was a time that we would be frustrated 59:17 about the situation, she would try to give us hope by 55 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10911 Page 249 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 59:18 saying we're gonna be here for a while, don't worry about 59:19 it or things like that. That's how she was. 59:20 She was very secretive, but every once in a 59:21 while when she would be fed up, she would try to give us a 59:22 little bit to hold us off kind of thing, from being upset 59:23 at Ron or her. 62:2 Q. Have you heard of Worldwide Investment Services 62:3 Limited? 62:4 A. Yes, because that was their email. 62:5 Q. Whose email? 62:6 A. Ron and my mom's. 62:7 MS. HUBBARD: That was the -- 62:8 THE WITNESS: I remember the email was -- 62:9 THE REPORTER: I'm sorry? 62:10 THE WITNESS: Oh, I'm sorry. I'm just talking to 62:11 her. 62:12 I remember her email was like 62:13 [email protected]. She had it forever. I don't know 62:14 why I -- 62:15 And Ron's was very similar. 56 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10912 Page 250 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 62:16 MS. HUBBARD: It was rtalmage. 62:17 THE WITNESS: Yeah. 62:18 And so I looked it up. I didn't know that's 62:19 what it was, and then I saw it was a private investing 62:20 firm or something. 62:21 Q. BY MS. GOLDEN: How long was Annette's email the 62:22 atalmage@wwisltd? 62:23 A. I want to say from 2002 till -- jeez, I don't 62:24 know. A long time. Two thousand -- I don't know -- 62:25 eleven-ish. I don't remember when she changed it. 63:1 Q. How long did he use the wwis email? 63:2 A. Probably around the same time, because whatever 63:3 she did, it was under him, and when he had -- they had to 63:4 get new emails -- that's when they started changing their 63:5 emails and stuff and their phone number. 63:6 Q. Why did they use the wwis email? 63:7 A. I didn't know at the time, but I guess it was his 63:8 business one, that I knew of. I didn't know that – 63:9 Q.· ·Was Annette involved in Ron's business at all? Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED (see [267] Order) Object to 63:6-8 under Fed. R. Evid. 602 and 701. Ms. Watkins expressly states that she does not know the answer to this question and that her response is just a “guess.” Ms. Watkins is explaining her understanding of the source of the email address and the extent of her knowledge. She was not aware of its source at the time but later understood it to be a business email of Mr. Talmage. There is no opinion testimony under Rule 701. 57 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10913 Page 251 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 63:10· · · A.· ·Not that I knew of.· She didn't know anything 63:11· about his business that I knew. 63:12· · · · · ·MR. INGRAM:· You're going to have to talk louder, 63:13· Ms. Watkins. 63:14· · · · · · · · You what?· Can you repeat that? 63:15· · · · · ·THE WITNESS:· She didn't know anything about his 63:16· business that I knew of. 63:17 Q. BY MS. GOLDEN: Do you know why Annette had the 63:18 wwis email if she wasn't involved in the business? 63:19 A. I don't, other than the fact that he wanted to 63:20 control her email and to watch what went in and what went 63:21 out, because he -- a lot of times we didn't know if her 63:22 email was coming from her or him because the tone got 63:23 really nasty sometimes, and I'm thinking to myself, that's 63:24 not my mom, but really probably just to monitor her email. 63:25 Q. Did you email with Ron or Annette through those 64:1 emails? 64:2 A. Yeah, I did. There was a big exchange of mean 64:3 words for a while through that email. 58 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10914 Page 252 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 64:23 Q. BY MS. GOLDEN: How often did Ron and Annette 64:24 switch emails? 64:25 A. I really don't know. It was often after 65:1 everything kinda started going south for them. 65:2 Q. When was that? 65:3 A. 2016, I thought, or maybe a little bit before. 65:4 Q. How would you find out that they got a new email 65:5 address? 65:6 A. She would give it to me, my mom. 65:7 Q. Have you ever heard of WWIS Limited? 65:8 A. No, isn't that the same thing? 65:9 Q. I can't -- I can't really I can't really answer 65:10 that for you. 65:11 A. That's okay. 65:12 Q. So have you heard of WWIS Limited? 65:13 A. Yes. 65:14 Q. Is there anything additional about WWIS Limited 65:15 besides what we have talked about? 65:16 A. No. 65:17 Q.· ·So other than the familiarity with Ron and 65:18· Annette's email addresses, you've not heard of WWIS 59 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10915 Page 253 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 65:19· Limited? 65:20· · · A.· ·No. 65:21· · · Q.· ·Did you ever email with anybody else associated 65:22· with Ron and Annette at a WWIS email? 65:23· · · A.· ·No. 67:8 Q. These three exhibits, 184, 185, and 186 -- 67:9 A. Yeah. 67:10 Q. -- seem to show that there's around $5,000 that 67:11 was transferred from Heng Cheong Pacific Limited to Joe 67:12 and Sara Watkins in March of 2014? 67:13 A. Uh-huh. 67:14 Q. Do you recall getting $5,000 around that time? 67:15 A. Yes. 67:16 Q. What was that for? 67:17 A. That was for Victoria's wedding. 67:18 I did her wedding, just because I'm, like, 67:19 her mom, so I have to take care of her, obviously. 67:20 Just kidding. 67:21 Q. Who sent you the money for Victoria's wedding? 67:22 A. My mom or Ron; I don't know. 67:23 Q. Do you remember noticing at the time that it came 67:24 from this overseas entity -- 184, 185, 186 OVERRULED (see [267] Order) OVERRULED (see [267] Order) Object to 67:8-13 under Fed. R. Evid. 602 and 901. The document referenced in this testimony was not produced by Ms. Watkins and she did not testify that she has any personal knowledge of it. Ms. Watkins also did not provide any testimony to authenticate the document. The document discussed is not being moved into evidence, so a Rule 901 objection is meritless. At 67:14–19, Ms. Watkins testifies that she remembers receiving the $5,000 referenced on exhibits 184–186. This testimony is based on her own recollection and receipt of the funds and is proper under Rule 602. Object to 67:21-22 under Fed. R. Evid. 602. Ms. Watkins expressly states that she does not know who sent her the money. Ms. Watkins is testifying that either Ron or Annette Talmage sent her money for her sister’s wedding. This testimony is proper under Rule 602. 60 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10916 Page 254 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 67:25 A. No. 68:1 Q. -- Heng Cheong Pacific Limited? 68:2 A. Huh-uh, I don't. I don't think I realized that. 68:3 Q. How did your mom tell you that she was sending 68:4 the money? 68:5 A. She just asked for my account, and she said they 68:6 were gonna put it in there so I could put a deposit down 68:7 on the wedding venue and start buying stuff for her 68:8 wedding to decorate. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Object to 68:3-8 under Fed. R. Evid. 802. OVERRULED (see [267] Order) SUSTAINED Ms. Watkins is describing how and why Annette Talmage sent the money to her. This is not hearsay. Ms. Watkins knew, independently of Annette, that the money was being sent to pay for her sister’s wedding (see 67:14–19). Object to Exhibits 184, 185, and 186 on the grounds that they were not disclosed in the Government’s Pretrial Disclosures. The United States does not intend to offer exhibits 184 through 186 into evidence, which is why they were not listed as trial exhibits in the United States’ pretrial disclosures. The United States’ pretrial disclosures provided page-and-line designations for Ms. Watkins’ testimony, which made clear that the United States intended to refer to the exhibits to contextualize Ms. Watkins’ testimony. 68:12 Q. Have you ever heard of somebody named John 68:13 Wadsworth? 68:14 A. Yes, from my mom. 68:15 Q. How did you -- how did you hear of him, again? 68:16 A. My mom spent a Christmas with them. It might 61 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10917 Page 255 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 68:17 have been the year we moved there, and I was wondering why 68:18 they weren't spending Christmas with us, but she said they 68:19 were going to John and Amy's house. 68:20 Q. Who is Amy? 68:21 A. John's wife, I assume. 68:22 Q. When did you first hear of John and Amy? 68:23 A. I think that was my first time. She -- it seems 68:24 like she mentioned they were friends of theirs, but I 68:25 never, you know, knew where they were from or anything. 69:1 Q. Let me try to unpack that. 69:2 So when is the first time you heard those 69:3 names, John and Amy? 69:4 A. John and Amy? 69:5 It seems like it was around that time. 69:6 Q. What year was that? 69:7 A. 2010, that I can recall. 69:8 Q. And then the time that your mom said that she was 69:9 going to John's house, when was that? 69:10 A. Around Christmastime. 69:11 Q. In 2010? 69:12 A. Yeah. 69:13 Q. Just based on what you know, do you have a sense Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Object to 68:22-28 under Fed. R. Evid. 802. OVERRULED (see [267] Order) Ms. Watkins is describing how she knew John and Amy Wadsworth were the Talmages’ friends, and when she first learned of that friendship. This is not hearsay. Any embedded statements by Annette can also be offered to show her understanding of the Talmage- Wadsworth relationship and her intent behind the Liberty Property arrangements. See Fed. R. Evid. 801(c). Object to 69:13-17 under Fed. R. Evid. 602, 701, and 802. Ms. Watkins has no personal knowledge of the relationship between John Wadsworth and Ronald Talmage; her assumption/opinion here is based on nothing more than the inadmissible hearsay statement purportedly made by Annette Talmage. Ms. Watkins is describing her personal understanding of the relationship between John Wadsworth and Ron Talmage, gleaned from interactions with her mother. This is proper testimony under Rule 602. It is not opinion testimony under Rule 701; to the extent it is, Ms. Watkins has a rational basis for her perception. There is no statement by 62 OVERRULED (see [267] Order) Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10918 Page 256 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 69:14 of what John's relationship is with Ron? 69:15 A. From what my mom said, they were really, really 69:16 good friends of theirs, people that they really liked and 69:17 trusted. 70:10 Q. BY MS. GOLDEN: I think the question I had asked 70:11 was what was your -- what was your sense of the 70:12 relationship between John and your mom? 70:14 THE WITNESS: I don't think there was a 70:15 relationship, other than my mom was friends with Amy 70:16 because John and Ron were good friends. 70:17 Q. BY MS. GOLDEN: How did you know your mom was 70:18 friends with Amy? 70:19 A. She would talk about how nice she was. I don't Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 63 Exhibits Ruling OVERRULED (see [267] Order) OVERRULED (see [267] Order) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Annette Talmage in 69:13-17, and thus, no inadmissible hearsay. If there are any statements by Annette, they can be offered to show her understanding of the Talmage-Wadsworth relationship and her intent behind the Liberty Property arrangements. See Fed. R. Evid. 801(c). Object to 70:10-16 under Fed. R. Evid. 602 and 701. By her own statement, Ms. Watkins has no personal knowledge of the relationship, if any, between John Wadsworth and Annette Talmage. Ms. Watkins is describing her personal understanding of the relationship between Annette Talmage and John Wadsworth’s wife, gleaned from interactions with her mother. This is proper testimony under Rule 602. It is not opinion testimony under Rule 701; to the extent it is, Ms. Watkins has a rational basis for her perception. Object to 70:10-16 under Fed. R. Evid. 602 and 701. By her own statement, Ms. Watkins has no personal knowledge of the relationship, if any, between John Wadsworth and Annette Talmage. Ms. Watkins is describing her personal understanding of the relationship between Annette Talmage and John Wadsworth’s wife, gleaned from interactions with her mother. This is Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10919 Page 257 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 70:20 remember any specific time. I just remember her saying 70:21 she was a really nice person. They were nice people, 70:22 their kids. I don't know how many kids they had or 70:23 anything like that. It wasn't very in-depth. 70:24 It kind of hurt my feelings, honestly, 70:25 because of -- yeah. 71:24 Q. When was the last time you heard anything about 71:25 John Wadsworth? 72:1 A. Just when my mom had mentioned to me about the 72:2 house. 72:3 Q. That was -- those were the conversations we 72:4 talked about earlier? 72:5 A. Yeah. 72:6 Q. About -- around 2011? 72:7 A. Oh, I'm sorry. 72:8 No, it was during all this stuff with the 72:9 police coming in and Kory and how they were trying to take 72:10 their house. That was actually the last time I had heard 72:11 anything. 72:12 Q. When was that? 72:13 A. I want to say around two thousand -- until they 72:14 stopped talking to them. They were kind of upset that Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE proper testimony under Rule 602. It is not opinion testimony under Rule 701; to the extent it is, Ms. Watkins has a rational basis for her perception. Exhibits Ruling 73:8 Q.· ·Have you ever heard of Western Land & Livestock, 73:9· LLC? 73:10· · · A.· ·I have not. 73:11· · · Q.· ·Have you ever heard of Western Reserve Mortgage, 73:12· LLC? 73:13· · · A.· ·I have not. 73:14· · · Q.· ·Have you ever heard of Preferred Leasing, LLC? 73:15· · · A.· ·No, I have not. 73:16· · · Q.· ·Have you ever heard of Fortus Property Group, 73:17· LLC? 73:18· · · A.· ·No, I have not. Object to 72:8-16 under Fed. R. Evid. 802. OVERRULED (see [267] Order) Ms. Watkins is describing when she last heard anything from her mother about John Wadsworth and her mother’s demeanor during that conversation. This is not hearsay. To the extent there are any embedded statements by Annette Talmage, they are admissible under Rule 803(3) to show her feeling that John and Kory “had betrayed them.” 64 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10920 Page 258 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 72:15 their friend had betrayed them and that Kory had betrayed 72:16 them. 72:17 Q. What year was that? 72:18 A. 2017 is probably the last time we had a 72:19 conversation about that, and that was only when Ron wasn't 72:20 around. 72:21 Q. Is this a conversation you had with your mom over 72:22 the phone? 72:23 A. Yes. Or video chat. 72:24 Q. Do you know anything about what John Wadsworth 72:25 does for work? 73:1 A. Just from my mom that he was in the business 73:2 world with Ron investing. I don't know where his position 73:3 was in that whole business or anything like that. 73:4 Q. Do you know how long John was in the business 73:5 with Ron? 73:6 A. From as far as they were married, my mom and Ron 73:7 were married. 81:16 Q. Do you have any written documents to verify what 81:17 you were told by Annette regarding the ownership of the 81:18 Liberty property? Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED (see [267] Order) Object to 72:24-73:7 under Fed. R. Evid. 602 and 701. Ms. Watkins has no personal knowledge about what John Wadsworth does for work; by her own statement, her only knowledge comes from inadmissible hearsay statements purportedly made by Annette Talmage. Ms. Watkins is testifying to her personal knowledge of Mr. Wadsworth’s work, gleaned from her own knowledge and interactions with her mother. This is proper testimony under Rule 602. It is not opinion testimony under Rule 701; to the extent it is, Ms. Watkins has a rational basis for her perception. 81:4 Q.· ·When your mother told you this in a 81:5· conversation -- I think you said that happened sometime in 81:6· 2011 in a car ride or -- 81:7· · · A.· ·Yes. Object to 81:16-82:13 under Fed. R. Evid. 602, 701, 802, and 901. By her own statement, Ms. Watkins has nothing to substantiate the inadmissible hearsay statements purportedly made by Annette Talmage. 65 OVERRULED (see [267] Order) Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10921 Page 259 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 81:8· · · Q.· ·-- is that right?· In Ogden? 81:9· · · A.· ·Correct. 81:10· · · Q.· ·Did she ever show you any documents to 81:11· substantiate what she told you? 81:12· · · A.· ·No. 81:13· · · Q.· ·Did she ever show you any bank statements or 81:14· checks to substantiate what she told you? 81:15· · · A.· ·No. Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Ms. Watkins is explaining the basis for her belief that the Talmages owned the Liberty Property, which includes having seen a newspaper listing. This testimony is proper under Rules 602 and 701. The strength of that basis is a matter of weight rather than admissibility. The United States does not seek to admit the newspaper ad into evidence, so there is no basis for the Rule 901 objection. The newspaper listing is not hearsay under Rule 802 because it is not being offered for the truth of the matter asserted, and is mentioned to explain Ms. Watkins’ basis for her opinion on ownership. See also United States’ responses to Watkins Hearsay Motion and Watkins Opinion Testimony Motion. Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 81:19 A. No, but there was something published in the 81:20 paper about them asking for a permit to put up a fence on 81:21 their property, and it was quickly removed after I told 81:22 her I saw their information was in the paper. 81:23 Q. Okay. You said there was something in the paper 81:24 posted? 81:25 A. Yep. 82:1 Q. And how do you know that? 82:2 A. Or online, actually. 82:3 I looked it up trying to find more truth to 82:4 their story. 82:5 Q. Okay. Do you have a copy of that document? 82:6 A. No, it was removed from the Internet. 82:7 Q. Okay. 82:8 A. I think Ron freaked out about it. 82:9 Q. Do you know where I can find this document? 82:10 A. Probably with the city where you apply for a 82:11 permit. 82:12 Q. Okay. 82:13 A. Or the county. 82:14 Q.· ·Do you have any other written document to verify 66 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10922 Page 260 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 82:15· anything that you were told by Annette? 82:16· · · A.· ·No. 82:17· · · Q.· ·No? 82:18· · · A.· ·No. 85:17 Q. Has Ron Talmage ever lied to you? 85:18 A. Yes. 85:19 Q. How many times? 85:20 A. I can't even count. 85:21 Q. Is he a prolific liar? 85:22 A. Yep. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 85:23 Yes.· I'm sorry. 85:24· · · Q.· ·Has Annette ever lied to you? 85:25· · · A.· ·She has. 86:1· · · Q.· ·How many times? 86:2· · · A.· ·Um, I can't count. 86:3· · · Q.· ·You can't count, meaning there's so many? 86:4· · · A.· ·No, she just -- she doesn't lie; she just doesn't 86:5· tell the full truth. 86:6· · · Q.· ·She doesn't tell what? 86:7· · · A.· ·The full truth.· She hides the most -- 86:8· · · Q.· ·How many times has your mother not told the whole 86:9· truth? 86:10· · · A.· ·I don't know. 86:11· · · Q.· ·More than once? 86:12· · · A.· ·I really can't answer that, because I still 86:13· don't -- 86:14· · · Q.· ·More than twice? 86:15· · · A.· ·I don't know. 86:16· · · Q.· ·Many times? 86:17· · · A.· ·I don't know. 86:18· · · Q.· ·Do you trust everything that your mother tells 86:19· you? 67 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10923 Page 261 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 86:20· · · A.· ·Yes.· She's my mom.· I try. 86:21· · · Q.· ·Okay.· So notwithstanding the half-truths you've 86:22· been told, you still trust everything your mother tells 86:23· you? 86:24· · · A.· ·Except for Santa Claus, I really can't answer 86:25· that. 87:1 Q.· ·You said that Annette really didn't know anything 87:2· about Ron's business; is that right? 87:3· · · A.· ·Only little bits and pieces she would hear. 87:4· · · Q.· ·Okay.· Do you know if Annette participated in the 87:5· management of Ron's business? 87:6· · · A.· ·I don't know, no. 87:7· · · Q.· ·Do you know if Annette kept track of bank 87:8· accounts for Ron's business? 87:9· · · A.· ·No, she had her own bank account. 87:10· · · Q.· ·Do you know if Annette kept track of investment 87:11· accounts for Ron's business? 87:12· · · A.· ·No. 87:13· · · Q.· ·Do you know if Annette participated in the lease, 87:14· purchase, finance or sale of the Liberty property? 87:15· · · A.· ·I don't know that. 68 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10924 Page 262 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 87:16· · · Q.· ·Do you have any documents that would evidence 87:17· that she participated in either the lease, purchase, sale 87:18· or finance of the Liberty property? 87:19· · · A.· ·I don't know that. 87:20· · · Q.· ·Is your understanding of what she told you about 87:21· the property based upon what she told you Ron had told 87:22· her? 87:23· · · A.· ·I don't know how she heard it.· She wouldn't tell 87:24· me. 87:25· · · Q.· ·Do you know if Ron has ever lied to your mother? 88:1· · · A.· ·I don't know, honestly. 88:2· · · Q.· ·Do you think it's possible Ron has lied to your 88:3· mother? 88:4· · · A.· ·Mmm, I don't know. 88:5· · · Q.· ·You don't know, meaning he could have, but you 88:6· have no understanding one way or another whether Ron has 88:7· lied to your mother? 88:8· · · A.· ·I'm not in their conversations, so I don't know. 88:9· · · Q.· ·So Ron is a prolific liar to you, but he's not a 88:10· liar to your mother; is that what your saying? 88:11· · · A.· ·He is a liar to me, yes.· I don't know -- 69 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10925 Page 263 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 93:1 DECLARATION UNDER PENALTY OF PERJURY 93:2 I, the undersigned, declare under penalty of 93:3 perjury, that I have read the foregoing transcript of the 93:4 testimony taken on Wednesday, May 30, 2018, in the 93:5 above-referenced matter, and that the foregoing is a true 93:6 and correct transcript of my testimony contained therein, 93:7 except for the changes, if any, noted on the attached 93:8 errata sheet. 93:9 Executed this _____ day of ________________, 93:10 20_____. 93:11 (Signature waived.) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 88:12· · · Q.· ·Is he a liar to anybody else? 88:13· · · A.· ·I don't know.· I'm not close enough to him for me 88:14· to know that. 88:15· · · · · ·MR. INGRAM:· All right. 88:16· · · · · · · · I have no further questions, other than I'm 88:17· going to preserve for the record a motion to exclude her 88:18· testimony based upon hearsay and Rule 802. 88:19· · · · · ·MS. GOLDEN:· 802? 88:20· · · · · ·MR. INGRAM:· Federal Rule of Evidence 802. 70 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10926 Page 264 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 93:12 ___________________________ 93:13 SARA ANN WATKINS 94:1 REPORTER'S CERTIFICATE 94:2 I CERTIFY that the foregoing deposition was 94:3 taken by me pursuant to Notice; that I was then and there 94:4 a Certified Reporter for the State of Arizona, and by 94:5 virtue thereof authorized to administer an oath; that the 94:6 witness before testifying was duly sworn by me to testify 94:7 to the truth; that the questions propounded by counsel and 94:8 the answers of the witness thereto were taken down by me 94:9 in shorthand and thereafter transcribed under my 94:10 direction, and that the foregoing typewritten pages 94:11 contain a full, true, and accurate transcript of all 94:12 proceedings had upon the taking of said deposition, all 94:13 done to the best of my skill and ability; that deposition 94:14 review and signature was not requested; that Alliance 94:15 Reporting Solutions, Registered Firm R1015, is designated 71 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10927 Page 265 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 94:16 to produce, distribute and invoice the transcript. 94:17 I FURTHER CERTIFY that I am in no way 94:18 related to nor employed by any of the parties hereto, nor 94:19 am I in any way interested in the outcome hereof. 94:20 DATED at Phoenix, Arizona, this 12th day of 94:21 June 2018. 94:22 _____________________________ 94:22 Melissa Gonsalves, RMR, CRR 94:23 Arizona Certificate No. 50070 DEFENDANT COUNTER- DESIGNATIONS (Plaintiff Complete Designations) 71:1 Q. Have you ever met John Wadsworth? 71:2 A. No, I’ve never met John. 71:3 Q. Have you ever met Amy Wadsworth? 71:4 A. No. 74:9 Have you ever spoken with John Wadsworth? 74:10· · · A.· ·No. 74:11· · · Q.· ·Have you ever had any communications with John 74:12· Wadsworth? 74:13· · · A.· ·I tried to call the number that Carolyn gave me Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling PLAINTIFF COUNTER- DESIGNATIONS 72 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10928 Page 266 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 74:14· to see if I could check the home for personal items, but I 74:15· never got a call back.· I just left messages. 74:16· · · Q.· ·Okay.· Other than that, have you ever had any 74:17· communications with John Wadsworth? 74:18 No. 74:19 Q. And why did you reach out to John Wadsworth? 74:20 A. To try and get family -- to see if there was 74:21 family heirlooms at the Liberty property because my 74:22 grandma had just died and my mom had all of that stuff 74:23 there. 75:8 Q. Have you ever spoken with Mrs. Chen? 75:9 A. Just saying hello that summer of 2011. 75:10 Q.· ·Have you ever had any communications with 75:11· Mrs. Chen? 75:12· · · A.· ·No. 75:13· · · Q.· ·Have you ever met or heard of a person by the 75:14· name of Paul Judd? 75:15· · · A.· ·No. 75:16· · · Q.· ·Have you ever spoken with Paul Judd? 75:17· · · A.· ·No. 75:18· · · Q.· ·Have you ever had any communications with Paul Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 73 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10929 Page 267 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 75:19· Judd? 75:20· · · A.· ·No. 75:21· · · Q.· ·Have you ever had any communications with a 75:22· representative of Heng Cheong Pacific Limited? 75:23· · · A.· ·No. 75:24· · · Q.· ·Have you ever participated in the management or 75:25· operation of Heng Cheong Pacific Limited? 76:1 A.· ·No. 76:2· · · Q.· ·Have you ever had any communications with a 76:3· representative of New Century Property Limited? 76:4· · · A.· ·No. 76:5· · · Q.· ·Have you ever participated in the management or 76:6· operation of New Century Property Limited? 76:7· · · A.· ·No. 76:8· · · Q.· ·Have you ever had any communications with a 76:9· representative of Worldwide Investment Limited or WWIS 76:10· Limited? 76:11· · · A.· ·No. 76:12· · · Q.· ·Have you ever participated in the management or 76:13· operation of either Worldwide Investment Limited or WWIS 76:14· Limited? 76:15· · · A.· ·No. 74 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10930 Page 268 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 76:16· · · Q.· ·Have you ever had any communications with a 76:17· representative of Western Land & Livestock, LLC? 76:18· · · A.· ·No. 76:19· · · Q.· ·Have you ever participated in the management or 76:20· operation of Western Land & Livestock, LLC? 76:21· · · A.· ·No. 76:22· · · Q.· ·Have you had any communications with a 76:23· representative of Western Reserve Mortgage, LLC? 76:24· · · A.· ·No. 76:25· · · Q.· ·Have you ever participated in the management or 77:1· operation of Western Reserve Mortgage, LLC? 77:2· · · A.· ·No. 77:3· · · Q.· ·Have you had any communications with a 77:4· representative of Preferred Leasing, LLC? 77:5· · · A.· ·No. 77:6· · · Q.· ·Have you ever participated in the management or 77:7· operation of Preferred Leasing, LLC? 77:8· · · A.· ·No. 77:9· · · Q.· ·Have you ever had any communications with a 77:10· representative of Fortus Property Group, LLC? 77:11· · · A.· ·No. 75 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10931 Page 269 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 77:12· · · Q.· ·Have you ever participated in the management or 77:13· operation of Fortus Property, LLC? 77:14· · · A.· ·No. 77:15· · · Q.· ·Have you ever -- money with Ron Talmage? 77:16· · · · · ·THE REPORTER:· I'm sorry. 77:17· · · · · · · · Repeat that. 77:18· · · · · ·THE WITNESS:· I didn't hear that either. 77:19· · · Q.· ·BY MR. INGRAM:· Have you ever invested money with 77:20· Ron Talmage? 77:21· · · A.· ·No. 77:22· · · Q.· ·Have you ever worked for Ron Talmage? 77:23· · · A.· ·No. 77:24· · · Q.· ·Have you ever participated in any sort of 77:25· business with Ron Talmage? 78:1· · · A.· ·No. 78:2· · · Q.· ·Now, we were talking about a piece of property 78:3· located in Liberty, Utah.· May I refer to this as the 78:4· "Liberty property"? 78:5· · · A.· ·Yes. 78:6· · · Q.· ·Have you ever participated in the lease, 78:7· purchase, sale or finance of the Liberty property? 78:8· · · A.· ·No. 76 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10932 Page 270 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Defendants do not waive their specific objections under Rules 602, 701, and 802 with respect to 78:15-79:3 (to be read only if other testimony is allowed by the Court). Specific objections have been OVERRULLED Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 78:9· · · Q.· ·Have you ever seen a lease agreement, purchase 78:10· contract, loan agreement, deed, or title instrument from 78:11· Liberty property? 78:12· · · A.· ·No. 78:13· · · Q.· ·Do you know how the purchase of the Liberty 78:14· property was financed? 78:15· · · A.· ·I don't know.· Just from what my mom said. 78:16· · · Q.· ·Anything other than what your mom said? 78:17· · · A.· ·No. 78:18· · · Q.· ·Do you know the source of funds used to purchase 78:19· the Liberty property? 78:20· · · A.· ·I assume Kory Talmage, since he was bringing 78:21· money over. 78:22· · · Q.· ·Okay.· Now, you say you assume.· Who told you 78:23· that? 78:24· · · A.· ·My mom. 78:25· · · Q.· ·Anything other than what your mom told you?· Do 79:1· you know the source of funds used to purchase the Liberty 79:2· property? 79:3· · · A.· ·No. 79:4· · · Q.· ·Have you ever seen bank statements showing money 79:5· for the purchase of the property? 79:6· · · A.· ·No. 77 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10933 Page 271 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 79:7· · · Q.· ·Do you know who the title owner is of the 79:8· property? 79:9· · · A.· ·No. 79:10· · · Q.· ·Have you ever participated in the maintenance of 79:11· the Liberty property? 79:12· · · A.· ·No. 79:13· · · Q.· ·Have you ever seen a payment for utilities, 79:14· improvements, maintenance or mortgage on the Liberty 79:15· property? 79:16· · · A.· ·No. 79:17· · · Q.· ·Do you know how the maintenance of the Liberty 79:18· property was financed? 79:19· · · A.· ·No. 79:20· · · Q.· ·Do you know how the mortgage on the Liberty 79:21· property was financed? 79:22· · · A.· ·No. 79:23· · · Q.· ·Do you know the source of funds used to maintain 79:24· the Liberty property? 79:25· · · A.· ·No. 80:14 Q.· ·Okay.· So, your understanding of ownership is 80:15· based upon, one, a conversation you had with your mother, 80:16· and, two, what you observed were the living arrangements 80:17· at the Liberty property; is that correct? 80:18· · · A.· ·Correct. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Defendants do not waive their specific objections under Rules 602, 701, and 802 with respect to 80:14-18 (to be read only if other testimony is allowed by the Court). Specific objection have been OVERRULED 78 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10934 Page 272 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling The United States maintains its form objections as transcribed at 83:1–83:4 83:10–18, and 84:6–9. The Court will hear the evidence to be adduced at trial on these points. OVERRULED Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 80:19· · · Q.· ·Okay.· Do you know who paid for the improvements 80:20· to the Liberty property? 80:21· · · A.· ·I don't. 80:22· · · Q.· ·Do you know how those improvements were financed? 80:23· · · A.· ·I don't. 80:24· · · Q.· ·Do you know who paid for the dog run? 80:25· · · A.· ·No. 83:1· · · Q.· ·Did Ron or Annette ever tell you that Fortus 83:2· Property Group, LLC, paid cash to close the Liberty 83:3· property? 83:4· · · · · ·MS. GOLDEN:· Objection; misstates the evidence. 83:5· · · Q.· ·BY MR. INGRAM:· You can answer. 83:6· · · A.· ·No. 83:7· · · Q.· ·Do you have any facts or information to dispute 83:8· this? 83:9· · · A.· ·No. 83:10· · · Q.· ·Did Ron or Annette ever tell you that Heng Cheong 83:11· Pacific Limited or Mrs. Chen loaned money for the purchase 83:12· of the liberty property? 83:13· · · · · ·MS. GOLDEN:· Objection -- 83:14· · · · · ·THE WITNESS:· No. 83:15· · · · · ·MS. GOLDEN:· -- misstates the evidence. 79 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10935 Page 273 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 83:16· · · · · ·MR. INGRAM:· What was that? 83:17· · · · · ·MS. GOLDEN:· I said, objection; misstates the 83:18· evidence. 83:19· · · · · ·MR. INGRAM:· And what was her answer? 83:20· · · · · ·THE WITNESS:· No. 83:21· · · Q.· ·BY MR. INGRAM:· Do you have any facts or 83:22· information to dispute this? 83:23· · · A.· ·No. 83:24· · · Q.· ·Did Ron and Annette ever tell you that the loans 83:25· from Heng Cheong Pacific Limited are personally guaranteed 84:1· by John Wadsworth? 84:2· · · A.· ·No. 84:3· · · Q.· ·Do you have any facts or information to dispute 84:4· this? 84:5· · · A.· ·No. 84:6· · · Q.· ·Did Ron or Annette ever tell you that Fortus 84:7· Property Group, LLC, has made payments on the loans from 84:8· Heng Cheong Pacific Limited? 84:9· · · · · ·MS. GOLDEN:· Objection; misstates evidence. 84:10· · · · · ·THE WITNESS:· No. 84:11· · · Q.· ·BY MR. INGRAM:· Do you have any facts or 84:12· information to dispute this? 84:13· · · A.· ·No. 80 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10936 Page 274 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-19-DN-PMW Deposition of Sara Watkins taken May 30, 20181,2 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 91:10 MR. INGRAM:· Just another preservation that I'm 91:11· also going to exclude testimony based upon Federal Rule of 91:12· Civil Procedure 602, lack of personal knowledge or 91:13· foundation on most, if not everything, she's testified to 91:14· regarding alleged ownership. 91:15· · · · · ·MS. GOLDEN:· You mean evidence rule 602? 91:16· · · · · ·MR. INGRAM:· Yes. Instructions: One form should contain all designations for a witness. Plaintiff Designations (column 1) and Defendant Designations (column 2) will show the full deposition text that the party proposes to read in its case-in-chief. Completeness designations are proposed by the other party, under Fed. R. Civ. P. 32(a)(6), to be read with the designations. Counter–designations are read following the designations and completeness designations, similar to cross examination. This form should be provided in word processing format to the other party, who then will continue to fill in the form. The form is then returned to the proposing party for review, resolution of disputes, and further editing. The parties should confer and file a final version in PDF format using the event “Notice of Filing” and also submit a final word processing copy to the court at [email protected], for ruling. All objections which the objecting party intends to pursue should be listed, whether made at the deposition, as with objections as to form, or made newly in this form, if the objection is of a type that was reserved. 81 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10937 Page 275 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling PLAINTIFF DESIGNATIONS 5:1 KORIANTON TALMAGE, 5:2 was called as a witness, and having been first duly sworn 5:3 to tell the truth, the whole truth, and nothing but the 5:4 truth, testified as follows: 5:5 5:6 EXAMINATION 5:7 BY MS. GOLDEN: 5:8 Q. Good morning. Could you please state your full 5:9 name for the record. 5:10 A. Korianton Edward Talmage. 5:11 Q. Are you known by any other names? 5:12 A. Kory. 9:2 Q. Can you briefly summarize your work background 9:3 since you graduated from college? 9:4 A. Okay. So I started out as the IT guy for a DEFENDANT -DESIGNATIONS 5:13 Q. What is your current address? 5:14 A. I don't know it off -- you know, I don't 5:15 remember it. I just recently moved, so. 5:16 Q. What city, state and country? 5:17 A. It's in Tokyo. 5:18 Q. How long have you lived in Japan? 5:19 A. Most of my life. Let's see, like, yeah, just 5:20 most of my life. 5:21 Q. This most recent iteration, when did you start 5:22 living in Japan? 5:23 A. About 15 years ago. 5:24 Q. Have you ever lived in Utah before? 5:25 A. Yes. 6:1 Q. Went was that? 6:2 A. When I was in university. 6:3 Q. Can you give me the approximate years? 6:4 A. 2000 to 2003. 6:5 Q. And since then you've lived in Japan? 6:6 A. Yes. 8:1 Q. What did you do to prepare for this deposition? 8:2 A. I met with my attorney. 8:3 Q. Did you meet with anybody else to prepare? 8:4 A. No. 1 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10938 Page 276 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 8:5 Q. Did you speak to Mr. Ingram prior to this 8:6 deposition? 8:7 A. No. 8:8 Q. Did you speak to John Wadsworth in preparation 8:9 for this deposition? 8:10 A. No. 8:11 Q. Did you review any documents in preparation for 8:12 this deposition? 8:13 A. No. 8:14 Q. Did you review the draft letters rogatory the 8:15 United States prepared to compel your testimony in Japan? 8:16 A. No. Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 9:5 company, and did that for about 13 years. And then I 9:6 became a freelancer translator, and I also taught 9:7 English. That's about it. 9:8 Q. The freelance work in English teaching, is that 9:9 in Japan? 9:10 A. Yes. 9:11 Q. What about the company that you worked for for 9:12 13 years, what company was that? 9:13 A. It was WWIS Limited. 9:20 Q. What line of business was the company in? 9:22 THE WITNESS: Investments. 10:2 Q. Do you know who owned the company? 10:3 A. On paper? Liu Hsiu Chen. 10:4 Q. Who ultimately owned the company, then, in 10:5 substance? 10:8 THE WITNESS: I don't know. 10:9 BY MS. GOLDEN: 10:10 Q. Did you have a title when you did the IT work 10:11 for WWIS? 10:12 A. No official title. 10:13 Q. Can you describe the kind of IT duties that you 2 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10939 Page 277 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 10:14 performed for WWIS? 10:15 A. Yes. So I was in charge of managing the 10:16 servers, and any kind of security system, and e-mail 10:17 servers and hardware. 10:18 Q. Where did you work? 10:19 A. In Japan. 10:20 Q. The entire 13 years this IT work you did was 10:21 all in Japan? 10:22 A. Yes. 11:10 Q. You said it was in investments. Can you 11:11 elaborate more on that answer? 11:14 THE WITNESS: Investment fund where people will 11:15 send money to invest. 11:16 BY MS. GOLDEN: 11:17 Q. It ran an investment fund? 11:18 A. Yes, that's what I was told. 11:19 Q. Who told you that? 11:20 A. Ronald Talmage. 11:21 Q. Who is Ronald Talmage? 11:22 A. He's my father. 11:23 Q. I take it you've known him your whole life? 11:24 A. Yes. 11:25 Q. How would you characterize your relationship 12:1 with your father? 12:3 THE WITNESS: Which timeframe are you referring 12:4 to? Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 13:5 Q. Why did you make the decision about two years 3 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10940 Page 278 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 13:6 ago to cut off contact with your father? 13:7 A. Because I found out that he was a fraud. 13:8 Q. Can you elaborate more on that? 13:9 A. Yes. So as you know, I worked for WWIS, and 13:10 through -- I don't know how much I should elaborate, but 13:11 I found out that he was running a, you know, fraudulent 13:12 scheme, and was being dishonest. Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED Objection to 13:11–12 under Rules 602 and 701. In his testimony at 120:3-121:18, Kory Talmage explains that this opinion is based on his personal knowledge and perceptions, including information and documents he reviewed while investigating Ronald Talmage’s scheme in Hong Kong. Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 12:5 BY MS. GOLDEN: 12:6 Q. Let's start with present day. 12:7 A. Presently, I have no -- absolutely no contact 12:8 with him. And I don't want to have contact with him. 12:9 Q. And when did you stop having contact with your 12:10 dad? 12:11 A. Approximately two years ago. 12:12 Q. Prior to that, how was your relationship with 12:13 Ronald Talmage? 12:14 A. Not -- probably not a normal father-and-son 12:15 relationship. 12:16 Q. Why do you say that? 12:17 A. It's hard to explain. Sorry, I don't know how 12:18 to explain it. I'm not -- I don't know how to say. 12:19 Q. Well, can you maybe elaborate more on why you 12:20 feel it wasn't a normal relationship? 12:21 A. Because I lived in Japan and he didn't. So the 12:22 only communication that we had was basically by e-mail or 12:23 on the phone. And, I guess, because I didn't enjoy being 12:24 around him. 12:25 Q. What about him made you not enjoy being around 4 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10941 Page 279 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 13:1 him? 13:2 A. His character. 13:3 Q. What's his character like? 13:4 A. Fake. 13:24 Q. As far as you know, what was Ron Talmage's role 13:25 at WWIS? 14:2 THE WITNESS: As far as I know, he was managing 14:3 finances. 14:4 BY MS. GOLDEN: 14:5 Q. When was the last time you spoke or had contact 14:6 with your father? 14:7 A. Two years ago. 14:8 Q. What did you discuss at that time? 14:9 A. I wanted him to come clean. 14:10 Q. What was -- 14:11 A. Admit to the scams and the fraud he was 14:12 committing. 14:13 Q. What was your dad's response? 14:14 A. He denied it. 14:15 Q. In this final conversation you had with your 14:16 father, did it take -- how did it take place? Meaning, 14:17 was it on the phone or by e-mail? 14:18 A. The final, final conversation was I was telling 5 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10942 Page 280 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 14:19 him to get away from me. It was in person. 14:20 Q. Where in person? 14:21 A. Where? 14:22 Q. Sorry, that was a -- 14:23 A. Location? 14:24 Q. -- that was a bad question. 14:25 Where did this in-person conversation take 15:1 place? 15:2 A. It was in Liberty, Utah. 15:3 Q. What kind of property in Liberty, Utah did this 15:4 take place at? 15:5 A. It was a home. 15:7 THE WITNESS: Residential property. Outside, 15:8 not inside. 15:9 BY MS. GOLDEN: 15:10 Q. Who was living at that residential property at 15:11 the time of this conversation? 15:14 THE WITNESS: At the time, I didn't think 15:15 anyone was living there. 15:16 BY MS. GOLDEN: 15:17 Q. Did you later find out that somebody was? 15:18 A. Yes, I later found out that Ronald Talmage was 15:19 living there. 15:21 Do you know where Ronald Talmage is currently 15:22 living? 15:23 A. No. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 6 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10943 Page 281 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 15:24 Q. Do you have any current contact information for 15:25 him? 16:1 A. No. Like I said, I haven't talked to him or 16:2 seen him for two years. No contact whatsoever. 16:3 Q. Can you think of anyone who might know where 16:4 Ronald Talmage is living? 16:5 A. No. 16:6 Q. Can you think of anyone who might know how to 16:7 contact him? 16:8 A. No. 16:14 Q. Do you know what Ronald Talmage does for work? 16:16 THE WITNESS: Now? 16:17 BY MS. GOLDEN: 16:18 Q. Yes. 16:19 A. No. 16:20 Q. Have you ever previously known what he does for 16:21 work? 16:22 A. Previously, yes. 16:23 Q. And what was -- what kind of work was that? 16:25 THE WITNESS: I said this earlier, he was 17:1 managing finances. 17:2 BY MS. GOLDEN: 17:3 Q. For WWIS? 17:4 A. Yes. 17:5 Q. As far as you know, how long had he managed the Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 7 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10944 Page 282 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 17:6 finances for WWIS? 17:8 THE WITNESS: As long as I was working there. 17:9 BY MS. GOLDEN: 17:10 Q. You said you were there 13 years. I'm going to 17:11 try to put some approximate years on that. 17:12 So is it 2003 to 2016; is that right? 17:13 A. Yeah. 17:14 Q. Where was WWIS located? 17:15 A. In Hong Kong. 17:16 Q. Where did it conduct business? 17:17 A. In Hong Kong. 18:1 BY MS. GOLDEN: 18:2 Q. Are there any other entities associated with 18:3 the WWIS investment business? 18:4 A. Yes. 18:5 Q. Which ones? 18:6 A. HCPL. 18:7 Q. What does that stand for? 18:8 A. I don't remember. 18:9 Q. Does Heng Cheong Pacific Limited ring a bell? 18:10 A. Yes, it does. 18:11 Q. Now, how do you know that HCPL is associated 18:12 with WWIS? 18:13 A. Because I was told that. 18:14 Q. Who told you that? 8 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10945 Page 283 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 18:15 A. I believe it was Ronald Talmage. 18:20 Q. Who else worked for WWIS? 18:22 THE WITNESS: You mean who was an employee? 18:23 BY MS. GOLDEN: 18:24 Q. Yes. 18:25 A. I don't remember their names. 19:1 Q. Do you recall how many people worked for WWIS? 19:2 A. A handful. 19:3 Q. As far as you know, what was their -- what was 19:4 their role? 19:5 A. As far as I know, they were doing office work. 19:6 Q. And what do you mean by "office work"? 19:7 A. I don't know. I don't know what they were 19:8 doing in the office. They were working in the office. 19:9 Q. Okay. By "office work," you mean you -- did 19:10 you observe them being present in the office -- 19:11 A. Yes. 19:12 Q. -- doing work? 19:13 A. I have observed them doing that, yeah. 19:14 Q. Do you have any idea what the substance of the 19:15 kind of work they did? Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 9 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10946 Page 284 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 19:16 A. Not in detail, I don't. 19:17 Q. Do you have a general sense of the kind of work 19:18 they did? 19:19 A. Make documents or something. I'm not sure. 19:20 Q. Sorry, what was that, "make documents"? 19:21 A. Making documents. 19:22 Q. Do you know what kind of documents they made? 19:23 A. No, I don’t. 20:16 Q. Just to clarify, earlier you had said that as 20:17 far as you know, Ron Talmage's job for WWIS was that he 20:18 managed finances. Did I get that accurately? 20:19 A. Yes. 21:2 Q. As far as you know, has Ronald Talmage ever run 21:3 a business? 21:6 THE WITNESS: Are you asking me if he was part 21:7 of running a business or if he was in charge of running a 21:8 business? 21:9 BY MS. GOLDEN: 21:10 Q. In charge of? 21:11 A. I don't know. 21:12 Q. Okay. As far as you know, has he ever been 21:13 part of running a business? Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 20:8 Q. Do you know who founded WWIS? 20:9 A. I don’t know. 20:10 Q. Do you know how much money Ronald Talmage made 20:11 working for WWIS? 20:12 A. No. 10 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10947 Page 285 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 22:5 Q. As far as you know, has Ronald Talmage ever 22:6 worked with high net-worth individuals in Asia? 22:10 THE WITNESS: As far as I know, yes. 22:11 BY MS. GOLDEN: 22:12 Q. What kind of work? 22:13 A. Again, investments. 22:14 Q. When did Ronald Talmage work with these high 22:15 net-worth individuals? 22:17 THE WITNESS: I don't know exactly when. 22:18 BY MS. GOLDEN: 22:19 Q. Can you give an approximate timeframe? 22:21 THE WITNESS: From when I was young to when I 22:22 started working for him. 22:23 BY MS. GOLDEN: 22:24 Q. And you were young, is that the 1980s? 22:25 A. I believe so, yes. 23:1 Q. That's 1980s to about 2003? 23:2 A. No, I mean beyond 2003. 23:3 Q. Oh, beyond. Okay. So when did -- as far as 23:4 you know, when did Ronald Talmage stop working with high 23:5 net-worth individuals in Asia? 23:8 THE WITNESS: I don't know, because I left the 11 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10948 Page 286 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 23:9 company. 23:10 BY MS. GOLDEN: 23:11 Q. Just now you said you worked for your father? 23:12 A. I worked for WWIS. 23:13 Q. When you worked for WWIS, who did you report 23:14 to? 23:15 A. It depends on the time, I guess. I reported 23:16 back to staff in the Hong Kong office, or I reported to 23:17 my father, Ronald Talmage. 23:18 Q. For what time did you report to -- is it Stef? 23:19 A. Staff. 23:20 Q. Oh, staff. 23:21 When did you report to staff in Hong Kong? 23:22 A. When -- are you talking about what kind of 23:23 situation or timeframe? 23:24 Q. Both. But let's break that down. 23:25 When -- during what timeframe did you report to 24:1 staff in Hong Kong? 24:2 A. When I was working for them. 24:3 Q. And in what situations would you report to 24:4 staff in Hong Kong? 24:5 A. So I was managing IT. When there was 12 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10949 Page 287 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 24:6 IT-related things that I needed to address, I would 24:7 report to them. 24:8 Q. During what timeframe did you report to your 24:9 father? 24:10 A. Same. During -- like I said, depended on what 24:11 I was working on, what IT- related thing I was working on. 24:12 Q. In what situations would you report to your 24:13 father instead of staff in Hong Kong? 24:14 A. You want like in specific situations? 24:15 Q. Like something that isn't - - might serve as an 24:16 example or a general description. 24:17 A. Okay. I'll give you an example. If, for 24:18 example, the e-mail server wasn't working, I would report 24:19 to him and walk him through troubleshooting. 24:20 Q. Did you ever do any work for WWIS that was not 24:21 IT related? 24:22 A. No. 24:23 Q. Who was your supervisor when you worked for 24:24 WWIS? 24:25 A. I was -- I was managing -- I was the head of IT 25:1 I guess you can say. 13 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10950 Page 288 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 25:2 Q. So you didn't have a supervisor? 25:3 A. No. 25:4 Q. Who was the head of WWIS? 25:7 THE WITNESS: At the time, I thought it was 25:8 Ms. Liu Chen. 25:9 BY MS. GOLDEN: 25:10 Q. Later what made you change that belief? 25:11 A. When I found out Ronald Talmage was running a 25:12 fraudulent scheme, I found out that Ms. Chen was simply a 25:13 front. 25:14 Q. You mentioned that from when you were young 25:15 until sometime relatively recently that your father 25:16 worked in the investment -- sorry, worked with high 25:17 net-worth individuals in Asia. Before WWIS, do you know 25:18 where he worked? 25:19 A. Yes, I do. 25:20 Q. Where? 25:21 A. He worked for -- let me try to remember the 25:22 name. Rothschild. 25:23 Q. What kind of a company was Rothschild? 25:24 A. You'll have to ask them, I don't know. I mean, 25:25 I think they did investments, but. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 14 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10951 Page 289 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 26:1 Q. Do you know if they were a bank or a hedge fund 26:2 or what type of company? 26:3 A. I can give you what I assume they did. I don't 26:4 know for sure, though. 26:5 Q. So tell me what your understanding is of what 26:6 Rothschild did. 26:7 A. They were an investment bank. 30:8 Q. As far as you know, has Ronald Talmage ever 30:9 worked as an investment advisor in Asia? 30:10 A. What is your definition of "investment 30:11 advisor"? 30:12 Q. Like, speaking generally, like would he -- 30:13 somebody who either gives people advice on how to invest 30:14 their money, or solicits money from them to then manage? 30:15 A. Yes, I believe he did both of those. 30:22 Q. Sure. What kind of investment advisory work 30:23 did Ronald Talmage do? 31:1 THE WITNESS: The two examples you mentioned 31:2 earlier when I asked you what the definition is, is what 31:3 he did. 31:4 BY MS. GOLDEN: Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 27:23 Q. Did you have any personal involvement in the 27:24 foundation fund? 27:25 A. If I was managing or not? Or if I had money 28:1 put in there? 28:2 Oh, I see. Well, let’s – were you involved in 28:3 managing the foundation fund? 28:4 A. No. 15 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10952 Page 290 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 31:5 Q. Did he do this individually or with a company? 31:7 THE WITNESS: What I believe is he did it 31:8 representing a company. 31:9 BY MS. GOLDEN: 31:10 Q. What company was that? 31:11 A. WWIS Limited. 32:7 Q. How much were you paid for your IT work for 32:8 WWIS? 32:9 A. I don't remember in detail, but when I first 32:10 started it was about -- it was in Japanese yen. But if 32:11 it was U.S. dollars, it would be about 4,000 U.S. dollars 32:12 a month. And over the years it went up a little bit, to 32:13 about 5,000 something. 32:14 Q. So by the time you left WWIS in about 2016, 32:15 your salary was 5,000 a month? 32:16 A. Approximately, yes. 32:17 Q. How was your salary paid to you? 32:18 A. It was wired into a bank account in Japan. 32:19 Q. That's your personal bank account in Japan? 32:20 A. Yes. 33:2 Q. Sure. What company did the wires come from? 33:3 A. WWIS Limited. 16 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10953 Page 291 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 33:4 Q. And do you know where the bank account for WWIS 33:5 was located? 33:6 MR. STEPHENS: Are you asking physically or 33:7 which bank? 33:8 MS. GOLDEN: Both. 33:9 THE WITNESS: I would assume it was coming from 33:10 Hong Kong, because the company is based in Hong Kong. 33:11 BY MS. GOLDEN: 33:12 Q. Did you ever look at the wire transfer deposits 33:13 in your, say, bank account statement? 33:14 A. Of course. 33:15 Q. And when you looked at it, then where would it 33:16 say the money was coming from? 33:17 A. From WWIS Limited. 33:18 Q. But based on looking at the deposits on your 33:19 own bank statements, you couldn't tell where WWIS -- 33:20 where WWIS's bank account was located? 33:21 A. Like I said, I think it was Hong Kong. 34:8 Q. Do you have any idea what your father did in 34:9 response to the tax fine? 34:10 A. I know that he's been running. 17 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10954 Page 292 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 34:11 Q. What do you mean by "running"? 34:12 A. Hiding. Avoiding to have the pay the fines, I 34:13 guess. 34:14 Q. As far as you know, has Ron been in touch with 34:15 anybody else in your family? 34:16 A. As far as I -- as far as I know, he hasn't. 34:23 Q. As far as you know, has Ronald Talmage ever put 34:24 property or money in other people's names so that it's 34:25 less traceable to him? 35:2 THE WITNESS: I can make assumptions that he 35:3 did. I believe he did -- 35:7 Q. Can you elaborate more on why you believe 35:8 Ronald Talmage put -- may have put property in other 35:9 people's names? 35:10 A. Yes. As I mentioned earlier, he was using 35:11 Ms. Chen as a front, so, which means he was using her 35:12 name. 37:17 Q. Is Ronald Talmage a dog enthusiast? 37:18 A. Yes. 37:19 Q. Does he like any particular breed of dog? 18 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10955 Page 293 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 37:20 A. When I knew him, when I still had contact with 37:21 him, he liked Irish Setters. 37:22 Q. Does he often keep dogs at the places where he 37:23 lives? 37:24 A. He does. I don't know if he does now, but he 37:25 used to. 38:1 Q. Can you recall the names of any dogs that 38:2 Ronald Talmage had? 38:3 A. Suzy, Mojo, Chrissy. Suzy and Chrissy, by the 38:4 way, were Irish Setters that I grew up with. That's why 38:5 I know. There were many others, but I don't remember the 38:6 names. 38:7 Q. Is Ronald Talmage a horse enthusiast? 38:8 A. I believe he is. 38:9 Q. And does he often keep horses at the places 38:10 that he lives? 38:11 A. Back when I had contact with him, he used to. 38:12 I don't know if he still does. 38:13 Q. Can you recall the names of any horses that 38:14 Ronald Talmage had? 38:15 A. No. 38:16 Q. Do you know Annette Talmage? 38:17 A. Yes. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 19 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10956 Page 294 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 38:18 Q. Who is she? 38:19 A. She is Ron Talmage's wife. 38:20 Q. Is she also your mother? 38:21 A. My stepmother. 38:22 Q. How long have you known Annette? 38:23 A. Since she married Ronald Talmage. 38:24 Q. What year was that? 38:25 A. I don't remember. 39:1 Q. Have they been married more than ten years? 39:2 A. I think so. 39:3 Q. More than 20 years? 39:4 A. No. 39:7 Q. What's your current relationship with Annette 39:8 like? 39:9 A. Just like Ron, I haven't been in touch with her 39:10 for over -- for at least two years. 39:11 Q. Why is that? 39:12 A. Because I severed ties with Ronald Talmage. 39:13 Q. When is the last time you spoke to or had 39:14 contact with Annette? 39:15 A. The same time I last spoke to Ronald Talmage. 39:16 Q. That was the in-person conversation in Liberty, 39:17 Utah? 39:18 A. Yes. 20 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10957 Page 295 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 39:19 Q. What did you and Annette discuss? 39:20 A. We didn't really discuss anything. I just 39:21 remember her yelling. 40:10 Q. What is Annette's relationship with Ron like? 40:11 A. That's kind of hard to describe. I don't think 40:12 it's a typical husband-and-wife relationship. 40:13 Q. Why do you say that? 40:14 A. Because Ronald Talmage is very controlling. 40:15 Q. What is Annette's personality like? 40:16 A. It's kind of hard to describe. She's -- when I 40:17 still had contact with her, she was kind of a kind 40:18 person, I guess. 42:23 Q. Is Annette fond of horses? 42:24 A. I believe so. 42:25 Q. And does she often keep horses at the places 43:1 she lives? 43:2 A. Same answer. She lived with Ronald at the 43:3 time. I don't know what they do now but, so, yes. 43:7 Q. Do you know a person called Liu Hsiu Chen or 43:8 Mrs. Chen? 43:9 A. Yes, I actually mentioned her earlier. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 21 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10958 Page 296 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 43:10 Q. And who is Mrs. Chen? 43:11 A. A Taiwanese woman. 43:12 Q. About how old is she? 43:13 A. My guess is she's in her 60s. 43:14 Q. How do you know her? 43:15 A. From introduction. I was introduced to her. 43:16 Q. And when did the introduction take place? 43:17 A. I don't remember the exact date. 43:18 Q. Was it more than ten years ago? 43:19 A. Yes. 43:20 Q. Was it more than 20 years ago? 43:21 A. Probably not. 43:22 Q. Who introduced you to Mrs. Chen? 43:23 A. Ronald Talmage. 43:24 Q. Where did that introduction take place? 43:25 A. I -- I don't remember where we first met. 44:1 Q. Was it in the United States? 44:2 A. No. 44:3 Q. Was it in Japan? 44:4 A. Most likely, yes. 44:5 Q. What was discussed at that introduction? 44:6 A. I don't remember. 44:7 Q. I'm going to show you a document that's 22 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10959 Page 297 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 44:8 previously been marked as Exhibit 89. 44:9 Is Mrs. Chen in this photo? 44:10 A. Yes. 44:11 Q. Can you identify her and describe what she's 44:12 wearing? 44:13 A. She is the one with the white hat. 44:14 Q. Are Ronald and Annette Talmage in this photo? 44:15 A. Yes. 44:16 Q. Can you identify them and describe what they 44:17 are wearing? 44:18 A. So Ronald is standing behind Mrs. Chen with a 44:19 white shirt, and Annette is standing next to Ronald with 44:20 the black sunglasses. 44:21 Q. Do you recognize any of the other people in the 44:22 photo? 44:23 A. Yes, I believe this person with red hair is 44:24 Penny. Penny Nunnally. 44:25 Q. That's the woman standing next to Annette? 45:1 A. Yes. 45:2 Q. Do you recognize anybody else? 45:3 A. I'm not certain, but this man holding the dog 45:4 might be Penny's son. I'm not sure though. 23 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10960 Page 298 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 45:7 Q. What's your current relationship with Mrs. Chen 45:8 like? 45:9 A. I don't have a relationship with her. I 45:10 haven't seen her for -- I haven't seen her or talked to 45:11 her for two years. 45:12 Q. When was the last time you spoke to or had 45:13 contact with Mrs. Chen? 45:14 A. The last time would be approximately two years 45:15 ago when I went to see her in Taiwan. 45:16 Q. What did you discuss at that time? 45:17 A. I explained to her that Ron, Ronald Talmage had 45:18 been running a fraud, a scam. 45:23 Q. Prior to that conversation two years ago in 45:24 Taiwan, how often did you keep in touch with Mrs. Chen? 46:2 THE WITNESS: I would maybe see her once a 46:3 year. 46:4 BY MS. GOLDEN: 46:5 Q. Was that in person? 46:6 A. Yes. 46:7 Q. Where did you see her? 46:8 A. I've seen her in Taiwan, and I've seen her in 46:9 the U.S. 46:10 Q. Where in the U.S.? OVERRULED Objection to 45:17–18 under Rules 602 and 701. In his testimony at 120:3-121:18, Kory Talmage explains that this opinion is based on his personal knowledge and perceptions, including information and documents he reviewed while investigating Ronald Talmage’s scheme in Hong Kong. 24 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10961 Page 299 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 46:11 A. Depends on which year. 46:12 Q. Can you name the various places in the U.S. 46:13 you've met with Mrs. Chen? 46:14 A. In Oregon and in Utah. 46:15 Q. And Oregon, was that at the Corbett property 46:16 that you mentioned earlier? 46:17 A. Yes, I met her there. And it wasn't always in 46:18 the property, but yes. 46:19 Q. And what about in Utah? Where did you meet 46:20 Mrs. Chen? 46:21 A. I've met her at a rodeo. I've met her at the 46:22 Liberty property. And I've met her at, like, 46:23 restaurants, where, you know, wherever Ron took her. 46:24 Q. Who else was present when you met with 46:25 Mrs. Chen? 47:1 A. Ronald Talmage and Annette Talmage. 47:2 Q. Anybody else? 47:3 A. Sometimes I would be traveling with my family, 47:4 so my family. 47:24 Q. And does Mrs. Chen speak English? 47:25 A. Very little English. Hardly any. 48:1 Q. When you've spoken to her, what language did 25 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10962 Page 300 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 48:2 the two of you use to communicate? 48:3 A. Mostly Japanese. 48:4 Q. And what about when she spoke to your father, 48:5 what language did they communicate in? 48:6 A. If I remember correctly, in Japanese. 48:7 Q. What does Mrs. Chen do for work? 48:9 THE WITNESS: I don't know. 48:25 Q. So before that discovery, what was your 49:1 understanding of what Mrs. Chen did for work? 49:2 A. My understanding was that she was acting 49:3 chairman. 49:4 Q. Acting chairman of what? 49:5 A. Of the company I worked for. 49:6 Q. WWIS? 49:7 A. Yes. 49:8 Q. As far as you understood, was Mrs. Chen in 49:9 charge of any other companies? 49:10 A. I believe she was also like in charge, chairman 49:11 or something of HCPL. But that might be inaccurate. 49:12 That might just be what I thought. 49:13 Q. Any other companies? 26 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10963 Page 301 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 49:14 A. Not that I can remember, no. 49:15 Q. And after 2016, and your discovery that year, 49:16 what's your understanding of what Mrs. Chen did for work? 49:17 A. Nothing. She just lent her name. 49:18 Q. You said, "lent her name"? 49:19 A. Yes. 49:20 Q. And why did she agree to do that? 49:23 THE WITNESS: From the information I got after 49:24 2016, she was being paid. 49:25 /// 50:1 BY MS. GOLDEN: 50:2 Q. Who paid her? 50:3 A. Ronald Talmage. 50:6 Q. How do you know Ron paid her? 50:7 A. I believe that that's what she said. 50:8 Q. That's what she told you? 50:10 THE WITNESS: Yes. 51:7 Q. What is Mrs. Chen's relationship with Ronald 51:8 Talmage? 51:12 THE WITNESS: Like friends and a business 51:13 relationship. 51:14 BY MS. GOLDEN: 27 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10964 Page 302 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 51:15 Q. And what's the basis for your current 51:16 understanding as to this relationship? 51:17 A. Basis is from what I saw at the time. 51:18 Q. Is this what you observed while working for 51:19 WWIS? 51:20 A. Yes. 51:21 Q. Is it also based on your personal relationship 51:22 with Ronald Talmage? 51:23 A. Yes. 51:24 Q. How did Mrs. Chen and Ronald Talmage meet? 52:1 THE WITNESS: I believe they met through 52:2 Mrs. Chen's husband. An introduction from the husband. 52:3 BY MS. GOLDEN: 52:4 Q. What's Mrs. Chen's husband's name? 52:5 A. Mr. Seki. 52:6 Q. Can you spell that? 52:7 A. S-E-K-I. 52:8 Q. How did Mr. Seki know Ron? 52:9 A. Are you asking me how they met? 52:10 Q. Yes. 52:11 A. I don't know. 52:12 Q. What was -- what was their relationship? 28 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10965 Page 303 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 52:13 Meaning, were they friends, business, you know, 52:14 acquaintances, anything else? 52:15 A. So from the knowledge I have now, Mr. Seki was 52:16 another one of Ron's, I guess, puppets, you know, he was 52:17 using. Ron was using Mr. Seki's name. 52:18 Q. Previously what was your understanding of 52:19 Mr. Seki's relationship with Ronald Talmage? 52:20 A. So I grew up being told by Ronald Talmage that 52:21 Mr. Seki was a very high net- worth wealthy individual. 52:22 Q. Based on what you know now, do you believe that 52:23 is true? 52:24 A. What are you talking about when you say is it 52:25 true? 53:1 Q. That Mr. Seki was a wealthy high-net worth 53:2 individual? 53:3 A. He wasn't wealthy. 53:4 Q. What about Mrs. Chen? Is she a wealthy 53:5 high-net worth individual? 53:6 A. No. 53:7 Q. How do you know about Mr. Seki introducing 53:8 Mrs. Chen to Ron? 29 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10966 Page 304 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 53:9 A. At one point Ronald Talmage told me. 53:10 Q. And how long has Mrs. Chen known Ron? 53:11 A. I don't know. 53:12 Q. Thinking back to your childhood, let's say the 53:13 1980s, did Mrs. Chen know Ronald Talmage at that time? 53:14 A. 1980s I was a little boy, I don't remember. 53:15 Q. What about the -- what about the early 1990s? 53:16 A. I had no interest in what my father was doing 53:17 in business, so I don't know. 53:18 Q. Well, at what point did you become aware that 53:19 Mrs. Chen had this friends and business relationship with 53:20 Ron Talmage? 53:21 A. I don't remember the exact point when I found 53:22 out. 53:23 Q. Was it before you started working for WWIS? 53:24 A. I don't remember. 54:10 Q. Based on your meetings with Mrs. Chen and your 54:11 familiarity with her, how knowledgeable is she about -- 54:12 how knowledgeable is she about the work that WWIS did? 54:14 THE WITNESS: She had very little knowledge. 30 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10967 Page 305 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 54:16 Q. How do you know that? 54:17 A. So when John and I went to see her in Taiwan in 54:18 2016, I don't remember the exact questions we asked, but 54:19 when we asked her about the company, she didn't know very 54:20 much. 54:21 Q. Which company did you ask her about? 54:22 A. I don't know if we asked about a specific 54:23 company, but the assumption was WWIS. 54:24 Q. As far as you know, did Ronald Talmage ever 54:25 send out messages using Mrs. Chen's name? 55:3 THE WITNESS: As far as I know, yes, he did. 55:4 BY MS. GOLDEN: 55:5 Q. And what kind of messages? 55:6 A. Like the content? Are you asking me about 55:7 like -- 55:8 Q. Both the medium and the content. 55:9 A. E-mail. 55:10 Q. And what was the content of those e-mails? 55:11 A. I don't know. 55:12 Q. As far as you know, did Ronald Talmage ever Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED Object to 55:12-19 under Fed. R. Evid. 602. Mr. Talmage’s testimony is clear that he is “not certain” about the subject matter discussed here. Mr. Talmage is testifying that while he was in Hong Kong investigating a purported fraud by Ron Talmage, he “believes” that Ron forged Mrs. Chen’s name. His belief is based on his own rational perception and is proper under Rules 602 and 701. 31 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10968 Page 306 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 55:13 sign documents using Mrs. Chen's name? 55:16 THE WITNESS: As far as I know, my knowledge is 55:17 very -- you know, it's been -- there's been so much time. 55:18 I believe he did, but I'm not certain anymore, because I 55:19 just don't care anymore. 55:20 BY MS. GOLDEN: 55:21 Q. How do you know that Ron sent out e-mails using 55:22 Mrs. Chen's name? 55:25 THE WITNESS: As you know, I was head of IT. I 56:1 managed the e-mail servers. And when I started getting 56:2 suspicious about what he's up to in 2016, it was evident 56:3 that Mrs. Chen wasn't the one sending it. So my 56:4 assumption was that it's Ron, because he had access. 56:5 BY MS. GOLDEN: 56:6 Q. And why was it evident that Mrs. Chen wasn't 56:7 sending e-mails? 56:8 A. Mrs. Chen told me and John that she doesn't use 56:9 a computer. 56:18 Q. How did you form the belief that Ron signed 56:19 documents using Mrs. Chen's name? Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Object to 56:18-23 under Fed. R. Evid. 602. Mr. Talmage states that he is making an assumption about this based on the circumstances, not personal knowledge. 32 OVERRULED Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10969 Page 307 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Mr. Talmage is testifying that while he was in Hong Kong investigating a purported fraud by Ron Talmage. Based on his own perception, he formed an opinion as to whether Ron Talmage was forging certain documents. This testimony is proper under Rules 602 and 701. Object to 56:18-23 under Fed. R. Evid. 602. Mr. Talmage states that he is making an assumption about this based on the circumstances, not personal knowledge. Mr. Talmage is testifying that while he was in Hong Kong investigating a purported fraud by Ron Talmage. Based on his own perception, he formed an opinion as to whether Ron Talmage was forging certain documents. This testimony is proper under Rules 602 and 701. OVERRULED 56:21 THE WITNESS: Because Mrs. Chen had no idea 56:22 what was going on. And my conclusion was that Ron was 56:23 behind all of it. 57:3 Q. As far as you know, what was Mrs. Chen's 57:4 relationship with Annette Talmage? 57:5 A. I think they were friends. 57:14 Q. I'd like to circle back to talk more about your 57:15 impression of Mrs. Chen prior to your 2016 discovery of 33 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10970 Page 308 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 57:16 what you described as a fraud. 57:17 Prior to that, what -- did you -- did you 57:18 believe that Mrs. Chen was a wealthy woman? 57:19 A. Yes, that's what I believed. 57:20 Q. How did you come to that belief? 57:21 A. That's what Ronald Talmage said to me. I mean, 57:22 I had no reason to doubt him, he was my father. He is my 57:23 father. 57:24 Q. Prior to that, did you believe that Mrs. Chen 57:25 had an active role in WWIS? 58:1 A. I don't think she ever had an active role. 58:2 Q. Well, prior to 2016, what was your 58:3 understanding of Mrs. Chen's duties at WWIS? 58:4 A. She was the chairman. She would kind of just 58:5 oversee everything, but not really be part of the 58:6 operation. 58:7 Q. Prior to 2016, did you believe that Mrs. Chen 58:8 was responsible for helping to solicit investors? 58:9 A. I think I did believe that, yeah. 34 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10971 Page 309 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 58:10 Q. And how did you form that belief? 58:11 A. The fact that she was a chairman. I -- yeah, 58:12 that's why. 58:13 Q. Were -- when you -- you said you mentioned that 58:14 you met with Mrs. Chen about once a year in person at 58:15 various places. Were there ever any WWIS clients present 58:16 at those meetings? 58:17 A. No. 58:18 Q. Were those meetings business in nature or 58:19 personal in nature? 58:20 A. Personal. 59:6 Q. When you worked for WWIS, did you ever interact 59:7 with the other employees that you mentioned? 59:8 A. In Hong Kong? 59:9 Q. I'm referring to earlier, I think you said you 59:10 have a few other employees at WWIS. 59:11 A. Yes. 59:12 Q. So what kind of interactions did you have with 59:13 them? 59:14 A. Well, I had to schedule visits to work on 59:15 computers and servers. 59:16 Q. Did you discuss anything else with them besides Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 35 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10972 Page 310 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 59:17 IT? 59:18 A. No, it was always IT related. 59:19 Q. How often did you visit WWIS's office? 59:20 A. Maybe once a year. Depends on the year, 59:21 though. 59:22 Q. And when you visited the office, did you often 59:23 observe Ronald Talmage there? 59:24 A. No. 59:25 Q. Did you ever observe him there? 60:1 A. I have about once or twice, yes. 60:2 Q. And what was he doing? 60:3 A. He was having a meeting. 60:4 Q. Do you recall who he was meeting with? 60:5 A. Suzana. 60:6 Q. Who is Suzana? 60:7 A. A person that worked in Hong Kong. 60:8 Q. What was Suzana's role at WWIS? 60:9 A. I think she managed the office. 60:10 Q. And when you visited the WWIS office, did you 60:11 ever see Mrs. Chen there? 60:12 A. Never. 60:13 Q. If you only visited the WWIS office about once 36 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10973 Page 311 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 60:14 a year, how did you perform your IT work the rest of the 60:15 year? 60:16 A. Remotely. 60:17 Q. How did you keep in touch with the other people 60:18 at the company? 60:19 A. E-mail. And sometimes by phone. 60:20 Q. Did you manage any employees at WWIS? 60:21 A. No. 60:22 Q. Were you the only person in the IT group? 60:23 A. Yes. It wasn't a very big company. We didn't 60:24 need other IT staff. 60:25 Q. You mentioned earlier that you were responsible 61:1 for managing an e-mail server? 61:2 A. Yes. 61:3 Q. What happened to that e-mail server? 61:4 A. I don’t know. After I severed ties with the 61:5 company, I don’t know what happened. 61:6 Q. What was stored on the e-mail server? 61:7 A. E-mails. 61:18 Q. If I recall correctly, earlier you mentioned 61:19 that when you started getting suspicious about what Ron 37 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10974 Page 312 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 61:20 was doing, you looked into some of the e-mails. 61:21 Did I recall that correctly? 61:22 A. I was never able to read the e-mails, though. 61:23 Q. Oh. Why weren't you able to read the e-mails? 61:24 A. The e-mails were all encrypted. 61:25 Q. What do you mean by "encrypted"? 62:1 A. We -- like I said, I was in charge of IT, so I 62:2 set up an encryption system for the company. 62:3 Q. How did that encryption system work? 62:4 A. It was -- it's a software called PGP. And each 62:5 person has their own encryption key and signature key. 62:6 Do you want me to go into detail? I don't know 62:7 if you're interested. 62:8 Q. How about just a general example. So then if I 62:9 wanted -- if I worked for WWIS and wanted to send an 62:10 e-mail, it would be -- would it be automatically 62:11 encrypted when I sent it? 62:12 A. Yes. So there's a plug-in for the e-mail 62:13 client on your computer, and you -- there's basically 38 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10975 Page 313 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 62:14 buttons you can push to encrypt or decrypt or sign. 62:15 Q. So if I worked for WWIS and I want to send an 62:16 encrypted e-mail, I would just push the encrypt button 62:17 and then -- 62:18 A. Once it's set up, yes. 62:19 Q. Okay. And then let's say if I received one of 62:20 these encrypted e-mails, how would I decrypt it? 62:21 A. You click on decrypt and type in your pass 62:22 phrase. 62:23 Q. Okay. Do I need -- do you need to get the pass 62:24 phrase from the sender of the e- mail? 62:25 A. No, it's your personal pass phrase. So the 63:1 sender has your private -- not private, sorry -- public 63:2 keys, and they encrypt with your public keys. And once 63:3 it's sent to you, you decrypt with your private keys. 63:4 Q. So when you looked at the e-mails on the 63:5 server -- I understand you couldn't open any of them -- 63:6 were you able to glean any data about those e-mails, such 63:7 as who they were from? 63:8 A. Can I correct something? 39 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10976 Page 314 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 63:9 Q. Yes. 63:10 A. I was able to look at them, but they were all, 63:11 you know, just gibberish. I can't read it because it was 63:12 encrypted. 63:13 Q. They're encrypted. Okay. 63:14 Does that mean -- were you able to see who sent 63:15 the e-mails? 63:16 A. Yes. I can see the sender and the receiver. 63:17 Q. Well, who -- from what you observed, who were 63:18 the senders on the e-mails? 63:19 A. There were a lot of people. 63:20 Q. Can you name the various people who -- 63:21 A. Ronald Talmage, John Wadsworth. 63:22 Q. Anybody else? 63:23 A. The staff in the Hong Kong office and, you 63:24 know, anyone that they would send e-mail to and receive. 63:25 Q. Okay. What about the recipients of the 64:1 e-mails? 64:2 A. What about them? 64:3 Q. Who -- from what you observed, who were the 64:4 recipients of the e-mails? 64:5 A. I never really cared. You know, that wasn't my 40 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10977 Page 315 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 64:6 responsibility to check who they were e-mailing, so I 64:7 never really looked into it much. 64:8 Q. Was Mrs. Chen one of the senders of the 64:9 e-mails? 64:10 A. There was an e-mail address in her name, but as 64:11 I said, I later found out in 2016 that she wasn't even 64:12 using it. It wasn't her. 64:17 Q. Could you tell when the e- mails were being 64:18 sent? 64:19 A. When? 64:20 Q. Like, I'm picturing you are -- you're looking 64:21 on the server, and you said you'd pull up the e-mails, 64:22 they are all encrypted. Can you tell if there's a 64:23 timestamp on it? 64:24 A. Yes, there was a timestamp. 64:25 Q. What was the timeframe of the e-mails being 65:1 sent? 65:2 A. The whole time I was managing it. 65:3 Q. So from 2003 to 2016? 65:4 A. Yes. 65:5 Q. As far as you know, why was John Wadsworth 65:6 given an encryption key and e- mail address on the server? Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 41 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10978 Page 316 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 65:7 A. To communicate securely. 65:8 Q. With whom? 65:9 A. With whomever he wanted to communicate with. 69:13 Q. So at that time when you were a child, did you 69:14 have a normal father-son relationship with your dad? 69:15 A. When I was a child, yes, I did think that was 69:16 normal, because that's all I knew. 69:17 Q. When did that change? 69:18 A. I think it changed when I went to university, 69:19 and, you know, I started making friends, and I would hear 69:20 about their families. 69:21 Q. What was different about their families versus 69:22 yours? 69:23 A. It's really hard to explain. There was always 69:24 some kind of distance between me, my sisters and my dad. 69:25 Q. What made you feel that there was that 70:1 distance? 70:2 A. I don't know how to explain this. It feels 70:3 like he doesn't have much empathy. Like, he's not good 70:4 at showing empathy. 70:22 Q. Was he forthcoming about the kind of work he 70:23 did? Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 42 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10979 Page 317 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 70:24 A. No. 70:25 Q. What gave you that impression? 71:1 A. He wouldn't really talk about work. 71:17 Q. After you graduated from college and started 71:18 working for WWIS, how did that -- well, did your 71:19 relationship with your father change during that time? 71:20 A. Yes, it changed, because it became a business 71:21 relationship. 71:22 Q. Were you on good terms business wise? 71:23 A. Most of the time. We had arguments but, yes Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 71:24 Q. Are there any other aspects of the changing 71:25 relationship with him? 72:1 A. Can you clarify your question? 72:2 Q. Is there anything else that changed about your 72:3 relationship with your dad once you started working for 72:4 WWIS? 72:5 A. Yes. 72:6 Q. What aspects were those? 72:7 A. I mean, it took time, but I did start to see 72:8 that he lacked integrity. 72:9 Q. What gave you that impression? 72:10 MR. INGRAM: Object to the form of the 72:11 question. 72:12 THEWITNESS: I don't know if there was a 72:13 specific situation that gave me that impression. Just 72:14 time working gave me that impression. 72:15 BYMS. GOLDEN: 72:16 Q. Did you observe him not being forthcoming with 72:17 other WWIS employees? 43 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10980 Page 318 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 72:18 A. I don't know about his internet -- his 72:19 interaction with other employees. 72:20 Q. Did you observe him lying, in general? 72:21 A. Yes, in general. Like non- business you mean? 72:22 Is that what you're asking? 72:23 Q. Can you try to come up with an example of why 72:24 you felt that Ron was not trustworthy and you came -- you 72:25 know, over the course of your working with him? 73:1 A. He would change what he said previously, and 73:2 deny that he said something previously. 73:3 Q. Would these be important things, like... 73:4 A. I wouldn't say it was that important. 73:5 Q. What kind of things would he change his story 73:6 about? 73:7 A. Like I'm not talking about business things 73:8 right now. I'm -- so like, for example, he would say he 73:9 went somewhere, but he actually didn't go. 73:18 Q. I know we've talked some length about WWIS. 44 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10981 Page 319 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 73:19 Can you tell me what does WWIS stand for? 73:20 A. World-Wide Investment Services, I think. I 73:21 think that's what it stands for. 73:22 Q. Is there another entity that's just called 73:23 WWIS, the initials, or does WWIS always refer to 73:24 World-Wide? 73:25 A. That's what I refer to. 74:1 Q. When was the first time you heard of WWIS, 74:2 meaning World-Wide Investment Services? 74:3 A. First time I heard about it was before I 74:4 started working for them. Before I was hired. 74:5 Q. In about 2003? 74:6 A. Yes. 74:7 Q. How did you hear about it? 74:8 A. Ronald Talmage told me about it. 74:9 Q. What did Ron tell you about WWIS? 74:11 THE WITNESS: That it was a company that 74:12 managed investments. 74:13 BY MS. GOLDEN: 74:14 Q. And I apologize if there's some repetition, but 74:15 who owns WWIS? 74:18 THE WITNESS: Prior to 2016, my understanding Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 45 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10982 Page 320 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 74:19 was that Mrs. Chen did. 74:20 BY MS. GOLDEN: 74:21 Q. Okay. And what's your understanding now of who 74:22 owns it? 74:25 THE WITNESS: I guess I'm not talking about 75:1 ownership, though, but I believe Ronald Talmage was 75:2 controlling it. 75:3 BY MS. GOLDEN: 75:4 Q. Is that presently, or prior to 2016? 75:6 THE WITNESS: Presently, I have no idea what's 75:7 going on with the company. 75:8 BY MS. GOLDEN: 75:9 Q. So prior to -- I just want to make sure I've 75:10 got it. Prior to 2016, you believe that Ronald Talmage 75:11 controlled -- 75:12 A. Prior? 75:13 Q. Yes. 75:15 THE WITNESS: No, prior to 2016, I believe that 75:16 Mrs. Chen did. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 75:18 Q. So when you testified just earlier that Ron 75:19 controlled WWIS, what time period are you referring to? 75:22 When I found out that he was 75:23 running a fraudulent scheme, my conclusion was that he’s 75:24 controlling it. 46 Objection to 75:18–24 under Rule 701. OVERRULED In his testimony at 120:3-121:18, Kory Talmage explains that this opinion is based on his personal knowledge and perceptions, including information and documents he reviewed while investigating Ronald Talmage’s scheme in Hong Kong. Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10983 Page 321 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 76:8 Q. Prior to 2016, did you see any indications that 76:9 Ron Talmage controlled WWIS? 76:10 A. Yes, I think -- I believed he had -- you know, 76:11 like the operations, he was a big part of it. I don't 76:12 think he -- like, I don't believe he was the only person 76:13 controlling it. 76:14 Q. What did you observe Ron Talmage doing in terms 76:15 of operations of WWIS? 76:17 THE WITNESS: My understanding was that he was 76:18 in charge of managing the investments. 76:19 BY MS. GOLDEN: 76:20 Q. Do you know whose investments he was managing? 76:21 A. Investors. Both the investors. 76:22 Q. Do you have a sense of how many investors? 76:23 A. I couldn't say for certain. 76:24 Q. Is it more than a handful? 77:1 THE WITNESS: I would think so. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 78:16 Has John Wadsworth ever worked with WWIS? 78:19 THE WITNESS: He was an investor. 78:20 BY MS. GOLDEN: 78:21 Q. Has John Wadsworth ever been employed by WWIS? 78:23 THE WITNESS: My understanding is he was never 47 Objection to 78:16–24 under Rule 602. OVERRULED This was in response to the United States’ own question. Kory Talmage’s testimony that he—not John Wadsworth—worked for WWIS (see 9:11-13, 13:9, 18:20-19:23, 23:11-12) is sufficient basis for his understanding that John Wadsworth was ever an employee. Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10984 Page 322 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 78:24 an employee. 80:8 Q. Again, apologize for slight repetition, but 80:9 regarding Heng Cheong Pacific Limited, or HCPL, when did 80:10 you first hear about that entity? 80:12 THE WITNESS: I believe I heard about it a few 80:13 years after I started working for WWIS. 80:14 BY MS. GOLDEN: 80:15 Q. Earlier, I believe you said that Ronald Talmage 80:16 told you about HCPL. 80:17 Do I recall correctly? 80:18 A. I think so, yes. 80:19 Q. What does HCPL do, as far as you know? 80:22 THE WITNESS: My understanding is that it was a 80:23 vehicle for the investments. 80:24 BY MS. GOLDEN: 80:25 Q. How did you come to that understanding? 81:1 A. I don't remember the exact specifics, but I 81:2 think Ronald Talmage told me that. 81:3 Q. Who owns HCPL? 81:6 THE WITNESS: My understanding is that it was 81:7 Mrs. Chen prior to -- prior to 2016, my understanding was 81:8 that it was Mrs. Chen. 48 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10985 Page 323 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 83:15 Q. Has John Wadsworth ever -- has John Wadsworth 83:16 ever owned HCPL? 83:17 A. No. 83:18 Q. Has John Wadsworth ever been involved in the 83:19 operation of HCPL? 83:20 A. I don't believe so. Objection to 83:15–20 under Rule 602. OVERRULED This was in response to the United States’ own question. Kory Talmage states that this is his belief, and it is reasonably based on his knowledge of HCPL (see 18:2-15, 80:8-82:7). Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 81:9 BY MS. GOLDEN: 81:10 Q. What's your basis for that understanding? 81:11 A. Again, I think it's because Ronald Talmage told 81:12 me that. 82:4 Q. What about prior to 2016, what's your 82:5 understanding of who controlled HCPL? 82:7 THE WITNESS: Mrs. Chen. 84:5 Have you ever heard of an entity called New 84:6 Century Properties Limited? 84:7 A. I have. 84:8 Q. How did you hear of it? 84:9 A. My memory is kind of vague, but I believe when 84:10 Mr. Seki was still alive, that was a company -- you know, 84:11 I don't know exactly how they used the company, but I 84:12 recall hearing about it. 84:13 Q. When did you first hear about New Century 84:14 Properties Limited? 84:15 A. I don't remember. 49 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10986 Page 324 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 84:16 Q. Was it while you were a child? 84:17 A. It was before I started working for WWIS. 84:18 Q. I'm going to refer to New Century Properties 84:19 Limited as NCPL. 84:20 A. Okay. 84:21 Q. Do you have any idea what NCPL does? 84:22 A. No. 84:23 Q. Do you know who owns NCPL? 84:24 A. No. 84:25 Q. Do you know who controlled it? 85:1 A. No. 85:2 Q. Do you know when it was created? 85:3 A. No. 85:4 Q. Do you know if NCPL owns any property? 85:5 A. No. 85:24 Q. Have you ever received any money from NCPL? 85:25 A. I don't think so. 86:1 Q. Do you know if anyone else in your family has 86:2 gotten money from NCPL? 86:3 A. I don't know. 88:18 Q. For the witness, do you recall receiving about 88:19 $1.5 million from WWIS or another foreign entity, over 50 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10987 Page 325 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 88:20 the course of the past -- over the course of 2002 to 88:21 2016? 88:22 MR. STEPHENS: I'm going to ask for a quick 88:23 break. I need to talk to the witness about a potential 88:24 issue. I haven't seen this, nor have we had a chance to 88:25 talk about it. 89:1 MS. GOLDEN: Okay. 89:2 MR. HALVERSON: There's a question pending. 89:3 MR. STEPHENS: I know there's a question 89:4 pending, that's why I need to talk to him. 89:5 MS. GOLDEN: I think it might affect the 89:6 answer, though, so that's fine. 89:7 MR. STEPHENS: We'll take a quick break and let 89:8 me talk to the witness. 89:9 THE VIDEOGRAPHER: Going off the record. The 89:10 time is 10:28 a.m. 89:11 (Break.) 89:12 THE VIDEOGRAPHER: Going back on the record. 89:13 The time is 10:34 a.m. 89:14 MS. GOLDEN: Would please read back what the 89:15 final question was before the break? 51 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10988 Page 326 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 89:16 (Reporter read requested portion.) 89:17 MR. INGRAM: Objection; vague. 89:18 THE WITNESS: I don't recall. 89:19 MS. GOLDEN: Just to confirm, for the record, 89:20 the previously requested break to consult with the -- for 89:21 Mr. Talmage to consult with his attorney, that was, I 89:22 assume, for the basis of determining whether there's a 89:23 privilege or something else to be asserted? 89:24 MR. STEPHENS: Correct. 89:25 MS. GOLDEN: Okay. And that's been resolved 90:1 now? 90:2 MR. STEPHENS: As to that question. 90:21 Q. This appears to be an e-mail from Ron Talmage. 90:22 And in it, it states, "I would also like to install my 90:23 son Kory as a director of NCPL." 90:24 Do you recall being appointed the director of 90:25 NCPL? 91:1 A. No. 91:2 Q. Ron Talmage never said anything to you about 91:3 getting involved with NCPL? Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED Object to 90:21-23 under Fed. R. Evid. 802 and 901. The statements purportedly from Ronald Talmage are inadmissible hearsay. The referenced email is also not authenticated. The email is not being offered into evidence, so there is no basis for an objection under Rule 901. The statement itself is admissible under Rule 803(3) and 807. In the alternative, the statement is not being offered for the truth of the matter asserted, so it is not hearsay. 52 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10989 Page 327 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED Object to 100:2-9 under Fed. R. Evid. 802 and 901. The referenced email is inadmissible hearsay and is not authenticated. This email is not being offered into evidence, so there is no basis for an objection under Rule 901 or 802. What the email purports to say is used only for the purposes of asking Mr. Talmage if he remembers being appointed as director of WWIS. Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 91:4 A. He has never said anything about this. 100:2 Q. I'm going to go back actually to Exhibit 9, and 100:3 specifically page JW-353. It's the last page of 100:4 Exhibit 9. 100:5 A. 353? 100:6 Q. Uh-huh. There appears to be an e-mail that 100:7 Ronald Talmage received from somebody named Annie Wong, 100:8 confirming that Korianton Edward Talmage will be 100:9 appointed as the new director of WWIS. 100:10 Do you recall ever being appointed a director 100:11 of WWIS? 100:12 A. No. 100:22 Q. Who is Annie Wong? 100:23 A. She was one of the office staff in Hong Kong. 100:24 Q. What were her duties? 100:25 A. I don't know exactly what she... 101:1 Q. What kind of work did you observe her doing? 101:2 A. Communication with Ronald Talmage. 102:7 Q. Speaking of John Wadsworth, based on our 102:8 earlier conversations today, I take it you're familiar 102:9 with Mr. Wadsworth? 53 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10990 Page 328 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 102:10 A. Yes. 102:11 Q. How do you know him? 102:12 A. I went to church in the same building or same 102:13 church as him when I was younger. That's how we first 102:14 met. 102:15 Q. Where was the church? 102:16 A. In Tokyo. 102:17 Q. Do you recall about what year you met John 102:18 Wadsworth for the first time? 102:19 A. No, I was pretty young. 102:20 Q. Was it in the '80s? 102:21 A. I don't -- I don't even remember. 102:22 Q. You can't recall if it was in the '80s or the 102:23 '90s? 102:24 A. It was either the '80s or the '90s. 102:25 Q. Who introduced you to John? 103:1 A. I don't know if anyone ever introduced me to 103:2 him. We just went to the same church. 103:3 Q. What's the nature of your relationship with 103:4 John? 103:5 A. We're friends. 103:6 Q. Have you been friends since you met in church? 103:7 A. Well, he's quite a bit older than me. You 54 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10991 Page 329 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 103:8 know, when you're young, a few years difference is quite 103:9 a bit. 103:10 So when we were young, not exactly friends. We 103:11 knew each other. 103:12 Q. When did you first become friends with John? 103:13 A. I don't remember. It was something that 103:14 happened, not like a one moment. 103:15 Q. I understand. 103:16 Was it before you started working for WWIS? 103:17 A. Yes. 103:18 Q. Before college? 103:19 A. During college. 104:24 Q. How often do you keep in touch with John? 104:25 A. Lately, maybe a phone call once in about four 105:1 months, three months. 105:2 Q. Was there a time when you were keeping in touch 105:3 with John more? 105:4 A. Yes, there was a time. 105:5 Q. What time period was that? 105:6 A. When I was working for WWIS. 105:7 Q. During that time, how often did you keep in 105:8 touch with John? Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 104:7 Q. Well, is John talkative? 104:8 A. Yeah. Well, yeah, kind of. 104:9 Q. Is he outgoing? 104:10 A. I would say he is, at times. 104:11 Q. Do you find him trustworthy? 104:12 A. Yes. 104:13 Q. Why do you find him trustworthy? 104:14 A. His character. 104:15 Q. Can you give me a few examples of things you've 104:16 observed over the years in knowing John? 104:17 A. Well, I believe he's a person of integrity, and 55 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10992 Page 330 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 104:18 he's honest. And he -- he's a family guy. Yeah. 104:19 Q. So just based on your knowing John over the 104:20 years? 104:21 A. Uh-huh, yes. Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 105:9 A. I don't recall. It was more than now though. 105:10 Q. When you were working for WWIS, what mechanisms 105:11 did you use to keep in touch with John? 105:12 A. Phone, e-mail, and sometimes in person. 105:13 Q. When you were working for WWIS, what did you 105:14 and John talk about? 105:15 A. Hobbies. 105:16 Q. Did you ever talk about WWIS? 105:17 A. Yeah, sometimes. 105:18 Q. What topics were discussed? 105:19 A. What software we should use for security. 105:20 What -- you know, if there's an e-mail server issue, what 105:21 I think it is, how I can fix it. Just random stuff like 105:22 that. 105:23 Q. Did you ever talk about the investment work 105:24 that WWIS did with John? 105:25 A. Sometimes there was a topic, yes. 106:1 Q. What came up during those conversations? 106:2 A. How the fund is doing. Like, you know, the 106:3 yield on the fund. 56 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10993 Page 331 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 107:16 Q. Did John Wadsworth play a role in your decision 107:17 to voluntarily appear for this deposition? 107:18 A. He didn't play a role, no. 107:19 Q. Did somebody else? 107:20 A. No, I guess not. 107:21 Q. Again, I don't want to get into any 107:22 attorney-client privilege stuff, but why did you decide 107:23 to voluntarily appear for this deposition? 107:24 A. Because I was told that you guys are going to 107:25 come to Japan otherwise, and that's -- that's ridiculous. 108:1 That's why. 109:5 Q. Did John Wadsworth tell you that we were 109:6 interested in seeking your testimony in Japan? 109:7 A. I believe he did at one point. 109:8 Q. When he did mention it, was that the first time 109:9 you found out? 109:10 A. Yes, I think so. 109:20 Q. Did John Wadsworth persuade you to come appear 109:21 for this deposition? 109:22 A. No. 109:23 Q. Is John Wadsworth paying for any of your travel 57 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10994 Page 332 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 109:24 costs in attending this deposition? 109:25 A. Yes. 110:1 Q. Which ones? 110:2 A. Airfare. 110:3 Q. That's airfare from Japan? 110:4 A. Yes. 110:5 Q. Is he paying for any other costs of your visit 110:6 to Salt Lake City? 110:7 A. No. 110:8 Q. Is John Wadsworth paying for the hotel that 110:9 you’re staying at? 110:10 A. I’m staying at my mother’s place. 111:2 Q. Is John Wadsworth paying for your attorney for 111:3 this case? 111:4 A. Yes. 111:5 Q. When did you first obtain Mr. Stephens as your 111:6 attorney? 111:7 A. I don't remember when it was. 111:8 Q. Was it sometime within this year, 2018? 111:9 A. Yes. 111:10 Q. Do you know why John Wadsworth is paying for 111:11 your attorney? 111:13 THE WITNESS: Because I can’t afford it. 58 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10995 Page 333 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 111:20 Q. Do you know what Mr. Wadsworth currently does 111:21 for work? 111:23 THE WITNESS: I believe he's a distributor for 111:24 some company. 111:25 /// 112:1 BY MS. GOLDEN: 112:2 Q. Do you recall the name of the company? 112:3 A. I think it's Morinda. 112:4 Q. How do you know that Mr. Wadsworth is a 112:5 distributor for Morinda? 112:6 A. Because he's been a distributor as long as I've 112:7 known -- you know, as long as I've known him since 112:8 university. 113:21 Q. During your friendship with John, have you 113:22 often talked about the work that he does? 113:23 A. The Morinda work? Or his -- 113:24 Q. Yes. 113:25 A. -- is that what you're referring to? 114:1 Q. Yes. Sorry, that was unclear. 114:2 A. Yes. Yeah. 114:7 Q. Well, based on your conversations with John 114:8 over the years, what all have you learned about the Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 113:15 Q. Have you ever been involved in any of John’s 113:16 work? 113:17 A. No. 113:18 Q. Have you ever been involved in the Morinda 113:19 distributorship? 113:20 A. No. 59 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10996 Page 334 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 114:9 Morinda distributorship? 114:12 THE WITNESS: That a product they sell is Noni 114:13 Juice. 114:21 Q. Do you know what Noni Juice is? 114:22 A. Yes. 114:23 Q. What is it? 114:24 A. It's a juice made by Noni. 114:25 Q. I don't know what Noni is. 115:1 A. It's like a fruit, I guess. 117:2 Q. How did John meet Ron? Objection to 115:16–20 under Rule 602. OVERRULED Kory Talmage testifies repeatedly throughout the deposition about his personal knowledge of John Wadsworth and the nature of his relationship with Ron Talmage. See, e.g., 102:7-10, 103:3- 19, 212:17. 115:16 Q. Prior to 2016, did John have a relationship 115:17 with Ron Talmage? 115:19 THE WITNESS: Yes, he was an investor. John 115:20 was an investor. 115:21 BY MS. GOLDEN:1 115:22 Q. An investor in what? 115:23 A. In Ron's -- 115:24 MR. INGRAM: Same objection. 115:25 THE WITNESS: -- companies. 116:1 MR. INGRAM: Same objection; lacks foundation, 116:2 calls for speculation. 116:3 BY MS. GOLDEN: 116:4 Q. When you say, "Ron's companies," what companies 1 All completeness designations are made subject to any corresponding objection to the Western Parties’ affirmative designations. 60 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10997 Page 335 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 117:4 THE WITNESS: I would guess -- sorry, I Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 116:5 are you referring to? 116:6 MR. INGRAM: Same objections. 116:7 THE WITNESS: So I need to clarify, I'm talking 116:8 in my current knowledge. 116:9 BY MS. GOLDEN: 116:10 Q. Okay. 116:11 A. So he was investor in the company that Ron was 116:12 controlling. 116:13 Q. I didn't quite hear. Investor in what? 116:14 A. In the fund that he was managing, Ron was 116:15 managing. 116:16 Q. Was that fund associated with any of the 116:17 entities that we've discussed today? 116:18 MR. INGRAM: Same objections. 116:19 THE WITNESS: Yes. 116:20 BY MS. GOLDEN: 116:21 Q. Which ones? 116:22 A. I think it was HCPL. 116:23 Q. Was it also associated with WWIS? 116:24 MR. INGRAM: Same objections. 116:25 THE WITNESS: I believe so, yes. 61 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10998 Page 336 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 117:5 shouldn't be guessing. The same as me, in church. 117:6 BY MS. GOLDEN: 117:7 Q. How long have John and Ron known each other? 117:8 A. I don't know. 117:9 Q. Has it been more than 10 years? 117:10 A. Yes. 117:11 Q. Has it been more than 20 years? 117:12 A. I can't say for certain. 117:13 Q. Somewhere between 10 and 20 years? 117:14 A. Or maybe more, I'm not sure. 118:3 Q. Did John ever help recruit other investors to 118:4 the fund? 118:6 THE WITNESS: I believe he had friends that he 118:7 introduced to Ron. 118:8 BY MS. GOLDEN: 118:9 Q. How do you know that? 118:10 A. Because I've met some of them. 118:11 Q. You've met them? 118:12 A. I met a few of them, yes. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 117:22 Q. As far as you know, has John ever been involved 117:23 in Ron’s work? 117:25 THE WITNESS: As an investor in the fund Ron 118:1 was managing. Objection to 117:22–118:1 under Rule 602. Talmage testifies repeatedly throughout the deposition about his personal knowledge of John Wadsworth and the nature of his relationship with Ron Talmage. See, e.g., 102:7-10, 103:3-19, 212:17. OVERRULED 62 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.10999 Page 337 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 118:13 Q. Do you recall any of their names? 118:18 THE WITNESS: Person C.2 118:19 MR. STEPHENS: Spell them, because you are 118:20 going to get asked anyway. 118:21 THE WITNESS: Person C. And Person A, 118:22 which is Person A. 118:23 BY MS. GOLDEN: 118:24 Q. As far as you know, did Person A and Person C 118:25 end up investing in the fund after John introduced them? 119:3 THE WITNESS: I believe so. SUSTAINED OVERRULED The names identified at 118:18, 21-22, and 24 are designated CONFIDENTIAL by Defendants pursuant to the Protective Order. The United States will agree to redact these names as stated in the pretrial order. 119:17 Q. You described that there was somewhat of a 119:18 split in -- a change in John's relationship with Ron; 119:19 that previously he was an investor, but currently he has 119:20 no relationship with Ron. 119:21 Why did Ron and John have a falling out? 119:22 That's just the term I'm putting on it, you know. 120:1 THE WITNESS: Because Ron defrauded John. 120:2 BY MS. GOLDEN: 120:3 Q. And what's your basis for that understanding? Objection to 119:17–122:18 under Rules 602, 701, and 702. Mr. Talmage is not an expert witness and cannot opine on the existence of an alleged fraudulent scheme. If this testimony is not exclude, the United States proposes a completeness designation at 121:19– 122:18. Kory Talmage is testifying about things that he personally observed and documents he personally reviewed, and his opinions reasonably drawn from that information. The Western Parties do not tender Kory Talmage as an expert, and his opinions are permissible under Rule 2 In accordance with the Protective Order in this case, the parties have agreed to use pseudonyms for certain individuals and entities. A legend identifying these individuals and entities was emailed to the court along with the Word versions of the designation forms. 63 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11000 Page 338 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE 701. The Western Parties do not object to the completeness designation. Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 120:4 A. Through the discovery we did when we went to 120:5 Hong Kong in 2016. 120:6 Q. What did that discovery uncover? 120:7 A. That Ronald Talmage was running a Ponzi scheme 120:8 using investor funds. 120:9 Q. Are you familiar with what a Ponzi scheme is? 120:10 A. Yes. 120:11 Q. How did you -- 120:12 A. I think I am. 120:13 Q. How did you conclude that Ron had been running 120:14 a Ponzi scheme? 120:15 A. Because he was taking money. Maybe Ponzi isn't 120:16 the right term for it. But he was taking money as an 120:17 investment, but he didn't actually invest anything. 120:18 Q. Well, people that invested in the fund, what 120:19 did they get back in return for their investments? 120:22 THE WITNESS: They got tears. 120:23 MR. STEPHENS: Vague. 120:24 BY MS. GOLDEN: 120:25 Q. Sorry. What? 121:1 A. Tears. 121:2 Q. Did any of the investors ever get their money 121:3 back, as far as you know? 64 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11001 Page 339 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 121:6 THE WITNESS: As far as I know, no. 121:7 BY MS. GOLDEN: 121:8 Q. How do you know Ron Talmage didn't actually 121:9 invest the money that he obtained from the investors? 121:12 THE WITNESS: So when we did the discovery, it 121:13 was apparent that there was no investment fund. 121:14 BY MS. GOLDEN: 121:15 Q. Why? How was that apparent? 121:16 A. So when we did the discovery, we had bank 121:17 statements, and it is clear that an investment came in 121:18 and it was just used. 121:19 Q. Used in what way? 121:20 MR. INGRAM: Objection; lacks foundation, calls 121:21 for speculation. 121:22 THE WITNESS: All kind of ways. Sorry. I 121:23 don't remember exactly what it was used for, but it 121:24 wasn't an investment. 121:25 /// 122:1 BY MS. GOLDEN: 122:2 Q. How could you tell where the money was being 122:3 used? 122:4 A. How? 122:5 Q. Correct. 65 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11002 Page 340 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 122:6 A. I don't know. I mean, it was clear just 122:7 looking at the documents. 122:8 Q. What kind of documents were you looking at? 122:9 A. Bank statements and e- mails, like the ones we 122:10 were looking at earlier. 122:11 Q. Anything else? 122:12 A. No. That's basically what it was, a bunch of 122:13 correspondence and bank statements. 122:14 Q. What did the bank statements show? 122:15 MR. INGRAM: Objection; the document speaks for 122:16 itself, hearsay. 122:17 THE WITNESS: Showed a balance, deposits, 122:18 debits, you know, whatever, everything. 122:20 Q. So by looking at the deposits, balance, and 122:21 debits, like how did you conclude that the money was not 122:22 going towards an investment? 122:23 A. Because we can track an investor's fund going 122:24 in, but it wouldn't go to an investment. 122:25 Q. Did you see any evidence that any of the money 123:1 went towards an investment? 123:2 A. There was none. 66 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED Objection to 122:20–123:10 under Rules 602, 701, and 702. Mr. Talmage is not an expert witness and cannot opine on the existence of an alleged fraudulent scheme. Kory Talmage is testifying about things that he personally observed and documents he personally reviewed, and his opinions reasonably drawn from that information. The Western Parties do not tender Kory Talmage as an expert, and Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11003 Page 341 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE his opinions are permissible under Rule 701. Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 123:3 Q. It never went to a bank? 123:4 A. A bank is not an investment. 123:5 Q. Did it ever go to stocks? 123:6 A. No. 123:7 Q. Did it ever go to bonds? 123:8 A. No. 123:9 Q. Did it ever go to an investment fund? 123:10 A. No. 125:17 Q. Did you ever speak to Gil Miller? 125:18 A. No. I don’t know who that is. 126:8 Q. Of the bank records that you obtained, what 126:9 entities did they pertain to? 126:10 A. WWIS Limited and HCPL. And I believe there was 126:11 that one that you mentioned earlier, New Century, I 126:12 guess. 126:13 Q. NCPL you're referring to? 126:14 A. HCPL, and then, yes, NCPL, yes. 126:15 Q. Do you recall the approximate time period the 126:16 bank records covered? 126:17 A. I don't recall exactly, but it was from before 126:18 I started working for WWIS. 126:19 Q. Up through what year? 126:20 A. 2016, I think. 126:21 Q. Let's talk more about the evidence gathering 67 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11004 Page 342 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 126:22 trip. Can you tell me when that trip took place? 126:23 A. I believe it was either April or May of 2016. 126:24 Q. How long did the trip last? 126:25 A. Over two weeks. 127:1 Q. Was it one trip or two trips? 127:2 A. It was one trip. 127:3 Q. Who else accompanied you on the trip? 127:4 A. John. 127:5 Q. Anybody else? 127:6 A. No. 127:7 Q. What was the purpose of the trip? 127:8 A. To find out what was going on. 127:9 Q. About what? 127:10 A. We had our suspicions that something was wrong 127:11 with the finances. 127:12 Q. Finances of? 127:13 A. Like the investment fund. 127:14 Q. So with WWIS? 127:15 A. Uh-huh, yes. 127:16 Q. Whose idea was the trip? 127:17 A. It was both of our ideas; John and I. 127:18 Q. Why did the two of you decide to go? 127:19 MR. STEPHENS: Asked and answered. 127:20 THE WITNESS: We decided to go because Ronald 68 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11005 Page 343 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED Objection to 128:4–6, 128:11–14, and 128:16–18 under Rule 602. Subject to these objections, the United States proposed designations under Rule 32(a)(6) at 128:20–129:1. The counter-designation provides the foundation for Kory Talmage’s testimony in the passages that are the subject of the Government’s objections. The Western Parties do not object to the completeness designation. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 127:21 Talmage wasn't reliable anymore. 127:22 BY MS. GOLDEN: 127:23 Q. Why do you say that? 127:24 A. He would not answer our phone calls. He would 127:25 not respond to e-mails. He lies about having cancer and 128:1 so on. I mean, there's a lot of things I can go through 128:2 that... 128:3 Q. So what specifically prompted the trip? 128:4 A. Investors were getting nervous. 128:5 Q. How did you know they were getting nervous? 128:6 A. And John was nervous about his investments. 128:7 Q. Okay. Well, were investors contacting you 128:8 asking where their money was? 128:9 A. I believe some of them did contact me because I 128:10 was Ron's son. 128:11 Q. Were investors contacting John? 128:14 THEWITNESS: I believe so. 128:15 BY MS. GOLDEN: 128:16 Q. Were investors not getting paid? 128:18 THEWITNESS: That's my understanding. 128:20 Q. What's your basis for that understanding? 69 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11006 Page 344 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 130:20 Q. Does the name Commence Company ring a bell? 130:21 A. Yes. 130:22 Q. Is that the name? 130:23 A. Yes. 130:24 Q. As far as you know, what was the Commence's 130:25 role with WWIS? 131:1 A. I think they were like a management company. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 128:21 A. My basis is -- I guess I was told that from 128:22 John. 128:23 Q. Did any investors ever tell you that they 128:24 weren't getting paid? 128:25 A. No. None of them have told me that they 129:1 weren't getting paid. 129:2 Q. Where did you and John go on the trip? 129:3 A. We went to Taiwan, Taipei, and Hong Kong. 129:4 Q. What did you do in Taiwan? 129:5 A. We met with Liu Hsiu Chen. 129:6 Q. Did you meet with anybody else? 129:7 A. In Taiwan, no. 129:8 Q. What was discussed with Mrs. Chen? 129:9 A. We explained to her that we were worried about 129:10 how Ron was acting lately. 130:1 Q. Did she agree to help you find bank records? 130:2 A. So the purpose was to get her permission, so I 130:3 guess that's helping, because she gave us permission. 130:4 Q. You said she gave you permission? 130:5 A. Yes. 130:6 Q. Why did you need Mrs. Chen's permission to get 130:7 the records? 70 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11007 Page 345 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 130:8 A. Because at the time it was our understanding 130:9 that she was the chairman, or in charge. 130:10 Q. Do you have a copy of the permission letter? 130:11 A. No. 130:12 Q. Was there, in fact, a letter? 130:13 A. Yes. 130:14 Q. Do you know who has that? 130:15 A. I don't know who has it now. 130:16 Q. What did you do with the permission letter? 130:17 A. We took it to the Hong Kong office. 130:18 Q. And it's WWIS's Hong Kong office? 130:19 A. Yes. 131:11 Q. When we last left off, I think we were talking 131:12 about the visit to the WWIS office. 131:13 And just to confirm, you said you obtained the 131:14 bank records for WWIS, HCPL, NCPL? 131:15 A. Yes. 131:16 Q. Did you obtain any other bank records for any 131:17 other entities? 131:18 A. I don't recall. 131:19 Q. Did you obtain any other kinds of records? 71 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11008 Page 346 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling The names identified at 132:22 are designated CONFIDENTIAL by Defendants pursuant to the Protective Order. The United States will agree to redact these names as stated in the pretrial order. SUSTAINED Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 131:20 A. I think they were all correspondence and bank 131:21 records. 131:22 Q. Correspondence such as the e-mail 131:23 correspondence we've looked at today? 131:24 A. Yes. 132:14 Q. Oh. Well, then, did you -- in Japan, did you 132:15 speak to any of the investors of the alleged Ponzi 132:16 scheme? 132:17 A. After the discovery, yes. 132:18 Q. Who did you speak to? 132:19 A. The two names I mentioned earlier. And there 132:20 were several other investors, I can't remember their 132:21 names right now. 132:22 Q. That’s the two earlier, Person C and Person A?3 132:23 A. Yes. 133:2 Q. Who else went to speak -- sorry. 133:3 Who else went to visit the investors with you? 133:4 A. John. 133:5 Q. Anybody else? 133:6 A. No. 133:7 Q. What was discussed during those conversations? 3 The highlighted names at 132:22 are designated CONFIDENTIAL by Defendants pursuant to the Protective Order. 72 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11009 Page 347 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 133:8 A. We were there to explain that Ronald Talmage 133:9 was running a fraudulent scheme, and they are victims of 133:10 the scheme. 134:23 Q. Do you recognize these documents? 134:24 A. Yes, I do. 134:25 Q. What are they? 135:1 A. These are documents showing that these 135:2 people actually invested, and... 135:3 Q. Who drafted the documents? 135:4 A. I believe John did, with probably the help of 135:5 an attorney or someone. 135:6 Q. Were you involved in the drafting of the 135:7 documents? 135:8 A. I did not help with the drafting. I did see 135:9 it, though. 73 Exhibits Ruling OVERRULED Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Objection to 133:8–10 under Rules 602 and 701. This answer is given in response to the United States’ own question. The United States asked, and Kory Talmage can explain, his understanding of the purpose of the meeting. (Corroborated by John Wadsworth.) Furthermore, in his testimony at 120:3-121:18, Kory Talmage explains that his understanding is based on his personal knowledge and perceptions, including information and documents he reviewed while investigating Ronald Talmage’s scheme in Hong Kong. Objection to 135:1–2 under Rule 602. OVERRULED Again, this answer is given in response to the United States’ own question. The United States asked, and Kory Talmage can explain, his understanding of the purpose of the documents. (Corroborated by John Wadsworth.) Furthermore, Kory Talmage testified that he has seen these documents and that he was present when they were signed by the signatories. See 135:6-13. Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11010 Page 348 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED Objection to 136:21–137:18 under Rules 602, 701, and 802. Again, this answer is given in response to the United States’ own question. The United States asked, and Kory Talmage can explain, his understanding of the purpose of the documents. (Corroborated by John Wadsworth.) Furthermore, Kory Talmage testifies that the basis for this is his review of the documents in Hong Kong and his conversations with the investor victims. See 137:8-138:21. The Western Parties are not offering the underlying documents or the investors’ statements, so there is no hearsay in this testimony. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 135:10 Q. Were you there when the investors signed the 135:11 documents? 135:12 A. I don't know if I was there for every single 135:13 case, but I was there on some of the cases. 136:21 Q. Do you know what the basis is for the 136:22 information contained in the affidavits? 136:23 A. The basis? The fact that they invested. 136:24 Q. And where did that information come from? 136:25 A. What do you mean, where the information came 137:1 from? 137:2 Q. Like, for example, on the first affidavit here 137:3 on page WADS-422, it mentions somebody intrusting 137:4 $2.2 million with HCPL Investment Company, formed and 137:5 controlled by Ronald Talmage. Then they go on to say 137:6 they were promised a liquidation that they never 137:7 received. 137:8 Where did that information come from? 137:9 A. From discovery, and what the investors said. 137:10 Q. So just by way of example, did you go talk to 74 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11011 Page 349 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 137:11 an investor and they would tell how much they invested 137:12 and when? 137:13 A. In some cases I think so, yes. 137:14 Q. Why do you say "in some cases"? 137:15 A. Sometimes it was pretty obvious from our 137:16 discovery. 137:17 Q. So based on the bank records? 137:18 A. Yes. 137:19 Q. Out of all the affidavits here, which ones were 137:20 the investors that you met with? 137:21 A. I honestly don't remember exactly which ones I 137:22 met with. 137:23 Q. So we've got Adkisson, did you meet with that 137:24 person? 137:25MR. INGRAM: All these names are confidential. 138:1 THE WITNESS: Yes, I did meet with him. And 138:2 Person I I did meet. 138:3 BY MS. GOLDEN: 138:4 Q. Person A? 138:5 A. Yes, I did meet. 138:6 Q. Person F? 138:7 A. Yes. 138:8 Q. And Person G? 138:9 A. Yes, I did. 75 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11012 Page 350 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 138:10 Q. You met with all the people then -- 138:11 A. That are here, yeah. 138:12 Q. -- that are here? 138:13 And did they personally tell you the 138:14 information that's contained in the affidavits? 138:15 A. I don't remember exactly what we discussed. 138:16 But I do know that is accurate, though. 138:17 Q. And how do you know it's accurate? 138:18 A. From the discovery. 138:19 Q. Based on -- again, based on talking to the 138:20 investors and the bank records you looked at? 138:21 A. Yes. 138:22 (Confidential Portion Ends Page 138, Line 21.)4 140:13 Q. Was John Wadsworth involved in the alleged 140:14 Ponzi scheme at all? 140:17 THEWITNESS: He was a victim of the Ponzi 140:18 scheme. Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Objection to 138:13–21 under Rules 602, 701, and 802. OVERRULED Same as to prior objection. Objection to 138:16–22 under Rule 702. OVERRULED Same as to two prior objections. Objection to 140:13–18 under Rules 602, 701, and 702. OVERRULED Kory Talmage is not being tendered as an expert witness, and this is admissible lay witness opinion testimony that is reasonably based on Kory Talmage’s personal knowledge of John Wadsworth, Ron Talmage, and Ron Talmage’s Ponzi Scheme. See, e.g., 102:7-10, 103:3-19, 120:3-121:18, 212:17. 4 The highlighted names throughout this passage are designated CONFIDENTIAL by Defendants pursuant to the Protective Order. 76 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11013 Page 351 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 142:17 Q. Earlier you mentioned that John Wadsworth had 142:18 an e-mail address on the e-mail server for WWIS. 142:19 Did any of the other investors have an e-mail 142:20 address -- 142:21 A. Yes. 142:22 Q. -- on that server? 142:23 A. Yes. 142:24 Q. How many? 142:25 A. I don't remember exactly how many. 143:1 Q. Did all of the investors have addresses on the 143:2 e-mail server? 143:4 THE WITNESS: No. 143:5 BY MS. GOLDEN: 143:6 Q. Do you recall about what percentage of 143:7 investors had e-mails on the server? 143:9 THE WITNESS: Percentage, no, I don't recall. 143:10 BY MS. GOLDEN: 143:11 Q. Was it more than half of them? 143:12 A. I would say -- 143:14 THE WITNESS: -- less than half, but more than 143:15 a quarter. 143:16 BY MS. GOLDEN: 143:17 Q. Do you know why some of the investors were 77 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11014 Page 352 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 143:18 given e-mail addresses on the server and not others? 143:19 A. There were -- some people probably didn't use 143:20 e-mail, some of the investors. 143:21 Q. As far as you know, why were the investors 143:22 given e-mail addresses on the server? 143:23 A. For communication, correspondence. 143:24 Q. Why could they just not use their regular 143:25 e-mail addresses? 144:2 THE WITNESS: For security purposes. 144:3 BY MS. GOLDEN: 144:4 Q. What kind of security purposes? 144:5 A. I don't know. I was IT guy, I was just told to 144:6 secure it. 144:7 Q. By "secure," does that mean the encryption we 144:8 previously discussed? 144:9 A. Yes. 144:10 Q. And just to confirm, your basis for knowing 144:11 that some investors did have e- mail addresses on the 144:12 server, that's because in your IT capacity, you managed 144:13 that server? 144:14 A. Yes. 78 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11015 Page 353 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 146:25 Q. Do you know of any meetings prior to 2016 147:1 between Mrs. Chen and John Wadsworth? 147:2 A. I believe they have met prior to 2016. 147:3 Q. Can you tell me what you know about those 147:4 meetings? 147:5 A. No. 154:15 Q. Mr. Talmage, are you familiar with a property 154:16 in Liberty, Utah that Ronald and Annette Talmage used to 154:17 live at? 154:18 A. Yes. 154:19 Q. How are you familiar with that property? 154:20 A. I've been there. 154:21 Q. When was the first time you went there? 154:22 A. I don't remember the first time. 154:23 Q. Was it within the past ten years? 154:24 A. Past what? 154:25 Q. Ten years. 155:1 A. Yes. 155:2 Q. How often have you been there? 155:3 MR. INGRAM: How many times? 155:4 MS. GOLDEN: Sure. 155:5 THE WITNESS: I don't know how many times. I 79 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11016 Page 354 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 155:6 don't remember how many times. 155:7 BY MS. GOLDEN: 155:8 Q. Can you give an estimate of how many times 155:9 you've been there? 155:10 A. Ten. 156:20 Q. Between 2010 and the present, who has lived at 156:21 the Liberty property? 156:24 THE WITNESS: I know that Ron -- Ronald Talmage 156:25 and Annette Talmage lived there at one time. 157:1 BY MS. GOLDEN: 157:2 Q. During what time did they live there? 157:4 THE WITNESS: I don't know the exact timeframe. 157:5 BY MS. GOLDEN: 157:6 Q. In 2010 did they live at the Liberty property? 157:8 THE WITNESS: 2010, I'm not sure. 157:9 BY MS. GOLDEN: Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 156:11 Q. Do you know how much the company paid for the 156:12 Liberty property? 156:13 A. I don't know. 156:14 Q. Do you know where the funds for the purchase of 156:15 the property came from? 156:16 A. Say again? 156:17 Q. Do you know where the funds for the purchase of 156:18 the property came from? 156:19 A. No. 80 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11017 Page 355 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 157:10 Q. Did they live there in 2011? 157:12 THE WITNESS: I don't remember. 157:13 BY MS. GOLDEN: 157:14 Q. Do they still live at the Liberty property? 157:16 THE WITNESS: I don't know. I doubt it. 157:17 BY MS. GOLDEN: 157:18 Q. How do you know that Ron and Annette lived at 157:19 the property at one time? 157:21 THE WITNESS: Because I've -- because I've seen 157:22 them there. 157:23 BY MS. GOLDEN: 157:24 Q. When you saw them there, were their belongings 157:25 at the property? 158:1 A. Like? 158:2 Q. Like their clothes and other personal items? 158:3 A. Yes. 158:4 Q. Were their dogs on the property? 158:5 A. Yes. 158:6 Q. Were their horses on the property? 158:7 A. Yes. 158:8 Q. Was there anything else that made -- that you 158:9 observed that indicated that Ron and Annette lived there? 158:10 A. Their cars. 81 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11018 Page 356 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 158:11 Q. Anything else? 158:12 A. Paintings. 158:13 Q. Anything else? 158:14 A. Not that I can think of right now. 158:15 Q. When you visited, was anyone besides Ron and 158:16 Annette living at the Liberty property? 158:17 A. No. 158:18 Q. Did you ever find out anything about Ron and 158:19 Annette's living arrangements at the property? 158:21 THE WITNESS: I was told that he was renting 158:22 it. 158:23 BY MS. GOLDEN: 158:24 Q. Who told you that? 158:25 A. Ron. 159:1 Q. Did Ron say who they were renting the property 159:2 from? 159:3 A. From John. 159:4 Q. As far as you know, what were the terms of the 159:5 lease? 159:6 A. I don't know any of the terms. 159:7 Q. Okay. Do you know how much the rent was? 161:9 Q. Based on knowing Ron and Annette, do you have 161:10 any idea why they were living at the Liberty property? Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 161:2 Q. Did Ron or Annette ever tell you that they 161:3 owned the Liberty property? 161:5 THE WITNESS: No. 82 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11019 Page 357 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 161:13 THE WITNESS: Ron grew up in Utah. I'm sure 161:14 that's part of the reason why. 161:15 BY MS. GOLDEN: 161:16 Q. At the time Ron and Annette were living at the 161:17 Liberty property, were there other family members nearby? 161:19 THE WITNESS: I believe Annette's daughter's or 161:20 son's family, I don't know exactly -- I don't know her 161:21 family that well. But her family was living somewhere 161:22 close. 161:23 BY MS. GOLDEN: 161:24 Q. Do you recall the name of Annette's son? I'm 161:25 sorry, daughter? 162:1 A. I think it was Sarah. 162:2 Q. Sarah Watkins? 162:3 A. I don't know. 162:4 Q. Do you know her last name? 162:5 A. No. 162:6 Q. At the time Ron and Annette were living at the 162:7 Liberty property, were any of your sisters living nearby? 162:8 A. I wouldn't consider it nearby, but within the 162:9 state, yes. 162:10 Q. About how far away from Liberty? 83 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11020 Page 358 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 162:11 A. My sister lived in Centerville, so whatever 162:12 that distance is from Liberty. 162:13 Q. You don't know what the distance is between 162:14 Centerville and Liberty? 162:15 A. I don't know the exact distance. You can look 162:16 it up on the map. 162:17 Q. When Ron and Annette were living at the 162:18 property, was Ron's mother living nearby? 162:19 A. Yes, she -- 162:22 THE WITNESS: She lives in Bountiful. 162:23 BY MS. GOLDEN: 162:24 Q. Is Bountiful near Liberty? 162:25 A. You can look at it on the map, same as 163:1 Centerville. It's close to Centerville. 163:2 Q. Can you tell me what the distance is between 163:3 Bountiful and Liberty? 163:4 A. No. 163:9 Q. Can you tell me the approximate driving time? 163:10 A. Driving would be about one hour. 163:11 Q. Does Ron have other siblings living in Utah? 163:12 A. Yes. 163:13 Q. How many? Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 84 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11021 Page 359 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 163:14 A. One. I think one. 163:15 Q. What's their name? 163:16 A. Carolyn Black. 163:17 Q. And that's your aunt? 163:18 A. Yes. 163:19 Q. At the time Ron and Annette lived at the 163:20 Liberty property, did Carolyn Black live nearby? 163:23 THE WITNESS: Again, I don't know if that would 163:24 be considered nearby, but Carolyn Black lived close to my 163:25 grandmother, Ron's mother. 164:1 BY MS. GOLDEN: 164:2 Q. In Bountiful? 164:3 A. Yes. 164:4 Q. Do you know where Ron and Annette lived before 164:5 the Liberty property? 164:6 A. I don't know the address. 164:7 Q. What state? 164:8 A. I believe they lived in Colorado. 164:9 Q. What city? 164:10 A. I don't know. 165:13 Q. Do you know why Ron and Annette left the 165:14 Liberty property? 165:15 A. One of the reasons is because, I believe, John 165:16 kicked them out. 165:17 Q. Any other reasons that you're aware of? 85 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11022 Page 360 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 165:18 A. They are running. They are hiding. 167:16 Q. Has John ever lived at the Liberty property? 167:17 A. I don't think so. 167:18 Q. Has John ever visited the Liberty property? 167:19 A. Yes. 167:20 Q. How many times? 167:21 A. I don't know. 167:25 Q. How do you know John visited the property? 168:1 A. Because I was with him. 168:2 Q. Were there other times besides the -- I think 168:3 summer 2016 visit you described, when John visited the 168:4 property? 168:5 A. I don't know. 168:6 Q. To your recollection, the only time you know of 168:7 that John Wadsworth visited the property was that time in 168:8 summer 2016? 168:9 A. From personal experience, yes, that's the only 168:10 time. 168:11 Q. Has Mrs. Chen ever lived at the Liberty 168:12 property? 168:15 THE WITNESS: When you say, "lived," do you 168:16 mean that was her address or she was there for a period 168:17 of time? Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 86 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11023 Page 361 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 168:18 BY MS. GOLDEN: 168:19 Q. Let's split that up. 168:20 Let's go with the has she ever been there for a 168:21 period of time? 168:22 A. Yes. 168:23 Q. What timeframes were those? 168:24 A. I don't remember the exact timeframe. 168:25 Q. Do you recall approximately when the first time 169:1 was? 169:2 A. No. 169:3 Q. Do you recall when the last time was? 169:4 A. No. 169:5 Q. Do you recall how many instances there were of 169:6 Mrs. Chen being at the property? 169:7 A. All I recall is it was more than two times. 169:8 Q. Were Mrs. Chen's visits all within the last ten 169:9 years? 169:10 A. I believe so. 169:11 Q. How do you know that she visited the property? 169:12 A. Because I saw her there. 169:13 Q. As far as you know, why was she visiting the 169:14 property? 169:15 A. Because she was invited by Ron to come and 169:16 visit. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 87 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11024 Page 362 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 169:24 Q. As far as you know, was this just a temporary 169:25 visit, or did Mrs. Chen actually live at the property for 170:1 those periods of time? 170:3 THE WITNESS: It was temporary. 170:4 BY MS. GOLDEN: 170:5 Q. When did Mrs. Chen use the Liberty property as 170:6 an address? 170:7 A. I don't think she did. 170:8 Q. Okay. So when you mentioned using it as an 170:9 address, that was just a clarification of the question? 170:10 A. Yes, yes. 170:11 Q. When you visited Liberty -- sorry. 170:12 When you visited the Liberty property, who else 170:13 came with you? 170:14 A. My family. 170:15 Q. Anybody else? 170:16 A. No. 170:17 Q. Who else was at the property when you visited? 170:18 A. Besides -- who are you talking about? 170:19 Q. I mean besides Ron and Annette. Like were 170:20 there any other visitors? 170:21 A. Neighbors. 170:22 MR. INGRAM: When Kory was present? 88 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11025 Page 363 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 170:23 MS. GOLDEN: Yes. 170:24 THE WITNESS: People that I don't know. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 171:9 Q. Are you aware of any conversations between Ron 171:10 Talmage and John Wadsworth about the Liberty property? 171:11 A. No. 171:12 Q. Are you aware of any conversations between Ron 171:13 Talmage and Mrs. Chen about the Liberty property? 171:14 A. No. 171:15 Q. Are you aware of any conversations between -- 171:16 excuse me – John Wadsworth and Mrs. Chen about the 171:17 property? 171:18 A. Can you say that again? 171:19 Q. Are you aware of any conversations between John 171:20 Wadsworth and Mrs. Chen about the property? 171:21 A. No. 89 175:1 Q. You mentioned that you visited the Liberty 175:2 property in June -- I'm sorry -- in summer of 2016; is 175:3 that right? 175:4 A. Yes. 175:5 Q. Who else went with you when you visited? 175:6 A. John and that person that was on one of these Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11026 Page 364 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 175:7 documents. I can't remember his name. 175:15 Q. Do you mind taking a minute to figure out which 175:16 document and tell me the exhibit number. 175:17 A. I believe it's this person, Richard. I don't 175:18 know. This copy is not very good, so I can't remember 175:19 the last name, but Richard. 175:20 Q. I think it says Richard Stanczyk. Does that 175:21 match your memory? 175:22 A. My memory is really vague. It's been two 175:23 years, but I believe it was him. If you had a picture of 175:24 him I could say it's him, but I'm not sure. 175:25 Q. Earlier I think you mentioned that Richard was 176:1 the accountant that John had hired; is that right? 176:2 A. I believe so. 176:3 Q. And do you recall an accountant coming with you 176:4 to the Liberty property in summer 2016? 176:5 A. Yes, yes. 176:6 Q. What was the purpose of your visit to the 176:7 property? 176:8 A. To assess whether Ron still lived there or not. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 90 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11027 Page 365 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 176:9 Q. What was the result of your assessment? 176:10 A. He was living there, Ron was. 176:11 Q. Did you talk to Ron at the time? 176:12 A. I wouldn't call it a conversation, but, yes. 176:13 Q. How would you describe the encounter? 176:14 A. So he drove up when -- we were outside, he 176:15 drove up with his wife Annie. And he grabbed a gun, put 176:16 it in his pocket, and started walking towards us. 176:17 Q. And what happened after that? 176:18 A. Then I told him to stay back. 176:19 Q. And did he? 176:20 A. No, he kept walking towards us, and so I walked 176:21 away. 176:22 Q. Okay. At some point did Ron put the gun away? 176:23 A. I don't know. He had his hand in his pocket 176:24 the whole time, so I don't know. 176:25 Q. You said, "he grabbed a gun," so did you see 177:1 the gun? 177:2 A. Yes, from -- when he stepped out of the car. 91 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11028 Page 366 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 177:3 Q. After the gun -- I'll just call it "the gun 177:4 incident." After that, did you, John and Richard leave 177:5 the property? 177:6 A. Not immediately. But we did eventually leave. 177:7 Q. Well, what happened immediately after? 177:8 A. I stepped away and, you know, I was watching 177:9 from a distance that John was talking with Ron. I 177:10 believe John was trying to calm Ron down. 177:11 Q. And what was John saying to Ron? 177:12 A. I couldn't hear. I was far away. Enough that 177:13 I couldn't hear the conversation. 177:14 Q. Did Ron eventually calm down? 177:15 A. What is your definition of calming down? 177:16 Q. Did he put the gun away? 177:17 A. I don't know. 177:18 Q. When I say, "calm down," what do you understand 177:19 that to mean? 177:20 A. Whether he was aggressive in any way. 177:21 Q. Okay. Well, after John spoke to Ron, was he 177:22 still aggressive? 92 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11029 Page 367 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 177:23 A. I don't know. I kept my distance, so I'm 177:24 actually not sure. 177:25 Q. How long after the gun incident did you, John 178:1 and Richard depart the property? 178:2 A. I don't remember. 178:3 Q. Was it within an hour after that? 178:4 A. I don't remember. 179:15 Q. So previously you've talked about a property in 179:16 Corbett, Oregon. If I refer to this property as the 179:17 "Rivercliff property," will you understand what I mean? 179:18 A. Yes. 179:19 Q. Again, I apologize, it's been a long day, so I 179:20 may be asking you this again, how are you familiar with 179:21 this property? 179:22 A. How? I've seen it. 179:23 Q. I take it you visited the property? 179:24 A. Yes. 179:25 Q. And who was living there when you visited? 180:1 A. Ron. 180:2 Q. Anybody else? 180:3 A. My mother was for a short time, and my younger 180:4 sister. 180:5 Q. Is that Lillian? 180:6 A. Yes. 93 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11030 Page 368 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 180:7 Q. At the time you visited, who owned the 180:8 Rivercliff property? 180:11 THE WITNESS: I don't know the exact details on 180:12 who owned it. 180:13 BY MS. GOLDEN: 180:14 Q. What details did you know? 180:15 A. That Ron -- 180:17 THE WITNESS: That Ron was living there with my 180:18 mother and my sister. 180:20 Q. And just to be clear, all you knew was that Ron 180:21 and your mom and your younger sister were living there, 180:22 you have no idea who ultimately owned the place? 180:25 THE WITNESS: Yes, I didn't know who ultimately 181:1 owned it. 181:3 Q. Over the years, how many times have you visited 181:4 the Rivercliff property? 181:5 A. I don't remember the exact number of times I 181:6 visited. 181:7 Q. Can you give me an estimate? 181:8 A. No. I don't remember. 181:9 Q. And when was the last time you visited the 181:10 Rivercliff property? 181:11 A. The last time is in 2016. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 94 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11031 Page 369 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 181:12 Q. What time of year? 181:13 A. Early summer. 181:14 Q. Was that around the same time you visited the 181:15 Liberty property? 181:16 A. It was before. 181:17 Q. Immediately before? 181:18 A. What is "immediate" for you? What are you 181:19 talking about? 181:20 Q. Was it -- did you visit it a few days before 181:21 you went to Liberty? 181:22 A. I think it was a few days. I don't remember 181:23 exactly, but. 181:24 Q. And who else went with you to the Rivercliff 181:25 property? 182:1 A. John. 182:2 Q. Anybody else? 182:3 A. No. 182:4 Q. What was the purpose of the visit? 182:5 A. My mother might have been there, I can't 182:6 remember. 182:7 Q. What was the purpose of the visit? 182:8 A. The purpose was to see the condition of the 182:9 property. 182:10 Q. And why were you trying to see the condition? 95 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11032 Page 370 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 182:11 A. Our goal was to get it back for the investors. 182:12 Q. Why was it your goal to get it back for the 182:13 investors? 182:14 A. Because investors were defrauded. 182:15 Q. Why did you take it upon yourself to try to 182:16 recover the property? 182:19 THEWITNESS: Because my father defrauded 182:20 people. 182:22 Q. What happened when you went to the Rivercliff 182:23 property? 182:24 A. What happened? Nothing. We just walked 182:25 around. Looked around. 183:1 Q. Did you go inside the property? 183:2 A. Yes. 183:3 Q. What was the condition of the property on the 183:4 inside? 183:5 A. The condition was -- I don't know. I mean, I 183:6 don't know what to compare it to. 183:7 Q. Was it in good -- was it clean? 183:8 A. It wasn't in a bad condition. 183:9 Q. Was it tidy? Organized? 183:10 A. Generally, yes. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED OVERRULED Objection to 182:12–182:20 under Rule 702. In his testimony at 120:3-121:18, Kory Talmage explains that this opinion is based on his personal knowledge and perceptions, including information and documents he reviewed while investigating Ronald Talmage’s scheme in Hong Kong. Object to 182:22-185:4 under Fed. R. Evid. 402. This visit to the Rivercliff Property has no relevance to the claims and defenses at issue in the present litigation. This testimony is relevant because it goes towards Mr. Talmage’s propensity to tell the truth, his willingness to aid John Wadsworth in ignoring corporate formalities; and intimidating people to gain access to property in which Ronald Talmage holds the beneficial interest. The United States seeks to use the report for several reasons, including showing Mr. Wadsworth and Mr. Talmage’s motive, intent, and plan with respect to their efforts to get a hold of property belonging to Ron Talmage. 96 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11033 Page 371 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 183:11 Q. Was there furniture inside? 183:12 A. Yes. 183:13 Q. Were there a lot of personal belongings? 183:14 A. There were. 183:15 Q. What kind of belongings did you see at the 183:16 property? 183:17 A. Dog-related things. 183:18 Q. Whose dogs did they relate to? 183:19 A. Ron. 183:20 Q. What kind of dog-related things? 183:21 A. There was like a bronze statue. I guess it was 183:22 bronze of one of the Irish Setters. And pictures. 183:23 Q. Did you remove anything from the property when 183:24 you visited? 183:25 A. No. 184:1 Q. Did John remove anything from the property? 184:2 A. No. 184:3 Q. Did -- oh, nobody else was there. Okay. 184:4 Did you interact with anybody, besides John, 184:5 when you visited the property? 184:6 A. Say that again? 184:7 Q. Did you interact with anybody, besides John, 184:8 when you visited the property? 97 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11034 Page 372 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 184:9 A. Inside the property? 184:10 Q. Or outside? 184:11 A. Yes, outside the property. 184:12 Q. Who did you interact with outside the property? 184:13 A. I don't remember his name. 184:14 Q. Was it somebody who lived at the property? 184:15 A. I believe he -- I don't know if he was living 184:16 there or not, but he managed -- managed like the yard and 184:17 stuff. I'm not sure. 184:18 Q. Like the gardener? 184:19 A. I don't know if -- whether to call him a 184:20 gardener or -- I'm not sure exactly. 184:21 Q. Okay. Well, what was your understanding of his 184:22 role at the property? 184:23 A. He mowed the lawn. Kept the property in good 184:24 shape. 184:25 Q. Does the name Paul Peek ring a bell? 185:1 A. Yes, it does. 185:2 Q. Is that the man that you talked to who mowed 185:3 the lawn and kept up the property? 185:4 A. I believe so. 98 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11035 Page 373 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Exhibits Ruling OVERRULED Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Object to 186:23-188:3 under Fed. R. Evid. 402. This visit to the Rivercliff Property has no relevance to the claims and defenses at issue in the present litigation. This testimony is relevant because it goes towards Mr. Talmage’s propensity to tell the truth, his willingness to aid John Wadsworth in ignoring corporate formalities; and intimidating people to gain access to property in which Ronald Talmage holds the beneficial interest. The United States seeks to use the report for several reasons, including showing Mr. Wadsworth and Mr. Talmage’s motive, intent, and plan with respect to their efforts to get a hold of property belonging to Ron Talmage. Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 186:23 Q. Were the police called in connection with your 186:24 2016 visit to the Rivercliff property? 186:25 A. I didn't call the police, no. 187:1 Q. Did anybody else call the police? 187:2 A. I believe so. 187:3 Q. Who called the police? 187:4 A. I don't know who called the police. I don't 187:5 know who did. 187:6 Q. But police showed up? 187:7 A. Yes. 187:8 Q. And what transpired during the police visit? 187:9 A. The police wanted to make sure we were allowed 187:10 on to the property, like we were -- you know, we weren't 187:11 trespassing. 187:12 Q. What did you tell the police in response? 187:13 A. I believe we said we were representing 187:14 Mrs. Chen. 187:15 Q. And was that satisfactory to the police? 187:16 A. Not right away, no. 187:17 Q. So how did you end up satisfying the police 187:18 that you weren't trespassing? 187:19 A. I think it took a few days just talking with 99 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11036 Page 374 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 187:20 them. 187:21 Q. Did you show them any paperwork concerning the 187:22 Liberty property -- I'm sorry, the Rivercliff property? 187:23 A. I did not. 187:24 Q. Did you show them any paperwork concerning 187:25 NCPL? 188:1 A. I did not. 188:2 Q. Did John show the police anything, any 188:3 paperwork concerning the Rivercliff property? 188:5 THE WITNESS: I believe he did, yes. 188:6 BY MS. GOLDEN: 188:7 Q. As far as you're aware, what did John show the 188:8 police? OVERRULED Object to 186:23-188:3 under Fed. R. Evid. 402. This visit to the Rivercliff Property has no relevance to the claims and defenses at issue in the present litigation. Assuming that this objection is actually towards 188:5–188:8, this testimony is relevant because it goes towards Mr. Talmage’s propensity to tell the truth, his willingness to aid John Wadsworth in ignoring corporate formalities; and intimidating people to gain access to property in which Ronald Talmage holds the beneficial interest. The United States seeks to use the report for several reasons, including showing Mr. Wadsworth and Mr. Talmage’s motive, intent, and plan with respect to their efforts to get a hold of property belonging to Ron Talmage. 100 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11037 Page 375 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 188:11 THE WITNESS: I don't remember the exact 188:12 document. 188:13 BY MS. GOLDEN: 188:14 Q. Can you recall anything about the general 188:15 nature of the document? 188:16 A. It was something to show that we were allowed 188:17 on to the property. 188:18 (Exhibit 189 marked for identification.) 188:19 BY MS. GOLDEN: 188:20 Q. I'm going to show you a document that's been 188:21 marked as Exhibit 189. And I'll represent to that you 188:22 it's a sheriff's report from the Multnomah County 188:23 Sheriff. Exhibits Ruling 189 OVERRULED SUSTAINED (see [267] Order) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Object to 188:11-188:3 under Fed. R. Evid. 402. This visit to the Rivercliff Property has no relevance to the claims and defenses at issue in the present litigation. This testimony is relevant because it goes towards Mr. Talmage’s propensity to tell the truth, his willingness to aid John Wadsworth in ignoring corporate formalities; and intimidating people to gain access to property in which Ronald Talmage holds the beneficial interest. The United States seeks to use the report for several reasons, including showing Mr. Wadsworth and Mr. Talmage’s motive, intent, and plan with respect to their efforts to get a hold of property belonging to Ron Talmage. Object to Exhibit 189 under Fed. R. Evid. 402, 608(b), and 802. As set forth in the Western Parties’ Motion in Limine to Exclude Testimony and Police Report of Joseph Graziano (Dkt. 249, May 30, 2019), this document contains numerous hearsay statements from the non-party caretaker of the RiverCliff Property, Paul Peak, and others. The document concerns entirely the RiverCliff Property, and is unrelated to the Liberty Property at issues in the present action. Additionally, Deputy Graziano’s statements are not admissible to impeach 101 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11038 Page 376 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 192:5 Q. On page 20 of 77, in the second paragraph, the 192:6 sheriff writes, "Kory Talmage told Paul" -- 192:7 MR. INGRAM: Which line are you looking at? 192:8 MS. GOLDEN: Line? There's no line. Second 192:9 paragraph. 192:10 MR. INGRAM: Okay. 192:11 BY MS. GOLDEN: 192:12 Q. Second sentence there says -- begins, "Kory 192:13 Talmage told Paul in an angry tone, 'There will be 192:14 consequences.'" 192:15 Do you recall telling that to Mr. Paul Peek? 192:16 A. In an angry tone, no. 192:17 Q. Do you recall telling Mr. Peek that there will 192:18 be consequences? 192:19 A. I recall talking to him, but I don't recall 192:20 saying that, no. 102 Exhibits Ruling OVERRULED Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE John Wadsworth’s character under Rule 608(b). This objection lacks merit for the reasons stated in the United States’ Motion to Admit the Report of Joseph Graziano (Dkt. 253) and the United States’ response to the Western Parties’ Motion to exclude this report and Deputy Graziano’s testimony. Object to 192:5-193:15 under Fed. R. Evid. 602 and 802. The statements in the referenced report (which is inadmissible for the reasons stated in the prior objection) are inadmissible hearsay. Additionally, Mr. Talmage has no firsthand knowledge of the referenced report as he did not prepare it. The Rule 802 objection lacks merit for the reasons stated in the United States’ Motion to Admit the Report of Joseph Graziano (Dkt. 253) and the United States’ response to the Western Parties’ Motion to exclude this report and Deputy Graziano’s testimony. With regard to the Rule 602 objection, Mr. Talmage’s testimony is proper because he has personal knowledge of the events described in the report. Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11039 Page 377 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 192:21 Q. What did you tell Mr. Peek? 192:22 A. I don't remember. 192:23 Q. On the following page, page 21 of 77, the 192:24 sheriff writes in the first paragraph -- looks like he's 192:25 talking about John, "Wadsworth said he didn't have a 193:1 court order. He said they had gone to the Secretary of 193:2 State's office in Salem where they obtained a document 193:3 showing proof of ownership." 193:4 Is that accurate? 193:5 A. Can you repeat that? Which part are you 193:6 reading? I'm lost right now. 193:7 Q. In the first paragraph, it says, "Wadsworth 193:8 said he didn't have a court order. He said they had gone 193:9 to the Secretary of State's office in Salem where they 193:10 obtained document showing proof of ownership." 193:13 Q. And I'm asking, is that accurate? 193:14 A. I believe so, yes. 193:15 Q. Did you accompany Mr. Wadsworth to the 193:16 Secretary of State's office in Salem? 193:17 A. Yes. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED Object to 192:5-193:14 under Fed. R. Evid. 602 and 802. The statements in the referenced report (which is inadmissible for the reasons stated in the prior objection) are inadmissible hearsay. Additionally, Mr. Talmage has no firsthand knowledge of the referenced report as he did not prepare it. 103 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11040 Page 378 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 193:18 Q. And how did you end up obtaining the proof of 193:19 ownership described in this report? 193:20 A. I didn't obtain it. 193:21 Q. Who obtained it? 193:22 A. John did. 193:23 Q. How did John obtain it? 193:24 A. I don't know. 193:25 Q. What were you doing at the Secretary of State's 194:1 office while John was obtaining the document? 194:2 A. I was -- I believe I was waiting in the car. 194:3 Q. So you didn't go in the building with him? 194:4 A. No. 194:5 Q. Further on in the same paragraph the sheriff 194:6 writes that John showed him a business registry business 194:7 name search, and that it listed John Wadsworth as the 194:8 president and Kory Talmage as the secretary. 194:9 Do you recall seeing such a document? 194:10 A. Yes, I do recall seeing. 194:11 Q. And is this accurately described in the 194:12 sheriff's report? 194:14 THE WITNESS: Yes. 194:15 BY MS. GOLDEN: Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE The Rule 802 objection lacks merit for the reasons stated in the United States’ Motion to Admit the Report of Joseph Graziano (Dkt. 253) and the United States’ response to the Western Parties’ Motion to exclude this report and Deputy Graziano’s testimony. With regard to the Rule 602 objection, Mr. Talmage’s testimony is proper because he has personal knowledge of the events described in the report. Object to 194:5-14 under Fed. R. Evid. 602 and 802. The statements in the referenced report (which is inadmissible for the reasons stated in the prior objection) are inadmissible hearsay. Additionally, Mr. Talmage has no firsthand knowledge of the referenced report as he did not prepare it. The Rule 802 objection lacks merit for the reasons stated in the United States’ Motion to Admit the Report of Joseph Graziano (Dkt. 253) and the United States’ response to the Western Parties’ Motion to exclude this report and Deputy Graziano’s testimony. With regard to the Rule 602 objection, Mr. Talmage’s testimony is proper because he has personal knowledge of the events described in the report. Object to 194:5-14 under Fed. R. Evid. 602 and 802. The statements in the referenced report (which is inadmissible Exhibits Ruling OVERRULED OVERRULED 104 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11041 Page 379 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 194:16 Q. Why did you get -- I'm sorry. Let me rephrase. 194:17 Why did you and John get yourselves listed as 194:18 the president and secretary, respectively, of the 194:19 business? 194:20 A. Because Mrs. Chen gave us permission to. 194:21 Q. And what business was this? 194:22 A. What business? 194:23 Q. Yes. It says there's a business registry 194:24 business name search. And what business does this refer 194:25 to? 195:3 THE WITNESS: I don't know. 195:4 BY MS. GOLDEN: 195:5 Q. Was it New Century Properties Limited? 195:7 THE WITNESS: I don't know. 195:8 BY MS. GOLDEN: 195:9 Q. Was it Rivercliff Farm, Inc? 195:10 A. I don't know. 195:13 BY MS. GOLDEN: 195:14 Q. And to be clear, your testimony is that while 195:15 you recall seeing this document where John is listed as 195:16 president and you were a secretary of the business, you 195:17 can't recall what the name of that business was? Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling for the reasons stated in the prior objection) are inadmissible hearsay. Additionally, Mr. Talmage has no firsthand knowledge of the referenced report as he did not prepare it. The Rule 802 objection lacks merit for the reasons stated in the United States’ Motion to Admit the Report of Joseph Graziano (Dkt. 253) and the United States’ response to the Western Parties’ Motion to exclude this report and Deputy Graziano’s testimony. With regard to the Rule 602 objection, Mr. Talmage’s testimony is proper because he has personal knowledge of the events described in the report. Object to 195:14-25 under Fed. R. Evid. 602 and 802. The document referenced is inadmissible hearsay. Mr. Talmage testified that he “can’t recall” the subject matter of these questions. The document is not being moved into evidence, so there is no basis for the Rule 802 objection. With regard to the 105 OVERRULED as to 195:14-19; SUSTAINED at to 195:20-25 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11042 Page 380 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 195:18 A. Yes, I can't recall, because it's been two 195:19 years since I saw whatever document this is referring to. 195:20 Q. And turning to page 22 of 77, the fourth 195:21 paragraph, the one beginning, "I immediately called 195:22 Paul." The sheriff is describing, he says -- referring 195:23 to Paul, I believe, "He also told me that he had watched 195:24 the men during the day and saw the men exit with two 195:25 large stuffed backpacks." 196:1 Did you and John leave the Rivercliff property 196:2 with two large stuffed backpacks? 196:3 A. No. 196:4 Q. Did you remove anything from the property? 196:5 A. No. 196:6 Q. Do you recall there being a safe at the 196:7 property? 196:8 A. I don't recall there being a safe. Even if 196:9 there was, I wouldn't know the number for it. 196:10 Q. On page 23 of 77, the second paragraph, the 196:11 sheriff is describing himself going inside, and he 196:12 says -- Exhibits Ruling Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Rule 602 objection, Mr. Talmage confirmed at 194:5–14 that the business registry document is accurately described in Deputy Graziano’s report, and that he recalls seeing such a document. Here, he is only answering whether he recalls certain events described in the report. Under Rule 602, Mr. Talmage can testify as to what he does or does not remember. Object to 196:10-19 under Fed. R. Evid. 802. The referenced police report is inadmissible hearsay for the reasons previously stated and those stated in the Western Parties’ Motion in Limine (Dkt. 249). 106 SUSTAINED Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11043 Page 381 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 196:13 MR. STEPHENS: Hang on just a minute. Okay. 196:14 MR. INGRAM: Next one, page 23? 196:15 MS. GOLDEN: Yes. 196:16 BY MS. GOLDEN: 196:17 Q. "Sergeant Bevens and I then went inside and 196:18 inspected the premises with Paul. He noted that a shelf 196:19 full of photographs were gone." 196:20 Did you and John remove a shelf full of 196:21 photographs from the Rivercliff property? 196:22 A. No. 196:23 Q. Then later on in the same paragraph it says, 196:24 "He escorted us to the bathroom on the main floor of the 196:25 residence where a hidden safe was located. We saw that 197:1 the door covering the safe was left open, exposing the 197:2 safe. The actual safe door was locked shut." 197:3 Do you recall opening the door covering the 197:4 safe? 197:5 A. Now that I read this, I do recall seeing a 197:6 safe, yes. 197:7 Q. Were you able to open the safe? 197:8 A. No. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling The Rule 802 objection lacks merit for the reasons stated in the United States’ Motion to Admit the Report of Joseph Graziano (Dkt. 253) and the United States’ response to the Western Parties’ Motion to exclude this report and Deputy Graziano’s testimony. Object to 196:23-197:2 under Fed. R. Evid. 802. The referenced police report is inadmissible hearsay for the reasons previously stated and those stated in the Western Parties’ Motion in Limine (Dkt. 249). The Rule 802 objection lacks merit for the reasons stated in the United States’ Motion to Admit the Report of Joseph Graziano (Dkt. 253) and the United States’ response to the Western Parties’ Motion to exclude this report and Deputy Graziano’s testimony. 107 OVERRULED Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11044 Page 382 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 198:25 Q. Have you had a chance to read the e-mails? 199:1 A. Yeah. Yep. 199:2 Q. To the best of your knowledge, are these 199:3 e-mails accurate copies? 199:4 MR. INGRAM: 33 through what? 199:5 MS. GOLDEN: 36. 199:6 THE WITNESS: I believe so. 199:7 BY MS. GOLDEN: 199:8 Q. And are these e-mails that you sent and 199:9 received on the times described in the e-mails? 199:10 A. I don't remember. But if it has my name on it, 199:11 I guess so. 199:12 Q. Do you have any reason to doubt that these 199:13 aren't e-mails that you sent and received? 199:14 A. No. 200:23 Q. And in these e-mails, you mentioned locking in 200:24 flights to Oregon. 200:25 Were you flying in from Japan when you visited? 201:1 A. Yes. 201:2 Q. Did you pay for your own plane tickets? 201:3 A. I don't remember. Wait. I don't think I did 201:4 pay them. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED Object to 198:25-199:14 under Fed. R. Evid. 802. The referenced emails are inadmissible hearsay. The Rule 802 objection lacks merit for the reasons stated in the United States’ Motion to Admit the Report of Joseph Graziano (Dkt. 253) and the United States’ response to the Western Parties’ Motion to exclude this report and Deputy Graziano’s testimony. The emails from Kory Talmage in Deputy Graziano’s report are admissible under Rule 803(3) because they establish Mr. Talmage’s and Wadsworth’s intent, motive, and plan. 201:15 Q. Has John ever helped you pay your rent? 201:16 A. No. 201:17 Q. Has John ever helped you pay a mortgage for a 201:18 property you're living at? 201:19 A. No. 201:20 Q. Has John ever helped you pay any of your other 201:21 personal expenses? 201:22 A. No. 108 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11045 Page 383 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 201:5 Q. Did John for you to fly to Oregon to visit the 201:6 Rivercliff property? 201:7 A. I believe that's how it was, yes. 201:8 Q. Did he also pay for you to travel to Liberty, 201:9 Utah to visit that property? 201:10 A. I think that's how it was, yeah. 202:19 Q. Before the break we were talking about the 202:20 Multnomah County Sheriff's Report and how there was a 202:21 business paper from the State of Oregon saying that you 202:22 were the secretary of a business. 202:23 So did John ask you to put your name on the 202:24 paperwork to be the secretary? 202:25 A. I didn't put the name on this paperwork. 203:1 Q. Do you know who did? 203:2 A. I believe John did. 203:3 Q. Did anybody else go into the Oregon Secretary 203:4 of State's office while you were waiting outside in the 203:5 car? I mean, anybody from your -- 203:6 A. I don't believe so. 203:7 Q. Anybody you're familiar with? 203:8 A. No. Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 201:23 Q. Has John ever helped pay any expenses on behalf 201:24 of your family members, meaning your wife and your 201:25 children? 202:1 A. no. OVERRULED Object to 202:19-203:8 under Fed. R. Evid. 602 and 802. The referenced police report is inadmissible hearsay for the reasons previously stated and those stated in the Western Parties’ Motion in Limine (Dkt. 249). Further, Mr. Talmage testified that this is only his belief, not that he has any personal knowledge of the subject matter. The Rule 802 objection lacks merit for the reasons stated in the United States’ Motion to Admit the Report of Joseph Graziano (Dkt. 253) and the United States’ response to the Western Parties’ Motion to exclude this report and Deputy Graziano’s testimony. Furthermore, Mr. Talmage is allowed to testify as to his beliefs under Rule 602 and 701. He can testify as to his own personal observations such that he did not put his name on the paperwork, and he did not recognize anyone else going into the Secretary of State’s office. 109 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11046 Page 384 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 203:23 Q. Did John tell you that he was going to put your 203:24 name down as the secretary for the business in Oregon? 203:25 A. Yes. 204:6 Q. Did you give John permission to put your name 204:7 on the paperwork? 204:8 A. Yes. 204:9 Q. Have you ever met with Mrs. Chen when it's just 204:10 the two of you? 204:11 A. No. 204:12 Q. Quite a bit earlier this morning you were 204:13 talking about how you ended up getting into business 204:14 arguments with Ron Talmage. 204:15 Can you elaborate more on what you meant by 204:16 that? 204:17 A. I don't remember the exact situation that got 204:18 us into the argument. 204:19 Q. When were those arguments taking place? 204:20 A. While I was working for WWIS. 204:21 Q. Do you recall when the first argument occurred? 204:22 A. No. 204:23 Q. Do you recall when the last argument occurred? 204:24 A. No. 110 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11047 Page 385 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 204:25 Q. What were you arguing about? 205:1 A. I don't remember. 205:2 Q. Was it related to WWIS? 205:3 A. Yes. 205:4 Q. Was it related to the alleged Ponzi scheme 205:5 we've discussed earlier today? 205:6 A. No. 205:7 Q. Was it related to IT work? 205:8 A. Yes. 205:9 Q. And I believe when you were describing the 205:10 changing nature of your relationship with Ron to become 205:11 more businesslike as you got older -- did I correctly 205:12 recall your testimony? 205:13 A. Uh-huh, yes. 205:17 Q. In what ways did your relationship become more 205:18 businesslike? 205:19 A. I don't know. He felt distant. And so 205:20 obviously we were -- we were father and son, but the 205:21 correspondence we had wasn't always a father and son, you 205:22 know, it was like work related. 205:23 Q. So you were talking more about work rather than 205:24 personal things? 205:25 A. Yes, I would say so. 206:1 Q. As you got older and the relationship became Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 111 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11048 Page 386 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 206:2 more businesslike, as you say, were you communicating 206:3 with Ron less? 206:4 A. Yes. 206:5 Q. Were you seeing him in person less? 206:6 A. Sorry, let me correct that. 206:7 Q. Sure. 206:8 A. I wouldn't say, "less," because we were -- we 206:9 never really communicated a whole lot anyway. 206:24 Q. What kind of stuff in his personal life did Ron 206:25 share with you? 207:2 THE WITNESS: About his hobbies, which 207:3 sometimes I despised. 207:4 BY MS. GOLDEN: 207:5 Q. Which hobbies did you despise? 207:6 A. Like dogs. I mean, I like dogs, but I didn't 207:7 like how he was so focused on it. 207:8 Q. Did you feel that Ron was only interested in 207:9 talking to you about work? 207:11 THE WITNESS: I wouldn't say only about work, 207:12 but only about himself. 208:17 Q. So despite sometimes vacationing together and 208:18 you communicating with Ron about personal life and some 112 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11049 Page 387 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 208:19 work, you felt that he was still distant? 208:20 A. Yes. 208:21 Q. I guess what I'm trying to drive at is what -- 208:22 you know, what is giving you that impression? 208:23 A. My -- okay. So I wouldn't ever want to have a 208:24 relationship like that with my son. That's what I'm 208:25 trying to say, I guess. 209:15 Q. Look, I'm trying to get a general sense of your 209:16 father's character and his behavior. 209:17 A. Okay. 209:18 Q. You know, and how well he relates to his 209:19 family. All right? 209:20 A. Okay. I would have severed ties with him if I 209:21 wasn't working for a company he was working for. 211:4 Q. You were asked several questions about 211:5 character. I believe you testified there were instances 211:6 where Ron has lied to you over the years. One of those, 211:7 I think, was having cancer I think you said? 211:8 A. Yes. 211:9 Q. How did he lie to you about having cancer? Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 210:12 Q. Did you ever actually witness Ron Talmage ever 210:13 sign a document for WWIS for anything? 210:14 A. I don't believe I have witnessed him signing 210:15 anything. 210:16 Q. Did you ever actually witness Ron Talmage send 210:17 an e-mail from a WWIS account? Physically push send? 113 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11050 Page 388 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 211:10 What was that? 211:11 A. So he told me that he was going to be in the 211:12 hospital for treatment, chemotherapy. And this was 211:13 before discovery, but this was when we were getting 211:14 suspicious about what he's up to. 211:15 And I believe the day after he said that, or he 211:16 e-mailed me that, John actually saw him, like not in the 211:17 hospital. 211:18 Q. What about instances where you said where he 211:19 was at one location but you found out he was not, how 211:20 many times did that happen? 211:21 A. I can't recall how many times, but more than 211:22 once. 211:23 Q. Okay. I think you testified you are Ron 211:24 Talmage's son, you spent some time living with him, you 211:25 spent some time working for WWIS and interacting with him 212:1 there. 212:2 During this time and these interactions, have 212:3 you been able to formulate an opinion about Ron's 212:4 propensity to tell the truth? 212:5 A. Yes. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 210:18 A. I have never seen him push send, but I set up 210:19 his e-mail on his computer. 210:20 Q. Okay. What about any -- you were talking about 210:21 investments, real estate deals involving WWIS. Did you 210:22 ever actually witness any transaction that was 210:23 consummated by a document signing or anything like that? 210:24 MS. GOLDEN: Objection; vague. 210:25 THE WITNESS: By Ron? 211:1 BY MR. INGRAM: 211:2 A. By Ron, yes. 211:3 A. No. 114 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11051 Page 389 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 212:6 Q. And do you have an opinion on that? 212:7 A. Yes. 212:8 Q. And what is your opinion about Ron's ability to 212:9 tell the truth? 212:10 A. I think he's a pathological liar. 219:1 CERTIFICATE 219:2 State of Utah ) 219:2 ss. 219:3 County of Salt Lake ) 219:4 219:4 I, Darla J. Murray, a Registered Professional 219:5 Reporter, do hereby certify: 219:6 That the testimony of KORIANTON TALMAGE, the 219:6 witness in the foregoing proceeding named, was taken on 219:7 July 19, 2018; that said witness was by me, before 219:7 examination, duly sworn to testify the truth, the whole 219:8 truth, and nothing but the truth in said cause; 219:9 That the testimony of said witness was reported 219:9 by me in stenotype and thereafter transcribed into 219:10 typewritten form; 219:11 That the same constitutes a true and correct 219:11 transcription of said testimony so taken and transcribed Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED Objection to 212:15–213:3 under Rule 602, 701, and 702. Kory Talmage’s opinions here are reasonably based on his personal perceptions described throughout the deposition, including for example at 102:7-10, 103:3-19, 120:3-121:18, 137:8-138:21. 212:11 Q. I'm sorry. 212:12 You've also had a chance to meet, interact with 212:13 John over the years, I understand? 212:14 A. Uh-huh. 212:15 Q. Do you have any reason to believe that John 212:16 Wadsworth was ever perpetrating a Ponzi scheme on anyone? 212:17 A. I don't think he was ever. 212:18 Q. Do you have any reason to believe that John was 212:19 ever involved in defrauding investors? 212:20 A. No. He was a victim. 212:21 Q. Do you believe that -- do you have any reason 212:22 to believe that John understood that a Ponzi scheme was 212:23 being perpetrated against him and other investors prior 212:24 to 2016? 212:25 MS. GOLDEN: Objection; assumes facts not in 115 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11052 Page 390 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 219:12 and that the said witness testified as in the foregoing 219:12 annexed pages set out. 219:13 219:13 I further certify that I am not of kin or 219:14 otherwise associated with any of the parties of said 219:14 cause of action and that I am not interested in the event 219:15 thereof. 219:16 WITNESS MY HAND at Salt Lake City, Utah, this 219:16 27th day of July, 2018. 219:17 219:18 219:19 219:20 219:20 _______________________________ 219:21 Darla J. Murray, RPR, CSR 219:22 219:23 219:24 219:25 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 213:1 evidence, mischaracterizes evidence. 213:2 THE WITNESS: Prior to 2016, no. He didn't 213:3 know. 213:4 BY MR. INGRAM: 213:5 Q. In all of your interactions with John over the 213:6 years, have you been able to develop an opinion about his 213:7 propensity to tell the truth? 213:8 A. Yes, I think he's a man of integrity. Honest. PLAINTIFF COUNTER DESIGNATIONS (In response to the Western Parties’ purported completeness designation at 104:7–21) 104:22 Q. Do any specific examples come to mind? 104:23 A. Not at the moment, no. 116 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11053 Page 391 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 123:11 Q. Do you have any experience in reading bank 123:12 statements? 123:14 THE WITNESS: Very limited, but enough to know 123:15 what's going on. 123:16 BY MS. GOLDEN: 123:17 Q. Do you have any finance background? 123:18 A. Not a very strong one, no. 123:19 Q. Do you have an accounting background? 123:20 A. No. 123:21 Q. Did you ever take any courses in college 123:22 related to finance or accounting? 123:23 A. Yes, I did. 123:24 Q. How many? 123:25 A. Just a few. 124:1 Q. Did you analyze the bank records yourself? 124:2 A. No. 124:3 Q. Who analyzed them? 124:4 A. Well, first John and I looked at them, then we 124:5 had -- I guess they were an accountant look at it. 124:6 Q. What was the accountant's name? 124:7 A. I don't remember. I don't remember the firm's 124:8 name. 117 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11054 Page 392 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 124:9 Q. Was the accountant in the U.S.? 124:10 A. No, it was in Hong Kong. (In response to the Western Parties’ purported completeness designation at 130:1–19) 129:21 Q. Did Mrs. Chen agree to undertake any actions 129:22 after this meeting? 129:23 A. No. 129:24 Q. Did she agree to contact any investors? 129:25 A. No. 132:5 Q. During the trip, did you speak to any investors 132:6 in the -- in the alleged Ponzi scheme perpetrated by Ron 132:7 Talmage? 132:8 A. I didn't, no. 132:9 Q. You never spoke to any of the investors? 132:10 A. While I was in Hong Kong? No. 132:11 Q. I'm asking, in general, during the trip to 132:12 Asia. 132:13 A. Well, I lived in Japan, that's Asia. 132:14 Q. Oh. Well, then, did you -- in Japan, did you 132:15 speak to any of the investors of the alleged Ponzi 132:16 scheme? 118 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11055 Page 393 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Korianton Talmage taken July 19, 2018 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 132:17 A. After the discovery, yes. 132:18 Q. Who did you speak to? 132:19 A. The two names I mentioned earlier. And there 132:20 were several other investors, I can't remember their 132:21 names right now. Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Instructions: One form should contain all designations for a witness. Plaintiff Designations (column 1) and Defendant Designations (column 2) will show the full deposition text that the party proposes to read in its case-in-chief. Completeness designations are proposed by the other party, under Fed. R. Civ. P. 32(a)(6), to be read with the designations. Counter–designations are read following the designations and completeness designations, similar to cross examination. This form should be provided in word processing format to the other party, who then will continue to fill in the form. The form is then returned to the proposing party for review, resolution of disputes, and further editing. The parties should confer and file a final version in PDF format using the event “Notice of Filing” and also submit a final word processing copy to the court at [email protected], for ruling. All objections which the objecting party intends to pursue should be listed, whether made at the deposition, as with objections as to form, or made newly in this form, if the objection is of a type that was reserved. 119 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11056 Page 394 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Kumiko Talmage taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling DEFENDANT -DESIGNATIONS PLAINTIFF DESIGNATIONS 4:6 KUMIKO WAKO TALMAGE, 4:7 Called by the Plaintiff, having been duly 4:8 Sworn, is examined and testifies as follows: 4:23 Q. Could you please state your full name? 4:24 A. Kumiko Wako Talmage. 4:25 Q. And do you have any former names? 5:1 A. No. That's all. 5:2 Q. Do you have any nicknames or aliases? 5:3 A. No, I don't. 9:20 Q. So how do you know Ronald Talmage? 9:21 A. At first when I first met him, he was a 9:22 missionary in Japan. 9:23 Q. When did you meet him? 9:24 A. It was around 19 -- it was around 1972. 9:25 Q. When did you get married to Mr. Talmage? 10:1 A. It was around 1974. 10:2 Q. And when did you and Mr. Talmage divorce? 10:3 A. I think it was the year 2000 or 2001. 10:4 Q. How would you characterize your relationship 10:5 with Mr. Talmage? 1 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11057 Page 395 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Kumiko Talmage taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 10:6 A. What kind of relationship are you talking about? 10:7 Q. Just how would you characterize your current 10:8 relationship? 10:9 A. Right now I have no contact with him. 10:10 Q. How long has that been the case? 10:11 A. Ever since our divorce. 10:12 Q. Since the divorce, have you ever met Ronald 10:13 Talmage in person? 10:14 A. Yes. From my children's wedding. 10:15 Q. How many times was that? 10:16 A. Four or five times. Other than weddings. 10:17 Q. When was the last time? 10:18 A. It might be five or six years ago, but I don't 10:19 remember correctly. 10:25 Q. What did you discuss the last time you saw 11:1 Mr. Talmage? 11:2 A. I never have discussion after the divorce. 11:3 Q. So just to be clear, since the divorce, even 11:4 though you saw Mr. Talmage at your children's weddings or 11:5 other events, you never talked to him? Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Objection to 12:1–8 under Rule 401. OVERRULED 12:1 Q. Have you ever talked to the IRS about Ronald 12:2 Talmage? 12:3 A. Yes, I have about 10 years ago. 12:4 Q. Was that in connection with the IRS matter you 12:5 mentioned before where you were deposed? 12:6 A. Yes. And after that I talked to them one more 2 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11058 Page 396 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Kumiko Talmage taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 11:6 A. That is correct. I didn't talk. 11:7 Q. The last time you saw Mr. Talmage, did you know 11:8 where he was living? 11:9 A. No, I didn't know. 11:10 Q. Since the divorce, did you keep in touch with 11:11 Ronald Talmage in any other ways, such as by phone or 11:12 email or letters? 11:13 A. No, there was none. 11:14 Q. Do you have any idea where Mr. Talmage is living 11:15 currently? 11:16 A. No. No, I would like to know. 11:17 Q. Do you have any idea how to contact Mr. Talmage? 11:18 A. I don't know any -- I don't have any contact 11:19 information. 11:20 Q. Do you know if there's anybody else who would 11:21 know where Mr. Talmage is living? 11:22 A. I don't know. 11:23 Q. Do you know of anyone else who might know how to 11:24 contact Mr. Talmage? 11:25 A. As far as I know, nobody knows. Page 12 13:15 Q. And did you know this Seki person? Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 12:7 time. I talked to them because they wanted to know where 12:8 Talmage might be. Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 13:8 Q. Going back to the first time you talked to the Objection to 13:8–14 and 14:2--3 under Rule 401. OVERRULED 3 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11059 Page 397 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Kumiko Talmage taken August 15, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 13:16 A. I heard that he -- this person Seki used to be 13:17 the president of the -- of the Ronald Talmage. 13:18 Q. The president of Ronald Talmage? 13:19 A. Yes. 13:20 Q. Did you ever meet this Seki? 13:21 A. Yes. 13:22 Q. About how many times did you meet him? 13:23 A. I met him about three months before he passed 13:24 away. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 13:9 IRS when you got the subpoena, what did you tell the IRS 13:10 at that time? 13:11 A. Are you asking what kind of question they asked? 13:12 Q. Yes. Just generally what you told them. 13:13 A. I remember they ask me about the person whose 13:14 name is Seki. 13:25 Q. What did you discuss? 14:1 A. I don't remember. 14:2 Q. Did you tell the IRS anything else? 14:3 A. No, I don't think so. And I don't remember. 14:4 Q. About 10 years ago when you go the IRS subpoena, 14:5 did you know where Ronald Talmage was living at that time? 14:6 A. I think he was living in Rivercliff Farm. 14:7 Q. What's Rivercliff Farm? 14:8 A. That's the house in Corbett. That's a house in 14:9 Corbett. 14:10 Q. How did you know he was living there? 14:11 A. It was right after the divorce, and I knew he 14:12 was living there with his new wife. 14:13 Q. Has Ronald Talmage ever sent you any money since 4 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11060 Page 398 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Kumiko Talmage taken August 15, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 14:14 the divorce? 14:15 A. I didn't receive anything that's not related to 14:16 the divorce. 14:17 Q. What did you get related to the divorce? 14:18 A. I received a settlement. 14:19 Q. Do you remember how much that was when you got 14:20 it? 14:21 A. It was -- I think it was 1.4 million. 14:22 Q. Then that divorce settlement was the last time 14:23 that you got any money from Mr. Talmage? 14:24 A. Yes. 14:25 Q. You mentioned Ronald Talmage's new wife. Who is 15:1that? 15:2 A. I think her name was Annette. Annette. 15:3 Q. What was that? 15:4 A. Annie. 15:5 Q. Do you know Annette? 15:6 A. I've -- I've met her a few times. 15:7 Q. When did you first meet her? 15:8 A. It might have been my child's wedding. 15:9 Q. How would you characterize your relationship 15:10 with Annette? 15:11 A. I've never spoke to her. 5 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11061 Page 399 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Kumiko Talmage taken August 15, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 16:7 Q. Do you know Korianton or Kory Talmage? 16:8 A. Yes. 16:9 Q. How do you know him? 16:10 A. My son. 23:25 Are you familiar with someone named Liu Hsiu 24:1 Chen, also known as Mrs. Chen? 24:2 A. Yes. I met her once at the deposition. 24:3 Q. That's the only time that you met her? 24:4 A. Yes. 24:5 Q. Who introduced you? 24:6 A. It's just that I notice her at the deposition. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 15:12 Q. Do you keep in touch with Annette at all? 15:13 A. No. Nothing. 15:14 Q. Just to be clear, no phone calls or emails or 15:15 letters involving Annette? 15:16 A. Nothing. 15:17 Q. And when you would see her at things like your 15:18 children's wedding, you wouldn't talk to her? 15:19 A. Correct. 15:20 Q. Do you have any idea where Annette is living 15:21 right now? 15:22 A. I don't know. 15:23 Q. Do you have any idea how to contact Annette? 15:24 A. No. 6 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11062 Page 400 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Kumiko Talmage taken August 15, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 24:7 Q. Before the deposition you had not ever met 24:8 Mrs. Chen? 24:9 A. No. 24:10 Q. Have you had any other contact with Mrs. Chen 24:11 since that deposition? 24:12 A. I have no contact with her. 24:13 Q. Have you seen her at any point since then? 24:14 A. No, I didn't see her. I think she lives in 24:15 Taiwan. 24:16 Q. Do you have any idea where she -- where in 24:17 Taiwan she is living right now? 24:18 A. No, I don't. 24:19 Q. Do you know of anybody else who might know where 24:20 Mrs. Chen is living or how to contact her? 24:21 A. I don't know anyone. 25:3 Q. Who's Mrs. Seki? 25:4 A. That Japanese woman was the wife. That's what I 25:5 heard. 25:6 Q. So your understanding is that Mrs. Chen and 25:7 Mrs. Seki is the same person? 25:8 A. Yes. 25:9 Q. And where did you get this information about 25:10 Mrs. Chen? 7 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11063 Page 401 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Kumiko Talmage taken August 15, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 25:11 A. When Mr. Seki was still alive, he said that his 25:12 wife was from Taiwan. 25:13 Q. How did you find out that Mrs. Seki became 25:14 president after Mr. Seki died? 25:15 A. I learned about that at the deposition. 25:16 Q. And before the deposition, had you met Mr. Seki 25:17 before? 25:18 A. Are you talking about Mr. Seki or Mrs. Seki? 25:19 Q. Mister. 25:20 A. I met him several times while I was still 25:21 married. 25:22 Q. What did Ron Talmage tell you about Mr. Seki? 25:23 A. That time, around that time? 25:24 Q. Yes. 25:25 A. So when we were in Japan, Ron told me that 26:1 Mr. Seki is somebody who helps with -- Mr. Seki is a 26:2 client who helps with his business. 26:3 Q. And did Ron tell you anything about what 26:4 Mrs. Chen or Mrs. Seki did? 26:5 A. So I heard that while -- when Mr. Seki was still 26:6 alive and he was living in Japan, his wife was in Taiwan, 8 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11064 Page 402 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Kumiko Talmage taken August 15, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 26:7 and he would go see her every once in a while, but I heard 26:8 that his wife was a housewife. 26:9 Q. And when you said you heard, who told you this 26:10 information? 26:12 Q. Who told you the information about Mrs. Chen 26:13 that she's in Taiwan and she's a housewife? 26:14 A. Mr. Seki told me. 26:15 Q. And do you know what Mrs. Chen did after 26:16 Mr. Seki passed away? 26:17 A. So when I went to the deposition, I learned that 26:18 she became the president. 26:19 I found out. 26:20 Q. Who told you that at the deposition? 26:21 A. It's hard to explain, but before the deposition, 26:22 Ron sent me a letter saying that she became the president. 26:23 Q. The president of what? 26:24 A. So Mr. Seki's company -- so Ron was the 26:25 president originally then, but Mr. Seki became the 27:1 president. Then after his passing, Mrs. Seki became the 27:2 president. 27:3 Q. What's the name of the company? 9 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11065 Page 403 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Kumiko Talmage taken August 15, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 27:4 A. I don't remember right now. It was Pacific 27:5 something. I don't remember really well. 27:6 Q. Does the name Trans- Pacific Partners, Ltd.? 27:7 A. Pacific. 27:8 Q. Does that ring a bell? 27:9 A. Yes. 27:10 Q. Did you hear anything about Mrs. Chen after the 27:11 deposition? 27:12 A. No, I didn't. 27:19 Q. Have you ever heard of an entity called New 27:20 Century Properties Limited? 27:21 A. Yes. I heard about it first time when -- after 27:22 my divorce, after I moved out of the house. 27:23 Q. What did you hear about it? 27:24 A. It was listed as one of his companies on the 27:25 divorce paper. That's when I first found out. 28:1 Q. When you say "one of his companies" that's 28:2 referring to Ronald Talmage? 28:3 A. Yes. 28:4 Q. Do you have any idea what New Century Properties 28:5 Limited does? 28:6 INTERPRETER: I'm sorry. Could you repeat the 10 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11066 Page 404 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Kumiko Talmage taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 28:7 name of the company? 28:8 Q. New Century Properties Limited. 28:9 A. I had no idea at that time. 28:10 Q. And do you know if New Century Properties 28:11 Limited owns any property or does any business? 28:12 A. I didn't know that they would -- they were 28:13 dealing with properties. 28:14 MRS. TALMAGE: I don't think it was related with 28:15 a property. 28:16 Q. That's fine. I'm just asking if you knew. 28:17 Do you know if there's anyone else associated 28:18 with New Century Properties Limited besides Ronald 28:19 Talmage? 28:20 A. Seki's name was included. 28:21 Q. Anybody else? 28:22 A. That's all I know. 29:7 Q. Okay. I'd like to show you a document that's 29:8 going to be marked as Exhibit 85 and that's Bates stamped 29:9 WADS006556. I'm sorry. 6556 to 6563. 29:10 (Exhibit 85 marked) 29:11 Q. I'll note for the record this document does have Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 85, 86 OVERRULED Object to 29:7-24 under Fed. R. Evid. 602, 802, and 901. Ms. Talmage does not have personal knowledge of the document referenced, does not lay foundation for it, and the document itself is inadmissible hearsay. This testimony is proper under Rule 602 because Ms. Talmage has personal knowledge of receiving payments for her 11 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11067 Page 405 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Kumiko Talmage taken August 15, 2017 Exhibits Ruling Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE children’s college tuition from Mr. Talmage. The document is not being offered into evidence, so the Rule 802 and 901 objections lack merit. Further, this document and any statement within are not offered for the truth of the matter asserted and were shown to the witness to refresh her recollection under Rule 612. Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 29:12 the confidential information label. So it's subject to 29:13 the protective order. 29:14 A. Does it explain how the money was used? 29:15 Q. Well, I'll represent to you that this is a 29:16 document we got from John Wadsworth. And at the top it 29:17 says, "New Century Properties General Ledger," and it 29:18 appears to be for the year 2001. And then in -- 29:19 there's -- in March 9th, 2001, it shows a transfer to -- 29:20 appears to be a transfer to you of about $4,000. Do you 29:21 remember what that transfer was for? 29:22 A. All I could think of is that it might have been 29:23 for the -- to pay for my daughter's tuition, college 29:24 tuition. 29:25 Q. Which daughter is that? 30:1 A. The youngest one. 30:2 Q. What's her name? 30:3 A. Lillian, but I don't remember really well. 30:4 Q. Do you remember getting this $4,000 payment in 30:5 March 2001? 30:6 A. I think I remember that they sent a few times to 30:7 pay the tuition for my daughter. 12 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11068 Page 406 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Kumiko Talmage taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 30:8 Q. I'm going to hand you a document that we're 30:9 going to mark as Exhibit 86, and it's Bates stamped 30:10 WADS006625 to 6633. 30:11 (Exhibit 86 marked) 30:12 Q. I'll represent to you that this is another 30:13 document we got from John Wadsworth. It appears to be a 30:14 New Century Properties Limited Cash Disbursement Journal 30:15 for the year 2002. If you look -- 30:16 A. What is it? What do I look at? 30:17 Q. Oh. So if you look -- throughout this document 30:18 there appears to be a few periodic transfers to you of 30:19 $10,500. So there's on February 21st of 2002, then 30:20 March 25th, April 23rd, May 28th and June 24th. I think 30:21 it's in chronological order. So if you just look for the 30:22 dates. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED SUSTAINED Object to 30:12-22 under Fed. R. Evid. 602, 802, and 901. Ms. Talmage does not have personal knowledge of the document referenced, does not lay foundation for it, and the document itself is inadmissible hearsay. This testimony is proper under Rule 602. Ms. Talmage has already testified that she received payments from Ron Talmage. It is appropriate to question her further about other payments she may have received. The document itself is not being offered into evidence, so there is no basis for the Rule 802 or 901 objections. Further, the document and any statements within are not offered for the truth of the matter asserted and were shown to the witness to refresh her recollection under Rule 612. Object to Exhibits 85 and 86 on the grounds that they were not disclosed in the Government’s Pretrial Disclosures. These documents were not disclosed because the United States does not intended to offer them into evidence. 13 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11069 Page 407 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Kumiko Talmage taken August 15, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Exhibits Ruling OVERRULED Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Object to 31:1-22 under Fed. R. Evid. 602, 802, and 901. Ms. Talmage does not have personal knowledge of the document referenced, does not lay foundation for it, and the document itself is inadmissible hearsay. This testimony is proper under Rule 602. Ms. Talmage has already testified that she received payments from Ron Talmage. It is appropriate to question her further about other payments she may have received. The document itself is not being offered into evidence, so there is no basis for the Rule 802 or 901 objections. Further, the document and any statements within are not offered for the truth of the matter asserted and were shown to the witness to refresh her recollection under Rule 612. Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 31:1 MS. GOLDEN: I'll say it out loud again as I 31:2 mark them. So there's one on February 21st, 2002. So all 31:3 these dates are going to be 2002. One on March 25th. One 31:4 on April 23rd. One on May 28th. One on June 24th. And 31:5 one on August 27th. And then those are all in the amount 31:6 of 10,500 according to this document. And then there's a 31:7 final transfer on September 26th, 2002, that is in the 31:8 amount of $51,775. And that last one is on page 31:9 WADS006631. 31:10 A. Probably. I don't remember really well. But 31:11 after the divorce, about three years, he didn't pay me -- 31:12 three years, he didn't pay me the settlement, and instead 31:13 I think he said that he would pay the interest. 31:14 Q. That's your understanding, to the best of your 31:15 recollection, that the 10,500 payments that you got 31:16 throughout 2002, that's interest on your divorce 31:17 settlement? 31:18 A. Yes, I think so. 31:19 Q. And the last payment there on September 26th, 14 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11070 Page 408 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Kumiko Talmage taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 31:20 2002, of $51,775, was that also for the divorce 31:21 settlement? 31:22 A. I think it was the part of it. 32:2 (Exhibit 87 marked) 32:3 Q. I'll represent to you that this is another 32:4 document we got from John Wadsworth. It appears to be the 32:5 New Century Properties Ltd. general ledger for the year 32:6 2004. If you look on page WADS006902, there appears to be 32:7 a transfer dated January 20th, 2004, to you in the amount 32:8 of $133,395. And do you recall getting this transfer? 32:9 A. I remember I received the interest in one 32:10 payment for the year. 32:11 Q. Just to confirm, this 133,000 payment was the 32:12 interest on your divorce settlement for the year 2004? 32:13 A. I think so. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 87 OVERRULED SUSTAINED Object to 32:3-13 under Fed. R. Evid. 602, 802, and 901. Ms. Talmage does not have personal knowledge of the document referenced, does not lay foundation for it, and the document itself is inadmissible hearsay. This testimony is proper under Rule 602. Ms. Talmage has already testified that she received payments from Ron Talmage. It is appropriate to question her further about other payments she may have received. The document itself is not being offered into evidence, so there is no basis for the Rule 802 or 901 objections. Further, the document and any statements within are not offered for the truth of the matter asserted and were shown to the witness to refresh her recollection under Rule 612. Object to Exhibit 87 on the grounds that it was not disclosed in the Government’s Pretrial Disclosures. This document was not disclosed because the United States does not intend to offer it into evidence at trial. 15 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11071 Page 409 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Kumiko Talmage taken August 15, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 33:1 Q. Have you heard of an entity called WWIS Limited? 33:2 A. Yes, once -- once I heard of it after the 33:3 divorce in the email. Is it the email? I think I -- I 33:4 think I heard something. 33:5 Q. So after the divorce you heard something about 33:6 email? 33:7 A. I heard about this name. 33:8 Q. How did you hear of it? 33:9 A. I think I saw it once in an email. 33:10 Q. Who was the email from? 33:11 A. From Talmage. 33:12 Q. That's Ronald Talmage? 33:13 A. Yes, I think so. 33:14 Q. Who showed you the email? 33:15 A. I don't think I received -- I don't think the 33:16 email came directly from him, but it may have been that 33:17 his -- his notice of his wedding, but I don't remember. 33:18 Q. So if the email was not directly from him, did 33:19 somebody forward that to you? 33:20 A. I think so. 33:21 Q. Do you recall who forwarded it? 33:22 A. I don't remember. 33:23 Q. Other than that email, did you hear anything 16 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11072 Page 410 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Kumiko Talmage taken August 15, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 88 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 33:24 else about WWIS Limited? 33:25 A. No, I haven't. 34:4 Q. Do you know if anybody else is associated with 34:5 WWIS besides Ronald Talmage? 34:6 A. I think it was the wife. 34:7 Q. Is that Annette? 34:8 A. Yes. 34:9 Q. And other than Annette, do you know if there's 34:10 anybody else associated with WWIS? 34:11 A. No. 34:12 Q. Have you heard of an entity called Trans-Pacific 34:13 Partners, Ltd.? 34:14 A. Yes, I've heard of it. 34:15 Q. How did you hear of it? 34:16 A. When I was still married and living in Japan, I 34:17 heard about the company. 34:18 Q. And who told you about it? 34:19 A. From Talmage. 34:20 Q. And do you know what Trans-Pacific Partners 34:21 does? 34:22 A. I don't know. 34:23 Q. Do you know if anybody else besides Ronald 34:24 Talmage, and I believe earlier you said Mr. Seki was 34:25 associated with Trans-Pacific Partners? 17 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11073 Page 411 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Kumiko Talmage taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 35:1 A. Lloyd Tupper and Keiji Yamane. 35:2 Q. Can you spell those names? 35:3 A. So it's the bottom two. 35:4 So I'm being handed a piece of paper. It says 35:5 Lloyd Tupper, appears to be L-L- O-Y-D, and then 35:6 T-U-P-P-E-R. And then the second name is Keiji, K-E-I-J-I 35:7 Yamane, Y-A-M-A-N-E. 35:8 Okay. Do you know what Lloyd Tupper and Keiji 35:9 Yamane roles were with Trans- Pacific Partners? 35:10 A. Talmage was the president, but I don't know -- I 35:11 don't know those -- I don't know their roles, but I think 35:12 they were partners. 35:13 Q. Did you ever get any money from Trans-Pacific 35:14 Partners Limited? 35:15 A. I don't know which one it was, but I remember 35:16 one of them sent me money after my divorce. 35:17 Q. I'm going to show you a document that's being 35:18 marked as Exhibit 88 and that's Bates stamped WADS008222. 35:19 (Exhibit 88 marked) 35:20 Q. I'll represent to you that this is a document we Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Object to 35:17-36:11 under Fed. R. Evid. 602, 802, and 901. Ms. Talmage does not have personal knowledge of the document referenced, does not lay foundation for it, and the document itself is inadmissible hearsay. 18 OVERRULED Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11074 Page 412 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Kumiko Talmage taken August 15, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Exhibits Ruling Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE This testimony is proper under Rule 602. Ms. Talmage has already testified that she received payments from Ron Talmage. It is appropriate to question her further about other payments she may have received. The document itself is not being offered into evidence, so there is no basis for the Rule 802 or 901 objections. Further, the document and any statements within are not offered for the truth of the matter asserted and were shown to the witness to refresh her recollection under Rule 612. Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 35:21 got from John Wadsworth. It appears to be -- it appears 35:22 to be a receipt or some kind of transfer confirmation 35:23 for -- in the amount of $2528.94. 35:24 A. When is it? 35:25 Q. Dated March 20th, 2000. That's at the top 36:1 right. 36:2 A. Okay. 36:3 Q. And it says, "Beneficiary, Kumiko Talmage." 36:4 A. Where is the amount written? This one? 36:5 Q. Yes. It's in the top left box here. 36:6 And then at the bottom it says, "Trans-Pacific, 36:7 Partners Limited." So it seems to be a transfer from 36:8 Trans-Pacific Partners to yourself. 36:9 And I'm sorry, I think -- 36:10 A. It was the year 2000. So I think it was 36:11 something related to Lillian. 36:12 Q. How old was Lillian at the time? 36:13 A. Last year in high school. 36:14 Q. And one small correction. I think I misspoke. 36:15 It says the remittance amount is 2500 and then there 36:16 appear to be an additional $28.94 of charges. 36:17 A. I don't remember that. 19 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11075 Page 413 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Kumiko Talmage taken August 15, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 36:18 Q. And I'm sorry if I asked you this before, but do 36:19 you have any idea what Trans- Pacific Partners does? 36:20 A. I think I heard that they do something regarding 36:21 consultant, consulting. 36:22 Q. Who did you hear that from? 36:23 A. From him. 36:24 MRS. TALMAGE: Talmage. 36:25 A. Talmage. But I don't know any details. 40:19 Q. Before you met John Wadsworth in person last 40:20 year, had you ever heard of him? 40:21 A. Yes, I heard a little bit about his name. 40:22 Q. And what did you hear? 41:19 Q. Have you ever heard of an entity called Western 41:20 Land & Livestock, LLC? 41:21 A. No, I haven't. 41:22 Q. Have you ever heard of an entity called Western 41:23 Reserve Mortgage, LLC? 20 Exhibits Ruling OVERRULED SUSTAINED Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Object to 36:14-17 under Fed. R. Evid. 602, 802, and 901. Ms. Talmage does not have personal knowledge of the document referenced, does not lay foundation for it, and the document itself is inadmissible hearsay. This testimony is proper under Rule 602. Ms. Talmage has already testified that she received payments from Ron Talmage. It is appropriate to question her further about other payments she may have received. The document itself is not being offered into evidence, so there is no basis for the Rule 802 or 901 objections. Further, the document and any statements within are not offered for the truth of the matter asserted and were shown to the witness to refresh her recollection under Rule 612. Object to Exhibit 88 on the grounds that it was not disclosed in the Government’s Pretrial Disclosures. This document was not disclosed because the United States does not intend to offer it into evidence at trial. Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11076 Page 414 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Kumiko Talmage taken August 15, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 41:24 A. No, I haven't. 41:25 Q. Have you ever heard of an entity called 42:1 Preferred Leasing, LLC? 42:2 A. No, I haven't. 42:3 Q. Have you heard -- have you ever heard of an 42:4 entity called For This Property Group, LLC? 5 A. I haven't. Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 40:23 A. I only heard his name. Because long time ago 40:24 when I was in a Japan, I knew his parents through church. 40:25 Q. Did you ever hear about John Wadsworth from 41:1 Ronald Talmage? 41:2 A. No, I didn't. 41:3 Q. Did you ever hear about John Wadsworth from Kory 41:4 Talmage? 41:5 A. We had dinner together and that's all. 41:6 Q. Before that dinner in Oregon, had Kory told you 41:7 anything about John Wadsworth? 41:8 A. So my -- his parents were going to the same ward 41:9 at the church with me. So... 41:10 Q. That's in Japan? 41:11 A. Yes. 41:12 Q. So just to be -- just to confirm, before you had 41:13 dinner with Mr. Wadsworth in Oregon last year, Kory never 41:14 told you anything about him? 41:15 A. I think I remember I heard his -- about his name 41:16 a few times. 41:17 Q. Anything else besides the name? 41:18 A. No. 42:11 Q. And what's your understanding of the 21 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11077 Page 415 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Kumiko Talmage taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 42:12 relationship between Mr. Wadsworth and your son Kory? 42:13 A. I think it was a business relationship. 42:14 Q. Do you have any idea what kind of business? 42:15 A. I think they were working for Ron, but I don't 42:16 know. 42:17 Q. Do you have any idea what they were doing for 42:18 Ron? 42:19 A. I don't know the detail. 46:2 Q. (BY MR. INGRAM) This is a photograph that was 46:3 provided to me. Do you recognize the woman in the hat? 46:4 A. I think I met -- I met her once at the 46:5 deposition, but I don't remember well. 46:6 Q. Do you know who this is? 46:7 A. I think that's Mrs. Seki because she's with 46:8 them. 46:9 Q. Mrs. Chen you mean? 46:10 A. Yes. 46:11 Q. And is this Ron next to Mrs. Chen? 46:12 A. Yes. 46:13 Q. And is this Annette next to Ron? 46:14 A. Yes. 46:15 Q. Thank you. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 89 22 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11078 Page 416 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Kumiko Talmage taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 46:16 MS. GOLDEN: Can we clarify -- since there was 46:17 pointing, can we clarify which people in the photograph? 46:18 MR. INGRAM: I said the woman in the hat. And 46:19 then -- there's only on woman with the hat. Then the 46:20 gentleman next to her. There's only one gentleman 46:21 standing next to her. Then the woman next to Ron. 46:22 There's only one other woman next to her. So I think the 46:23 record is clear. 46:25 Q. Mrs. Talmage, you were asked about Exhibits 85 47:1 and 86 and 87 regarding transfers from New Century 47:2 Properties Limited. For the monies that were transferred 47:3 to you, do you have any idea where New Century Properties 47:4 Limited obtained those funds? 47:5 A. So as far as I know, I thought when we were 47:6 still in Japan, he received commissions from the companies 47:7 promised him, Taki Huigi, and we were talking about moving 47:8 to the US. So I thought the plan came from there. 47:9 Q. After your divorce, do you know where the monies 47:10 came from? Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 85, 86, 87 OVERRULED as to 46:25-47:8; SUSTAINED as to 47:9-21 Object to 46:25-47:21 under Fed. R. Evid. 602 and 701. Ms. Talmage does not have personal knowledge of the documents referenced, does not lay foundation for them, and the documents themselves are inadmissible hearsay. Ms. Talmage also expressly states that her testimony about these matters is what she “assumed,” not that she had personal knowledge of them. The United States concedes that 47:9– 47:21 can be excluded under Rule 602. The remaining designations are proper because Ms. Talmage is basing her testimony on knowledge obtained while married to Mr. Talmage and conversations they had about moving to the United States. The documents are not being offered into evidence, so the Rule 23 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11079 Page 417 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Kumiko Talmage taken August 15, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 802 objection lacks merit. Further, the statements contained within the documents are not being offered for the truth of the matter asserted and are only used to refresh the witness’ recollection under Rule 612. Object to Exhibits 85, 86, and 87 on the grounds that they were not disclosed in the Government’s Pretrial Disclosures. These documents were not disclosed because the United States does not intend to offer them into evidence at trial. Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 47:11 A. Even after the divorce I assumed that they were 47:12 living with -- he was living with -- on this commission he 47:13 received from these companies. 47:14 Q. Do you know how Mr. Talmage was obtaining the 47:15 commission? 47:16 A. How he received? 47:17 Q. How he earned the commission? 47:18 A. I think he received it as a reward for 47:19 counseling. 47:20 Q. What kind of counseling? 47:21 A. I don't know that much detail. 50:25 Q. Okay. You were married to Mr. Talmage for about 51:1 25 years; is that correct? 51:2 A. Twenty-seven. 51:3 Q. Twenty-seven. And during that time were you 51:4 able to formulate an opinion about his trustworthiness? 51:5 A. My personal opinion? 51:6 Q. Yes. 51:7 A. You are asking me about him, that I could trust 51:8 him? 51:9 Q. Do you have a personal opinion about his 51:10 trustworthiness? 51:11 A. My opinion he was more like a perfectionist, 24 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11080 Page 418 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Kumiko Talmage taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 51:12 controlled, and sometimes manipulate kind of person. 51:13 So... He was hard. I'm not sure if I was able to trust 51:14 him or not. 51:15 Q. Do you have an opinion about his ability to tell 51:16 the truth? 51:17 A. I didn't know then at the time. 51:18 Q. And what is your opinion now? 51:19 A. I think he's a liar. 56:1 C E R T I F I C A T E 56:2 56:2 STATE OF UTAH ) 56:3 ) SS. 56:3 COUNTY OF SALT LAKE ) 56:4 56:5 I, Susan S. Sprouse, a Registered Professional 56:5 Reporter, Certified Court Reporter, and Notary Public in 56:6 and for the State of Utah, do hereby certify: 56:7 That the deposition of Kumiko Wako Talmage, the 56:7 witness in the foregoing deposition named, was taken on 56:8 August 15, 2017; that said witness was by me, before 56:8 examination, duly sworn to testify the truth, the whole 25 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11081 Page 419 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Kumiko Talmage taken August 15, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 56:9 truth, and nothing but the truth in said cause. 56:10 That the testimony of said witness was reported by 56:10 me in stenotype and thereafter transcribed by computer, 56:11 and that a full, true, and correct transcription of said 56:11 testimony so taken is set forth in the foregoing pages; 56:12 56:12 That a copy of the same was sent to Kumiko Wako 56:13 Talmage for reading and signature before a Notary Public, 56:13 and to be returned to my office within 30 days of the date 56:14 hereon. 56:15 I further certify that I am not of kin or 56:15 otherwise associated with any of the parties to said 56:16 cause of action, and that I am not interested in the 56:16 event thereof. 56:17 56:18 WITNESS MY HAND and official seal at Salt Lake City, 56:19 Utah, this 31st day of August, 2017. 56:20 56:21 56:22 ____________________________ 56:23 26 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11082 Page 420 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Kumiko Talmage taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling PLAINTIFF COUNTER- DESIGNATIONS 56:24 SUSAN S. SPROUSE 56:25 License No. 5965543-7801 DEFENDANT COUNTER- DESIGNATIONS 5:8 Q. One threshold matter since we have the Japanese 5:9 interpreter in this deposition is that so the record is 5:10 going to be in English, but I will try to ask you guys to 5:11 follow the interpreter procedures. So that is, I will ask 5:12 a question. Please wait for me to finish. And then the 5:13 interpreter will translate the question into Japanese and 5:14 you can answer in Japanese, and then the interpreter will 5:15 translate back into English. So only the English question 5:16 and answer are going to be on the record. 5:24 INTERPRETER: She just like me to repeat. 5:25 Q. Ms. Talmage, have you ever been deposed before? 6:1 A. Yes, I have. About 10 years ago because I 6:2 receive a subpoena. 6:3 Q. What case was that in connection with? 27 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11083 Page 421 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Kumiko Talmage taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 6:4 A. I receive a subpoena from IRS when I was in 6:5 Portland. 6:6 Q. Do you know whose taxes that case concerned? 6:7 A. Ronald Talmage. 18:23 Q. Have you ever talked to the IRS about Kory? 18:24 A. Yes. 18:25 Q. What did you tell the IRS? 19:1 A. I think I -- my son said that he was also 19:2 deceived by his father. 19:3 Q. When did you talk to the IRS about this? 19:4 A. I think it was the last time I talked to them. 19:5 Q. That's five or six years ago? 19:6 A. Yes. 22:22 Q. What -- and what are you concerned about in 22:23 terms of your son? 22:24 A. So my son, he -- he was -- he was -- he -- he 22:25 was deceived by his father. And I also have been 23:1 threatened many times. So I feel scared. And my son -- I 23:2 think my son is trying to avoid to come to the US. 23:3 Q. I'm sorry to hear you've been threatened. Do 23:4 you know who's been doing that? 23:5 A. From Ronald after the divorce. 23:6 Q. What kind of things did he do? Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Objection to 22:22–25 under Rule 602. OVERRULED The foundation for Ms. Talmage’s testimony is at 18:23-19:2. 28 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11084 Page 422 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Kumiko Talmage taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 23:7 A. Many things, including the -- the -- the words 23:8 that he speaks to me, the kind of words. 23:9 Q. So when was the last time he threatened you with 23:10 these words? 23:11 A. It may have been the time that he was testifying 23:12 at deposition. 23:13 Q. And that's about 10 years ago? 23:14 A. That's what I remember. 32:23 Q. Have you heard of an entity called Worldwide 32:24 Investment Services Limited? 32:25 A. No, I haven’t. 37:2 Are you familiar with John Wadsworth? 37:3 A. I know him. 37:4 Q. When did you first meet him? 37:5 A. Last year in Oregon. 37:6 Q. And how did you come to meet him? 37:7 A. I’m not sure if it was last year, but he came to 37:8 Oregon and I met him together with my son. 37:9 Q. And that’s Kory? 37:10 A. Yes. 39:6 Q. Other than the office visit, did you and 39:7 Mr. Wadsworth discuss anything else about Kory? 39:8 A. I think I heard that both of them were deceived Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Objection to 39:6–39:15 under Rules 602 and 802. This is not being offered for the truth of the matter asserted, but to show the 29 OVERRULED Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11085 Page 423 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Kumiko Talmage taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 39:9 by Ronald. 39:10 Q. When you say “deceived,” in what way? 39:11 A. That Ronald took money from both of them. 39:12 Q. Did you and Mr. Wadsworth discuss anything else 39:13 about Kory? 39:14 A. I think that’s all we talked about. I don’t 39:15 remember well. 43:7 Q. Are you familiar with a large property out in 43:8 Liberty, Utah, that Ronald and Annette Talmage used to 43:9 live at? 43:10 A. The place they used to live? 43:11 Q. Yes. 43:12 A. I think I heard that they lived somewhere in 43:13 Ogden. 43:14 Q. How did you hear that? 43:15 A. I don't remember how. 43:16 Q. Just to be clear, you're not familiar with the 43:17 property in Liberty, Utah, that Ronald and Annette 43:18 previously lived at? 43:19 A. I don't know anything. 47:24 Q. Did you ever at any time hold a position with 47:25 New Century Properties Limited? 48:1 A. Myself, no, because I found out about this 48:2 company after the divorce. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE nature of the conversations Ms. Talmage had with Mr. Wadsworth. Exhibits Ruling 30 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11086 Page 424 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Kumiko Talmage taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 48:3 Q. Okay. And so I assume you were never employed 48:4 with New Century Properties Limited? 48:5 A. Correct. 48:17 Q. Had Ronald Talmage ever previously threatened 48:18 your life? 48:19 A. He was threatening me regularly with words. 48:20 Q. Did he ever threaten to physically harm you? 48:21 A. Repeatedly he threatened me with his words but 48:22 not physically. Instructions: One form should contain all designations for a witness. Plaintiff Designations (column 1) and Defendant Designations (column 2) will show the full deposition text that the party proposes to read in its case-in-chief. Completeness designations are proposed by the other party, under Fed. R. Civ. P. 32(a)(6), to be read with the designations. Counter–designations are read following the designations and completeness designations, similar to cross examination. This form should be provided in word processing format to the other party, who then will continue to fill in the form. The form is then returned to the proposing party for review, resolution of disputes, and further editing. The parties should confer and file a final version in PDF format using the event “Notice of Filing” and also submit a final word processing copy to the court at [email protected], for ruling. All objections which the objecting party intends to pursue should be listed, whether made at the deposition, as with objections as to form, or made newly in this form, if the objection is of a type that was reserved. 31 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11087 Page 425 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Lillian Talmage Wilkins taken August 16, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling DEFENDANT -DESIGNATIONS PLAINTIFF DESIGNATIONS 4:3 LILLIAN TALMAGE WILKINS, 4:4 called as a witness, by and on behalf of the plaintiff, 4:5 having been first duly sworn, was examined and testified as 4:6 follows: 4:18 Q. Could you please state your full name? 4:19 A. Lillian Wilkins. 4:20 Q. Do you have any former names? 4:21 A. Talmage. My maiden name is Talmage. 4:22 Q. Do you have any nicknames or aliases? 4:23 A. No. 8:16 Q. And do you know Ronald Talmage? 8:17 A. Yes. 8:18 Q. How do you know him? 8:19 A. He's my father. 8:20 Q. I take it you've known him your whole life? 8:21 A. Yes. 8:22 Q. And do you keep in touch with your dad? 8:23 A. No. 8:24 Q. When was the last time you talked to him? 8:25 A. I don't remember. 9:1 Q. Do you have a sense if it was within the last few 1 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11088 Page 426 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Lillian Talmage Wilkins taken August 16, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 9:2 years or is it longer than that? 9:3 A. It's been a long time. I've avoided him for a 9:4 long time. 9:5 Q. I see. Does he communicate with you in any way, 9:6 such as by phone or e-mailing you or sending you letters? 9:7 A. No. 9:8 Q. Does he send you any cards on your birthday? 9:9 A. No. 9:10 Q. So, for quite awhile now, essentially, you've had 9:11 no contact with your dad? 9:12 A. Correct. 9:13 Q. I probably know the answer to this already but 9:14 just to ask, do you have any idea where he's living right 9:15 now? 9:16 A. No. 9:17 Q. Do you have any idea how to contact him? 9:18 A. No. 9:19 Q. Do you know if there is anyone who would know 9:20 where he's living or how to contact him? 9:21 A. No. 9:24 Q. Has he ever sent you money? 9:25 A. He paid for my college tuition, but, no. I mean, 10:1 other than maybe birthday gifts like ten years ago. I don't Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 2 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11089 Page 427 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Lillian Talmage Wilkins taken August 16, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 10:2 remember the last time. 10:3 Q. So, it's been around ten years since he last sent 10:4 you any form of money? 10:5 A. That I recall. 10:6 Q. Do you know Annette Talmage? 10:7 A. Yes. 10:8 Q. How do you know her? 10:9 A. She's my aunt. 10:10 Q. And how long have you known her? 10:11 A. My whole life. 10:12 MR. INGRAM: Are you talking about Annette 10:13 Talmage? 10:14 Q. Yes. I think we might be talking about the wrong 10:15 person here. 10:16 A. Oh, I'm sorry. I was talking about my aunt. No, 10:17 my stepmother. Sorry. I was thinking of the wrong person. 10:18 Sorry, there are two in my family. 10:19 Q. Oh, I didn't realize that. Okay. 10:20 A. That was my mistake. She is my stepmother. Can 10:21 I correct that? 10:22 Q. Yes. Yes, of course. 10:23 A. How long have I known her? Since my senior year 10:24 of high school. 10:25 Q. That's about 2001? Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 3 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11090 Page 428 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Lillian Talmage Wilkins taken August 16, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 11:1 A. When they got married. 11:2 Q. 2001 or 2002? 11:3 A. I think 2002 when they got married. I don't know 11:4 her well though. I know who she is, I guess. 11:5 Q. How well do you keep in touch with Annette 11:6 Talmage? 11:7 A. How well? 11:8 Q. Yes. 11:9 A. I don't at all. 11:10 Q. When was the last time you saw her? 11:11 A. I don't remember. Yeah, I don't remember. 11:12 Q. Did you see her when your dad got married to 11:13 her? 11:14 A. No, I wasn't there. 11:19 Q. Does Annette Talmage, does she keep in touch with 11:20 you in any other way such as by phone, sending you e-mails or 11:21 letters or anything? 11:22 A. No. 11:23 Q. And do you have any idea where Annette Talmage 11:24 might be living? 11:25 A. No. 12:1 Q. Or how to contact her? 12:2 A. No. 12:3 Q. Do you know anyone else who might know where 12:4 she's living or how to contact her? Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 4 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11091 Page 429 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Lillian Talmage Wilkins taken August 16, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 12:5 A. No. 12:12 Q. And do you know Kory Anton, or Kory Talmage? 12:13 A. Yes. 12:14 Q. Who is he? 12:15 A. My brother. 12:16 Q. And have you known Kory your entire life? 12:17 A. Yes. 15:5 Q. Are you familiar with somebody called Liu Shiu 15:6 Chen or Ms. Chen? 15:7 A. I have met her. 15:8 Q. When did you meet her? 15:9 A. At my wedding. 15:10 Q. When was that? 15:11 A. August 26, 2006. 15:12 Q. Did you talk to Ms. Chen at all? 15:13 A. Just polite greetings. 15:14 Q. Who introduced you to her? 15:15 A. My dad. 15:16 Q. So, is that potentially the last time you saw 15:17 your dad was at the wedding? 15:18 A. I've seen him at nieces' baptisms and things like 15:19 that, but we didn't speak much. 15:20 Q. Do you remember if Mrs. Chen spoke any English? 15:21 A. I don't remember. I spoke to her in Japanese. 15:22 Q. I see. Other than your wedding, did you ever 5 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11092 Page 430 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Lillian Talmage Wilkins taken August 16, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 15:23 talk to Mrs. Chen again? 15:24 A. No. 17:9 Q. Just wondering if you knew. I'm actually going 17:10 to show you a document that's been marked as Exhibit 89. And 17:11 that's Bate stamped WADS005952. So this is a picture that we 17:12 got from John Wadsworth. 17:13 A. Uh-huh. 17:14 Q. And you can see at the bottom it appears to be 17:15 dated 2006. And so this -- I'm pointing to the woman in 17:16 sunglasses and a white hat and a striped shirt. Is that the 17:17 Mrs. Chen that you met? 17:18 A. I think so. 17:19 Q. And then the taller gentleman standing next to 17:20 her, is that your dad? 17:21 A. Yes. 17:22 Q. And then the blond woman in sunglasses next to 17:23 him, who is that? 17:24 A. That's Annie. 17:25 Q. That's your stepmother? 18:1 A. Yes 19:16 Q. You can set that exhibit aside. I'm going to 19:17 show you a document that's Bate stamped WADS006102 and will 19:18 be marked as Exhibit 96. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 89 96 OVERRULED Object to 19:16-20:1 under Fed. R. Evid. 602 and 802. The document referenced is inadmissible hearsay. Ms. Wilkins expressly states that she has no personal knowledge of the entity referenced in the 6 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11093 Page 431 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Lillian Talmage Wilkins taken August 16, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 19:19 (Deposition Exhibit No. 96 was marked.) 19:20 Q. I'll represent to you this is a document we got 19:21 from John Wadsworth in this case. It appears to be a 19:22 telegraphic transfer request from an entity called Heng 19:23 Cheong Pacific Limited. It's dated across the top June 12, 19:24 2006. It shows a transfer of $25,000 dollars to Lillian 19:25 Talmage. 20:1 A. Okay. 20:2 Q. Do you recall getting $25,000 dollars somewhere 20:3 around June 2006? 20:4 A. Yes. This was the amount my father gave me to 20:5 pay for my wedding. 20:6 Q. And did you know at the time that it came from 20:7 this Hong Kong entity, Heng Cheong Pacific Limited? 20:8 A. No. 20:9 Q. Had you ever heard of Heng Cheong Pacific 20:10 Limited? 20:11 A. No. 20:12 Q. Did your dad say anything about this entity? 20:13 A. No. 20:14 Q. So he didn't tell you where the money was coming 20:15 from? Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Exhibits Ruling SUSTAINED Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE document or of the source of the money transferred to her. This testimony is proper under Rule 602 because Ms. Wilkins has personal knowledge of receiving a $25,000 payment from her father. Further, she is allowed to testify as to whether or not she has ever heard of HCPL or knows the source of the payment. The Rule 802 objection is meritless because the document is not being offered into evidence and any statements contained within are not being offered for the truth of the matter asserted. They were shown to the witness to refresh her recollection under Rule 612. Object to Exhibit 96 on the grounds that it was not disclosed in the Government’s Pretrial Disclosures. This document was not disclosed because the Government does not intend to offer it into evidence. 7 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11094 Page 432 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Lillian Talmage Wilkins taken August 16, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 20:16 A. He just said he was giving me money for my 20:17 wedding. 20:18 Q. Was this the last time that you recall that your 20:19 dad sent you any money? 20:20 A. I think so. In -- let me think -- 2010, he 20:21 bought me plane tickets. I can't remember if he sent me the 20:22 money or if he paid for them himself. That was the last 20:23 time. 20:24 Q. Do you remember where that money came from? 20:25 A. No. 21:9 Q. All right. So, showing the witness Exhibit 86, 21:10 Bate stamped WADS006625 to 6633, I'll represent to you this 21:11 is a document we got from John Wadsworth. It appears to be 21:12 the Cash Disbursements Journal for an entity called New 21:13 Century Properties Limited for the calendar year 2002. 21:14 Throughout this document, there's various 21:15 transfers from this entity. The document shows transfers 21:16 from this entity to either yourself or something called the 21:17 Lillian Talmage Irrevocable Trust. I'll give you a chance to 21:18 look it over. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 86 OVERRULED Object to 21:9-23:11 under Fed. R. Evid. 602, 701, and 802. The document referenced was not produced by Ms. Wilkins and she does not state that she has any personal knowledge of it. Ms. Wilkins states that she only knows “very little” about the transactions referenced in the document, and that she is thus “assum[ing]” what the transactions were. The document itself is inadmissible hearsay, as are all statements read from it by counsel and Ms. Wilkins. Ms. Wilkins has personal knowledge of receiving various payments for her expenses during college. While she states that she does not know for certain, her testimony is that the payments listed are consistent with that she received during 8 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11095 Page 433 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Lillian Talmage Wilkins taken August 16, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE the periods listed. The document itself is not being offered into evidence, and is being used to refresh Ms. Wilkins’ recollection under Rule 612. Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 21:19 A. Okay. 21:20 Q. There appear to be approximately monthly 21:21 transfers from this New Century Properties Limited to 21:22 yourself in the amount of $1,250 usually. Do you have any 21:23 idea what that was for? 21:24 A. I think it was for my college tuition and living 21:25 expenses. I didn't ever get them directly or at -- let me 22:1 think. Back then in 2001 -- I can't remember when this 22:2 happened. I was young and didn't understand what was 22:3 happening, but I was given money through -- oh, wait, 2001, I 22:4 was still in high school. 22:5 Q. This is 2002, it looks like, if that makes a 22:6 difference. It looks like from January to around September 22:7 2002 that we're talking about. 22:8 A. I'm sorry, where are we? 22:9 Q. I was trying to summarize. So there's various 22:10 transfers -- we're just focusing on the transfers that appear 22:11 to be you individually. So there was one on the first page, 22:12 January 25th, 2002, $1,250, and then there's another one on 22:13 February 25th, and then again on March 25th. There's various 9 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11096 Page 434 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Lillian Talmage Wilkins taken August 16, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 22:14 sort of roughly monthly ones of $1,250 dollars. 22:15 A. I'm confused. All the dates I see are 2001. 22:16 Q. It should say 2002 unless I've handed you the 22:17 wrong one. 22:18 A. These all say 2001. 22:19 Q. Oh, I've handed you 85 instead of 86. That's the 22:20 problem. 22:21 A. Okay. I see. So you want me to tell you what I 22:22 know about this? 22:23 Q. Yes. 22:24 A. Very little. I was in high school still in 22:25 January and February of 2002. From what I understand, this 23:1 was child support, and so it went to an account in my name 23:2 but my mom was, I think, joint on the account. I can't 23:3 remember actually. But that was child support. Because they 23:4 were separated by then, or divorced maybe. I don't know when 23:5 they got divorced. 23:6 Q. So your best recollection was the $1,250 dollars 23:7 is approximately the amount of the child support that was 23:8 owed? 23:9 A. I assume so. I don't remember. I was an Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 10 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11097 Page 435 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Lillian Talmage Wilkins taken August 16, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 23:10 irresponsible college student and I didn't pay attention to 23:11 my funds -- or I mean high school student, whatever. 23:12 Q. That's completely understandable. It looks like 23:13 the last payment was in August 2002. Did you turn 18 around 23:14 that time? 23:15 A. June of 2002, I did. 23:16 Q. And then throughout the same document, Exhibit 23:17 86, there's also periodic transfers of usually around $750 23:18 dollars to something called the Lillian Talmage Irrevocable 23:19 Trust. Do you have any idea what those are for? 23:20 A. I don't -- I didn't understand what was going on. 23:21 All I knew was that he was -- I don't know, it seemed -- I 23:22 never talked to him about money because he was weird about 23:23 money. And it had something to do with paying for college 23:24 and things like that. 23:25 Q. Got it. So, to the best of your knowledge, the 24:1 2002 payments were for child support or for college 24:2 expenses? 24:3 A. Yes, that's what I understand. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED Object to 23:16-24:3 under Fed. R. Evid. 602, 701, and 802. The document referenced was not produced by Ms. Wilkins and she does not state that she has any personal knowledge of it. Indeed, Ms. Wilkins testified that she “didn’t understand what was going on” with the transactions being discussed. The document itself is inadmissible hearsay, as are all statements read from it by counsel and Ms. Wilkins. Ms. Wilkins has personal knowledge of receiving various payments for her expenses during college. While she states that she does not know for certain, her testimony is that the payments listed are consistent with that she received during the periods listed. The document itself is not being offered into evidence, and is being used to refresh Ms. Wilkins’ recollection under Rule 612. 11 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11098 Page 436 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Lillian Talmage Wilkins taken August 16, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Exhibits Ruling SUSTAINED Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Object to Exhibit 86 on the grounds that it was not disclosed in the Government’s Pretrial Disclosures. This document was not disclosed because the Government does not intend to offer it into evidence. Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 24:4 Q. And did your mom or dad ever say anything about 24:5 where the money was coming from? 24:6 A. No. 24:7 Q. Have you ever heard of New Century Properties 24:8 Limited? 24:9 A. No. 24:10 Q. You can set Exhibit 86 aside. Have you ever 24:11 heard of an entity called Worldwide Investment Services 24:12 Limited? 24:13 A. No. 24:14 Q. Have you ever heard of an entity called WWIS 24:15 Limited? 24:16 A. No. 24:17 Q. Are you familiar with a John Wadsworth? 24:18 A. I've met him. 24:19 Q. When did you first meet Mr. Wadsworth? 24:20 A. That I remember? At my wedding. 24:21 Q. Did you guys talk much there? 24:22 A. No. I was just introduced to him. 24:23 Q. Who introduced him to you? 24:24 A. My dad at their wedding reception. We've been to 12 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11099 Page 437 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Lillian Talmage Wilkins taken August 16, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 24:25 his house once but I can't remember if that was before or 25:1 after my wedding. 25:2 Q. Where was the house? 25:3 A. I don't remember. It was a long drive from 25:4 Provo, that's all I remember. 25:5 Q. It was somewhere in Utah? 25:6 A. Yes. 25:7 Q. When your dad introduced Mr. Wadsworth to you, 25:8 did he say anything to you about what the relationship was? 25:9 A. No. 25:10 Q. Did Mr. Wadsworth ever say anything about what 25:11 his relationship was to your dad? 25:12 A. I've never really talked to him other than a 25:13 brief introduction, that I remember anyway. 25:14 Q. And so yesterday we talked to your sister Lisa 25:15 and she mentioned that she had grown up in Japan at least 25:16 through high school. Did you grow up in Japan at all? 25:17 A. I did. 25:18 Q. Do you remember going to church with the 25:19 Wadsworth family in Japan? 25:20 A. I don't remember, no. I've heard I have but I 25:21 don't remember them. 13 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11100 Page 438 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Lillian Talmage Wilkins taken August 16, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 25:22 Q. I see. You were much younger at that time; 25:23 right? 25:24 A. Yes. 25:25 Q. About when did you move to the U.S.? 26:1 A. On my 15th birthday in two -- when was that? Let 26:2 me do the math. 1999? No. Is that right? Yeah, it should 26:3 be. June 9th of 1999. I remember it was my birthday because 26:4 I was really mad about it. 26:8 Q. So, other than the time at your wedding reception 26:9 and when you went to Mr. Wadsworth's house, have you seen him 26:10 any other times? 26:11 A. No. 26:12 Do you keep in touch with Mr. Wadsworth at all? 26:13 No. 28:15 Q. Are you familiar at all with the property in 28:16 Liberty, Utah that Ronald and Annette Talmage used to live 28:17 at? 28:18 A. Yes. 28:19 Q. How are you familiar with it? 28:20 A. He lived there. And in January, early January 28:21 after he left, my dad, I don't know, he left a bunch of Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 28:3 Q. Understood. Have you ever heard of an entity 28:4 called Western Land and Livestock LLC? 28:5 A. No. 28:6 Q. Have you ever heard of an entity called Western 28:7 Reserve Mortgage LLC? 28:8 A. No. 28:9 Q. Just a couple more. Have you ever heard of an 28:10 entity called Preferred Leasing LLC? 14 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11101 Page 439 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Lillian Talmage Wilkins taken August 16, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 28:11 A. No. 28:12 Q. Have you ever heard of an entity called Fortus 28:13 Property Group LLC? 28:14 A. No. Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 28:22 things there. So my Aunt Carolyn and my sister and I went 28:23 to look through it to see if there were any of our 28:24 belongings. 28:25 Q. Did you find anything there that was of note or 29:1 value to you? 29:2 A. I took a few plates. 29:3 Q. To confirm, that was in January of this year? 29:4 A. Yes. 29:5 Q. Was that the first time you had heard about that 29:6 property? 29:7 A. I'd heard of it -- rumors. I don't know. But 29:8 that was the first time I knew it really existed. 29:9 Q. And do you recall at all when the first time was 29:10 that you heard about it? 29:11 A. A few years back. 29:12 Q. How did you hear about that? 29:13 A. I think it was from my Aunt Carolyn. I don't 29:14 remember. 29:15 Q. Did she say anything else about the property at 29:16 the time? 29:17 A. No. I told her I didn't want to talk about it 29:18 usually. That's usually what I say. I did get the address 15 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11102 Page 440 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Lillian Talmage Wilkins taken August 16, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 29:19 and sent my dad a birthday card that year, to be obnoxious I 29:20 suppose, and it was returned to me. 29:21 Q. That was from a few years ago? 29:22 A. Yeah. When was that? Maybe 2012, 2013. I don't 29:23 remember. 29:24 Q. Do you happen to remember the address that you 29:25 sent it to? 30:1 A. No. I think that's the same house, anyway. I 30:2 don't remember. I just remember it was close to his birthday 30:3 so I thought I would be snarky and send him a birthday card. 30:4 I don't know. 30:5 Q. When it came back returned, did it have -- what 30:6 did it say to show that it was returned? 30:7 A. If I remember right, his handwriting on it said 30:8 "Return to Sender." But, otherwise, I don't -- I wasn't sure 30:9 what was going on or anything. 30:10 Q. And it didn't have a forwarding address on it or 30:11 anything? 30:12 A. No. 30:13 Q. Do you have any idea why your dad would have 30:14 marked it "Return to Sender"? Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 16 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11103 Page 441 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Lillian Talmage Wilkins taken August 16, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 30:15 A. No, I don't know why, other than he didn't want 30:16 people to know he lived there, I assume. Right? He'd been 30:17 telling -- from what I understand, he'd been telling my whole 30:18 family he lived elsewhere. So that's why I sent it, to let 30:19 him know I knew he was lying, I guess. I don't know. 30:20 Q. And where was he telling people he was living? 30:21 A. From what I understand, he was saying he was 30:22 living half the year in South Dakota somewhere and half the 30:23 year in Taiwan. But I did not have contact with him during 30:24 those years, so I don't know. 31:24 Q. When you were there, do you remember seeing any 31:25 like dog customization features like a dog kennel or dog 32:1 run? 32:2 A. Yeah, there were dog kennels in the basement. 32:3 Q. Any other features in terms of the dog features? 32:4 A. Well, my dad is kind of obsessive about his dogs. 32:5 So he had a lot of like Irish setter paraphernalia all over. 32:6 I don't know. 32:7 Q. Did he own a lot of Irish setters? 17 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11104 Page 442 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Lillian Talmage Wilkins taken August 16, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 32:8 A. Yes. 32:9 Q. Any other types of dogs? 32:10 A. Other than when I was a child, not that I know 32:11 of. We had dachshunds. He is a dog person, from what I 32:12 know. 32:18 Q. Do you happen to remember the names of any of 32:19 your dad's favorite setters? 32:20 A. Suzi was the one I grew up with, and Krissy. 32:21 But, otherwise, no, I don't remember them. I was already 32:22 out of the house and in college by the time he had many 32:23 dogs. 32:24 Q. Do any of these other dog names sound familiar: 32:25 Clancey? 33:1 A. I may have heard it mentioned. It sounds 33:2 familiar. 33:3 Q. Sonny? 33:4 A. Sounds familiar. 33:5 Q. Smoky? 33:6 A. I don't think I've heard that one. 33:7 Q. Joker? 33:8 A. No. 33:9 Q. I'm sorry if I already asked you this but other 33:10 than the one time you visited the property in January of 18 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11105 Page 443 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Lillian Talmage Wilkins taken August 16, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 33:11 2017, have you been there otherwise? 33:12 A. No. 33:20 Q. Do you know when your dad and Annette moved out 33:21 of the Liberty property? 33:22 A. Sometime in December is all I've heard. 33:23 Q. And did you hear that from Aunt Carolyn as well? 33:24 A. Yes. 40:10 Q. Okay. You said that you try to avoid anything to 40:11 do with your father. Do you remember that? 40:12 A. Yes. 40:13 Q. Why is that? 40:14 A. He's not a good person and I don't want to have 40:15 anything to do with him. 40:16 Q. Have you been able to form an opinion about your 40:17 father's propensity to tell the truth? 40:18 A. Would you rephrase that? 40:19 Q. Have you been able to formulate an opinion about 40:20 your father's propensity to tell the truth? 40:21 A. Yeah. 40:22 Q. And what is your opinion? 40:23 A. He is a liar. 40:24 Q. Anything else about his trustworthiness you have Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 19 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11106 Page 444 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Lillian Talmage Wilkins taken August 16, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 40:25 an opinion about? 41:1 A. Just that he is not someone you can trust. 43:1 C E R T I F I C A T E 43:2 43:2 STATE OF UTAH ) 43:3 :ss 43:3 COUNTY OF SALT LAKE ) 43:4 43:5 THIS IS TO CERTIFY that the deposition of LILLIAN 43:5 TALMAGE WILKINS, the witness in the foregoing deposition 43:6 named, was taken before me, Rashell Garcia, Certified 43:6 Shorthand Reporter and Notary Public in and for the State of 43:7 Utah, residing in Salt Lake City. 43:8 That the said witness was by me, before examination, 43:8 duly sworn to testify the truth, the whole truth, and 43:9 nothing but the truth in said cause. 43:10 That the testimony of said witness was by me reported in 43:10 Stenotype, and thereafter caused to be transcribed into 43:11 typewriting, and that a full, true, and correct transcription 43:11 of said testimony so taken and transcribed is set forth in 43:12 the foregoing pages, numbered from 2 to 43, inclusive, and 43:12 said witness deposed and said as in the foregoing annexed 20 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11107 Page 445 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Lillian Talmage Wilkins taken August 16, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 43:13 deposition. 43:14 I further certify that a reading copy of the same was 43:14 mailed to the witness at 715 Eagle Pass, North Salt Lake, 43:15 Utah, 84054, for reading and signature, signing before a 43:15 Notary Public, and to be returned within 30 days of the date 43:16 hereon. 43:17 I further certify that I am not of kin or otherwise 43:17 associated with any of the parties to said cause of action, 43:18 and that I am not interested in the event thereof. 43:19 WITNESS MY HAND and official seal at Salt Lake City, 43:19 Utah, this __________ day of_______________, 2017. 43:20 43:21 My Commission Expires: _____________________ 43:21 01-23-2018 Rashell Garcia C.S.R. 43:22 License No. 144 43:23 43:24 43:25 DEFENDANT COUNTER- DESIGNATIONS 34:5 Q. Did you ever hear why your dad and Annette were 34:6 living at the Liberty property? Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling PLAINTIFF COUNTER- DESIGNATIONS 21 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11108 Page 446 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Lillian Talmage Wilkins taken August 16, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 34:7 A. No. 34:8 Q. And did you ever hear anything about how they 34:9 were paying for it? 34:10 A. No. 38:8 Q. Do you have any information of the lease 38:9 agreement for the property? 38:10 A. No. 38:11 Q. Okay. Do you know who the actual parties were 38:12 who were leasing the property? 38:13 A. No. 38:19 Q. Have you ever seen purchase documents for the 38:20 property? 38:21 A. No. 38:22 Q. Have you ever seen a rent agreement? 38:23 A. No. 38:24 Q. Ever seen a mortgage payment? 38:25 A. No. 39:1 Q. Ever seen a rent payment? 39:2 A. No. 39:12Q. We were talking about a couple of entities on 39:13 Exhibit 96 and Exhibit 85. One was Heng Cheong Pacific 39:14 Limited. Do you remember that? 39:15 A. Yes. 39:16 Q. Do you have any idea what the business of that 39:17 company was? 39:18 A. No. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 22 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11109 Page 447 of 478 Case Name: United States v. Talmage, et. al Case Number: 1:16-cv-19-DN-PMW Deposition of Lillian Talmage Wilkins taken August 16, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 39:19 Q. Do you have any idea who owned it? 39:20 A. No. 39:21 Q. Do you have any idea where the funds were 39:22 acquired to transfer to you? 39:23 A. No. 39:24 Q. Okay. Same thing with New Century Properties 39:25 Limited, do you know anything about that company? 40:1 A. No. 40:2 Q. Do you know how it acquired the funds to transfer 40:3 to you? 40:4 A. No. Instructions: One form should contain all designations for a witness. Plaintiff Designations (column 1) and Defendant Designations (column 2) will show the full deposition text that the party proposes to read in its case-in-chief. Completeness designations are proposed by the other party, under Fed. R. Civ. P. 32(a)(6), to be read with the designations. Counter–designations are read following the designations and completeness designations, similar to cross examination. This form should be provided in word processing format to the other party, who then will continue to fill in the form. The form is then returned to the proposing party for review, resolution of disputes, and further editing. The parties should confer and file a final version in PDF format using the event “Notice of Filing” and also submit a final word processing copy to the court at [email protected], for ruling. All objections which the objecting party intends to pursue should be listed, whether made at the deposition, as with objections as to form, or made newly in this form, if the objection is of a type that was reserved. 23 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11110 Page 448 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Lisa Allen taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling DEFENDANT -DESIGNATIONS PLAINTIFF DESIGNATIONS 3:5 LISA ALLEN, 3:6 Called by the Plaintiff, having been duly 3:7 Sworn, is examined and testifies as follows: 4:17 Q. Okay. Okay. So Ms. Allen, do you have any 4:18 former names? 4:19 A. I do. My maiden name is Talmage. This is 4:20 actually my second marriage and so my former name before 4:21 Allen was Hamler. H-A-M-L-E- R. 4:22 Q. Okay. Any other ones? 4:23 A. Nope. 9:20 Q. Okay. Do you know Ronald Talmage? 9:21 A. Yes. 9:22 Q. And how do you know him? 9:23 A. He's my father. 9:24 Q. And so you've known him, I assume, since you 9:25 were born? 10:1 A. Yes, my whole life. 10:2 Q. How well do you keep in touch? 10:3 A. Not very well at all. 10:4 Q. When was the last time you made contact or he 10:5 made contact with you? 1 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11111 Page 449 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Lisa Allen taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 10:6 A. Um, I believe it was -- let me think. The last 10:7 time I saw him was about four years ago when my daughter 10:8 was getting baptized. I had invited him to the baptism. 10:9 And so he came for that and left right after the ceremony, 10:10 and so we didn't have much interaction. 10:11 And then I believe almost two years ago, I 10:12 emailed him to invite him and his wife to another family 10:13 event. It was actually for my son, and he declined the 10:14 invitation, and I haven't had any interaction with him 10:15 since. 10:16 Q. Okay. When you emailed him, do you know what 10:17 his email is? 10:18 A. So the one that I had then -- can I look it up? 10:19 Q. Sure. By all means. 10:20 A. I think it was like Ronaldbtalmage@wwsi, or 10:21 something like that. Let me see if I can find it. Let's 10:22 see. 10:23 Sorry. I'm not finding it. It might have been 10:24 too long ago, but I could -- I probably have it at home 10:25 maybe on my computer. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 2 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11112 Page 450 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Lisa Allen taken August 15, 2017 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 11:9-10 Q. Have you had any phone contact with him? 11:10 A. No. 11:11 Q. Do you know a good phone number to reach him? 11:12 A. I don't. I don't believe so. I could look and 11:13 see. It's -- let me see. I don't, but I did find an 11:14 email address. 11:15 Q. Oh, okay. Great. 11:16 A. It's Ron, R-O-N-T-A-L- M-A-G-E, Ron Talmage, all 11:17 one word at WWISLTD.com. 14:19 Q. Has Mr. Talmage ever sent you any money? Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 11:18 Q. Great. Thank you. Has Mr. Talmage ever sent 11:19 you any letters or anything like that? 11:20 A. Um, it wasn't consistently, but I would write 11:21 sometime, occasionally get like a birthday card or 11:22 Christmas card from him. 11:23 Q. Okay. When was the last time that happened? 11:24 A. Oh, I would say at least two years. 11:25 Q. Okay. Do you recall any return addresses on the 12:1 letters that he sent you? 12:2 A. Yes, I do. It was an address in Sioux Falls in 12:3 South Dakota. 12:4 Q. Do you know if they lived there for a while; 12:5 that is Mr. Talmage? 12:6 A. That was my understanding that they lived there, 12:7 but I'd never gone to visit or anything. So I don't know 12:8 for sure. 12:9 Q. How did you get that understanding? 12:10 A. Well, that's what -- they just said they lived 12:11 in Sioux Falls. 3 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11113 Page 451 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Lisa Allen taken August 15, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 14:20 A. Besides -- yes, for birthdays. Occasionally I 14:21 would get like $50 or so. 14:22 Q. And that was it? There was no other time he 14:23 sent you any money that you can think of? 14:24 A. I'm trying to think. There might have been a 14:25 time at Christmas where he sent us a check, but -- for 15:1 like maybe $200, but it was a few years ago. It wasn't 15:2 recent. 15:3 Q. Okay. So it sounds like it was always in the 15:4 context of a birthday or Christmas -- 15:5 A. Yes. 15:6 Q. -- or something like that? 15:7 A. Yes. 15:8 Q. You said it was in relatively small amounts? 15:9 A. Yes. 15:10 Q. Okay. Do you know Annette Talmage? 15:11 A. Yes. 15:12 Q. And how do you know her? 15:13 A. She is married to my father. 15:14 Q. Okay. So that would make her your stepmother? 15:15 A. Yes. 4 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11114 Page 452 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Lisa Allen taken August 15, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 15:16 Q. Do you keep in touch with Annette Talmage at 15:17 all? 15:18 A. I don't. 15:19 Q. When was the last time you saw her? 15:20 A. Oh, at the same time, four years ago. 15:21 Q. Okay. At your daughter's baptism? 15:22 A. Yes. 15:23 Q. Do you ever call her independently of your dad, 15:24 Ron? 15:25 A. No. 16:1 Q. Did you ever email her? 16:2 A. I don't think -- I don't remember. I might have 16:3 emailed her at the same time that, you know, I had invited 16:4 my dad. 16:5 Q. Sure. Does she ever call you? 16:6 A. No. 16:7 Q. Okay. And does she ever email you? 16:8 A. Um, she may have. 16:9 Q. Okay. Do you know her email address? 16:10 A. Yeah. Let's see. I think it's -- so it's Annie 16:11 Talmage, A-n-n-i-e T-a-l-m-a-g- e at WWISLTD.com. 17:10 Q. Okay. And do you know Korianton Talmage? I 17:11 probably butchered that name. 5 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11115 Page 453 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Lisa Allen taken August 15, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 89 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 17:12 A. Yeah, Korianton. 17:13 Q. And you know him? 17:14 A. Yes. 17:15 Q. And how do you know him? 17:16 A. He is my brother. 17:17 Q. And he goes by Kory; right? 17:18 A. Yes. 20:18 Q. There was reference to a Mrs. Seki or a Mrs. 20:19 Chen. Do you recall that? 20:20 A. Yes, I do. 20:21 Q. Do you know who that is? 20:22 A. I have met her maybe once or twice. 20:23 Q. Do you remember when you met her? 20:24 A. It's been years -- a few years, but it was a few 20:25 years ago I went and visited my dad and Annie in Portland 21:1 and she happened to be visiting at the same time and 21:2 staying with them. So I met her then. 21:3 Q. Okay. I'm going to show you what we marked as 21:4 Exhibit 89. 21:5 A. Okay. 21:6 Q. Now there's a woman in a hat in that picture? 21:7 A. Yes. 6 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11116 Page 454 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Lisa Allen taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 21:8 Q. Is that the woman that you met in Portland? 21:9 A. Yes. 21:10 Q. Okay. Did you talk with her when you met her in 21:11 Portland? 21:12 A. No. She didn't speak English -- 21:13 Q. Okay. 21:14 A. -- so -- and she didn't speak very much Japanese 21:15 either. So those are the only two languages I speak. 21:16 Q. Sure. Was that the first time that you had met 21:17 her? 21:18 A. I believe so. I -- I had heard her name, but 21:19 that was the first time I had met her. 21:20 Q. Where did you hear her name before that? 21:21 A. Just through my dad. He had mentioned that 21:22 he -- I had met her husband when I lived in Japan. And he 21:23 had mentioned her name, that he was married to a Taiwanese 21:24 woman. 21:25 Q. What did your dad, Ron, say about Mrs. Chen? 22:1 A. That he was -- that he worked for her. 22:2 Q. Okay. Did he say anything else? Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 7 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11117 Page 455 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Lisa Allen taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 22:3 A. Um, not that I recall. 22:4 Q. And when you met her in Portland, you may have 22:5 said this, forgive me if I'm going back -- 22:6 A. No, it's fine. 22:7 Q. When was that about? 22:8 A. Oh, I don't remember the exact year. I want to 22:9 say it's been maybe eight years ago, about. 22:10 Q. And have you seen her since that time in 22:11 Portland? 22:12 A. No, I haven't. 22:13 Q. Have you had any other contact with Mrs. Chen? 22:14 A. No. 22:15 Q. Do you know anyone that would know how to get 22:16 ahold of her? 22:17 A. I don't. 22:18 Q. Do you have any idea where she is living? 22:19 A. I don't. 23:24 Q. Okay. Now I'm going to show you what we'll mark 23:25 as Exhibit 92. And this is a two- page document starting 24:1 on Bates No. WADS006023 through 6024. 24:2 (Exhibit 92 marked) 24:3 A. Okay. 24:4 Q. Okay. And I'll represent to you that these are Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 92 OVERRULED Object to 23:24-24:20 under Fed. R. Evid. 602, 802, and 901. The document referenced in this testimony was not produced by Ms. Allen and she did not testify that she has any personal knowledge of it. The document referenced also constitutes inadmissible hearsay. Finally, Ms. Allen did not provide any testimony that would authenticate the document. 8 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11118 Page 456 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Lisa Allen taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 24:5 documents that we received in this case from 24:6 Mr. Wadsworth. 24:7 A. Okay. 24:8 Q. I'll direct you towards the top of the page. 24:9 There's an entry that says, "Payee." Do you see that? 24:10 A. Yes. 24:11 Q. Okay. And then underneath it says, "Justin 24:12 Allen and Lisa T. Allen." 24:13 A. Okay. 24:14 Q. Do you see that? 24:15 A. I do. 24:16 Q. Do you know if that's referring to you? 24:17 A. Yes. 24:18 Q. It is. Okay. And then above that it says, 24:19 "Amount remitted $1,000." 24:20 A. Yes. 24:21 Q. Do you know with what that $1,000 is for? 24:22 A. I do actually. This was -- my husband was 24:23 running for City Council in 2005. And I believe he did 24:24 get a donation from my dad for his campaign. 24:25 Q. Did he win? 25:1 A. Yes. 25:2 Q. So this is a donation from your dad to your 25:3 husband's campaign? Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling SUSTAINED Ms. Allen testified that she had personal knowledge of a $1,000 payment made to her husband’s campaign. Her testimony is proper under Rule 602. The objections under Rules 802 and 901 lack merit because Exhibit 92 is not being offered as evidence. As such, there is no need to authenticate the document, and Ms. Allen’s testimony is based on her own memory of the payment being made rather than any statements contained in Exhibit 92. Object to Exhibit 92 on the grounds that it was not disclosed in the Government’s Pretrial Disclosures. Exhibit 92 was not disclosed in the United States’ Pretrial Disclosures because the United States does not intend to offer it into evidence at trial. The designated portion of Ms. Allen’s testimony that references Exhibit 92 was disclosed in the United States’ Pretrial Disclosures. 9 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11119 Page 457 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Lisa Allen taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 25:4 A. That was my understanding, yeah. 25:5 Q. Okay. Have you -- did you know at the time what 25:6 Heng Cheong Pacific Limited is? 25:7 A. I didn't, no. I don't -- 25:8 Q. And let me -- like, for the record at the top 25:9 left of that page, do you see -- do you see the name 25:10 there, Heng Cheong Pacific Limited? 25:11 A. I do. 25:12 Q. It's spelled H-e-n-g C-h- e-o-n-g Pacific 25:13 Limited. 25:14 A. I'm not familiar with that company. 25:24 Q. Okay. Here's Exhibit 85. 25:25 A. Okay. 26:1 Q. Now, on that first page 6556 -- 26:2 A. Yes. 26:3 Q. -- you go a little ways down in the column with 26:4 all the names and there's a name, Lisa T. Hamler. Do you 26:5 see that? 26:6 A. Let's see. 26:7 Q. And the date entry is January 23rd, 2001. 26:8 A. Okay. Yes. 26:9 Q. Are you with me? And it looks like they're -- Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 85 OVERRULED Objection to 25:24-27:15 under Fed. R. Evid. 602, 802, and 901. The document referenced in this testimony was not produced by Ms. Allen and she did not testify that she has any personal knowledge of it. Ms. Allen also expressly testified that she has no knowledge of the purported transfers that were the subject of the questions posed to her. The document referenced also constitutes inadmissible hearsay. Finally, Ms. Allen did not provide any testimony that would authenticate the document. Under Rule 602, Ms. Allen can testify that she does not recall a purported payment to her or recognize a document. 10 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11120 Page 458 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Lisa Allen taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 26:10 well, first of all, Lisa T. Hamler, does that refer to 26:11 you? 26:12 A. Yes, that does. 26:13 Q. Okay. And then there's a credit amount for 26:14 $6,032.10. Do you see that? 26:15 A. Yes. 26:16 Q. Do you know what that was for? 26:17 A. 2001. 26:18 Q. And while you're looking at that and thinking, 26:19 I'll point out that this is one of the documents that's 26:20 marked as confidential. 26:21 A. Okay. So is it possible that this 3210 was -- 26:22 Q. It could be -- 26:23 A. -- like, a fee or something? 26:24 Q. It could be that that could be a remittance. I 26:25 don't know. Do you recall getting a $6,000 transfer from, 27:1 it looks like the company at the top, it refers to New 27:2 Century Properties Limited. Do you see that? 27:3 A. I do. I see that. I don't recall receiving 27:4 that, and I don't know what it would have been for. 27:5 Q. Okay. If we go down the page a little bit to Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Ms. Allen has personal knowledge of what she does or does not recall. The United States does not intend to offer Exhibit 85 as evidence, so there is no basis for objecting under Rules 802 or 901. 11 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11121 Page 459 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Lisa Allen taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 27:6 June 27th, 2001. 27:7 A. Okay. 27:8 Q. There's another, looks like another transfer to 27:9 Lisa T. Hamler. Do you see that? 27:10 A. Yes, I do. 27:11 Q. And that one's for approximately $1,900. 27:12 $1,938.52. 27:13 A. Okay. 27:14 Q. Do you know what that was for? 27:15 A. June of 2001. I don't. 27:16 Q. Okay. Had you -- have you ever heard of New 27:17 Century Properties Limited? 27:18 A. Yes. 27:19 Q. What's your understanding of that company? 27:20 A. All I know is that that was the company that my 27:21 dad worked for. 27:22 Q. Okay. 27:23 A. Or that was my understanding, anyway. 27:24 Q. And is it your testimony then that you really 27:25 don't know why you received some of this money from New 28:1 Century Properties? 28:2 A. I don't. I don't know why. 28:5 Q. Okay. So let's circle back real quick. Had you 28:6 heard of a company called Heng Cheong Pacific Limited Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED Objection to 27:24-28:2 under Fed. R. Evid. 602. Ms. Allen expressly denied any personal knowledge of the purported transactions that are the subject of the questions posed to her As stated, under Rule 602, Ms. Allen has personal knowledge of what she does and does not recall, so she is allowed to testify that she does not recall receiving funds from NCPL. 12 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11122 Page 460 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Lisa Allen taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 28:7 before? 28:8 A. I had not. 28:9 Q. And you did say you'd heard of New Century 28:10 Properties; correct? 28:11 A. Yes. 28:12 Q. And your understanding was that was your dad's 28:13 company -- 28:14 A. Yes. 28:15 Q. -- rather that he worked for? 28:16 A. Yes. 28:17 Q. Okay. What else do you know about New Century 28:18 Properties Limited? 28:19 A. Not much else, other than that was the company 28:20 he worked for. 28:21 Q. Okay. Did your dad say who he worked for within 28:22 that company? 28:23 A. Um, I don't -- I'm sure he did, and I don't 28:24 remember. 29:3 Q. Okay. Have you heard of a company called 29:4 Worldwide Investment Services, Limited? 29:5 A. No, I never heard of that one. Oh, is that the 29:6 WWIS? Possibly. I don't know. 29:7 Q. Okay. Have you heard of another company called 29:8 WWIS, Limited? Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 13 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11123 Page 461 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Lisa Allen taken August 15, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 29:9 A. Just from his email. 29:10 Q. Just from the email. 29:11 A. Yeah. 29:12 Q. Have you heard of John Wadsworth before? 29:13 A. Yes. 29:14 Q. Okay. When did you first hear about him? 29:15 A. When I was growing up in Japan, his family 29:16 attended the same church as I did. 29:17 Q. Do you have a rough time frame about when that 29:18 was? 29:19 A. Oh, let's see. 29:20 Q. I understand it was a while ago. 29:21 A. It was. Like, when I was in junior high. Late 29:22 80s, early 90s. 29:23 Q. Did you meet John Wadsworth then? 29:24 A. Yes. We didn't know each other very well. 29:25 Q. So you say your families went to church together 30:1 in Japan? 30:2 A. Yes. 30:3 Q. Have you ever heard of him in connection with 30:4 your dad, Ron Talmage? 30:5 A. Yes. Years ago I knew that they had started 30:6 working together. 14 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11124 Page 462 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Lisa Allen taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 30:7 Q. Okay. Do you know what they did together? 30:8 A. I don't. 30:9 Q. Do you know about when they started working 30:10 together? 30:11 A. There -- so in about 2005, maybe, I -- my dad 30:12 and Annie were visiting Utah. And they said that they 30:13 were visiting some friends and asked us to come with them. 30:14 And those friends that they were visiting were John and 30:15 his wife. 30:18 Q. Going back to the time in Japan, is it your 30:19 understanding that John Wadsworth was living with his 30:20 family in Japan at that time, or was it just his parents? 30:21 I just want to clarify that. 30:22 A. No, I think John was living with his parents. 30:23 Q. Okay. Gotcha. 30:24 A. We were all teenagers. 30:25 Q. Okay. And was your dad friends with his 31:1 parents? 31:2 A. Um, I think they knew each other, but I don't 31:3 know if they were friends. 31:4 Q. Okay. Have you had -- well, okay. So you sort Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED Object to 30:25-31:3 under Fed. R. Evid. 602 and 701. Ms. Allen expressly testified that she has no knowledge of whether Ron Talmage was “friends with” John Wadsworth’s parents. This lack of personal knowledge means that the question posed to her calls for impermissible opinion testimony by a lay witness. 15 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11125 Page 463 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Lisa Allen taken August 15, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Ms. Allen’s testimony that she doesn’t know if Mr. Talmage was friends with Mr. Wadsworth’s parents is permissible under Rule 602 because Ms. Allen has personal knowledge as to what she does and does not know. Ms. Allen also says that she knew Mr. Talmage and Mr. Wadsworth’s parents knew each other. Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 31:5 of knew him back in the early 80s, early 90s when you were 31:6 living in Japan. Then you met him again in 2005 when your 31:7 dad was in Utah visiting them as friends; correct? 31:8 A. Exactly, yeah. 31:9 Q. Any other times you met with John Wadsworth? 31:10 A. No, that was the only time, until last summer. 31:11 Q. Okay. Until last summer. And what was last 31:12 summer? 31:13 A. My brother was in Utah staying with me for about 31:14 a week. And I briefly saw John when he was dropping Kory 31:15 off at my house. 31:16 Q. Okay. Did you talk with John? 31:17 A. We said hello and, you know, just -- it's been a 31:18 long time. 31:19 Q. Sure. 31:20 A. But not -- nothing -- it was not an extensive 31:21 conversation. 31:22 Q. Okay. When you were -- let's say circle back 31:23 one more time. 31:24 A. Okay. 31:25 Q. Hopefully this will be the last one. 16 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11126 Page 464 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Lisa Allen taken August 15, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 32:1 When you were living in Japan in the late 80s, 32:2 early 90s -- 32:3 A. Uh-huh. 32:4 Q. -- how long were you living there for? 32:5 A. Oh, I lived there from the time that I was about 32:6 two years old until I graduated from high school. 32:7 Q. Oh, okay. 32:8 A. So till 1984 I lived in Japan. 32:14 Q. So is it fair to say then, leaving aside your 32:15 time in Japan in the early 90s, the two encounters you've 32:16 had with Mr. Wadsworth since then was in 2005 about and 32:17 then last year? 32:18 A. Yes. 32:19 Q. Okay. Any other times you can think of? 32:20 A. No. 32:21 Q. Now when you met with him in 2005 -- 32:22 A. Uh-huh. 32:23 Q. -- who was present at that meeting? 32:24 A. So I had my husband and I, my two children, Ron, 32:25 Annie, and then John and Amy. 33:1 Q. And what about last year? 33:2 A. It was just John. 17 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11127 Page 465 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Lisa Allen taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 33:3 Q. I'm sorry. Didn't you say Kory was there too? 33:4 A. Oh, yeah, sorry, to drop my brother off at my 33:5 house 33:6 Q. Gotcha. Okay. I just wanted to be clear for 33:7 the record so we're on the same page. 33:8 Do you remember about what time it was last 33:9 year? 33:10 A. It was the end of June into beginning of July. 33:11 Q. Do you have an understanding about why John was 33:12 here? 33:13 A. Um, just what Kory told me. He said that he was 33:14 here to meet with attorneys regarding, I'm assuming, this 33:15 case. I'm not sure. 34:3 Q. Okay. Now do you know, did Kory say -- I mean, 34:4 is it your understanding that Kory was working for your 34:5 dad? 34:6 A. Yes. 34:7 Q. And is it your understanding that John Wadsworth 34:8 was working for your dad as well? 34:9 A. Yes. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED Object to 34:3-9 under Fed. R. Evid. 602 and 701. There is no testimony by Ms. Allen to establish that she has personal knowledge of these matters, or that these opinions (or “understandings”) are rationally based on her perception. Ms. Allen’s statements are based on her conversations with her father and her time staying at the Liberty Property. This establishes her personal knowledge. Ms. Allen is not providing opinion testimony. To the extent she is, the strength of the 18 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11128 Page 466 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Lisa Allen taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Exhibits Ruling Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE basis for her understanding is a matter of weight rather than admissibility. Ms. Allen has already testified that her father, Ron Talmage, told her that Mr. Wadsworth worked for Ron Talmage. Furthermore, in response to this objection, the United States has added 33:6–15 to the preceding designation. The statements of Kory Talmage described therein are admissible as non- hearsay because they are not being offered for the truth of the matter asserted. They are being offered to show the basis for Ms. Allen’s belief that Mr. Wadsworth and Kory Talmage had previously worked for Ron Talmage. Even if these statements were hearsay, they would be admissible under Rules 803(3) and 807. 34:25 Q. Are you familiar with a property in Liberty, 35:1 Utah, that your dad and Annette used to live at? 35:2 A. Yes. 34:16 Q. Okay. Have you heard -- ever heard of a company 34:17 called Western Land & Livestock? 34:18 A. No. 34:19 Q. What about Western Reserve Mortgage? 34:20 A. No. 34:21 Q. How about Preferred Leasing? 34:22 A. No. 34:23 Q. Forest Property Group? 34:24 A. No. 19 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11129 Page 467 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Lisa Allen taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 35:3 Q. What’s your understanding of who owned that 35:4 property? 35:5 A. Um, my understanding just based on what my 35:6 brother has told me that it’s owned by John. 35:7 Q. Okay. Prior to -- so -- let's back up a little 35:8 bit. When did you first learn that your dad and Annette 35:9 were living at that property? 35:10 A. Not until -- I want to say a couple of years ago 35:11 my aunt had told me about this property. So this is my -- 35:12 this is Ron's sister. 35:13 Q. Okay. 35:14 A. She said that she had Googled the property and 35:15 found that he lived there. Um, so I believe I sent him a 35:16 birthday card or Christmas card, I can't recall exactly 35:17 what, but some kind of card to that mailing address she 35:18 had given to me, but it was returned. And so I thought 35:19 maybe they didn't live there. 35:20 Q. Did you ever go there personally? 35:21 A. Yes. So I went there earlier this year with my 20 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11130 Page 468 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Lisa Allen taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 35:22 sister because I believe John had contacted my aunt, the 35:23 same aunt. 35:24 Q. What's that aunt's name? 35:25 A. Caroline. And said that they had moved out, but 36:1 they left a lot of stuff there. 36:2 Q. Okay. 36:3 A. And so my Aunt Caroline and my sister and I went 36:4 to the property to see if there was anything there that 36:5 belonged to us, just to see because he had said that there 36:6 was a lot of property just left behind. We wanted to see 36:7 if there were, like, photo albums or anything of 36:8 sentimental value that was left behind. So we went to the 36:9 property. 36:10 Q. Okay. Prior to earlier this year, had you ever 36:11 been at this property in Liberty? 36:12 A. No, that was the first time I had been and the 36:13 only time. 37:4 Q. Do you have any idea when your dad and Annette 37:5 left the property? 37:6 A. So the -- we had gone, I believe it was January 37:7 of this year. And so that's all I know is that they 37:8 weren't living there in January. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 36:25 Q. So prior to Kory telling you that he thought 37:1 John owned it, did you have any idea of who owned the 37:2 property? 37:3 A. No, I didn’t. 21 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11131 Page 469 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Lisa Allen taken August 15, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 37:9 Q. Got it. Okay. Do you know why they left? 37:10 A. I don’t. 37:11 Q. Your dad was really into Irish Setters; right? 37:12 A. Yes. 37:13 Q. Do you recall the names of any of those Irish 37:14 Setters? Like, any of his favorite dogs? 37:15 A. The first dog he had was Susie. But he had 37:16 quite a few. I mean -- 37:17 Q. Okay. 37:18 A. -- up to, like, 15 dogs at a time. 37:19 Q. Oh, wow. 37:20 A. And so I don't know all of their names. I 37:21 believe the last one I remember him having was named 37:22 Clancy. 37:23 Q. Is – 37:24 A. I don’t really know. 37:25 Q. Sure. Does Sony ring a bell? 38:1 A. Oh, Sony, yeah. 38:2 Q. Was he a big fan of Sony? 38:3 A. Yes. That was one of the earlier dogs he had. 38:4 Q. What about Smokey? 38:5 A. Yeah. That sounds familiar but -- 38:6 Q. Okay. How about Joker? 22 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11132 Page 470 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Lisa Allen taken August 15, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 38:7 A. No, that doesn't sound familiar. 38:8 Q. Okay. 39:17 Back when you were talking about when you said 39:18 your father, Ron Talmage, had worked for Mrs. Chen, did he 39:19 ever tell you what work he did for her? 39:20 A. He was pretty vague about it when I would ask 39:21 him. He said he did, like, asset management, financial 39:22 planning, and he had several clients who had a lot of 39:23 money and he helped them manage their money. 39:24 Q. Did he represent Mrs. Chen as being one of his 39:25 clients? 40:1 A. I don't know. 40:2 Q. Did he ever make any statement to you, 40:3 representation about her wealth or her assets? 40:4 A. Just that she was the president of the company 40:5 after her husband died. 40:6 Q. And what company is that? 40:7 A. Um, I don't recall. 40:8 Q. New Century Properties Limited? 40:9 A. Yes, I believe so. 23 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11133 Page 471 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Lisa Allen taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 40:10 Q. Did you have an understanding who owned that 40:11 company? 40:12 A. It was my understanding that she owned the 40:13 company. 40:25 Q. Do you know what NCPL did? 41:1 A. That's New Century? 41:2 Q. Excuse me, yes. If I refer to New Century 41:3 Properties Limited as NCPL, is that okay? 41:4 A. Yes. 41:5 Q. Do you know what the company did? 41:6 A. I don't. 41:7 Q. Do you know who the president was besides 41:8 Mrs. Chen? 41:9 A. I don't. 41:10 Q. Do you know who the shareholders were? 41:11 A. I don't. 41:12 Q. Later in your testimony you had made the comment 41:13 that John Wadsworth was working for your dad. Do you 41:14 remember that? 41:15 A. That was my understanding. 41:16 Q. Okay. Who told you that? 41:17 A. My dad. 41:18 18 Q. Okay. Did anybody else tell you that? Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED 42:5 Q. Have you ever seen a paycheck from your dad to 42:6 John Wadsworth? 42:7 A. No. 42:8 Q. Have you ever seen a W-2 or tax form? 42:9 A. No. 42:10 Q. Ever seen a letterhead? 42:11 A. No. 42:12 Q. Do you have any other indication that John 42:13 Wadsworth worked for your father other than your 42:14 understanding? 42:15 A. No, I don't have any other proof or -- 42:16 Q. Okay. Is it possible that that understanding 42:17 that he worked for your father is incorrect? 42:18 A. Yes. 24 Object to 41:12-17 under Fed. R. Evid. 602 and 802. There is no testimony by Ms. Allen to establish that she has personal knowledge of this matters. Indeed, the sole basis for her “understanding” is the inadmissible hearsay statement of Ronald Talmage. The hearsay statement is not admissible as an opposing party statement because Ronald Talmage is no longer a party to this action, and even if he was it is not being offered against him. It is also not admissible as a statement against interest because it does not have a tendency to expose Ronald Talmage to civil or criminal liability. Finally, it is not admissible under the residual exception because there are no circumstantial guarantees of trustworthiness and because there will be more probative evidence available at trial, namely the testimony of John Wadsworth about the relationship between himself and Ronald Talmage. The statements of Ron Talmage are admissible under Rule 801(c) because they are offered to prove the basis for Ms. Allen’s knowledge regarding the Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11134 Page 472 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Lisa Allen taken August 15, 2017 Exhibits Ruling Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE relationship between John Wadsworth and Ronald Talmage. They are also admissible to show Mr. Wadsworth’s motive and bias. Further, this testimony is admissible under Rules 804(b)(3) and 807. (Defendants only intend to introduce 41:18-42:18 if their objections to Plaintiff’s designation of 41:12-17 are overruled.) Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 41:19 A. Uh, no. 41:20 Q. Did he say working for or working with? 41:21 A. This is back in 2005. So I -- I can't recall. 41:22 From my memory it was he was working for -- 41:23 Q. Okay. 41:24 A. -- but... 41:25 Q. But you're not 100 percent sure if he was 42:1 working for -- 42:2 A. I'm not a hundred percent sure. 42:3 Q. -- or working with? 42:4 A. No. I might have misunderstood. 43:7 Q. Have you ever talked to your father about the 43:8 Liberty property? 43:9 A. No. He denied that he lived there. 43:10 Q. When did he deny living there? 43:11 A. When I -- whenever he -- we asked him where he 43:12 was living, he said that he lived in either Brigham City 43:13 or Ogden. He never gave me an address. It was -- he kind 43:14 of moved around between this Brigham City RV park is what 43:15 he said, and Sioux Falls and Hong Kong, and so I was never 42:19 Q. The Liberty property, you said you'd only ever 42:20 been there once? 42:21 A. Yes. 42:22 Q. And that was after your father had vacated? 42:23 A. Yes. 42:24 Q. Do you know who paid for the property? 42:25 A. No, I don't. 43:1 Q. Do you know who paid the utilities for the 43:2 property? 43:3 A. I don't. When we were there, the utilities were 43:4 not on. 43:5 Q. Do you know who the property is titled to? 25 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11135 Page 473 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Lisa Allen taken August 15, 2017 Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) 43:6 A. I don't. Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 43:16 really aware of where he was living. 43:17 Q. When you said denied living at the Liberty 43:18 property, did you ever specifically ask him about that? 43:19 A. Well, the reason I said denied was because I had 43:20 tried to mail something to him to that property and it was 43:21 returned. 43:22 Q. Okay. 43:23 A. So I assumed that he didn't want me to know that 43:24 he was living there. 43:25 Q. Okay. 44:1 A. That's just my assumption. 44:2 Q. With respect to -- do you even know for sure if 44:3 he was living at the Liberty property or not? 44:4 A. When we went, when my sister and I went in 44:5 January, there was evidence that he was living there. 44:6 Just based on the pictures that were on the walls, the 44:7 things that were left behind that I knew were his. 44:8 Q. Okay. 44:9 A. So I'm just assuming. That's just a guess based 44:10 on what I saw. 44:11 Q. How did you get access to the property? 26 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11136 Page 474 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Lisa Allen taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 44:12 A. I guess -- I'm not positive. But my Aunt 44:13 Caroline was in contact with John, and I guess John had a 44:14 property manager or someone who was taking care of the 44:15 place after it was vacated, and he was the one that let us 44:16 in. 45:19 Q. Okay. Over the years have you been able to form 45:20 an opinion about your dad's trustworthiness? 45:21 A. Yes, I have. 45:22 Q. And what's your opinion of his trustworthiness? 45:23 A. I don't think he's trustworthy at all. 45:24 Q. What about your opinion as far as telling the 45:25 truth? 46:1 A. He's -- he doesn't tell the truth. 46:2 Q. You heard your mother testify earlier that she 46:3 believed he was a liar and manipulator? 46:4 A. Yes. 46:5 Q. Do you share that opinion? 46:6 A. I do. 46:7 Q. Sorry. I have no further questions. 46:10 Q. I just have a couple of quick follow-ups. I 46:11 wanted to clarify one thing. Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 27 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11137 Page 475 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Lisa Allen taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 46:12 So when we're talking about your dad, Ron, and 46:13 Mrs. Chen -- 46:14 A. Yes. 46:15 Q. -- what's your understanding of who worked for 46:16 who? 46:17 A. My understanding was that he worked for 46:18 Mrs. Chen. 46:19 Q. He worked for Mrs. Chen? 46:20 A. Yeah. 46:21 Q. Okay. And that was with respect to which 46:22 company, do you know? 46:23 A. This New Century Properties. 47:21 Q. Great. Thank you. 47:22 And last question, or last couple of questions 47:23 at least. So you said your dad, Ron, had denied living at 47:24 the Liberty property. 47:25 A. Well, I guess that probably wasn't the correct 48:1 word. 48:2 Q. Okay. 48:3 A. Yeah. 48:4 Q. So -- 48:5 A. What I was basing that on was that letter that I 48:6 had sent to him that was returned. 48:7 Q. Got it. Okay. And when - - when was that about, Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 28 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11138 Page 476 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Lisa Allen taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 48:8 time frame wise? 48:9 A. Oh, it was at least two years ago, maybe three 48:10 or four. 48:11 Q. So it's fair to say between, like, two and four 48:12 years? 48:13 A. Yeah, I would say so. 53:1 C E R T I F I C A T E 53:2 53:2 STATE OF UTAH ) 53:3 ) SS. 53:3 COUNTY OF SALT LAKE ) 53:4 53:5 I, Susan S. Sprouse, a Registered Professional 53:5 Reporter, Certified Court Reporter, and Notary Public in 53:6 and for the State of Utah, do hereby certify: 53:7 That the deposition of Lisa Allen, the witness in 53:7 the foregoing deposition named, was taken on August 15, 53:8 2017; that said witness was by me, before examination, 53:8 duly sworn to testify the truth, the whole truth, and 53:9 nothing but the truth in said cause. 53:10 That the testimony of said witness was reported by 53:10 me in stenotype and thereafter transcribed by computer, 29 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11139 Page 477 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Lisa Allen taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 53:11 and that a full, true, and correct transcription of said 53:11 testimony so taken is set forth in the foregoing pages; 53:12 53:12 That a copy of the same was sent to Lisa Allen for 53:13 reading and signature before a Notary Public, and to be 53:13 returned to my office within 30 days of the date hereon. 53:14 53:14 I further certify that I am not of kin or 53:15 otherwise associated with any of the parties to said 53:15 cause of action, and that I am not interested in the 53:16 event thereof. 53:17 WITNESS MY HAND and official seal at Salt Lake City, 53:18 Utah, this 31st day of August, 2017. 53:19 53:20 53:21 53:22 ____________________________ 53:23 53:24 SUSAN S. SPROUSE 53:25 License No. 5965543-7801 DEFENDANT COUNTER- DESIGNATIONS Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling PLAINTIFF COUNTER- DESIGNATIONS 30 Case 1:16-cv-00019-DN-JCB Document 286 Filed 06/25/19 PageID.11140 Page 478 of 478 Case Name United States v. Talmage, et. al Case Number 1:16-cv-19-DN-PMW Deposition of Lisa Allen taken August 15, 2017 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defendant Designations – RED Plaintiff Completeness—PURPLE Plaintiff Counter Designations – BLUE (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Instructions: One form should contain all designations for a witness. Plaintiff Designations (column 1) and Defendant Designations (column 2) will show the full deposition text that the party proposes to read in its case-in-chief. Completeness designations are proposed by the other party, under Fed. R. Civ. P. 32(a)(6), to be read with the designations. Counter–designations are read following the designations and completeness designations, similar to cross examination. This form should be provided in word processing format to the other party, who then will continue to fill in the form. The form is then returned to the proposing party for review, resolution of disputes, and further editing. The parties should confer and file a final version in PDF format using the event “Notice of Filing” and also submit a final word processing copy to the court at [email protected], for ruling. All objections which the objecting party intends to pursue should be listed, whether made at the deposition, as with objections as to form, or made newly in this form, if the objection is of a type that was reserved. 31

=== Sample Deposition Designation ver 2 ===

Case 2:14-cv-00363-RJS Document 90 Filed 09/28/17 PageID.838 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION GAIL O’NEAL, Plaintiff, ORDER RULING ON OBJECTIONS TO PRETRIAL DEPOSITION DESIGNATIONS v. Case No. 2:14-cv-00363-DN-EJF P.K. CLARK, and WHITECAP INSTITUTE, District Judge David Nuffer Defendants. The parties served designations for deposition testimony to be presented at trial. The parties filed with the court their objections to the deposition designations and responses thereto. Based on the submissions, and for good cause appearing: IT IS HEREBY ORDERED that the objections are overruled or sustained as indicated in the attached forms. IT IS FURTHER ORDERED that, in preparing the deposition testimony for presentation at trial, all objections in the depositions and any responses of counsel thereto should be removed and not presented. Signed September 28, 2017. BY THE COURT: ____________________________ David Nuffer United States District Judge Case 2:14-cv-00363-RJS Document 90-1 Filed 09/28/17 PageID.839 Page 1 of 14 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of W. Davis Merritt, M.D. taken Tuesday, June 23, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) PLAINTIFF DESIGNATIONS 4:24-5:2 24· · · · · ·[Q.] ·For the record, if you wouldn't mind just 25· ·saying your name and business address? ·1· · · · A.· ·Sure.· It's W. Davis Merritt, M.D.· 15 Shrine ·2· ·Club Road, Lander, Wyoming 82520. 7:1-24 ·1· · · · Q.· ·Why don't we start with going through your ·2· ·educational background starting with medical school, ·3· ·Dr. Merritt. ·4· · · · A.· ·University of North Carolina Chapel Hill, ·5· ·graduated 1985. ·6· · · · Q.· ·And that's when you received your M.D.? ·7· · · · A.· ·Yes. ·8· · · · Q.· ·Did you have any additional schooling or ·9· ·training thereafter? 10· · · · A.· ·University of North Carolina Department of 11· ·Surgery, otolaryngology, head and neck surgery 12· ·residency, 1985 to 1990. 13· · · · Q.· ·And after you completed that residency, did 14· ·you have any additional educational training? 15· · · · A.· ·The American Academy of Otolaryngic Allergy. 16· ·I'm a fellow of the academy.· 2006. 17· · · · Q.· ·What does that entail? 18· · · · A.· ·It is additional training and certification 19· ·in allergy affecting the ears, nose, and throat. 20· · · · Q.· ·Is that something that was a full-time 21· ·educational pursuit, or was that something that you 22· ·did -- 23· · · · A.· ·No, it is not a full-time fellowship.· It is 24· ·an additional certification in a subspecialty. 8:7-17 ·7· · · · Q.· ·Besides that fellowship of otolaryngic ·8· ·allergy, any other educational training? Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 1 Case 2:14-cv-00363-RJS Document 90-1 Filed 09/28/17 PageID.840 Page 2 of 14 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of W. Davis Merritt, M.D. taken Tuesday, June 23, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·9· · · · A.· ·Continuing medical education. 10· · · · Q.· ·Does Wyoming have an annual requirement in 11· ·terms of how many hours you have to complete? 12· · · · A.· ·Yes. 13· · · · Q.· ·And what is that? 14· · · · A.· ·20 hours a year. 15· · · · Q.· ·And have you completed 20 hours a year since 16· ·you've been in Wyoming? 17· · · · A.· ·Yes. 9:8-17 8· · · · Q.· ·Will you take us through your work background ·9· ·now briefly? 10· · · · A.· ·I'm an ear, nose, and throat specialist in 11· ·private practice in Lander, Wyoming. 12· · · · Q.· ·And prior to coming to Lander, where were you 13· ·at? 14· · · · A.· ·Boise, Idaho. 15· · · · Q.· ·Approximately from when to when? 16· · · · A.· ·1990 until 2009 in Boise.· 2009 until the 17· ·present time in Lander. 10:4-17, 20-23 4· ·on this.· You have not had any conversations with ·5· ·Gail O'Neal outside your office when you were treating ·6· ·her? ·7· · · · A.· ·That's correct. ·8· · · · Q.· ·What other treating providers have you ·9· ·discussed Ms. O'Neal's treatment with? 10· · · · A.· ·Dr. Michael Stern in Jackson. 11· · · · Q.· ·Anybody else? 12· · · · A.· ·No. 13· · · · Q.· ·Do you recall who referred Ms. O'Neal to you? 14· · · · A.· ·It was Dr. Michael Stern. 15· · · · Q.· ·And what was the content of the communication 16· ·between both of you? 17· · · · A.· ·A phone call. Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 2 Case 2:14-cv-00363-RJS Document 90-1 Filed 09/28/17 PageID.841 Page 3 of 14 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of W. Davis Merritt, M.D. taken Tuesday, June 23, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) . . . 20· · · · Q.· ·Do you recall any communication between you 21· ·and Dr. Stern about Gail O'Neal? 22· · · · A.· ·We sent letters back.· They're documented in 23· ·the chart.· Copies of notes. 11:21-12:7 21· · · · Q.· ·I want to hand you what will be marked as 22· ·Exhibit No. 2. 23· · · · · · ·(Exhibit 2 marked.) 24· · · · Q.· . . . Do you recognize that 25· ·letter, Dr. Merritt? ·1· · · · A.· ·Yes. ·2· · · · Q.· ·What is it? ·3· · · · A.· ·It's my letter to Dr. Shane on January 3rd, ·4· ·2013. ·5· · · · Q.· ·Will you read through that letter and inform ·6· ·us what the content of your communication with ·7· ·Dr. Shane was? 12:12-13:15 12· · · · Q.· ·And what is the content of your communication 13· ·with Dr. Shane? 14· · · · A.· ·It describes her presentation and treatment 15· ·plan. 16· · · · Q.· ·And you had mentioned earlier that you don't 17· ·recall discussing Ms. O'Neal with Dr. Shane.· Does that 18· ·recall your memory that you did? 19· · · · A.· ·Oh.· Oh, no.· What this is?· Yeah, I'm sorry. 20· ·I thought we were talking about Dr. Michael Stern. 21· ·This is a copy of my letter to Dr. Shane that I also 22· ·sent to Dr. Stern.· I believe it's the same letter. 23· ·I'll have to see. 24· · · · · · ·Oh, that's correct.· You know, I'm mistaken 25· ·about who referred her.· And it was Dr. Shane who ·1· ·referred her.· And my letter was back to him in ·2· ·response to his referral.· And then I made a referral Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Exhibit 2 3 Case 2:14-cv-00363-RJS Document 90-1 Filed 09/28/17 PageID.842 Page 4 of 14 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of W. Davis Merritt, M.D. taken Tuesday, June 23, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·3· ·to Dr. Stern. ·4· · · · Q.· ·Okay. ·5· · · · A.· ·Yeah.· That was my mistake.· I had forgotten ·6· ·the sequence of events. ·7· · · · Q.· ·Have you ever worked with Dr. Shane before? ·8· ·In other words, has he ever referred any other patients ·9· ·to you? 10· · · · A.· ·Yes. 11· · · · Q.· ·And is your business relationship with 12· ·Dr. Shane positive? 13· · · · A.· ·Yes. 14· · · · Q.· ·Do you consider him a qualified practitioner? 15· · · · A.· ·Yes. 13:19-14:4 19· · · · Q.· ·What I want to do now, Dr. Merritt, is go 20· ·through some of your treatment records.· I first want 21· ·to ask you, do you have an independent memory of 22· ·treating Ms. O'Neal, or is your memory mostly confined 23· ·to your actual treatment records? 24· · · · A.· ·Hmm.· The records reflect my memory, and -- 25· ·hmm.· Yeah, I have memories independent of what's in ·1· ·the records.· Yes. ·2· · · · Q.· ·Okay. ·3· · · · A.· ·But the records are a good approximation of ·4· ·what's in my memory. 14:12-15:5 12· · · · Q.· ·So what I'm going to do, I know you already 13· ·have them, but just for the record, I'm going to hand 14· ·you what will be marked as Exhibit 3. 15· · · · · · ·(Exhibit 3 marked.) 16· · · · Q.· ·(By Mr. Pendleton) And do you recognize those 17· ·records, Dr. Merritt? 18· · · · A.· ·Yes, I do. 19· · · · Q.· ·What are they? 20· · · · A.· ·They're my office notes and operative Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Exhibit 3 4 Case 2:14-cv-00363-RJS Document 90-1 Filed 09/28/17 PageID.843 Page 5 of 14 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of W. Davis Merritt, M.D. taken Tuesday, June 23, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 21· ·reports. 22· · · · Q.· ·Related to specifically who? 23· · · · A.· ·Gail O'Neal. 24· · · · Q.· ·And what we're going to do, they're in 25· ·reverse chronological order, so let's start -- you'll ·1· ·notice the Bates number on the bottom right corner? ·2· · · · A.· ·Okay. ·3· · · · Q.· ·Fremont Nose & Throat 1 through 11? ·4· · · · A.· ·Okay. 15:18-17:20 18· · · · Q.· ·Okay.· Let's start with number 11, please. 19· · · · A.· ·"Severe right anterior ethmoid and right 20· ·maxillary sinus mucosal disease with complete 21· ·obstruction of the right ostiomeatal complex.· This is 22· ·very likely to be the cause for her multiple failed 23· ·attempts to close the OA fistula." 24· · · · Q.· ·So talk to us a little bit in best layman's 25· ·terms as you can what your impressions were, what you ·1· ·saw in Ms. O'Neal. ·2· · · · A.· ·She presented with an oral antral fistula on ·3· ·the right side, and she had chronic sinusitis affecting ·4· ·both the ethmoid and maxillary sinus on that side.· It ·5· ·obstructed the maxillary sinus outflow tract. ·6· · · · · · ·And in that condition, it is difficult to get ·7· ·an oral antral fistula to close.· And so that was -- I ·8· ·was just reporting the cause for her failed OA closure. ·9· · · · Q.· ·So just to make sure I understand, it sounds 10· ·like there was an infection in the upper right 11· ·maxillary sinus, correct? 12· · · · A.· ·That's correct. 13· · · · Q.· ·And that infection is what was preventing the 14· ·oral antral fistula from closing, correct? 15· · · · A.· ·That's correct. 16· · · · Q.· ·Now, you note at the top of this note -- this 17· ·is in the first paragraph.· You note -- this is about Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 5 Case 2:14-cv-00363-RJS Document 90-1 Filed 09/28/17 PageID.844 Page 6 of 14 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of W. Davis Merritt, M.D. taken Tuesday, June 23, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 18· ·third sentence down.· "She does not have a known prior 19· ·history of sinus problems but does have a long history 20· ·of sinus headaches that have been variably diagnosed as 21· ·headaches due to sleep apnea and/or headaches due to 22· ·migraine." 23· · · · · · ·Do you recall if that was something that 24· ·Ms. O'Neal relayed to you? 25· · · · A.· ·Yes.· That was a response to one of my ·1· ·questions to her. ·2· · · · Q.· ·And do you recall treating her prior to ·3· ·this -- ·4· · · · A.· ·No. ·5· · · · Q.· ·-- date?· Okay. ·6· · · · A.· ·No. ·7· · · · Q.· ·Do you recall Dr. Shane informing you that ·8· ·she had a history of sinusitis? ·9· · · · A.· ·Hmm.· I don't recall him saying that one way 10· ·or the other.· But it's obvious that she does.· I mean, 11· ·that's why she was there.· So -- I think it's safe to 12· ·assume that she had it, but that's why -- that was my 13· ·understanding of why she was referred. 14· · · · Q.· ·If she had a history of sinusitis, how would 15· ·that affect her upper right maxillary sinus? 16· · · · A.· ·Well, she would have pain, pressure, 17· ·congestion, and discharge. 18· · · · Q.· ·Okay.· Would it affect her teeth in any way 19· ·potentially? 20· · · · A.· ·Hmm.· Hmm.· Yes. 18:19-19:3 19· · · · Q.· ·Okay.· So if she had this history of 20· ·sinusitis, is that something you would expect her to 21· ·tell you prior to treatment? 22· · · · A.· ·Yes.· And when I asked her, she said no. 23· · · · Q.· ·Is that something you would expect her to 24· ·tell any treating provider that would be working with Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 6 Case 2:14-cv-00363-RJS Document 90-1 Filed 09/28/17 PageID.845 Page 7 of 14 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of W. Davis Merritt, M.D. taken Tuesday, June 23, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 25· ·her sinus? ·1· · · · A.· ·It depends on whether they asked her the ·2· ·question or not.· Patients often don't know what to ·3· ·tell their doctor. 20:2-24 ·2· · · · Q.· ·At the bottom of number 11, you'll note that ·3· ·you cc Dr. Michael Shane on this note; is that correct? ·4· · · · A.· ·That's correct. ·5· · · · Q.· ·If we look at the rest of your clinic notes, ·6· ·this would be Fremont Nose & Throat 1 through 10, you ·7· ·have not cc'd Dr. Shane on those like you did on ·8· ·number 11.· Do you recall why that is? ·9· · · · A.· ·Yeah.· The -- the subsequent notes just 10· ·pertain to her preoperative and postoperative care.· So 11· ·I was communicating with Todd Bainter, who was 12· ·coordinating the medical aspects of her preoperative 13· ·care. 14· · · · · · ·And I was coordinating with Michael Stern, 15· ·who was going to schedule a surgery that was to follow 16· ·mine.· So, you know, the -- the indications for the 17· ·procedure, the condition that we were evaluating her 18· ·was summarized in the first note. 19· · · · Q.· ·So, in other words, Dr. Shane was no longer 20· ·involved in this particular care, so it wasn't relevant 21· ·to include him in the communication?· Is that a fair 22· ·summary? 23· · · · A.· ·He wasn't involved in the details of pre- and 24· ·postoperative care, yeah.· . . . 21:11-22:12 11· · · · Q.· ·Let's turn now, please, to number 10.· And as 12· ·you look over this note, will you just give us a quick 13· ·summary of your impressions of Ms. O'Neal? 14· · · · A.· ·Yes.· Would you like me to read it? 15· · · · Q.· ·Just if you can just summarize your 16· ·impressions from it, please. Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 7 Case 2:14-cv-00363-RJS Document 90-1 Filed 09/28/17 PageID.846 Page 8 of 14 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of W. Davis Merritt, M.D. taken Tuesday, June 23, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 17· · · · A.· ·The patient had a positive response to 18· ·medical management in preparation for surgery, and we 19· ·were coordinating the sequencing of her surgeries. 20· · · · Q.· ·And will you summarize for us what the 21· ·surgery plan was for Ms. O'Neal? 22· · · · A.· ·Yes.· To open the anterior ethmoid sinus, 23· ·evaluate the maxillary antrostomy, reconstruct it, open 24· ·it, evaluate the inside of the maxillary sinus, remove 25· ·any obviously infected or necrotic tissue, and then ·1· ·provide the adequate postoperative care that allowed ·2· ·the maxillary antrostomy to remain open and functioning ·3· ·afterwards. ·4· · · · Q.· ·And so in layman's terms, if you can ·5· ·summarize that -- what would that mean? ·6· · · · A.· ·We're opening up a blocked sinus so that the ·7· ·sinus can become healthy again.· Once the tissue in the ·8· ·sinus becomes healthy, then the success of an oral ·9· ·antral fistula repair is likely. 10· · · · Q.· ·And that oral antral fistula repair was 11· ·anticipated to be performed by Dr. Stern? 12· · · · A.· ·That's correct. 22:19-23:19 19· · · · Q.· ·When you first saw Gail O'Neal and determined 20· ·a treatment plan for her, did you use a cone beam CT 21· ·scan? 22· · · · A.· ·Yes. 23· · · · Q.· ·And is that the appropriate type of CT scan 24· ·in order to evaluate an individual's sinuses? 25· · · · A.· ·Yes.· Well, there are other acceptable Page 23 ·1· ·methods too, but it's one of them. ·2· · · · Q.· ·I want you to turn to number 6 and number 7, ·3· ·Fremont Nose & Throat number 6 and number 7.· This is a ·4· ·pathology report, correct? Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 8 Case 2:14-cv-00363-RJS Document 90-1 Filed 09/28/17 PageID.847 Page 9 of 14 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of W. Davis Merritt, M.D. taken Tuesday, June 23, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·5· · · · A.· ·Correct. ·6· · · · Q.· ·And what was the purpose of ordering a ·7· ·pathology report? ·8· · · · A.· ·Primarily to rule out malignancy as a cause ·9· ·for the patient's sinusitis. 10· · · · Q.· ·In your opinion, the surgery that you 11· ·performed for Ms. O'Neal, was it medically necessary 12· ·and appropriate? 13· · · · A.· ·Yes. 14· · · · Q.· ·Was it successful in getting rid of the sinus 15· ·disease that she had? 16· · · · A.· ·Yes. 17· · · · Q.· ·And thereafter, are you aware of whether her 18· ·oral antral fistula was properly remedied? 19· · · · A.· ·Hmm.· No. 24:12-13; 24:14-19; 24:20-25:1 12· · · · Q.· ·I'm not sure if I understood the testimony 13· ·you gave just a minute ago. 14· · · · · · ·Did you say that you did not think -- did you 15· ·give an opinion about whether Dr. Stern's procedure 16· ·that he performed to close the fistula was appropriate? 17· · · · A.· ·The plan to close it or the results? 18· · · · Q.· ·His plan to close it. 19· · · · A.· ·It was appropriate. 20· · · · Q.· ·Okay.· And -- and I just -- maybe I didn't 21· ·understand what your answer was.· Were you aware of the 22· ·results, whether he was successful in closing the 23· ·fistula? 24· · · · A.· ·I don't have correspondence or records 25· ·indicating it was successful.· And I don't recall a 1· ·phone conversation with Dr. Stern.· But I know him very 2· ·well, so if it wasn't successful, I'm sure he would 3· ·have told me. DEFENDANT COUNTER-DESIGNATIONS Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED. The testimony is not speculative and is based on Dr. Merritt’s personal knowledge of and prior experience with Dr. Stern. 25:1-3 1·phone conversation with Dr. Stern.·But I know him very ·2· ·well, so if it wasn't successful, I'm sure he would ·3· ·have told me. Defendant objects to Plaintiff’s proposed completeness addition in 25:1-3. Dr. Merritt lacks foundation to testify as to what Dr. Stern would or wouldn’t have said or done. Defendant also objects as this testimony calls for speculation. Allowing lines 24:20-25:1, without finishing the answer to the question is misleading. This suggests the closure was not successful, which is the opposite of what Dr. Merritt’s understanding is given his history and pattern of dealings with Dr. Stern. 9 Case 2:14-cv-00363-RJS Document 90-1 Filed 09/28/17 PageID.848 Page 10 of 14 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of W. Davis Merritt, M.D. taken Tuesday, June 23, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 10:24-11:14 24· · · · Q.· ·And beyond those letters between you and 25· ·Dr. Stern, do you recall any other communication ·1· ·between both of you? ·2· · · · A.· ·I can't recall when the phone call was. I ·3· ·have this vague memory I spoke to him on the phone ·4· ·about it, but I can't recall when it was or what we ·5· ·said. ·6· · · · Q.· ·And so you recall one phone conversation ·7· ·between both of you? ·8· · · · A.· ·Uh-huh (affirmative). ·9· · · · Q.· ·Beyond that, all communication was via 10· ·letter? 11· · · · A.· ·Yes. 12· · · · Q.· ·Which is contained in Ms. O'Neal's chart, 13· ·correct? 14· · · · A.· ·Yes. 13:16-18 16· · · · Q.· ·Are you aware that Dr. Shane referred 17· ·Ms. O'Neal to Dr. P.K. Clark in Heber, Utah? 18· · · · A.· ·No. 18:3-18 3· · · · Q.· ·If she has sinusitis, would that exacerbate ·4· ·an infection in the sinus?· In other words, if she has ·5· ·a history of sinusitis before this infection that she ·6· ·got in the upper right maxillary sinus, can that ·7· ·somehow exacerbate it?· In other words, can that ·8· ·increase or -- what's another word -- make the ·9· ·infection worse? 10· · · · A.· ·Well, it's -- it's -- the question doesn't -- 11· ·the question doesn't make sense because sinusitis is 12· ·both an inflammatory and infectious condition, and they 13· ·can coexist.· Infection and inflammation can coexist 14· ·for a long period of time.· So it's not possible to say 15· ·when one infection began and another -- and when it Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED. The testimony is relevant to causation and its probative value is not substantially outweighed by any potential prejudice. Plaintiff objects to 18:3-18 pursuant to Rule 403 of the Federal Rules of Evidence. Plaintiff finds it difficult to determine what exactly the question is, and whether the answer is even responsive to the question or is complete. This testimony would be confusing to the jury and should be excluded. The question and answer are not confusing and should be allowed. This question asks that if Plaintiff has a history of sinusitis, will that exacerbate the eventual sinus infection she develops. The response from Dr. Merritt indicates that it’s difficult to determine when one infection ends and another begins, which will tell the jury that it’s difficult to determine if the infection she develops is a result of 10 Case 2:14-cv-00363-RJS Document 90-1 Filed 09/28/17 PageID.849 Page 11 of 14 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of W. Davis Merritt, M.D. taken Tuesday, June 23, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 16· ·stopped -- 17· · · · Q.· ·Okay. 18· · · · A.· ·-- in a patient who's disease is chronic. 19:13-20:1 13 if Dr. Clark is going to 14· ·perform a sinus augmentation prior to some dental work, 15· ·do you think it would be relevant to discuss her 16· ·history of sinusitis? 17· · · · A.· ·You know, that's really a question about 18· ·dental practice, and I'm not an expert in dentistry. 19· · · · Q.· ·Perfect.· Thank you. 20· · · · · · ·In the next -- this is two sentences later. 21· ·This is again on number 11.· She says -- at least your 22· ·note says, "She lives with her daughter and son who 23· ·help in the management of their ranch here in Lander." 24· · · · · · ·Do you recall any conversation about that, 25· ·any details about that? 1· · · · A.· ·No, I don't. 21:3-10 3· · · · Q.· ·So do you have any opinion as -- you ·4· ·mentioned that she had a sinus disease in her upper ·5· ·right maxillary, as well as I think you said the ·6· ·anterior ethmoid right? ·7· · · · A.· ·That's correct. ·8· · · · Q.· ·Do you have any opinion as to the etiology of ·9· ·that sinus disease? 10· · · · A.· ·I don't. 22:13-18 13· · · · Q.· ·At any point did Dr. Stern relay to you any 14· ·opinion he had as to Dr. Clark's care? Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling treatment from Dr. Clark or her history of sinusitis. Defendant’s interpretation of this answer proves Plaintiff’s point. This answer says nothing about the causation of Plaintiff’s infection, and more likely refers to the multiple infections Plaintiff suffered post surgery and the difficulty in telling if it was one ongoing infection that was not being effectively treated, or recurrent infections. Plaintiff objects to 19:13-18 based on Rules 702 and 703 of the federal rules of evidence. Dr. Merritt states he is not an expert in dentistry, and therefore cannot answer the question. See Plaintiff’s MIL No. 64. This question is appropriate given the answer. It is important for the jury to understand that Dr. Merritt is not an expert in dentistry. And that his opinions can’t be relied upon in a standard of care analysis. This question and answer will demonstrate that to the jury. OVERRULED. The question is appropriate given the answer. The testimony is relevant to the scope of Dr. Merritt’s opinions. Plaintiff objects to 22:13-18 pursuant to Rules 702- 703 and 403 of the Federal Rules of Evidence. First, it is not particularly relevant for the jury to know that OVERRULED. The questions are appropriate given the 11 Case 2:14-cv-00363-RJS Document 90-1 Filed 09/28/17 PageID.850 Page 12 of 14 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of W. Davis Merritt, M.D. taken Tuesday, June 23, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 15· · · · A.· ·No. 16· · · · Q.· ·Do you have any opinion as to Dr. Clark's 17· ·care? 18· · · · A.· ·No. 23:20-24:6 20· · · · Q.· ·Do you have any other opinions as to 21· ·Dr. Stern's care of Gail O'Neal? 22· · · · A.· ·No. 23· · · · Q.· ·Do you have any other opinions of Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Dr. Stern did not relay any opinions on defendant’s care to Dr. Merritt (R. 402). Second, Dr. Merritt is not an expert in generally dentistry or an oral surgeon, and therefore has no basis to testify as to the standard of care in this case (R. 702-703). See Plaintiff’s MIL No. 64. Further, it is likely that Dr. Merritt’s testimony that he has no opinion on Dr. Clark’s standard of care would be misconstrued to imply that he is not critical of Dr. Clark’s care, which is misleading (R. 403). This is not misleading, as it doesn’t state any opinion on Dr. Clark’s care. Again, it is important for the jury to understand that Dr. Merritt is not an expert in dentistry and his opinions should not be relied upon in a standard of care analysis. The question about his opinions on Dr. Clark are therefore important to establish Dr. Merritt’s lack of foundation. Otherwise, Plaintiff will use Dr. Merritt’s testimony in arguments that his opinions should be used in a standard of care analysis. Only by using this testimony that Dr. Merritt is not qualified to testify on these issues or that he has no opinions on Dr. Clark’s care will the jury understand that Dr. Merritt lacks the foundation. As for the testimony about Dr. Stern relaying information, it is important for the jury to know what information Dr. Stern passed along to Dr. Merritt. This is a fact regarding the treatment of Plaintiff, and should therefore be allowed. Plaintiff objects to 23:20-24:6 pursuant to Rules 702- 703 and 403 of the Federal Rules of Evidence. First, it is not particularly relevant for the jury to know that Dr. Stern does not have any opinions on any other doctor’s care of plaintiff, or on the etiology of her 12 answers. The testimony is relevant to the scope of Dr. Merritt’s opinions. OVERRULED. The questions are appropriate given the answers. The testimony is relevant to the scope Case 2:14-cv-00363-RJS Document 90-1 Filed 09/28/17 PageID.851 Page 13 of 14 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of W. Davis Merritt, M.D. taken Tuesday, June 23, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 24· ·Dr. P.K. Clark's treatment of Gail O'Neal? 25· · · · A.· ·No. 1· · · · Q.· ·Do you have any other opinions as to ·2· ·Dr. Michael Shane's treatment of Gail O'Neal? ·3· · · · A.· ·No. ·4· · · · Q.· ·And do you have any other opinions as to the ·5· ·etiology of Gail O'Neal's sinus disease? ·6· · · · A.· ·No, I don't. Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling of Dr. Merritt’s opinions. sinus disease (R. 402). Second, Dr. Merritt is not an expert in generally dentistry or an oral surgeon, and therefore has no basis to give expert opinion testimony about the treatment by dentists in this case (R. 702-703). See Plaintiff’s MIL No. 64. As noted above, it is important for the jury to understand that Dr. Merritt lacks foundation to give opinions on the standard of care, and these questions will so demonstrate. Otherwise, Plaintiff can twist his testimony and confuse the jury into thinking that Dr. Merritt does indeed have opinions about the standard of care. This testimony will definitively state to the jury that Dr. Merritt is not qualified to testify about, and has no opinion on, the standard of care. In tregard to the etiology of the sinus disease, he has foundation to testify about sinus disease, as demonstrated by his credentials as an ear nose and throat specialist. His opinions (or lack thereof) on the etiology of Plaintiff’s sinus disease is therefore important to the jury, and opinions (or lack thereof) on the etiology of Plaintiff’s sinus disease is therefore relevant. That is a criticial issue in this case: how did the sinus disease develop and what impact did it have on the implant failure. His lack of opinions will assist the jury in making that determination. Instructions: One form should contain all designations for a witness. Plaintiff Designations (column 1) and Defendant Designations (column 2) will show the full deposition text that the party proposes to read in its case-in-chief. Completeness designations are proposed by the other party, under Fed. R. Civ. P. 32(a)(6), to be read with the designations. Counter–designations are read following the designations and completeness designations, similar to cross examination. This form should be provided in word processing format to the other party, who then will continue to fill in the form. The form is then returned to the proposing party for review, resolution of disputes, and further editing. The parties should confer and file a final version in PDF format using the event “Notice of Filing” and also submit a final word processing copy to the court at [email protected], for ruling. 13 Case 2:14-cv-00363-RJS Document 90-1 Filed 09/28/17 PageID.852 Page 14 of 14 All objections which the objecting party intends to pursue should be listed, whether made at the deposition, as with objections as to form, or made newly in this form, if the objection is of a type that was reserved. 14 Case 2:14-cv-00363-RJS Document 90-2 Filed 09/28/17 PageID.853 Page 1 of 26 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of David Okano, D.D.S., M.S. taken Friday, May 21, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) PLAINTIFF DESIGNATIONS 7:4-7 ·4· · · · Q.· ·Why don't you give us your name and address ·5· ·just for the record? ·6· · · · A.· ·David Okano.· Office address 1208 Hilltop, ·7· ·number 209, Rock Springs, Wyoming 89201. 7:16-9:4 16· · · · Q.· ·Why don't you walk us through your 17· ·educational background briefly, and we'll talk about 18· ·that a little bit. 19· · · · A.· ·Well, as far as undergraduate degree, I went 20· ·to the University of Wyoming.· So my bachelor's degree 21· ·is in zoology from the University of Wyoming.· I went 22· ·to dental school at the University of Nebraska Medical 23· ·Center, College of Dentistry.· That's in Lincoln, 24· ·Nebraska, otherwise known as the University of Nebraska 25· ·College of Dentistry. ·1· · · · · · ·I did a general practice residency at the ·2· ·VA Hospital in Milwaukee immediately after dental ·3· ·school.· Then I returned to the University of Nebraska ·4· ·Medical Center, College of Dentistry in Lincoln, once ·5· ·again, for my periodontal residency.· That's where I ·6· ·received my periodontal training.· I received a ·7· ·certificate of specialization in periodontics, along ·8· ·with a Master of Science in that -- the field of study ·9· ·was immunology for that period. 10· · · · · · ·I guess also I'm a board-certified 11· ·periodontist, which that was completed in 1992.· If you 12· ·need the dates, graduation from dental school was 1981, 13· ·graduation from perio graduate school was 1985. 14· · · · Q.· ·You mentioned the certificate of specialty 15· ·that you received.· Did you receive that when you did 16· ·your periodontal residency? 17· · · · A.· ·That's correct.· That's the certificate of Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 1 Case 2:14-cv-00363-RJS Document 90-2 Filed 09/28/17 PageID.854 Page 2 of 26 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of David Okano, D.D.S., M.S. taken Friday, May 21, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 18· ·specialty is in periodontics, which was received after 19· ·completion of my periodontal residency. 20· · · · Q.· ·You mentioned that you also received a 21· ·master's degree? 22· · · · A.· ·Yes. 23· · · · Q.· ·What was that in again? 24· · · · A.· ·Immunology.· When you're in periodontal 25· ·graduate school, everybody that finishes periodontal ·1· ·graduate schools gets a certificate in periodontics. ·2· ·If you want to do a research project and defend a ·3· ·thesis, you can also get a Master of Science degree in ·4· ·dentistry. 9:22-10:10 22· · · · Q.· ·You also mentioned that you're board 23· ·certified.· Can you just briefly describe how you 24· ·become board certified and who that is through? 25· · · · A.· ·Once you finish your periodontal program, ·1· ·you're eligible to sit before the American Board of ·2· ·Periodontology.· And you first take a written test. ·3· ·And once you've successfully completed the written ·4· ·test, then you go through an oral examination process. ·5· · · · · · ·And you go before the American Board of ·6· ·Periodontology members, who ask you a lot of questions ·7· ·about periodontal disease and whether you have attained ·8· ·a certain level of understanding and competence.· And ·9· ·if you score satisfactorily, then you become board 10· ·certified in periodontics. 10:24-11:11 24· · · · Q.· ·And why was that important to receive that 25· ·extra credential? 1· · · · A.· ·Being in the middle of nowhere in Wyoming, ·2· ·it's hard to be judged by your peers and to realize ·3· ·where you may stand in your understanding of ·4· ·periodontics. ·5· · · · · · ·One way that I could distinguish myself in Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 2 Case 2:14-cv-00363-RJS Document 90-2 Filed 09/28/17 PageID.855 Page 3 of 26 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of David Okano, D.D.S., M.S. taken Friday, May 21, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·6· ·Wyoming was to say that I was a board certified ·7· ·periodontist, which at the time I took it only ·8· ·25 percent of periodontists were board certified.· At ·9· ·that time I could say at least I met a certain 10· ·standard, that my peers stated that I had a certain 11· ·level of competency. 12:25-13:11 25· ·[Q]. . . , do you have any other education or ·1· ·certifications for your practice as a periodontist? ·2· · · · A.· ·I took a preceptorship in dental implantology ·3· ·at the University of Texas Health Science Center at ·4· ·San Antonio.· 14:25-16:1 25· · · · Q.· ·Is there a difference from periodontal 1· ·implants versus any other type of implants an oral ·2· ·surgeon or general dentist might perform? ·3· · · · A.· ·Dental implants can be provided by dentists. ·4· ·Now, I would say that the periodontal specialists, the ·5· ·oral surgeons have additional training in surgical ·6· ·technique.· And the background is probably stronger. ·7· · · · · · ·That's not to say general dentists cannot do ·8· ·implants.· I see many general dentists who can do ·9· ·dental implants quite well.· So I'm not being 10· ·territorial as a periodontist saying only periodontists 11· ·or oral surgeons should do dental implants. 12· · · · Q.· ·That brings up a real good point, Dr. Okano. 13· ·Will you just explain to us, and you have a little bit, 14· ·but just further clarification what does a periodontist 15· ·do?· What do they specialize in? 16· · · · A.· ·A periodontist treats periodontal disease. 17· ·"Perio" means surrounding the tooth.· So periodontist 18· ·treatment involves the gum and bone structures of 19· ·teeth.· And we address inflammatory processes from gum 20· ·infections that destroy bone. 21· · · · · · ·But also over time, since the mid-1980s, the Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 3 Case 2:14-cv-00363-RJS Document 90-2 Filed 09/28/17 PageID.856 Page 4 of 26 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of David Okano, D.D.S., M.S. taken Friday, May 21, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 22· ·specialty of periodontics has also incorporated the 23· ·surgical placement of dental implants.· So 24· ·periodontists -- almost every periodontist is going to 25· ·be providing implant -- dental implant services in ·1· ·their practices. 16:24-17:14 24· · · · · · ·[Q. ] Besides those educational degrees and 25· ·certificates that you have, do you have any other ·1· ·certificates or education relating to your work as a ·2· ·periodontist? ·3· · · · A.· ·No other certificates, but I probably attend ·4· ·100 hours of continuing education per year or more in ·5· ·my field, periodontics, along with dental implantology. ·6· · · · · · ·One real unique opportunity I've had in the ·7· ·last few years is I currently serve on the American ·8· ·Academy of Periodontology Board of Trustees, so I'm one ·9· ·of the 21 members from across the country serving on 10· ·the board of trustees for my specialty organization. 11· · · · · · ·That has been very unique because I'm able to 12· ·sit at a table with some national and world experts in 13· ·my field and learn some of their techniques.· And that 14· ·in itself has been an education also. 18:2-16 ·2· · · · Q.· ·. . . So why don't you walk us ·3· ·through real quick your work background beginning when ·4· ·you completed your dental degree in 1981. ·5· · · · A.· ·Okay.· Well, I finished dental school in ·6· ·1981.· The general practice residency in Milwaukee, ·7· ·Wisconsin for the year after dental school was spent in ·8· ·various phases of dentistry.· It's a general dental ·9· ·residency, so I was exposed to all phases of general 10· ·dentistry.· Tremendous educational opportunity during 11· ·that one year. 12· · · · · · ·And then the training in periodontal -- in 13· ·periodontics was completed in 1985.· And I immediately Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 4 Case 2:14-cv-00363-RJS Document 90-2 Filed 09/28/17 PageID.857 Page 5 of 26 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of David Okano, D.D.S., M.S. taken Friday, May 21, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 14· ·opened my periodontal practice here in Rock Springs, 15· ·Wyoming in July of 1985 and have been here continuously 16· ·for the last almost 30 years. 21:11-23 11· · · · Q.· ·And have you had any conversations with a 12· ·Dr. Shane in Lander, Wyoming and Riverton, Wyoming 13· ·about Gail O'Neal? 14· · · · A.· ·I have not spoken to Dr. Shane directly. 15· ·Dr. Shane made the original referral to me to evaluate 16· ·for periodontal disease.· That exam would have occurred 17· ·December 12th, 2011. 18· · · · · · ·I provided a letter of update to Dr. Shane 19· ·regarding my findings on December 12th, 2011.· That's 20· ·when the letter was sent.· So I've had only written 21· ·communications with Dr. Shane regarding Gail O'Neal. 22· ·But I have not talked to Dr. Shane personally about any 23· ·of the concerns or treatment, considerations for her. 22:3-13 3· · · · Q.· ·What I want to do now, Dr. Okano, is hand you ·4· ·Exhibit No. 2. ·5· · · · · · . . . ·6· · · · · · ·. . . this is Dr. Okano's ·7· ·records.· They are Bates numbered Okano 1 through ·8· ·Okano 11. ·9· · · · · · ·[A]:· Okay. 10· · · · Q.· ·. . . Before we get into your 11· ·review of your records, Dr. Okano, do you have a memory 12· ·independent of your records of Gail O'Neal? 13· · · · A.· ·I do not. 22:18-31:24 18· · · · Q.· ·On Okano 2 and Okano 3, can you just describe 19· ·for us what those records are? 20· · · · A.· ·This is the routine social history on Okano 2 21· ·that all patients fill out regarding name, address, 22· ·demographic information.· Okano 3 is our medical Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Exhibit 2 5 Case 2:14-cv-00363-RJS Document 90-2 Filed 09/28/17 PageID.858 Page 6 of 26 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of David Okano, D.D.S., M.S. taken Friday, May 21, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 23· ·history, along with Okano 4 is a dental history.· So 24· ·all patients receive this information before I even 25· ·examine them. 1· · · · Q.· ·So this is -- these are documents that ·2· ·Gail O'Neal would have filled out in her first visit to ·3· ·you, correct? ·4· · · · A.· ·That is correct. ·5· · · · Q.· ·I want to focus briefly on Okano 3.· As you ·6· ·look through Okano 3, is there anything on there that ·7· ·Gail O'Neal filled out that gives you any cause for ·8· ·concern about her dental health? ·9· · · · A.· ·No.· She had a little arthritis.· She was on 10· ·some hormone replacement therapy.· She had no 11· ·allergies, so there was nothing there that would 12· ·suggest any -- anything medically involved that she 13· ·would have disclosed at that time. 14· · · · Q.· ·Let's turn to Okano 4. 15· · · · A.· ·Okay. 16· · · · Q.· ·I want to focus on the upper left portion. 17· ·It says, "Are you currently experiencing dental 18· ·problems?" with a mark for "yes."· Do you see that? 19· · · · A.· ·Yes. 20· · · · Q.· ·Below that where the explanation is, can you 21· ·review that for us, please? 22· · · · A.· ·It says -- her writing was, "Soreness on left 23· ·bridge anchor teeth.· My notes would have said, "Avoids 24· ·chewing, present for eight years."· The bridge was 25· ·present for eight years. ·1· · · · Q.· ·On that "present for eight years," does that ·2· ·mean the bridge was present for eight years or the ·3· ·soreness was present for eight years? ·4· · · · A.· ·The bridge by the patient history would have ·5· ·been there for eight years. ·6· · · · Q.· ·As we go down -- continue going down that ·7· ·left side of Okano 4, is there anything there that is Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 6 Case 2:14-cv-00363-RJS Document 90-2 Filed 09/28/17 PageID.859 Page 7 of 26 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of David Okano, D.D.S., M.S. taken Friday, May 21, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·8· ·either filled out by Gail O'Neal or yourself that gives ·9· ·you cause for concern about her dental health? 10· · · · A.· ·Well, the yes/no column, those are all 11· ·symptoms of periodontal disease that we ask what they 12· ·might be experiencing that they can share with us 13· ·there. 14· · · · · · ·There's really nothing unusual.· Those are 15· ·all symptoms of periodontal disease.· And her symptoms, 16· ·her chief complaint, basically that "yes" would be very 17· ·consistent with bone loss considerations. 18· · · · Q.· ·And so the bleeding gums, breath odors, gum 19· ·swelling or sores, and sensitivity to biting is 20· ·commonly associated with periodontal disease, correct? 21· · · · A.· ·Yes. 22· · · · Q.· ·If we go down towards the bottom left portion 23· ·of that page, there's a question, "How long have you 24· ·known about your gum condition?"· And "six months" is 25· ·written in.· Do you see that? ·1· · · · A.· ·Yes. ·2· · · · Q.· ·Is it common to develop periodontal disease ·3· ·within a six-month period? ·4· · · · A.· ·Oh, it can.· But a lot of these patients ·5· ·don't know that they have it, and yet things are ·6· ·starting to develop.· In the early stages, it's almost ·7· ·considered a silent disease because there aren't a lot ·8· ·of symptoms. ·9· · · · · · ·So the six months that she mentions could be 10· ·six months of awareness of these symptoms or could be 11· ·six months since her dentist told her about the 12· ·problems. 13· · · · Q.· ·Do you recall which -- when she references 14· ·six months if she was talking about the problems she 15· ·was experiencing or if she was referring to something 16· ·else? 17· · · · A.· ·I cannot recall. Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 7 Case 2:14-cv-00363-RJS Document 90-2 Filed 09/28/17 PageID.860 Page 8 of 26 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of David Okano, D.D.S., M.S. taken Friday, May 21, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 18· · · · Q.· ·Let's turn now, Dr. Okano, to Okano 6 and 7. 19· ·Do you recognize those documents? 20· · · · A.· ·Yes. 21· · · · Q.· ·And what are they? 22· · · · A.· ·This is the letter that I sent back to the 23· ·referring dentist.· Dr. Shane referred Gail O'Neal to 24· ·my office.· I saw Gail in my Lander satellite office on 25· ·December 12th, and we did our examination. ·1· · · · · · ·Every time that I do an examination by ·2· ·referral, I send a report back to the referring ·3· ·dentist.· So this is what Dr. Shane received from me ·4· ·following my examination. ·5· · · · Q.· ·Do you know why Dr. Shane recommended that ·6· ·Gail O'Neal see you? ·7· · · · A.· ·Yes.· It goes back to the symptoms that you ·8· ·saw on the soreness on the left bridge, the anchor ·9· ·teeth.· So Dr. Shane is a very good dentist who 10· ·diagnoses periodontal disease, recognizes when there 11· ·are periodontal concerns that would benefit from a 12· ·consultation and, perhaps, treatment from a periodontal 13· ·specialist. 14· · · · Q.· ·So you have received referrals from Dr. Shane 15· ·before? 16· · · · A.· ·Very regularly.· He's one of my best 17· ·referring dentists, very competent man. 18· · · · Q.· ·And if we look at Okano 6, what I want to 19· ·focus on is the diagnosis, the etiology, and the 20· ·complicating factors.· Maybe what would be the most 21· ·helpful, Dr. Okano, and the best use of your time is to 22· ·have you go through those and talk to us about what 23· ·your impressions of Gail O'Neal were. 24· · · · A.· ·Sure.· Following my examination, I always 25· ·establish a diagnosis to share with the patient and the ·1· ·referring dentist.· On the periodontal diagnosis, my ·2· ·diagnosis was chronic isolated advanced periodontitis. Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 8 Case 2:14-cv-00363-RJS Document 90-2 Filed 09/28/17 PageID.861 Page 9 of 26 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of David Okano, D.D.S., M.S. taken Friday, May 21, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·3· ·"Chronic" meaning it's probably longstanding; ·4· ·"isolated" meaning certain teeth are affected, not ·5· ·necessary every tooth; "advanced" meaning the severity ·6· ·of the bone destruction basically; "periodontitis" ·7· ·meaning bone loss. ·8· · · · Q.· ·When you said "chronic" typically represents ·9· ·that it's been present for an extended period of time, 10· ·how long is that typically? 11· · · · A.· ·Probably several months, perhaps even some 12· ·years.· The diagnosis of periodontal disease typically 13· ·is called chronic or aggressive.· And a "chronic" means 14· ·longstanding over a period of time; "aggressive" 15· ·meaning very severe periodontal destruction at a 16· ·relatively young age. 17· · · · · · ·So those -- chronic versus aggressive is 18· ·typically how we classify periodontal disease.· I go to 19· ·the extra extent of telling a referring doctor and 20· ·patient if it's generalized versus isolated and the 21· ·severity, whether it's mild, moderate, or advanced. 22· · · · Q.· ·And then let's go to the etiological factors. 23· · · · A.· ·So gingival plaque, biofilms, and calculus. 24· ·What that means is below the gumline, which is where 25· ·all the action occurs that destroys the bone support, ·1· ·so below the gumline; plaque, which is the soft sticky ·2· ·bacterial film of deposit that leads to the infection ·3· ·and inflammation. ·4· · · · · · ·Biofilms means that thin film of bacteria ·5· ·below the gumline that leads to the inflammation. ·6· ·Calculus means the hard calcified deposit.· That means ·7· ·that the bacterial plaque over time then hardens onto ·8· ·the tooth.· Calculus is otherwise known as tartar ·9· ·buildup. 10· · · · Q.· ·Are these etiological factors typically a 11· ·result of poor dental hygiene? 12· · · · A.· ·Well, typically.· I wouldn't go so far as to Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 9 Case 2:14-cv-00363-RJS Document 90-2 Filed 09/28/17 PageID.862 Page 10 of 26 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of David Okano, D.D.S., M.S. taken Friday, May 21, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 13· ·say "poor" as much as "inadequate," or if these pockets 14· ·are real deep, they -- even with good efforts, they 15· ·simply cannot clean below the gumline far enough to 16· ·remove the irritating etiologic factors that lead to 17· ·the problem.· So that's why I won't say it was truly 18· ·due to poor oral hygiene. 19· · · · Q.· ·Do you recall if you had any concerns about 20· ·Gail O'Neal's dental hygiene at that time? 21· · · · A.· ·Not necessarily, no. 22· · · · Q.· ·Are you saying you don't recall one way or 23· ·the other? 24· · · · A.· ·I don't have it marked, but typically if I 25· ·see "poor," I absolutely mark "poor" on the chart.· So ·1· ·I think that in Gail O'Neal's situation, she was ·2· ·probably practicing reasonably favorable oral hygiene, ·3· ·which is true of most of Dr. Shane's patients.· They ·4· ·have reasonably good oral hygiene.· But once the ·5· ·disease progresses to certain levels, they simply can't ·6· ·control the disease factors. ·7· · · · Q.· ·Let's go now to the complicating factors just ·8· ·below the etiological factors. ·9· · · · A.· ·First one I say is "isolated severe 10· ·periodontal destruction of key prosthetic abutment 11· ·teeth."· That means that Gail had some bridgework in 12· ·her mouth, and the teeth that were supporting the 13· ·bridgework had experienced severe bone loss.· And any 14· ·time we have a key tooth that supports a bridge, that's 15· ·a complicating factor, especially when there's severe 16· ·disease. 17· · · · · · ·The next one, "Progressing vertical defect 18· ·affecting the distal number 29," that means a type of 19· ·bone loss pattern around the root on a lower right 20· ·second premolar on the backside that's progressing. 21· · · · · · ·That a type of osseous defect, meaning that 22· ·type of bony defect, is much more difficult to treat Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 10 Case 2:14-cv-00363-RJS Document 90-2 Filed 09/28/17 PageID.863 Page 11 of 26 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of David Okano, D.D.S., M.S. taken Friday, May 21, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 23· ·and manage and particularly prone to deterioration if 24· ·left untreated. 25· · · · · · ·And then the last comment I had there, "The ·1· ·loss of several maxillary teeth with compromises in ·2· ·prosthetic support for the future."· That means she's ·3· ·already lost a lot of teeth.· She's going to lose more ·4· ·teeth, and she's getting to the point where she just ·5· ·isn't going to have very many teeth left to support ·6· ·replacements. ·7· · · · Q.· ·You had mentioned that she had had some ·8· ·bridgework done.· Correct me if I'm wrong, but a bridge ·9· ·is typically done by placing two implants between a -- 10· · · · A.· ·No.· A bridge is not a dental implant. A 11· ·bridge is a replacement of missing teeth that utilizes 12· ·teeth on either side of the space that support crowns 13· ·that are connecting to artificial teeth.· So the bridge 14· ·is not a dental implant, unrelated to dental implants. 15· · · · Q.· ·Just below the complicating factors in the 16· ·periodontal prognosis, will you walk us through the 17· ·teeth that you identify and the concerns that you have 18· ·about those teeth? 19· · · · A.· ·Sure.· As far as the individual teeth, I 20· ·would consider the prognosis -- periodontal prognosis 21· ·hopeless.· That means there's so much bone loss they're 22· ·not likely to be saved. 23· · · · · · ·I identified severe bone loss on the 24· ·maxillary right second premolar, the maxillary left 25· ·first premolar, and the maxillary left second molar. ·1· ·And unfortunately, the maxillary left first premolar ·2· ·and second molar, those were the anchor teeth for the ·3· ·bridge and the reason that she would lose her bridge ·4· ·because there was so much bone loss. ·5· · · · · · ·Now, guarded, there were some teeth with a ·6· ·fair amount of bone loss, probably up to 50 percent or ·7· ·more of bone loss on the lower, the mandibular left Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 11 Case 2:14-cv-00363-RJS Document 90-2 Filed 09/28/17 PageID.864 Page 12 of 26 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of David Okano, D.D.S., M.S. taken Friday, May 21, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·8· ·second molar, the mandibular left second premolar, ·9· ·along with both mandibular right -- I'm sorry -- I said 10· ·the mandibular.· Let's correct the numbers and teeth 11· ·again. 12· · · · · · ·Guarded were mandibular left second molar, 13· ·mandibular right second premolar, and both mandibular 14· ·right molars.· "Guarded" means there's a significant 15· ·amount of bone loss, perhaps 50 percent or more.· We 16· ·also know that guarded teeth can be retained for quite 17· ·some time. 18· · · · · · ·So I'm not ready to say guarded teeth 19· ·necessarily should be removed, but that's a decision 20· ·that can then be made between the patient and their 21· ·general dentist as far as keeping and treating most 22· ·teeth or taking them out.· "Fair" means there's a 23· ·pretty good likelihood that teeth are going to last for 24· ·several more years. 33:1-37:15 1· · · · Q.· ·Do you recall when you did this examination ·2· ·of Gail O'Neal in December of 2011 if she informed you ·3· ·of any preference she had of whether she wanted to save ·4· ·the teeth, whether she wanted implants, or whether she ·5· ·wanted something different all together? ·6· · · · A.· ·She did not have a preference.· I reviewed ·7· ·the concerns, the treatment possibilities.· I felt that ·8· ·it would be best for her to return to Dr. Shane to get ·9· ·these upper hopeless teeth out first because they were 10· ·bothering her.· They were symptomatic. 11· · · · · · ·Since that was her chief complaint, I always 12· ·recommend the patient follow through with their chief 13· ·concern, which would be getting the hopeless teeth out, 14· ·getting out of the pain and discomfort. 15· · · · Q.· ·Is there any reason with your specialty you 16· ·wouldn't have suggested extracting the teeth yourself 17· ·versus Dr. Shane doing it? Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 12 Case 2:14-cv-00363-RJS Document 90-2 Filed 09/28/17 PageID.865 Page 13 of 26 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of David Okano, D.D.S., M.S. taken Friday, May 21, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 18· · · · A.· ·I will take some teeth out if I will follow 19· ·up with placing the dental implants.· And I'll take 20· ·those teeth out because there's a lot of treatment that 21· ·is sometimes necessary.· It's what we call site 22· ·preservation or site preparation. 23· · · · · · ·And because there's so much bone loss around 24· ·some of these teeth, we will place bone grafts and 25· ·other regenerative procedures to try to save as much ·1· ·bone as possible for the future placement of dental ·2· ·implants.· I will take a few teeth out if I know that I ·3· ·may be the provider placing dental implants later on. ·4· · · · Q.· ·Does that mean at this point you were not ·5· ·anticipating seeing her again in your office, or were ·6· ·you maybe anticipating seeing her for different ·7· ·procedures? ·8· · · · A.· ·Different procedures were discussed that I ·9· ·would follow up. 10· · · · Q.· ·So just describe that to us quickly.· In your 11· ·mind, what were you suggesting Dr. Shane do, and then 12· ·what were you suggesting happen in your office with 13· ·Gail O'Neal? 14· · · · A.· ·I suggested Dr. Shane take out these three 15· ·hopeless teeth.· There was also a lower left molar 16· ·number 18 that looked like it had a root canal-type 17· ·problem. 18· · · · · · ·So I don't do root canals.· But I noted that 19· ·there was likely a root canal problem, and Dr. Shane 20· ·could then follow it up in his office or refer for 21· ·further care. 22· · · · · · ·Those seem to be the most acute treatment 23· ·needs.· And then eventually I could come back and treat 24· ·the periodontal disease, the bone loss around the teeth 25· ·that we would elect to save later on. ·1· · · · Q.· ·And how did you envision providing that ·2· ·periodontal treatment in the future to save those Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 13 Case 2:14-cv-00363-RJS Document 90-2 Filed 09/28/17 PageID.866 Page 14 of 26 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of David Okano, D.D.S., M.S. taken Friday, May 21, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·3· ·teeth? ·4· · · · A.· ·It would involve periodontal surgery, ·5· ·otherwise known as gum surgery.· That's where we open ·6· ·up the gum tissues, clean out infection around the ·7· ·roots of teeth, clean off the roots, place some ·8· ·regenerative materials, bone grafting. ·9· · · · · · ·There are several regenerative materials that 10· ·are considered to help regenerate lost bone support. 11· ·And that was to be considered along the lower right 12· ·area.· And then a little isolated surgery to address 13· ·the infection on the lower left second molar number 18. 14· · · · Q.· ·So that periodontal treatment was envisioned 15· ·for the lower left and lower right areas of 16· ·Gail O'Neal's teeth, correct? 17· · · · A.· ·That's correct.· Those were the possible 18· ·candidates for such treatment. 19· · · · Q.· ·Did you envision providing any periodontal 20· ·treatment for the upper left or upper right? 21· · · · A.· ·No.· Basically the treatment for those areas 22· ·was taking the teeth out.· So otherwise, the bone 23· ·support was reasonably favorable for those areas. 24· · · · Q.· ·So if the bone support was reasonably 25· ·favorable for those areas, what would be the typical -- ·1· ·what would be the typical treatment that you would ·2· ·suggest for those areas? ·3· · · · A.· ·For the top teeth? ·4· · · · Q.· ·For the top teeth, the maxillary teeth. ·5· · · · A.· ·Good oral hygiene, brushing, flossing, going ·6· ·back to her general dentist for professional cleanings ·7· ·of her teeth perhaps every six months.· And that would ·8· ·have given her a good opportunity to keep the teeth ·9· ·that had favorable enough bone support remaining. 10· · · · Q.· ·For the ones that you said were hopeless and 11· ·should be extracted, numbers 4, 12, and 15, once those 12· ·are extracted, what are her options? Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 14 Case 2:14-cv-00363-RJS Document 90-2 Filed 09/28/17 PageID.867 Page 15 of 26 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of David Okano, D.D.S., M.S. taken Friday, May 21, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 13· · · · A.· ·Well, then she would have to evaluate the 14· ·remaining sites of missing teeth and decide if she 15· ·wanted to have replacements.· Some patients elect not 16· ·to do any replacements at all. 17· · · · · · ·Gail would have been probably pretty 18· ·compromised in her chewing abilities with the loss of 19· ·that upper left bridge.· So she could have considered a 20· ·removable partial denture, otherwise known as a partial 21· ·plate. 22· · · · · · ·Those are not real comfortable.· They don't 23· ·fit well.· They don't function as nicely as other 24· ·replacements.· She would not have been a real good 25· ·candidate for an upper bridge on the top right because ·1· ·there simply would not have been enough teeth to ·2· ·support the number of teeth that were -- that would ·3· ·become missing. ·4· · · · · · ·And then dental implants, if there was ·5· ·sufficient bone, could certainly be considered for ·6· ·replacements.· And those are always the best ·7· ·replacements because they stay in the mouth.· They ·8· ·should function well as teeth. ·9· · · · · · ·But I always caution patients that dental 10· ·implants are prone to the same periodontal disease that 11· ·cost her her teeth in the first place.· So we make a 12· ·very strong effort to encourage patients to take care 13· ·of the implants well because otherwise they get 14· ·infected, and they can be lost probably faster than 15· ·their natural teeth experience bone loss. 38:9-39:16; 39:17-21 9· · · · Q.· ·And so the third option, and I think you 10· ·suggested that, if possible, it's the best option, is a 11· ·dental implant to replace that tooth? 12· · · · A.· ·That would be the best alternative if there's 13· ·sufficient bone to place such a dental implant. 14· · · · Q.· ·If there is not sufficient bone to place that Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 15 Case 2:14-cv-00363-RJS Document 90-2 Filed 09/28/17 PageID.868 Page 16 of 26 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of David Okano, D.D.S., M.S. taken Friday, May 21, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 15· ·dental implant, is a bone graft advised? 16· · · · A.· ·Sure.· There are various types of bone grafts 17· ·that can be provided for various reasons.· On the upper 18· ·arch, the maxillary sinus is always a factor to 19· ·determine if there's enough bone to place a dental 20· ·implant where you enter the sinus. 21· · · · · · ·Now, there are some surgical procedures where 22· ·you can bone graft into the sinus to create more bone 23· ·to place an adequate length of dental implant into the 24· ·jaw bone.· So, yes, there are some regenerative 25· ·procedures available to enhance the bone in order to ·1· ·place a dental implant. ·2· · · · Q.· ·At this time in December of 2011, if ·3· ·Gail O'Neal had elected to proceed with dental ·4· ·implants, would -- from your review of her, would that ·5· ·have been a possibility? ·6· · · · A.· ·I don't know.· I personally would evaluate ·7· ·the jaw structures through a three-dimensional X-ray ·8· ·called a cone beam CT scanning machine.· And by ·9· ·providing that CT scan, then you have a 10· ·three-dimensional view. 11· · · · · · ·You can take some very accurate measurements 12· ·of the bone that's available for dental implant 13· ·placements.· And then you can determine if, yes, you 14· ·can do dental implants; no, you can't; maybe you can if 15· ·you do some regenerative procedures ahead of time 16· ·before dental implants are placed. 17· · · · · · ·That's just my philosophy on treatment.· I'm 18· ·not saying that's the standard of care, but you really 19· ·would not know how much bone you have unless you take 20· ·at least a panoramic X-ray and, better yet in my hands, 21· ·at least a three-dimensional X-ray. 40:14-43:5 14· · · · Q.· ·So at that time in December of 2011, you had 15· ·suggested to Gail O'Neal that she first needed to go Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff objects to 39:17-21 based on Rules 702 and 703 of the Federal Rules of Evidence. Dr. Okano should not be allowed to testify about what the standard of care is or isn’t, as he has not testified about the basis of his opinion. He already states at the beginning of this answer that it is only what he would do personally. See Plaintiff’s MIL (Doc. 64). Dr. Okano is already testifying about the standard of care in lines 6-16, when talking about how he would evaluate the jaw structures with a CT scan. Lines 17-21 are simply a continuation of why he would evaluate the structures with a CT scan. If Plaintiff claims Dr. Okano lacks foundation to testify to these lines, then he also lacks the foundation to testify to the rest of the answer. Furthermore, Defendant has not designated any testimony where Dr. Okano testifies as to what the standard of care is. He instead defers from stating the standard of care at all, so he would not need any foundation in this case. 16 OVERRULED. The testimony in 39:17-21 is a proper completeness designation. The testimony is not stating an opinion of what the standard of care is or is not. The question requests Dr. Okano’s opinion, and his answer is “I don’t know.” The remainder of testimony explains why his answer is “I don’t know.” The whole explanation is admissible. Additionally, Plaintiff has designated 43:17-44:2 in which Dr. Okano discusses methods for determining how much bone is present for purposes of an implant. Case 2:14-cv-00363-RJS Document 90-2 Filed 09/28/17 PageID.869 Page 17 of 26 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of David Okano, D.D.S., M.S. taken Friday, May 21, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 16· ·see Dr. Shane for extracts of teeth numbers 4, 12, and 17· ·15, and then possible root canal treatment for number 18· ·18, and then at that time to come back and see you for 19· ·further periodontal treatment; is that right? 20· · · · A.· ·That is correct.· I actually saw Gail a 21· ·second visit for discussion on March 15th, 2012.· So 22· ·that should be part of the record as far as an update. 23· ·I believe that she had come to the Rock Springs office 24· ·to see Dr. Flath for the root canal treatment.· And I 25· ·took a quick minute to answer a few questions that she ·1· ·might have had at that time. ·2· · · · Q.· ·Let's turn to that record, Dr. Okano.· That ·3· ·is Okano 10. ·4· · · · A.· ·Okay. ·5· · · · Q.· ·Why don't you -- I want to ask you a few ·6· ·additional questions about the December 2011 visit. ·7· ·But why don't you, while we're there, talk about the ·8· ·March 2012 visit, what you discussed with Gail O'Neal ·9· ·at that time and what your impressions were. 10· · · · A.· ·Specifically to the March 15th? 11· · · · Q.· ·Yes, the March 15th.· Yes. 12· · · · A.· ·We talked about her periodontal concerns, the 13· ·bone loss problems that she had that I had diagnosed 14· ·and discussed treatment here.· Again, mentioned to her 15· ·that she had deep pockets, which were related to the 16· ·bone loss. 17· · · · · · ·It looked like I must have seen a little bit 18· ·of swelling along the gum tissues along the lower 19· ·right.· That would be number 29.· The swelling and the 20· ·granulomatous type of lesion, that means quite an 21· ·inflammatory response, probably to the plaque 22· ·irritants.· If we were to do any surgery in that area, 23· ·I would evaluate that.· I might even take that tissue 24· ·and submit it for a biopsy to evaluate it further. 25· · · · · · ·So we talked about the treatment once again, Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 17 Case 2:14-cv-00363-RJS Document 90-2 Filed 09/28/17 PageID.870 Page 18 of 26 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of David Okano, D.D.S., M.S. taken Friday, May 21, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·1· ·told her what we planned to do, where the sources of ·2· ·these materials may come from.· And then she had all ·3· ·questions answered at that time.· She said she would ·4· ·call back to schedule when she was able to proceed with ·5· ·treatment. ·6· · · · · · ·I see that she was a rancher, so that's ·7· ·sometimes what goes on is the business with the ·8· ·ranching operations as far as when they can get back ·9· ·for treatment. 10· · · · Q.· ·On the -- I'm going to term the second 11· ·paragraph for the March 15th, 2012, visit on the right 12· ·side of Okano 10, the second sentence says, "May 13· ·consider osseous"? 14· · · · A.· ·"Osseous." 15· · · · Q.· ·"Osseous grafting, and this treatment was 16· ·reviewed."· What is that? 17· · · · A.· ·That's bone grafting, placement of bone 18· ·grafts into the hole in the bone around the tooth, 19· ·basically try to regenerate some lost bone support. 20· · · · Q.· ·And what teeth are you specifically 21· ·referencing when you mention that grafting? 22· · · · A.· ·That would be tooth number 29 that's listed, 23· ·the lower right second premolar. 24· · · · Q.· ·And do you recall discussing any other bone 25· ·grafting at that time with any other teeth? ·1· · · · A.· ·No. ·2· · · · Q.· ·And just to reiterate, your focus during the ·3· ·March 15th, 2012, visit was a review of teeth number ·4· ·29, 31, and 32, correct? ·5· · · · A.· ·Yes.· That's correct. 44:22-47:9 22· · · · Q.· ·On the next page, this is still under 23· ·point 3, it is the second to last point, it says, "Also 24· ·discussed the possibility of dental implants into the 25· ·sites of numbers 4 and 13 for removable prosthetic Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 18 Case 2:14-cv-00363-RJS Document 90-2 Filed 09/28/17 PageID.871 Page 19 of 26 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of David Okano, D.D.S., M.S. taken Friday, May 21, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·1· ·overdenture abutment purposes." ·2· · · · · · ·You had talked a little bit about the ·3· ·overdenture abutment a little bit earlier, but just ·4· ·describe that process to us about how that's done. ·5· · · · A.· ·Sure.· When she was going to lose so many ·6· ·upper teeth, it would be really apparent an upper ·7· ·removable partial denture, partial plate, was not going ·8· ·to fit very well.· A very good use of dental implants ·9· ·would be to place one dental implant on each side. 10· · · · · · ·And that would then support a partial plate 11· ·and give it more stability.· And that would be a 12· ·relatively smaller amount of treatment, certainly much 13· ·less cost than replacing individual teeth, two versus 14· ·probably five or six dental implants.· So I just 15· ·brought up the possibility that those could be 16· ·considered to support the partial denture plate there. 17· · · · Q.· ·In a situation like this where you had 18· ·mentioned to her this overdenture abutment possibility, 19· ·if Gail O'Neal came to you and said, I actually would 20· ·prefer to do implants, I don't want a denture, would 21· ·you have felt comfortable proceeding with that option 22· ·instead? 23· · · · A.· ·We could have evaluated for that possibility. 24· ·That would depend upon the three-dimensional X-ray, the 25· ·CT scan to see how much bone was present in the key ·1· ·areas where dental implants to replace individual teeth ·2· ·would have been considered. ·3· · · · Q.· ·Let's jump to point number 4 on Okano 10.· It ·4· ·says, "Alternatives of," and then I want to go over ·5· ·the -- all points under that.· Will you just go through ·6· ·those briefly? ·7· · · · A.· ·Sure.· As I mentioned before, I always ·8· ·discuss what happens if they do no treatment.· So if ·9· ·she did nothing, then she could expect a continuation 10· ·of the gum infections that would result in destroying Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 19 Case 2:14-cv-00363-RJS Document 90-2 Filed 09/28/17 PageID.872 Page 20 of 26 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of David Okano, D.D.S., M.S. taken Friday, May 21, 2015 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 11· ·more bone support, and eventually you could lose enough 12· ·bone that you lose teeth, much like she was going to 13· ·experience on the upper arch. 14· · · · · · ·I always talk about taking all the teeth out 15· ·as a possibility, because that's the question patients 16· ·ask, Well, maybe I don't want to keep the teeth.· I'll 17· ·just take them all out.· But I'll tell them the 18· ·extractions could be considered, but it wasn't 19· ·necessary overall. 20· · · · · · ·Scaling and root planing is the nonsurgical 21· ·alternative to periodontal surgery, which I discussed 22· ·for several lower teeth.· And I always talk about 23· ·nonsurgical options, but I explain why surgery would be 24· ·a better treatment for cases where surgery is the 25· ·recommended treatment plan. ·1· · · · · · ·And then I always talk about doing surgery ·2· ·without placing the regenerative material, the bone ·3· ·grafts, the membranes that we just talked about. I ·4· ·explain that we won't have as good a result. ·5· · · · · · ·I have some patients who don't like to do ·6· ·bone grafting for whatever reason.· And I'll tell them, ·7· ·That's fine, we'll at least clean out the infection, ·8· ·but we may not have as good a result by not doing the ·9· ·bone graft to regenerate. 49:25-50:6 25· · · · Q.· ·Did you discuss any sinus problems with ·1· ·Gail O'Neal in any of your treatment? ·2· · · · A.· ·No, I did not, because we were not ·3· ·considering dental implant therapies.· If, in fact, she ·4· ·would have been interested in dental implants, I for ·5· ·sure would have done that CT scan to know what the ·6· ·sinus morphology would be. 20 Case 2:14-cv-00363-RJS Document 90-2 Filed 09/28/17 PageID.873 Page 21 of 26 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of David Okano, D.D.S., M.S. taken Friday, May 21, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) DEFENDANT COUNTER-DESIGNATIONS 19:16-20:13 16· · · · Q.· ·You had talked a little bit about -- a little 17· ·while ago about what a periodontist does and how they 18· ·focus on disease of the supporting structures of teeth. 19· · · · · · ·Those diseases, how are they typically 20· ·developed? 21· · · · A.· ·It's usually a result of inadequate oral 22· ·hygiene on the patient's part.· If patients aren't 23· ·brushing and flossing their teeth adequately, then the 24· ·bacteria in the mouth will build up at the gumline 25· ·along the roots of teeth. 1· · · · · · ·That stimulates an inflammatory response to ·2· ·the bacterial irritants.· And the inflammatory response ·3· ·ultimately eats away at the supporting structures, the ·4· ·gum and bone support.· I kind of liken it to termites ·5· ·eating away at the foundation of a house basically. ·6· · · · Q.· ·And I assume that the longer an individual ·7· ·lets -- doesn't exercise proper dental hygiene and lets ·8· ·that continue, the worse it gets, correct? ·9· · · · A.· ·That is correct.· Left untreated, you will 10· ·continue to lose gum and bone support.· Ultimately, the 11· ·teeth can loosen up, and eventually adult tooth loss 12· ·occurs.· In fact, more teeth are lost as an adult from 13· ·periodontal disease than tooth decay. Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED. Per the [81] Docket Text Order, evidence of Plaintiff’s oral hygiene is admissible at trial and is relevant to the issue of causation. This testimony is relevant to the issue of causation as background information to the causes of periodontal diseases, which may include poor oral hygiene. The probative value of the testimony is not substantially outweighed by any potential prejudice. Plaintiff objects to 19:16-20:13 pursuant to Rules 402 and 403 of the Federal Rules of Evidnece. Dr. Okano is testifying about the cause of these diseases generally, and not in relation to the plaintiff specifically. As Dr. Okano testifies elsewhere, he did not find that this plaintiff had poor oral hygiene, so this testimony about the effects of poor oral hygiene in general is irrelevant (R. 402). Should the court find that such generalized testimony is relevant, Plaintiff argues that it is more prejudicial than probative, as Dr. Okano specifically states this does not apply to this plaintiff, and is therefore inadmissible (R. 403). This testimony is relevant as a background to how Plaintiff came to need the treatment from Dr. Clark and is a critical issue in this case. Plaintiff claims that she lacked the bone support for implants, and it is important for the jury to understand why she lacked bone support so Dr. Clark can explain his approach of why he did what he did. Ultimately, Plaintiff will present testimony that she can never have implants in this area of her mouth, and a background on how bone loss happens is critical for the jury to understand why Dr. Clark did what he did. It is therefore relevant and not prejudicial. 31:25-32:25 25· · · · Q.· ·I just want to reiterate what you said to 1· ·make sure that I understand it correctly.· I'm going to ·2· ·use the tooth numbers for sake of reference. ·3· · · · A.· ·Sure. 21 Case 2:14-cv-00363-RJS Document 90-2 Filed 09/28/17 PageID.874 Page 22 of 26 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of David Okano, D.D.S., M.S. taken Friday, May 21, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·4· · · · Q.· ·On "hopeless," numbers 4, 12, and 15, that ·5· ·means that there was so much bone loss that they cannot ·6· ·be salvaged, and extracts should occur, right? ·7· · · · A.· ·Yes. ·8· · · · Q.· ·On "guarded," numbers 18, 29, 31, 32, you say ·9· ·guarded typically means that the bone loss is typically 10· ·50 percent or more, and that they can be retained for 11· ·some time.· But that's a decision, whether to remove 12· ·them or not to remove them, typically between the 13· ·patient and their dentist? 14· · · · A.· ·Yes.· And it can also be a decision between 15· ·the patient and myself because if I am discussing 16· ·treatment alternatives, I want my patient to know that 17· ·if I'm treating a guarded tooth, we may or may not be 18· ·successful. 19· · · · · · ·And they need to be aware of that going into 20· ·the treatment plan that if we provide treatment, they 21· ·can still lose a tooth, but we gave it our best try. 22· ·For those patients that aren't comfortable with still 23· ·losing a tooth despite treatment, then I do not 24· ·recommend treatment.· Then it's, Okay, don't do 25· ·treatment.· Take it out at some point in the future. 39:25-40:13 25· · · · Q.· ·So if a practitioner were to take a cone V – 1· ·cone beam CT scan, and they determined from the ·2· ·measurements that there was enough bone or, with bone ·3· ·grafting, proper bone grafting, that implants could be ·4· ·viable, that would probably be the best alternative for ·5· ·replacement for Gail O'Neal; is that correct? ·6· · · · A.· ·It would be assuming Gail O'Neal understood ·7· ·all the treatment, the risk/benefits and alternatives, ·8· ·and she came to a good informed -- good decision on her ·9· ·part, informed consent. 10· · · · Q.· ·And decided that's what she wanted? 11· · · · A.· ·That's correct.· It's still ultimately up to Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 22 Case 2:14-cv-00363-RJS Document 90-2 Filed 09/28/17 PageID.875 Page 23 of 26 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of David Okano, D.D.S., M.S. taken Friday, May 21, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 12· ·the patient to make the best decision as to the best 13· ·treatment they would like to accept. 43:6-44:17 ·6· · · · Q.· ·I just want to -- we've gone over quite a few ·7· ·of these things.· But there's a few things on Okano 10 ·8· ·in the December 2011 visit that I want to quickly ·9· ·review with you.· On point number 3, this is about 10· ·halfway down the page. 11· · · · A.· ·Okay. 12· · · · Q.· ·You had written in here treatment 13· ·recommendations, correct? 14· · · · A.· ·Yes. 15· · · · Q.· ·On the third point, you had written, "Advised 16· ·recommendation to use bone graft, either synthetic or 17· ·allograft in areas to attempt some regeneration. 18· ·Patient had no reservations using either and understood 19· ·the sources for both." 20· · · · · · ·Is that bone grafting referencing numbers 29, 21· ·31, and 32 as well? 22· · · · A.· ·Yes. 23· · · · Q.· ·Is it referencing any other teeth? 24· · · · A.· ·No. 25· · · · Q.· ·If we go down in that same section, 1· ·Section 3, it is the last point on the left side, it ·2· ·says, "Discussed possible use of a barrier for GTR ·3· ·purposes." ·4· · · · · · ·What does that mean? ·5· · · · A.· ·A barrier means there's a thin layer -- ·6· ·wafer-like material that's placed over the top of the ·7· ·bone graft.· We know when regeneration occurs, it ·8· ·regenerates from the bottom of the hole in the bone to ·9· ·the top. 10· · · · · · ·And the tissue cells that can drop down from 11· ·the gum tissue into the hole in the bone, that can 12· ·inhibit the regenerative capabilities.· So that's why Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 23 Case 2:14-cv-00363-RJS Document 90-2 Filed 09/28/17 PageID.876 Page 24 of 26 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of David Okano, D.D.S., M.S. taken Friday, May 21, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 13· ·this thin layer is placed between the bone graft and 14· ·the gum tissue so as to exclude tissues that can 15· ·inhibit repair of the bone graft.· And these are 16· ·materials that are used for that type of thin barrier 17· ·material. 47:10-49:24 10· · · · Q.· ·On point number 5, you talk about the 11· ·surgical risks associated with any dental -- are you 12· ·specifically referring to periodontal treatment or any 13· ·dental treatment? 14· · · · A.· ·Periodontal surgery, periodontal surgical 15· ·risks, although any surgery is going to have similar 16· ·risks of pain, infection, swelling, bleeding.· That's 17· ·associated with all surgery. 18· · · · · · ·The regenerative treatment failure if 19· ·provided, I will always caution that regeneration does 20· ·not always occur.· And then the rest is what happens 21· ·unique to the periodontal surgery that I talked about. 22· · · · Q.· ·In a situation like Gail O'Neal's, if she had 23· ·elected either overdenture abutment or implants, is 24· ·there a 100 percent guarantee of success with any of 25· ·those treatments? ·1· · · · A.· ·There is no 100 percent success given to any ·2· ·medical dental procedure to patients. ·3· · · · Q.· ·I want to jump down to point 8.· In point 8, ·4· ·you note, "Importance of PMT's long term.· Emphasized ·5· ·importance of long-term follow-up to successful ·6· ·treatment and treatment would not be successful without ·7· ·a long-term commitment to good oral hygiene and ·8· ·long-term periodontal maintenance." ·9· · · · · · ·Can you explain to us why you put that note 10· ·in there? 11· · · · A.· ·Anytime I treat periodontal disease, I always 12· ·tell them that we can't cure the problem, such as if 13· ·you have an appendicitis attack, you remove the Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 24 Case 2:14-cv-00363-RJS Document 90-2 Filed 09/28/17 PageID.877 Page 25 of 26 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of David Okano, D.D.S., M.S. taken Friday, May 21, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 14· ·appendix.· It's cured.· You don't have to worry about 15· ·anything.· It's gone, never an issue. 16· · · · · · ·The mouth is always going to have bacteria. 17· ·As long as you're alive, you're going to have live 18· ·germs.· And those germs are what cause the gum 19· ·infection to begin with. 20· · · · · · ·That's why I emphasize to patients, In order 21· ·for you to have a successful result treating your 22· ·periodontal disease, you must commit to good oral 23· ·hygiene on your part every day and then return to the 24· ·dental -- to the professional dental office for 25· ·frequent cleanings of their teeth to stay on top of the ·1· ·gum condition. ·2· · · · Q.· ·In a situation like Gail O'Neal's when you ·3· ·saw her in December of 2011, if she elects to either do ·4· ·an overdenture abutment or an implant, is it possible ·5· ·for her to receive that treatment -- I should -- let me ·6· ·phrase it this way. ·7· · · · · · ·Is it possible for her to be a viable ·8· ·candidate for either treatment, to receive good ·9· ·treatment and for either the overdenture or the implant 10· ·to still fail? 11· · · · A.· ·Yes.· Yes.· We know that our -- if you look 12· ·at the success rates for dental implants, typically 13· ·what's reported is a 90 to 95 percent success rate. 14· ·That means 5 to 10 percent fail for various reasons. 15· · · · · · ·I think that if you look long term and over 16· ·time, you're going to find that those success rates are 17· ·going to be less than 90 to 95 percent.· We have recent 18· ·information that says that in the hands of general 19· ·dentists, it's down to probably about 80 percent 20· ·success rate. 21· · · · · · ·I'll always tell the patients when I do 22· ·dental implants that they can fail.· And if they do, 23· ·then we'll address them and see what can be done Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 25 Case 2:14-cv-00363-RJS Document 90-2 Filed 09/28/17 PageID.878 Page 26 of 26 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of David Okano, D.D.S., M.S. taken Friday, May 21, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 24· ·afterwards. Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Instructions: One form should contain all designations for a witness. Plaintiff Designations (column 1) and Defendant Designations (column 2) will show the full deposition text that the party proposes to read in its case-in-chief. Completeness designations are proposed by the other party, under Fed. R. Civ. P. 32(a)(6), to be read with the designations. Counter–designations are read following the designations and completeness designations, similar to cross examination. This form should be provided in word processing format to the other party, who then will continue to fill in the form. The form is then returned to the proposing party for review, resolution of disputes, and further editing. The parties should confer and file a final version in PDF format using the event “Notice of Filing” and also submit a final word processing copy to the court at [email protected], for ruling. All objections which the objecting party intends to pursue should be listed, whether made at the deposition, as with objections as to form, or made newly in this form, if the objection is of a type that was reserved. 26 Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.879 Page 1 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) PLAINTIFF DESIGNATIONS 3:13-25 13· · · Q.· ·What I want to do is just for the record 14· will you state and spell your name and give your 15· business address. 16· · · A.· ·Yes.· It's Eric M. Sheridan.· It's E-R-I-C. 17· M, as in Matthew.· And Sheridan, S-H-E-R-I-D-A-N. 18· My work address is 799 South 2nd in Lander, Wyoming 19· 82520. 20· · · Q.· ·And how long have you been in Lander? 21· · · A.· ·About 16 years. 22· · · Q.· ·Okay.· And is that the extent of your 23· professional practice? 24· · · A.· ·No, it is not.· I spent three years working 25· for the United States Air Force. 7:12-19 12· · · Q.· ·In other words, do you have a memory -- if 13· we're talking now and I asked you a question about 14· your treatment of Gail O'Neal, can you think back 15· and recall treating her or can you only remember the 16· treatment that you provided to her based on what's 17· in your notes? 18· · · A.· ·Oh.· I have a fairly good recollection of 19· Gail O'Neal, treating her, in addition to my notes. 8:10-9:9 10· · · Q.· ·Why don't you begin by taking us through 11· your educational background, please. 12· · · A.· ·As far as dental related materials, I 13· attended the University of Michigan School of 14· Dentistry from 1992 to 1996, graduated May 12th. I 15· don't know what my rank in class was, but near the 16· middle. 17· · · · · ·When I graduated dental school, I joined 18· the United States Air Force, was stationed in Grand Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 1 Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.880 Page 2 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 19· Forks, North Dakota.· I had the privilege of working 20· under two fairly accomplished dentists when I was 21· there.· One was Dr. Robert Olson, and he was the 22· clinical director of the United States Air Force's 23· two-year general practice residency for -- for 24· dentists, which is -- it's a fairly prestigious 25· two-year program.· But by working with him, I was ·1· able to certainly glean much more knowledge of ·2· dentistry than I would have going right out into ·3· private practice immediately. ·4· · · · · ·You know, I've taken -- I -- on average, ·5· probably 15 to 20 hours of CE course every year ·6· since I graduated. ·7· · · · · ·I think that sums up my education, anyways. ·8· I don't have any specialty.· I am a general dentist. ·9· I do not place implants, but I do restore them. 18:1-20:11 ·1· · · Q.· ·How did you first come into contact with ·2· her? ·3· · · A.· ·I was referred by a combination of Dr. ·4· Merritt, Dr. Stern, and Dr. Okano.· They mentioned ·5· the case, that it was a complicated case, and if I ·6· was willing to go ahead and restore her teeth.· And ·7· I said, yes, I would be. ·8· · · Q.· ·Okay.· Was that your understanding of the ·9· extent of what you would be doing is restoring her 10· teeth? 11· · · A.· ·Yes. 12· · · Q.· ·And will you just for the record explain 13· that to us briefly?· What does that mean to restore 14· her teeth? 15· · · A.· ·Well, the case was explained to me. I 16· never saw her until there was a resolution of the 17· complications, for the most part, from her surgery, 18· specifically in the upper right area where her sinus Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 2 Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.881 Page 3 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 19· was at question.· So restoring her was a matter of 20· making sure her occlusion was -- was going to be 21· okay, putting in crowns over the implants, the 22· abutments over the implants, and just making sure 23· she was comfortable. 24· · · Q.· ·Comfortable as in when she talks, when she 25· eats, she's -- she's comfortable, doesn't have any ·1· sensitivity? ·2· · · A.· ·That as well as pain free in general. I ·3· don't know if you've ever had a toothache before or ·4· not, but sometimes toothaches are -- you don't need ·5· a trigger.· They just hurt for no reason.· So to ·6· make -- make sure that she wasn't having ·7· complications along those lines as well. ·8· · · Q.· ·And you had mentioned that you essentially ·9· received this referral from Dr. Stern, Dr. Merritt, 10· and Dr. Okano.· Can you give us an idea of what your 11· conversation with each one of them was? 12· · · A.· ·Dr. -- Dr. Stern filled me in on the -- 13· like I said, the failed implant and the subsequent 14· attempts at addressing the failure, and then just 15· the -- the remaining implants, which were apparently 16· asymptomatic and stable, that it should be 17· relatively straightforward with the exception of the 18· area of the sinus that was in question on that -- 19· the upper right maxillary sinus. 20· · · Q.· ·And do you recall -- you talked to Dr. 21· Stern about that.· Did he relay anything to you 22· about the treatment that she had already received, 23· the implants that she had already received? 24· · · A.· ·Yes.· With the failed implant, once again, 25· on the upper right maxillary sinus, he was abhorred ·1· with how that was attempted to be resolved. ·2· · · Q.· ·And why is that? ·3· · · A.· ·Because the implant perforated the sinus, Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 19:20-20:11 – Defendant objects to this testimony as it contains inadmissible hearsay, since it is what Dr. Stern said to Dr. Sheridan. The parties have stipulated to waive any objections to hearsay in medical records, but this passage does not restate medical records, but instead restates something Dr. Stern said to Dr. Sheridan. 3 SUSTAINED IN PART. The rationale behind FRE 803(4) is based on the assumption that “patients have an overriding interest in telling the truth when seeking medical treatment.” United States v. Norman T., 129 F.3d 1099, 1105 (10th Cir. 1997). Dr. Stern was not a patient seeking Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.882 Page 4 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·4· resulted in a sinusitis and a mass growing in the ·5· sinus, and Dr. Merritt's subsequent involvement to ·6· try and alleviate the infection that was in there ·7· and, you know, how -- the attempted treatment from ·8· the Whitehouse -- what's the name of the -- WhiteCap ·9· Institute -- excuse me -- on resolving that, just 10· packing the sinus with artificial bone or real bone 11· and not really addressing the underlying problem. 22:3-25:24 ·3· · · Q.· ·When you first reviewed -- or I should say ·4· met Gail O'Neal and looked at her teeth, what were ·5· your impressions of her overall dental health? ·6· · · A.· ·She was somebody in need of some care to ·7· restore to closer to ideal for us.· None of the ·8· implants were uncovered in there, so they were ·9· covered with mucosa and -- and gingiva.· So 10· regarding what everything looked like in there, I 11· only had a vague complete picture.· But the teeth 12· that she had in there, there was one tooth that was 13· in need of treatment.· It had been bothering her. 14· That was her -- one of her immediate concerns.· You 15· know, the other was just frustration on her part Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling This is admissible hearsay pursuant to Rule 803(4) statement made for medical diagnosis or treatment. The statements made by these other doctors to Dr. Sheridan were made for the purpose of Dr. Sheridan taking over care, and pertinent to the medical diagnosis and treatment he would provide to plaintiff. It further describes plaintiff’s past medical history, present condition, and the inception and/or cause of the medical condition, which are all expressly admissible under Rule 803(4). Rule 803(4) does not apply as the statements are not made by the person seeking medical treatment. treatment, and therefore, FRE 803(4) does not apply to the content of his statements to Dr. Sheridan. Field v. Trigg County Hos., Inc., 386 F.3d 729, 735-36 (6th Cir. 2004). However, the fact that Dr. Stern relayed information to Dr. Sheridan about the treatment Plaintiff had already received is not hearsay. The This portion of testimony is admissible: “20· · · Q.· ·And do you recall -- you talked to Dr. 21· Stern about that.· Did he relay anything to you 22· about the treatment that she had already received, 23· the implants that she had already received? 24· · · A.· ·Yes.” Exhibit 2 4 Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.883 Page 5 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 16· more than anything, because she was ready to get 17· teeth. 18· · · Q.· ·Going back to your conversations with Dr. 19· Sheridan, do you recall a letter he sent to you -- 20· · · A.· ·Dr. Stern? 21· · · Q.· ·-- dated June 9, 2013? 22· · · A.· ·Dr. Stern? 23· · · Q.· ·Dr. Stern.· Yes. 24· · · A.· ·Would that be his treatment notes? 25· · · Q.· ·This would be a letter that he sent to your ·1· office. ·2· · · A.· ·Let me look here.· June 9th? ·3· · · Q.· ·June 9th.· Yes. ·4· · · A.· ·I'm just looking at it right now, the ·5· letter. . . . ·8· · · Q.· ·And you can see, just to make sure that ·9· we're looking at the same document -- do you have it 10· in front of you, you say? 11· · · A.· ·Yes, I do. 12· · · Q.· ·Let's go ahead and mark this as Exhibit 13· Number 2.· And you'll see -- what I want you to do 14· is just read that for us just so it's clear on the 15· record, and then I may have one or two questions for 16· you. 17· · · A.· ·Okay.· I'll start with Dear Eric, if that's 18· okay. 19· · · Q.· ·Great. 20· · · A.· ·All right.· Dear Eric, I saw Gail O'Neal 21· today.· I uncovered her implants and placed 22· transgingival healing abutments.· I am enclosing a 23· surgical note and a copy of her postoperative pan. 24· All implants seemed integrated without mobility; 25· however, there were areas of bone loss as evident in ·1· the enclosed photos.· I gave Gail a bag full of Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 5 Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.884 Page 6 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·2· impression components that were sent to me by ·3· WhiteCap Institute as well as a letter from one of ·4· their doctors telling what type of implants are ·5· placed.· I do not know how much help I will be in ·6· the restorative phase; however, you may either want ·7· to call WhiteCap Dental or call the manufacturer for ·8· assistance.· Please let me know if I can help in any ·9· way.· Sincerely, Mike. 10· · · Q.· ·I want to focus on the last paragraph 11· there.· He mentioned, I don't know how much help I 12· will be in the restorative phase; however, you may 13· either want to call WhiteCap Dental or the 14· manufacturer for assistance. 15· · · · · ·I just want to make sure I understand what 16· Dr. Stern relayed to you.· It seems from that 17· paragraph that he is saying you may want to consult 18· on that with WhiteCap Dental, yet he was fairly 19· critical of Whitecap's treatment.· Why do you 20· suppose he asked you to consult with them despite 21· his concerns? 22· · · A.· ·It would be where -- let me see if I can 23· find exactly where we're talking about. 24· Regarding -- each implant system has kind of its own 25· specifications, different kind of abutments that ·1· they use.· So if it's -- if it's an implant that Dr. ·2· Stern does not typically place, a kind of an ·3· implant, he wouldn't know what kind of an abutment ·4· was available for the implant.· So it was to get ·5· some input in that respect. ·6· · · Q.· ·In other words -- let me rephrase that and ·7· make sure I understand it.· In other words, every ·8· implant or abutment could be a little bit different ·9· depending on how the manufacturer makes it or 10· produces it, and maybe Dr. Stern is not familiar 11· with that particular type of implant; is that right? Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 6 Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.885 Page 7 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 12· · · A.· ·Yes.· But mostly on the restorative phase. 13· You know, I don't know if you -- have you researched 14· endosseous implants?· I assume you have. 15· · · Q.· ·Yes. 16· · · A.· ·There are many different kinds of abutments 17· that manufacturers will -- will make that will screw 18· into the endosseous implant.· And each abutment will 19· have different height characteristics or a different 20· marginal component to it.· So that's the way I took 21· it as far as he doesn't know how much help he'll be 22· in the restorative phase, because he's not familiar 23· with the abutments, the -- the part that screws into 24· the implant, the actual endosseous implant. 26:6-34:8 ·6· · · Q.· ·And do you recall, when you were looking ·7· at -- when you were doing your restorative phase, ·8· the particular type of implants that had been placed ·9· in Gail O'Neal's mouth, were you familiar with that 10· type of implant or was it something that you had 11· never dealt with before? 12· · · A.· ·It was a little different philosophy, I 13· would -- well, I guess back to the type of implant, 14· no, I had not dealt with that type of implant, that 15· manufacturer.· Typically Dr. Stern or Dr. -- or Dr. 16· Okano place my implants, so I -- those are what I'm 17· familiar with.· But it -- it doesn't -- I guess as 18· far as the restorative aspect goes, you customize 19· your abutment as much as you can, as far as your 20· order goes, based on what the manufacturer has 21· available. 22· · · · · ·So I guess the -- the gist of it is, no, I 23· had not seen that type of implant before, but on a 24· restorative aspect it doesn't so much matter as long 25· as you know the basic principles of an implant. ·1· · · Q.· ·Okay.· Now, you mentioned just a second ago Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Exhibit 3 7 Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.886 Page 8 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·2· that there's a different philosophy, I think is the ·3· word you used, for the placement -- placement of ·4· implants.· Can you expound on that a little bit, ·5· what you meant? ·6· · · A.· ·Some of the implants were placed in such a ·7· way that it -- in my opinion as a restorative ·8· dentist, it didn't allow adequate room for proper ·9· gingival health, essentially, between teeth.· You 10· need a little space between teeth for your gum 11· tissue to be healthy.· If they're too close 12· together, it's very challenging to keep it clean, 13· and it violates something called a biologic width. 14· You need a certain amount of width between the bone 15· and the gum tissue for the gum to be healthy. 16· · · · · ·So particularly on the upper right side, 17· once again, the only implant that's remaining up 18· there is very close in proximity to the tooth in 19· front of it.· So it was -- it proved challenging to 20· restore that one.· The two implants on the lower 21· left, it was just a different way to do it, but it 22· turned out rather nicely, I have to admit.· There 23· was two implants placed that were smaller diameter 24· implants that I just utilized one each as a root of 25· a single tooth rather than each implant being an ·1· individual tooth.· And I had not done that before, ·2· but I went over it with my lab tech, and that's what ·3· we came up with.· And it worked very nicely and it's ·4· nice and stable. ·5· · · · · ·So it was, like I said, just a different ·6· philosophy on some of the things, but it seems to be ·7· functioning. ·8· · · Q.· ·And so when you say it seems to be ·9· functioning, are you saying despite the different 10· philosophy on the placement of those implants? 11· · · A.· ·I'm just saying it -- by saying seems, I'm Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 8 Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.887 Page 9 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 12· a longitudinal dentist.· You hope for long-term 13· success.· This is -- this is two years out. I 14· wouldn't call this longitudinal yet.· So that's what 15· I'm saying.· And, yes, because it is a little 16· different way to do it, particularly on that lower 17· left side.· The upper right side, that's an area 18· that we'll monitor, because it will be a challenge 19· always for her. 20· · · Q.· ·Now, when you say it will be a challenge, I 21· just want to make sure I understand what you're 22· saying.· Are you saying it will be a challenge 23· because of that close proximity? 24· · · A.· ·Yes. 25· · · Q.· ·As of this date, when you were able to 1· restore that upper right tooth, do you recall what ·2· number that was? ·3· · · A.· ·I called it number -- number 3-4, ·4· essentially.· I cantilev- -- are you familiar with a ·5· cantilever -- cantilever bridge?· Are you familiar ·6· with that at all? ·7· · · Q.· ·Why don't you go ahead and explain it for ·8· us. ·9· · · A.· ·Sometimes what you -- what you can do with 10· a tooth is have a singular root or a singular 11· implant hold an additional tooth off one side of the 12· implant.· When you do that, you typically try to 13· take it out of occlusion so it doesn't hit.· It's 14· just to help give soft tissue support generally in 15· there, and when you smile, to fill in black spaces. 16· But it's nonfunctional.· So I cantilevered tooth 3 17· off of the implant.· And then tooth 4 is the -- is 18· the restored functional tooth. 19· · · Q.· ·Now -- 20· · · A.· ·So if you were to look at the radiographs 21· from my office, you can see it on the -- the 9 Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.888 Page 10 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 22· leftmost radiograph of the series. 23· · · Q.· ·And while you -- when you're referring to 24· that, can you -- because on the radiographs that you 25· provided, there's dates below them. ·1· · · A.· ·Yes. ·2· · · Q.· ·Can you identify which one you're looking ·3· at for us? ·4· · · A.· ·7/3/2013. ·5· · · Q.· ·Okay. ·6· · · A.· ·The leftmost radiograph.· The implant on ·7· the top portion of that radiograph.· You can -- you ·8· can grasp how close that is to the tooth adjacent to ·9· it.· There's not a ton of room to put a tooth in 10· there.· You know, contrast that to the tooth below 11· it, the implant below it, and you can see a little 12· larger section of bone between the two teeth where 13· the implant is sitting.· That makes it a little bit 14· healthier, a little bit more easy to restore. 15· · · Q.· ·And which tooth on the bottom on that 16· radiograph that you're identifying, which tooth is 17· on the bottom and which tooth is on the top? 18· · · A.· ·On the bottom would be tooth 30.· And on 19· the top would be 3-4. 20· · · Q.· ·So 3-4, if I look at this radiograph with 21· the date 7/3/2013 -- 22· · · A.· ·Yes. 23· · · Q.· ·-- that is the bottom of the radiograph; 24· correct? 25· · · A.· ·3-4 is the top of the radiograph. 1· · · Q.· ·3-4 is the top of the radiograph. ·2· · · A.· ·Yes. ·3· · · Q.· ·And the bottom of the radiograph is where ·4· the date is; correct? ·5· · · A.· ·Correct. ·6· · · Q.· ·Are you looking at your clinical notes and Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 10 Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.889 Page 11 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·7· radiographs for Gail O'Neal right now, then? ·8· · · A.· ·Yes, I am. ·9· · · Q.· ·Why don't we go ahead and attach that as 10· Exhibit 3, please. 11· · · A.· ·Yes. 12· · · Q.· ·And we're going to refer to this a little 13· bit more as we go along here. 14· · · A.· ·Okay. 15· · · Q.· ·Now, you mentioned that you placed -- you 16· placed a restorative crown on number 4, and then you 17· placed a certain kind of bridge so that it also 18· covered the space where number 3 was; correct? 19· · · A.· ·Correct. 20· · · Q.· ·Was it your understanding when you did that 21· that it was impossible to place an implant in -- in 22· the place of where tooth number 3 had been? 23· · · A.· ·Yes. 24· · · Q.· ·Why was that impossible? 25· · · A.· ·Well, I guess nothing is impossible.· Let's ·1· rephrase that, if I may.· Just unpredictable.· And ·2· once again, as I said, we try to be longitudinal ·3· dentists.· We want long-term success.· When you have ·4· areas of chronic infection, massive surgeries, the ·5· bone is unpredictably healthy, we don't know how a ·6· healing response would be when placing an implant in ·7· there.· Dr. Stern, in conversation, discouraged an ·8· implant there. ·9· · · Q.· ·Are you aware of any procedures that Dr. 10· Stern did that essentially prevented any additional 11· placement of implants in the number 3 spot? 12· · · A.· ·No, I am not. 13· · · Q.· ·If Dr. Stern had done such a procedure that 14· prevented any additional implants, would that, in 15· your opinion, I guess hinder Gail O'Neal's dental 16· health? Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 32:7-8. Defendant objects as it contains inadmissible hearsay from Dr. Stern. This is admissible hearsay pursuant to Rule 803(4) statement made for medical diagnosis or treatment. The statement made by Dr. Stern to Dr. Sheridan was made for the purpose of Dr. Sheridan taking over care, and pertinent to the medical diagnosis and treatment he would provide to plaintiff. It further describes plaintiff’s present 11 SUSTAINED. The rationale behind FRE 803(4) is based on the assumption that “patients have an overriding interest in telling the truth when seeking medical treatment.” United States v. Norman T., 129 F.3d 1099, 1105 (10th Cir. 1997). Dr. Stern was not a patient seeking treatment, and therefore, FRE 803(4) does not Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.890 Page 12 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 17· · · A.· ·Well, I guess what we -- it seems like a 18· leading question or speculation or something. I 19· don't know.· The way you're wording that, I'm 20· uncomfortable with.· You know, when you have chronic 21· sinusitis and a large mucocele or growth in the 22· sinus, you need to get that treated.· That will lead 23· to long-term issues.· So that needed to get 24· resolved.· That was the primary focus with Dr. 25· Merritt.· I think he was kind of the head runner on ·1· that, from what I understand from Dr. Stern.· So any ·2· surgeries that Dr. Stern did, from what it looked ·3· like to me, was just uncovering the implants and ·4· getting the healing caps in there. ·5· · · · · ·You know, hypothetically, if there was ·6· something done that prevented an implant from being ·7· placed in there, yes, that would compromise a ·8· complete ideal dental health.· But in, I think, ·9· realistic terms, like I said, you have to deal 10· with -- deal with the cards you're dealt with, get 11· infection under control and pain under control. 12· · · Q.· ·It was your understanding that the process 13· here was that Dr. Merritt would treat her for the 14· sinus issues she was having first; correct? 15· · · A.· ·Correct. 16· · · Q.· ·And then once he completed that treatment, 17· then she would follow up on care between you and Dr. 18· Stern to address the additional dental problems.· Am 19· I thinking correctly? 20· · · A.· ·Yes.· I would say that's accurate. 21· · · Q.· ·Are you aware of an oro- -- oroantral 22· fistula closure? 23· · · A.· ·Yes.· That's when the implant perforated 24· the sinus.· That's called an oral antral 25· communication, which means you have a -- essentially ·1· a hole that goes from your mouth up into your sinus. Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling apply to the content of his statements to Dr. Sheridan. Field v. Trigg County Hos., Inc., 386 F.3d 729, 735-36 (6th Cir. 2004). The testimony is also not describing or explaining an event or condition for the FRE 803(1) exception to apply. condition. Such testimony is expressly admissible under Rule 803(4). This is not a hearsay exception because the statement is not made by the person being treated (in this case, the Plaintiff). Therefore, the medical diagnosis exception does not apply. Also, the statement from Dr. Stern does not describe a “present sense impression.” It states that he discourages an implant. Since Dr. Stern is not describing or explaining an event or condition, but is instead relaying an opinion, the testimony is inadmissible hearsay and should not be allowed. 12 Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.891 Page 13 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·2· So if you were to drink a glass of milk when you had ·3· such a complication, the milk would actually come ·4· out your nose.· I mean, it -- the whole thing is ·5· kind of an open system at that point.· And our ·6· mouths are dirty.· So that's where the sinus ·7· infection, the chronic sinusitis would come from, ·8· yes. 41:1-42:1; 42:2-21 1· · · Q.· ·Why don't we do this, Dr. Sheridan.· Why ·2· don't we start with your July 3rd, 2013 entry. ·3· · · A.· ·Okay. ·4· · · Q.· ·Why don't you go through each entry for us ·5· and describe generally what you did and why you did ·6· it.· And I may stop you occasionally along the way ·7· to ask some questions. ·8· · · A.· ·Okay.· Patient presents for -- this is the ·9· 3rd at 2:33 p.m.· Patient presents for new patient 10· exam and treatment plan.· Patient has been working 11· with Dr. Okano, Dr. Flath, Dr. Stern.· 7 verts 12· taken.· Patient has had scan at Dr. Olsen's and a 13· pan at -- in SLC at the office that placed her 14· implants.· Patient has several implants and Dr. 15· Stern will be exposing them so we can restore with 16· crowns. 17· · · · · ·Patient stated that number 17 still bothers 18· her sometimes.· Dr. Sheridan requested PA, and it 19· revealed that the patient does have an abscess 20· present.· He feels that the tooth should come out. 21· Patient sees Dr. Stern again next week so Dr. 22· Sheridan will talk to him about a treatment plan. 23· We also took upper and lower study model and bite 24· registrations.· Patient will return to clinic for 25· review of findings.· Patient understood.· Signed, ·1· me. ·2· · · Q.· ·When you talked in that note about treating Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 13 SUSTAINED Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.892 Page 14 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·3· tooth number 17, you noted that it likely would have ·4· to be extracted; correct? ·5· · · A.· ·Correct. ·6· · · Q.· ·Number 17 is a tooth that was not treated ·7· by WhiteCap Institute; correct? ·8· · · A.· ·I can't answer that. ·9· · · Q.· ·Do you know if it was treated by WhiteCap 10· Institute? 11· · · A.· ·I do not. 12· · · Q.· ·Do you know if Dr. Stern treated tooth 13· number 17? 14· · · A.· ·I know he did not. 15· · · Q.· ·And when you looked at tooth number 17 on 16· that date in July of 2013 -- 17· · · A.· ·Yes. 18· · · Q.· ·-- did you think it had any relation, in 19· terms of the deterioration it received, to the 20· implants that were placed by WhiteCap Institute? 21· · · A.· ·No, I do not.· No relation. 42:22-50:20 22· · · Q.· ·Why don't we jump to your next note, Dr. 23· Sheridan. 24· · · A.· ·Okay.· Patient presents for consult 25· appointment.· Patient would like to start moving ·1· forward with crowns over implants.· Patient also ·2· states number 17 is still hurting.· Dr. S examined ·3· implants and number 17.· Number 17 is now becoming ·4· mobile and positive to percussion.· Recommend ·5· patient take a prescription and return to clinic for ·6· surgical extraction number 17 in two weeks as tissue ·7· was still healing in number 18 and 19 area.· Patient ·8· understood and is scheduled for extraction number ·9· 17. 10· · · · · ·Implants healing well.· However, patient is 11· still waiting for Dr. Stern to expose number 4 and Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling (42:2-21 moved from counter-designation to completeness designation) 14 Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.893 Page 15 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 12· place a healing cap.· Dr. Stern did not have enough 13· healing caps to fit all implants.· Patient did not 14· want to wait for number 4 to be exposed.· She wants 15· to go ahead and schedule appointment for crowns.· In 16· six weeks patient will have -- will return to clinic 17· for impressions for crowns over implants number 12, 18· 13, 14, 19, 30, and possibly 4 if healing cap has 19· been placed by then, all zirconia.· Patient also 20· wants to do crown preps number 8 and 9 at same time, 21· both Empress crowns.· Number 4 and 14 will have rest 22· seats in case patient wants to get an upper partial 23· in future.· Reaction given.· Patient is scheduled 24· for extraction number 17 and crown preps. 25· · · Q.· ·Couple questions about that. ·1· · · A.· ·Yes. ·2· · · Q.· ·About the middle of that note, you ·3· mentioned that the implants were healing well.· Are ·4· those the implants that WhiteCap Institute placed? ·5· · · A.· ·They are.· Specifically, it would be the ·6· healing caps over the implants are healing well. ·7· It's a surgery to -- to put a -- when you put an ·8· endosseous implant in, it's a little tricky.· It's ·9· kind of a race.· You want the bone to heal before 10· your gum tissue grows down along the implant.· So 11· you kind of cover things up and let it heal 12· undisturbed to allow the bone to heal completely and 13· actually grow into titanium. 14· · · · · ·But then you have to expose it.· You 15· have -- once it's been there for a sufficient amount 16· of time, and it varies, you expose it and put a 17· healing cap in.· And that's sometimes uncomfortable, 18· because you have to remove gum tissue and you suture 19· the gum tissue around the healing caps.· And that's 20· what that was referring to.· But, yes, it is those 21· same implants. Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 15 Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.894 Page 16 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 22· · · Q.· ·And so the healing cap is something that is 23· put on there that is kind of like a crown; is that 24· right? 25· · · A.· ·Sort of.· It's -- it's nonfunctional.· Its ·1· goal essentially is to help shape your gum tissue ·2· just a little bit, provide a place to put the ·3· abutment down into the endosseous implant.· You ·4· know, the abutment is the part that a crown is ·5· either screwed into or -- or cemented into.· So the ·6· healing cap is just to shape the gum tissue, ·7· essentially, and provide access for the restoring ·8· dentist. ·9· · · Q.· ·Okay.· So it's put in there to provide 10· essentially a safe environment for the abutment so 11· that the restorative dentist can them come in 12· later -- 13· · · A.· ·Yes. 14· · · Q.· ·-- put on the crown, and have it be 15· successful? 16· · · A.· ·You got it. 17· · · Q.· ·And would the healing caps -- are you -- 18· are you aware of the -- of this provider that 19· provided those to Gail O'Neal? 20· · · A.· ·It looks like, from what I read on Dr. 21· Stern's note from Exhibit 2, WhiteCap Institute, 22· I -- I think, supplied those. 23· · · Q.· ·Did those appear to you to be appropriate 24· healing caps? 25· · · A.· ·Yes.· Absolutely.· Yes. 1· · · Q.· ·And then going just further down that note, ·2· you -- the middle lower part, you said, Patient did ·3· not want to wait for number 4 to be exposed.· Can ·4· you explain that to us a little bit? ·5· · · A.· ·With the components that Dr. Stern received ·6· from WhiteCap, they were one healing cap short, I 16 Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.895 Page 17 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·7· think, is what it looked like.· So he did not ·8· provide that avenue that I was telling you about ·9· where you remove the gum tissue and put the healing 10· cap in so we have access.· He just left it covered 11· rather than exposing it without a healing cap. 12· · · Q.· ·With the intent of putting on a healing cap 13· at a later date when he had it and then addressing 14· number 4? 15· · · A.· ·Yes. 16· · · Q.· ·And then the sentence below that, you note, 17· In six weeks patient will return for implants -- or 18· what is IMPS? 19· · · A.· ·Oh, I'm sorry.· Impressions. 20· · · Q.· ·Impressions for crowns over implants 12, 21· 13, 14, 19, 30, and possibly 4. 22· · · A.· ·Yes. 23· · · Q.· ·Just -- just to make sure that I understand 24· that correctly, so the idea here is that after those 25· healing caps have done their work in six weeks, she ·1· will return for impressions so she can get the -- ·2· the impressions for the crowns for those implants ·3· which you will do as the restorative dentist; ·4· correct? ·5· · · A.· ·Yes. ·6· · · Q.· ·Okay.· Why don't we go to the next note, ·7· please. ·8· · · A.· ·Number 17 surgical extraction.· Review ·9· medical history.· Blood pressure 153 over 84.· Pulse 10· 60.· One carpule of mepivacaine 2 percent, one 11· carpule of Septocaine, a half carpule of Marcaine 12· anesthetic.· Patient gave postoperative instructions 13· and extra gauze.· Patient has also been contacted -- 14· excuse me.· Patient has also been having some 15· discomfort between back molars lower right.· Dr. 16· Sheridan explained that she has an open contact and Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 17 Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.896 Page 18 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 17· is catching food, so we will need to do crown number 18· 30 well -- as well -- 31 as well.· Patient 19· understood.· Gave prescription for infection and 20· pain. 21· · · Q.· ·At that time you were not treating number 3 22· and number 4; correct? 23· · · A.· ·That's correct. 24· · · Q.· ·Okay.· Let's go to the next one. 25· · · A.· ·Okay.· Patient presents for crown preps 1· number 8 and 9 and for impressions for crowns over ·2· implants.· Patient just had cancerous lesion removed ·3· from upper -- left upper lip around vermilion ·4· border.· Patient had the suture removed recently so ·5· we will try not to stretch lip too much.· Vaseline ·6· liberally applied throughout procedure. ·7· · · · · ·Number 8 and 9 Empress, 12, 13, 14, 19, 30 ·8· Brux crowns over implants.· We will only be doing ·9· one crown, number 19, in 18-19 area due to close 10· proximity of the two implants.· There isn't enough 11· room/clearance to place two separate crowns.· One 12· implant will act as the distal root, the other will 13· act as the mesial root. 14· · · · · ·Review medical history.· BP 152 over 71. 15· Pulse 55.· Two carpules of mepivacaine 2 percent 16· anesthetic.· Cotton roll isolation.· Penta upper and 17· lower full arch impressions taken.· Used putty bite 18· registration from last time as per Dr. S.· Healing 19· caps removed from implants and metal impression 20· copings placed.· PA taken upper left to make sure 21· copings were seated and not cross-threaded.· Sent to 22· Lord's lab.· Stump shade number 8-A1, number 9-A3. 23· Basic shade 8 and 9.· Gingival A2 blend to A1 and 24· trans.· Shade for implant crowns A2.· Placed healing 25· caps back onto implants.· Structure temp number 8 ·1· and 9 cemented with NexTemp.· Patient scheduled for Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 18 Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.897 Page 19 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·2· delivery. ·3· · · Q.· ·I just want to clarify, about the middle of ·4· that note you said you will be doing one crown ·5· number 19 and number 18-19 area due to close ·6· proximity of the two implants.· Is that the one that ·7· you were referencing earlier where because of the ·8· close proximity you essentially did one crown and it ·9· ended up working out quite well? 10· · · A.· ·Yes.· It is. 11· · · Q.· ·Let's go to the next note. 12· · · A.· ·Okay.· Patient presents to deliver number 8 13· and 9 as well as crowns over implants 12 through 14, 14· 19, and 30.· Number 19 crown was not in occlusion, 15· so Dr. S would like to send it back for more 16· porcelain.· Triple tray impression with light body 17· denture wash taken with crown in place to show how 18· much porcelain needs to be added.· Send back to have 19· porcelain added. 20· · · · · ·Tried to torque the rest of the implant 21· abutments down, but we did not have the right 22· wrench.· My lab guy, Mike, must have sent the wrong 23· one.· Hand tightened abutments only on -- or on 12 24· through 14 and 30 and delivered crowns with NexTemp. 25· Number 8 and 9 delivered crowns with RelyX Luting 1· Cement.· Placed chlorhexidine.· Dr. S will call Mike ·2· to see about a different torque wrench and patient ·3· is scheduled to redeliver crowns over implants on ·4· October 9th. ·5· · · Q.· ·I think you've already answered my question ·6· on that, but Mike is your lab technician? ·7· · · A.· ·That's correct. ·8· · · Q.· ·Okay.· Let's go to the next note. ·9· · · A.· ·Okay.· Number 19 deliver crown with RelyX 10· Luting Cement.· Tried to remove bridge on upper left 11· to torque abutments down and recement with RelyX, Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 19 Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.898 Page 20 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 12· but it wouldn't come off.· Dr. S recommended we wait 13· until temp cement starts to weaken.· Same with 14· number 30.· Patient has been having a lot of cold 15· sensitivity with number 8 and 9 new crowns.· Checked 16· and adjusted occlusion.· Polished.· Patient could 17· feel a difference right away.· Patient needs to make 18· another appointment with Dr. Stern to uncover number 19· 4 and place healing cap.· Patient gave another card 20· for Dr. Stern. 51:7-51:18 ·7· [Q].· Go ahead. ·8· · · A.· ·Implant pieces from Dr. Stern in patient's ·9· paper chart.· And that's the -- the healing caps and 10· the impression copings, et cetera, for 3 and 4. 11· · · · · ·Number 3 and 4 Brux cantilever bridge over 12· implant number 4.· Review of medical history.· One 13· carpule mepivacaine 2 percent anesthetic given. 14· Removed healing cap and placed impression coping. 15· Penta solid upper impression taken.· Lower alginate 16· and bite reg sent to Lord's lab.· Shade A2.· Healing 17· cap replaced.· Patient scheduled for delivery of 18· crowns. 51:22-57:14 22· · · Q.· ·My -- my impression from what you said 23· earlier is that the crown that you placed in the 24· number 3-number 4 area is the one that concerned you 25· the most; correct? ·1· · · A.· ·I would say that's accurate. ·2· · · Q.· ·And the reason it concerned you the most is ·3· because of the close proximity to the back molars? ·4· · · A.· ·No.· To tooth number 5. ·5· · · Q.· ·To tooth number 5? ·6· · · A.· ·Which is the premolar medially or mesially ·7· to number 4.· So in front of number 4. ·8· · · Q.· ·And so that concern that you had with the Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 20 Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.899 Page 21 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·9· close proximity to number 5, has that presented a 10· problem at any time for Gail O'Neal since you placed 11· it? 12· · · A.· ·We addressed it.· Yes, it had.· But we just 13· thinned the porcelain a little bit more to try and 14· give as much additional room as we could.· It's 15· called the interdental col, C-O-L.· You need a 16· certain amount of space in there, like I said 17· before, for your gum tissue to be healthy.· But 18· it -- the last time I saw her, she was doing well. 19· · · Q.· ·And that interdental col that you said, 20· that space that you need -- 21· · · A.· ·Yes. 22· · · Q.· ·-- were you -- when you re-addressed that 23· crown on 3 and 4, was that interdental col able to 24· be met, for lack of a better way to say it? 25· · · A.· ·I would say improved.· I -- I don't think 1· met.· But as I said, it's going to be an ongoing ·2· issue with her probably as far as keeping it clean. ·3· And she may -- every time she brushes her teeth or ·4· flosses her teeth in that particular area, she may ·5· experience bleeding.· Not significant amounts of ·6· blood or anything like that.· But when you don't ·7· have that adequate space, it just -- it leaves a ·8· little inflammation in there.· And inflammation ·9· essentially is just increased blood flow. 10· · · Q.· ·So if an implant -- because there's not an 11· implant in number 4; correct? 12· · · A.· ·There is an implant in number 4. 13· · · Q.· ·There's not one in number 3; correct? 14· · · A.· ·Correct. 15· · · Q.· ·If there were an implant in number 3, could 16· that area have been addressed differently so that 17· there would be sufficient col area? 18· · · A.· ·No.· It's all -- no.· That has to do with Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 21 Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.900 Page 22 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 19· the placement of number 4. 20· · · Q.· ·So would you say this space, this col space 21· between the teeth, is that something that's 22· promulgated by the American Dental Association or 23· some other governing body? 24· · · A.· ·I would say there is -- it's not a -- it's 25· not a -- I don't know.· I don't -- I don't know how ·1· to word that.· It is something that is taught.· We ·2· try to respect the biology of the body.· And ·3· that's -- you know, that is part of the Hippocratic ·4· Oath, as much as we're able to, you know, you try ·5· and create ideal situations as best you can. ·6· · · · · ·That tooth is not quite an ideal situation. ·7· Is it functional?· Yes.· Will it function for a long ·8· time?· Probably.· But will it be a little bit ·9· annoying?· Yes.· So I wouldn't say it's something 10· that's promulgated by the ADA or anything like that; 11· it's just there's a right way and a maybe not quite 12· so right way. 13· · · Q.· ·Okay.· And when you say right way and maybe 14· not so right way, you mean in terms of the placement 15· of the implant; is that right? 16· · · A.· ·I would say, yes, in respecting the -- the 17· limits of the body essentially. 18· · · Q.· ·And I guess what do you mean by that when 19· you say respecting the limits of the body? 20· · · A.· ·There's a -- I briefly touched on this 21· before.· There's a biologic width that it's kind of 22· a minimal requirement about how far you stay away 23· from bone when we restore things to allow for 24· healthy gingiva.· So you -- when we restore crowns 25· and things like -- restore teeth with crowns and 1· place implants, what have you, as dentists in ·2· general, you try to promote a healthy biologic ·3· width.· That's what I mean. Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 22 Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.901 Page 23 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling ·4· · · Q.· ·And so if that biologic -- that healthy ·5· biologic width is not maintained, that's what you ·6· would classify as not -- not ideal?· Am I saying ·7· that correctly? ·8· · · A.· ·Yes.· You -- in my opinion.· I am not an ·9· expert on this, but, yes, if you violate those kind 10· of rules of thumb, it will just leave inflammation. 11· And inflammation over time does strange things.· It 12· could lead to bone loss long term, you know.· And it 13· might be -- not manifest for 10 years or 15 years, 14· but it -- it would have an effect on it.· So -- but 15· is it functional?· As I said before, yes, it's 16· functional.· Can she chew on it?· Absolutely, she 17· can chew on the tooth.· It's just not quite ideal. 18· · · Q.· ·Are you aware of any of the circumstances 19· surrounding the placement of implant number 4? 20· · · A.· ·I am not. 21· · · Q.· ·When -- well, let me get to that in just a 22· second.· Why don't you go to your next note. 23· · · A.· ·Okay.· Was that -- 24· · · Q.· ·November 19th, 2013. 25· · · A.· ·Okay.· Patient presents for PXSC, which is ·1· just a cleaning.· No CC, which is chief complaint. ·2· Patient states all feels good for now.· See perio ·3· chart for current probe depths.· All are less than ·4· 4 millimeters.· Discussed need for using floss ·5· threaders where needed.· Recommend brushing two ·6· times daily and flossing daily as well.· Light ·7· deposit. ·8· · · Q.· ·What does light deposit mean? ·9· · · A.· ·Oh.· That's funny.· A little bit of tartar, 10· calculus tartar.· You've had your teeth cleaned, I'm 11· certain, so you know when a hygienist cleans your 12· teeth, they have to remove deposits that are on your 13· teeth.· So she had light deposit.· It -- sorry.· I'm 23 Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.902 Page 24 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 14· just giggling because I'm thinking we might have 15· come up with a different way to -- way to write 16· that.· All right. 17· · · Q.· ·Understandable.· Understandable. 18· · · A.· ·US is ultrasonic.· HS is hand scale. 19· Implant -- spelled wrong -- instrument and polish. 20· Okay.· Sorry. 21· · · Q.· ·I was going to just say, are you aware of 22· any gum or bone diseases that Gail O'Neal had been 23· treated for prior to your treatment of her? 24· · · A.· ·No, I am not.· But periodontal disease is 25· something that is life- -- lifelong.· If you have it 1· even a little bit, you'll always be classified as ·2· having it.· She has a little bit of bone loss in a ·3· couple of places.· That's -- you know, whether or ·4· not she got treatment for that, I'm unaware, but... ·5· · · Q.· ·Did you think that -- the little bit that ·6· you were aware of, did you think that eliminated her ·7· as a candidate for implants? ·8· · · A.· ·I don't -- I -- I don't think so ·9· necessarily.· As I said before, I didn't see her 10· until everything was resolved, so I don't -- I don't 11· know what it looked like where the trouble implant 12· was.· But aside from that, it looks like she has 13· sufficient bone to work with where every other 14· implant is placed. 58:5-59:17 ·5· · · Q.· ·Let's go ahead and go to your next note, ·6· please. ·7· · · A.· ·On the 18th of December, number 3 and 4 ·8· delivered crown with RelyX Luting Cement.· And -- ·9· · · Q.· ·Does that mean that you actually placed the 10· crown on that date? 11· · · A.· ·Yes. 12· · · Q.· ·Okay.· Do you recall any concerns that Gail Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 24 Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.903 Page 25 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 13· O'Neal had at that time when you placed that crown? 14· · · A.· ·We had explained to her that there was not 15· an ideal space in there between the -- this is not 16· from notes.· This is memory.· Not an ideal space in 17· there for the crown on the front side of number 4, 18· the mesial side.· So her concerns were just that. 19· She knew she would have to work a little harder for 20· that area. 21· · · Q.· ·Okay.· Let's go to your next note, please. 22· · · A.· ·And this is June 2nd, 2014.· Exam.· Prophy. 23· No films.· Review medical history.· CC, patient 24· states that tissue number 3-4 region is sometimes 25· sensitive to brush.· Dr. X -- S explained that due ·1· to position of implant there is not adequate col, ·2· interdental col, area for tissue.· Dr. S did with ·3· high speed reshape crowns number 3-4 area to allow ·4· for more space.· No other need for treatment.· All ·5· probing depths within normal limits.· No BOP. ·6· Patient -- which is bleeding on probing.· Patient ·7· has difficulty getting floss threaders under ·8· implant, so I asked her to try going from the ·9· lingual, which is by the tongue side, and also 10· demonstrated soft picks going from lingual as well. 11· Ultrasonic.· Hand scale.· Polish. 12· · · Q.· ·And your reference to getting floss under 13· the implant, that is the implant placed at the 3-4 14· region; correct? 15· · · A.· ·Probably, but not necessarily.· I'm sorry 16· that's not the most clear note there.· But probably 17· 3-4 since that's what we were talking about earlier 60:7-61:2 ·7· · · Q.· ·Okay.· Let's go ahead and go to your ·8· December 9th, 2014 note. ·9· · · A.· ·Okay.· Adult prophy.· Panoral.· Review 10· medical history.· No chief complaints.· All probing Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 25 Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.904 Page 26 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 11· depths within normal limits.· No bleeding on 12· probing.· Patient has not seen Dr. Stern for over a 13· year following implants.· I took panoral today for 14· Dr. S to review as well as Dr. Stern.· However, it 15· was deleted.· My front desk person will call patient 16· and reschedule pano and exam with Dr. S.· Patient 17· was not charged for pano today.· Implant instrument. 18· Ultrasonic.· Hand scale.· Polish. 19· · · Q.· ·Dr. S is referring to you, Dr. Sheridan? 20· · · A.· ·Yes.· Sorry. 21· · · Q.· ·Great.· And let's go to the last note 22· there. 23· · · A.· ·Patient presents for pano and doctor exam. 24· Took pano.· Revealed implants look fantastic. 25· Doctor noted patient had excellent home care. ·1· Tissue is looking great.· No problems.· Will just ·2· see patient back in six months for cleaning. 61:9-64:22 9· · · A.· ·And there may be a little enthusiasm there 10· on -- on that note, because I didn't know how clean 11· she'd be able to keep that number 3-4 area.· But 12· as -- as you can see there, there was no -- the 13· previous, from the 9th, no bleeding on probing, 14· which was great, which means that she's working hard 15· enough that she's fighting inflammation in that 16· space between 4 and 5. 17· · · Q.· ·And so since your exam and treatment on 18· December -- excuse me -- June 2nd, 2014, for that 19· 3-4 region, are you aware of any complications that 20· she's had in that region from the crown? 21· · · A.· ·I am not. 22· · · Q.· ·Are you aware of an oral fistula that Gail 23· O'Neal had prior to your treatment? 24· · · A.· ·I am aware that she had one, yes. 25· · · Q.· ·Do you have any opinions as to that oral Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 26 Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.905 Page 27 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·1· fistula? ·2· · · A.· ·My opinions would be based on my ·3· conversation with Dr. Stern, but yes.· It's kind of ·4· what we went over before when I was -- I guess be ·5· more specific, if you would.· What do you want to ·6· know? ·7· · · Q.· ·So -- sure.· So when you had the ·8· conversation with Dr. Stern -- and let me just make ·9· sure that I understand what you're saying correctly. 10· You're saying your opinions, if any, on the oral 11· fistula are -- are from your conversation with Dr. 12· Stern; is that right? 13· · · A.· ·Yes.· As I have said, I didn't see Gail 14· until all of the major complications were resolved. 15· So I didn't see the oral antral communication. I 16· didn't see the treatment for it.· All I saw was the 17· end result.· So I guess my opinion regardless of 18· that is I know that an implant was placed in her 19· sinus.· That's the only way you'll get an oral -- 20· well, not the only way, but in this case that's the 21· way you're going to get an oral antral 22· communication.· And then the treatment was 23· inappropriate to resolve it.· So that's my opinion 24· on that. 25· · · Q.· ·Okay.· Why don't you explain that a little ·1· more, because that is really getting into the meat ·2· of this matter.· Why -- do you think that placement ·3· of the implant on number 3 fell below the standard ·4· of care and why?· And why do you think the ·5· subsequent treatment, if any, fell below the ·6· standard of care? ·7· · · A.· ·As I kind of alluded to before -- I guess ·8· you said you've read up on endosseous implants.· So ·9· you know that an implant needs to be surrounded by 10· bone, essentially, to be stable.· If you put your Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Formatted: Not Highlight OVERRULED (IN PART see below reputation issue). Dr. Sheridan may base his opinion on facts and data that he “has been made aware of or personally observed.” FRE 703. The testimony is not relying hearsay statements to the jury. Dr. Sheridan indicates his opinion is based on his conversations with Dr. Stern (without disclosing the contents), and his personal observation of Dr. Stern and Dr. Merritt’s records, and his treatment of Plaintiff. There is sufficient foundation for the opinion offered. 61:25-64:22. Defendant objects to this testimony as it contains inadmissible hearsay as it includes comments of Dr. Stern’s that Dr. Sheridan is relating, and because Dr. Sheridan lacks foundation to provide these opinions, as he did not see the oral antral fistula, and his opinions derive only from what he was told by Dr. Stern. He admits on page 64 that “he can’t prove [his opinion] because [he doesn’t] have the stupid records.” Doctors are allowed to base their opinion testimony on facts or data that they have “been made aware of or personally observed.” Rule 703 of the Federal Rules of Evidence. Dr. Sheridan is not required to have personally observed the fistula to testify about it. He is also allowed to based his opinions on facts or data that is not admissible itself, such as hearsay, as long as experts in that field would reasonably rely on such facts/data. It is reasonable and common for doctor’s to rely on the opinions, statements, and records of prior treating doctors when making opinions related to the care and treatment of a patient. Further, this is admissible hearsay pursuant to Rule 803(4) statement made for medical diagnosis or treatment. These statements made by Dr. Stern to Dr. Sheridan were made for the purpose of Dr. Sheridan taking over care, and pertinent to the medical diagnosis and treatment he would provide to plaintiff. It further describes plaintiff’s past medical history, 27 Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.906 Page 28 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 11· implant into epithelium, which is kind of the sinus, 12· it won't be solid.· So that is a concern.· But also 13· you run the risk of communicating bacteria from your 14· mouth, in this case, because it was up in the sinus, 15· into the sinus, which creates a whole slew of other 16· issues.· Not only do you have an infection to worry 17· about, but you also have inflammation.· And as I 18· said before, inflammation is essentially just 19· increased blood flow.· When you have increased blood 20· flow in those places, it hurts.· It's painful.· Have 21· you ever had a sinus infection? 22· · · Q.· ·Let me -- let me ask you this, then.· You 23· were mentioning the placement of the implant so that 24· it's not surrounded by bone that continues to 25· further perforate the sinus; right? ·1· · · A.· ·Well, it was -- it was -- it doesn't ·2· nec- -- well, it may.· Like I said, I didn't see -- ·3· you're asking me to speculate a little bit here. ·4· · · Q.· ·And that's -- and that's what we want to ·5· know.· I want to know, are you basing this opinion ·6· exclusively off of what Dr. Stern told you or are ·7· you basing it off of medical records and radiographs ·8· that you have reviewed that show the sinus was ·9· perforated? 10· · · A.· ·Okay.· I have -- or I had read Dr. Stern's 11· records as well as Dr. Dr. Merritt's.· But like I 12· said, that was -- I can't prove that, because I 13· don't have the stupid records.· But I can see the 14· resultant effects of it based on the scar in her -- 15· in her mouth from the multiple surgeries to try and 16· resolve it.· That's undeniable.· So I think there is 17· a degree of inference that you can get from that. 18· Dr. Stern is, I think, exceptional as an oral 19· surgeon.· He's got great credentials.· I think Dr. 20· Merritt is exceptional as an ENT.· So just knowing Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling present condition, and the inception and/or cause of the medical condition, which are all expressly admissible under Rule 803(4). Additionally, the quote from page 64 is misleading and taken out of context. The full quote is: 10· · · A.· ·Okay.· I have -- or I had read Dr. Stern's 11· records as well as Dr. Dr. Merritt's.· But like I 12· said, that was -- I can't prove that, because I 13· don't have the stupid records.· But I can see the 14· resultant effects of it based on the scar in her -- 15· in her mouth from the multiple surgeries to try and 16· resolve it.· That's undeniable.· So I think there is 17· a degree of inference that you can get from that. 18· Dr. Stern is, I think, exceptional as an oral 19· surgeon.· He's got great credentials.· I think Dr. 20· Merritt is exceptional as an ENT.· So just knowing 21· that those two were both involved in the case 22· implies a certain level of complication in there. (emphasis added). This quote also outlines all of the bases for the opinions expressed by Dr. Sheridan on 28 Formatted: Not Highlight Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.907 Page 29 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 21· that those two were both involved in the case 22· implies a certain level of complication in there. 66:23-67:24 23· · · Q.· ·So the main overarching question on all of 24· this is, then, do you have any opinions as to Dr. 25· Clark's treatment, whether or not it fell below the ·1· standard of care? ·2· · · A.· ·I would say that the implants I restored, ·3· with the possible exception of 4, and time will tell ·4· on that -- as I said before, you know, we try to ·5· plan things long-term -- I think they were placed ·6· fine, appropriately.· The implant that failed, if ·7· it's in the sinus, it's inappropriate.· And ·8· that's -- there's no questioning that.· You -- you ·9· can't question that.· But that's not necessarily the 10· crux of the matter, in my opinion here.· And this is 11· opinion.· Eventually in life we're all going to make 12· mistakes.· It's -- it's just going to happen.· When 13· you do, you treat that right as best you can.· And 14· if you can't treat it, you send them to somebody who 15· can.· And I -- from what Gail told me about the Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling this issue, including his review of past medical records, his personal examination of the patient, and his experience and history with the other two doctors involved in trying to fix plaintiff’s mouth. This testimony, in conjunction with the earlier designated testimony laying out the doctor’s education, training, and experience, qualify him to offer these opinions. First, the hearsay exception does not apply because the person being treated is not the speaker. Second, he admits that he lacks the foundation to reach his opinions, so his testimony should not be allowed. 66:23-67:24. Defendant objects to this testimony as it contains inadmissible hearsay as it is a recitation of what Gail O’neal and Dr. Stern told Dr. Sheridan. Defendant also objects as Dr. Sheridan lacks foundation to reach these opinions. He admits that his conclusions came “exclusively” from Dr. Stern and Gail O’neal, and that since he didn’t see the treatment, his opinions are “conjecture.” For these reasons, this testimony should not be allowed. There are several opinions stated in this section, including: 1) the implant #4 placed in the sinus was inappropriate, 2) the procedure and subsequent treatment of the infection is questionable. It is a reasonable and common practice of doctor’s taking over a patient’s care to rely on the history of 29 This is not objected to for improper reputation evidence, but has the issue The testimony is improper reputation evidence, which does not go to Dr. Stern and Dr. Merritt’s character for truthfulness and is not helpful to understand Dr. Sheridan’s testimony or a fact in issue. See FRE 404(a), 608(a), 701. However, this testimony may be admissible to rebut other evidence of Dr. Stern and Dr. Merritt’s qualifications as a practitioners, or to show Dr. Sheridan’s bias. OVERRULED. Dr. Sheridan may base his opinion on facts and data that he “has been made aware of or personally observed.” FRE 703. The testimony is not relying hearsay statements to the jury. Dr. Sheridan indicates his opinion is based on his conversations with Dr. Stern (without disclosing the contents) and Plaintiff. He also earlier discussed that his opinions are also based on his personal observation of Dr. Stern and Dr. Merritt’s records, and his treatment of Plaintiff. There is sufficient foundation for the opinion offered. Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.908 Page 30 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 16· procedure and treating the infection, I question if 17· that was done correctly.· From what Dr. Stern told 18· me about the treatment, I question if it was done 19· appropriately in there.· So that's my opinion.· Once 20· again, I didn't see it, so it is conjecture, but 21· take that -- take that for what it's worth. 22· · · Q.· ·That information you say came exclusively 23· from Dr. Stern and Gail; correct? 24· · · A.· ·Yes. Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling the patient, both as given by the patient and other treating doctors. This is an allowable basis for a doctor to give opinion expert testimony under Rule 703. It is also clear from this section of testimony that the doctor is basing this on his own examination of plaintiff, and he had reviewed the prior treatment records of Dr. Stern and Dr. Merritt. As was stated above, Dr. Sheridan has the education, experience and training to give this expert opinion testimony, which is reasonable based on his own treatment of the patient, his review of the records, and his conversations with the patient and Dr. Stern regarding her previous care. His own testimony demonstrates the lack of foundation for this statement. He says that “The implant that failed, if it’s in the sinus, it’s inappropriate.” But he doesn’t know if it is in the sinus. This will be confusing to the jury. He also says that “I question if that was done correctly.” He does not give an opinion that it was done incorrectly. This is also confusing to a jury. And most importantly, he admits that “I didn’t see it, so it is conjecture…” This is the ultimate reason that he lacks the foundation for these speculative opinions. He did not opine that to a reasonable degree of medical probability Dr. Clark’s treatment caused the implant failure. Instead, he engages only in speculation and conjecture, and therefore lacks the foundation to present this testimony. 30 Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.909 Page 31 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 68:24-69:24 24· · · Q.· ·I guess, are you aware of what treatment 25· Dr. Clark provided to Gail O'Neal post placement of ·1· the implants? ·2· · · A.· ·In general, yes.· Specifics, no.· I know ·3· that there was bone placed up into the sinus around ·4· the implant, hoping to encourage it to stabilize. ·5· But as I said before, it's kind of a race against ·6· biology with an implant.· You want your bone to grow ·7· into it before your epithelium does.· If your ·8· epithelium grows into the implant, it's unstable. ·9· That's a failed implant.· Those are the 2 percent 10· implants that fail, is when epithelium gets in 11· there.· If it was placed in the sinus and you had a 12· communication, the epithelium would be racing along 13· the implant.· They grow -- epithelial tissues grows 14· much faster than bone.· It will migrate quickly.· So 15· you do what you can to preserve that. 16· · · · · ·In this case, if it was placed up into the 17· sinus, which it appeared it was based on her 18· panoramic radiograph, you can see the -- the 19· augmentation in the sinus, the bone, et cetera, the 20· scar up there, it -- it wouldn't be effective 21· because it's not -- it's not allowing the bone to 22· get into the implant.· The epithelium is already 23· there.· So, you know, it needed to be taken out 24· right then. DEFENDANT COUNTER-DESIGNATIONS 34:19-35:5 19· · · Q.· ·When you placed implants number 3 and 20· number 4, teeth number 3 and number 4 in your mouth 21· are molars; correct? 22· · · A.· ·No.· 3 is a molar.· Number 4 is a premolar. 23· · · Q.· ·Okay.· When you look at number 3 and number 24· 4, with -- in someone like Gail O'Neal, are you Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 31 Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.910 Page 32 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 25· aware of any literature promulgated by the ADA or ·1· any other governing dental body that states that the ·2· placement of implants as close as they were placed ·3· in number 3 and number 4 constitutes a breach of the ·4· standard of care? ·5· · · A.· ·No, I am not.· 35:14-37:18 14· · · Q.· ·Now, when we look at that radiograph you 15· identified in Exhibit 3, the -- the tooth -- or 16· excuse me -- the implant that had been placed in 17· number 3 and then had subsequently been removed was 18· already removed when you saw her; correct? 19· · · A.· ·That is correct. 20· · · Q.· ·Okay.· Are you aware of and did you receive 21· any records related to Gail O'Neal's dental 22· treatment prior to you treating her besides what you 23· received from Dr. Stern? 24· · · A.· ·I don't believe -- well, I got -- I do have 25· the letter from Dr. Woods.· It was not addressed to ·1· me, but it was addressed to Dr. Stern, just ·2· explaining which implants were used.· And that was ·3· dated June 6, 2013.· Dr. Stern gave me that so that ·4· I could figure out what kind of abutments I would ·5· use for the Hiossen implants.· As I said before, ·6· those are implants that I had not restored before, ·7· but... ·8· · · Q.· ·Did you receive any -- any records from the ·9· WhiteCap Institute? 10· · · A.· ·Just those.· Oh, wait a minute.· Yes.· I -- 11· like I said, I got a stack from Dr. Stern that I 12· don't have, unfortunately.· Those are -- are 13· missing.· But that was -- that was his treatment of 14· the infection and the exposure of the implants.· But 15· I -- I don't have anything from WhiteCap here. 16· · · Q.· ·Okay.· So just to be clear, the records Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 32 Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.911 Page 33 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 17· that you say you received from Dr. Stern that you no 18· longer have, what did those constitute? 19· · · A.· ·The treatment of the infection, 20· essentially, and the exposure of the -- the 21· implants. 22· · · Q.· ·And who would those records be from?· In 23· other words, which -- which health care providers' 24· records did that constitute? 25· · · A.· ·Dr. Merritt and Dr. Stern. ·1· · · Q.· ·And so you did not have any records from ·2· the WhiteCap Institute? ·3· · · A.· ·I have the letter from Dr. Stern with the ·4· WhiteCap -- from the WhiteCap Institute, but I do ·5· not have any of their records, no.· And quite ·6· frankly, I don't -- I don't think that the letter -- ·7· or the records that I got from Dr. Stern had ·8· anything from WhiteCap, but it may have.· I don't ·9· think so, though. 10· · · Q.· ·Do you recall if the records from Dr. Stern 11· also included any records from Dr. Shane? 12· · · A.· ·I do not. 13· · · Q.· ·Do you recall if they included any records 14· from Dr. Crane? 15· · · A.· ·I do not. 16· · · Q.· ·Do you recall if they included any records 17· from Dr. Okano? 18· · · A.· ·I do not. 61:3-5 ·3· · · Q.· ·When you said the implants looked ·4· fantastic, is that referring to all implants -- ·5· · · A.· ·Yes. 64:23-65:9; 65:9-19 23· · · Q.· ·You had mentioned earlier that there are 24· other causes of an oral fistula; correct? Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling (This is already included, in context, in Plaintiff’s designations above.) These lines were not included in Plaintiff’s designation, and should therefore be allowed. OVERRULED. However, this testimony should be moved to completeness in Plaintiff’s designation. 33 Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.912 Page 34 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 25· · · A.· ·Yes. ·1· · · Q.· ·Are you aware of any sinus infections that ·2· Gail O'Neal had prior to your treatment? ·3· · · A.· ·I am not. ·4· · · Q.· ·Are you aware of Dr. Merritt ever opining ·5· that WhiteCap Institute or Dr. Clark's treatment ·6· fell below the standard of care? ·7· · · A.· ·I -- I don't think I can answer that.· No. ·8· You know, I -- I don't think they ever came out and ·9· said that, certainly.· But like I said, it's -- for 10· me, there's a certain inference that you can get 11· from it. 12· · · Q.· ·Okay.· Is that inference -- you said that 13· inference is based on the information you were able 14· to glean from Dr. Stern and from your review of Gail 15· O'Neal and what appeared to be surgery that she 16· received in the 3 to 4 region; correct? 17· · · A.· ·In the 2 to 3 region. 18· · · Q.· ·In the 2 to 3 region. 19· · · A.· ·Yes. 65:22-66:2 22· · · Q.· ·Are you aware of anybody besides Dr. Stern 23· who has opined that WhiteCap Institute or Dr. 24· Clark's treatment of that -- I'm going to say 2 to 25· 4 -- number 2 to 4 region, fell below standard of ·1· care? ·2· · · A.· ·No. 66:12-22 Are you aware of what the success 13· rate is for the placement of implants? 14· · · A.· ·Generally.· Not specifically.· It varies. 15· · · Q.· ·And it's certain that each implant will be 16· absolutely successful? 17· · · A.· ·No. Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling OVERRULED. Defendant objects to lines 9-11 as they are non-responsive to the question, and therefore moves to strike this testimony. Allowing this question to come in without giving the full answer and explanation that follow is misleading, as it suggests that Dr. Merritt was not critical of Dr. Clark’s treatment, which is directly contrary to Dr. Sheridan’s testimony and understanding as he explains in the lines plaintiff has added. It should either all come in, or none of it should come in. 34 Case 2:14-cv-00363-RJS Document 90-3 Filed 09/28/17 PageID.913 Page 35 of 35 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Eric Sheridan, D.D.S. taken Tuesday, June 2, 2015 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 18· · · Q.· ·And I think, correct me if I'm wrong, you 19· had mentioned earlier you do not place implants. 20· You focus primarily on restorative work; is that 21· right? 22· · · A.· ·That's correct. 70:12-18; 70:18-21 12· If another treating provider 13· were to opine that Gail O'Neal's oral fistula is 14· directly attributable to something other than the 15· implant at number 3-4 area, would that change your 16· opinion as to Dr. Clark's treatment? 17· · · A.· ·Well, yes, because it should be 2 to 3 18· area, not 3-4 area.· But if there was already an 19· oral antral communication present, that's an 20· automatic contraindication to get an implant put in 21· there. 70:22-71:2 22· · · Q.· ·Would you expect a patient to notify you of 23· any sinus problems that they may be have -- may be 24· experiencing prior to the placement of an implant? 25· · · A.· ·I think that would be something that would ·1· have been reviewed in the medical history.· Yes, I ·2· would expect that. Instructions: One form should contain all designations for a witness. Plaintiff Designations (column 1) and Defendant Designations (column 2) will show the full deposition text that the party proposes to read in its case-in-chief. Completeness designations are proposed by the other party, under Fed. R. Civ. P. 32(a)(6), to be read with the designations. Counter–designations are read following the designations and completeness designations, similar to cross examination. This form should be provided in word processing format to the other party, who then will continue to fill in the form. The form is then returned to the proposing party for review, resolution of disputes, and further editing. The parties should confer and file a final version in PDF format using the event “Notice of Filing” and also submit a final word processing copy to the court at [email protected], for ruling. All objections which the objecting party intends to pursue should be listed, whether made at the deposition, as with objections as to form, or made newly in this form, if the objection is of a type that was reserved. 35 Case 2:14-cv-00363-RJS Document 90-4 Filed 09/28/17 PageID.914 Page 1 of 7 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Colton Crane, D.M.D. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) PLAINTIFF DESIGNATIONS 8:9-10 ·9· · · · A.· ·My name's Colton James Crane.· The business 10· ·address is 850 Main Street in Lander, Wyoming 82520. 9:3-14 3· · · · Q.· ·Perfect.· Why don't you take us through your ·4· ·educational background really quick. ·5· · · · A.· ·Okay.· I graduated with an accounting degree ·6· ·from Utah State University in 2001 with minors in ·7· ·economics, animal science, and chemistry.· I went to ·8· ·dental school at the Harvard School of Dental Medicine ·9· ·in Boston, Massachusetts, between 2001-2005, where I 10· ·received my DMD degree. 11· · · · · · ·In 2005, I passed the Northeastern Regional 12· ·board in 2005 and the Wyoming State board in 2005 and 13· ·began practicing in Lander with Dr. Michael Shane in 14· ·2005.· And that's my education, I suppose. 10:14-20; 10:21-25 14· · · · Q.· ·Have you had any additional training, 15· ·educational training, certification besides your 16· ·accounting degree and your dental degree? 17· · · · A.· ·Pretty much every year between when I started 18· ·practicing and this year, I've gone and done continuing 19· ·education courses on implants, on materials, on 20· ·occlusion, on lots of different topics. 21· · · · · · ·Up until just recently, the State of Wyoming 22· ·has no continuing education requirement.· But I went 23· ·and did continuing education every year anyway because 24· ·I wanted to stay current and make sure I was doing 25· ·everything correctly. 11:1-7 1· · · · Q.· ·Approximately how many hours of continuing ·2· ·education would you say you do a year? ·3· · · · A.· ·Well, usually about one course, so it depends Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 1 Case 2:14-cv-00363-RJS Document 90-4 Filed 09/28/17 PageID.915 Page 2 of 7 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Colton Crane, D.M.D. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·4· ·on how many hours it is.· The one course I went to was ·5· ·almost 20 hours, and I've been to courses that are five ·6· ·or six hours.· So probably an average of 10 to 12 hours ·7· ·a year of continuing education I would say. 12:5-7, 9-19 ·5· · · · Q.· ·Why don't you just walk us through your work ·6· ·background then when you started working with Dr. Shane ·7· ·in 2005 to present. ·. . . ·9· · · · · · ·[A.] Started in September or October of 2005. I 10· ·don't remember exactly which month it was, but it was 11· ·late in the year 2005 I began working with him.· We 12· ·went through a transition company, Mercer Transition 13· ·Company. 14· · · · · · ·And they had set up the transition process 15· ·that said that I was to meet with him on a weekly basis 16· ·to receive continuing education from him on a weekly 17· ·basis as far as materials, methods, everything that 18· ·was -- that I was going to be using in his practice. I 19· ·worked with him from 2005 through 2007. 13:12-18 12· ·. . . I started practicing with Dr. Fowler 13· ·in 2007.· I think it was December of 2007.· And I 14· ·purchased that practice in May -- May 28th of 2008. 15· · · · · · ·And I worked there for about a year and a 16· ·half.· And at some point in 2009 or the beginning of 17· ·2010, I received a phone call from a Dr. Teresa Ruehl, 18· ·who had been a dentist out at Indian Health Services. 14:2-13 2· ·. . . She called me, told me she would like ·3· ·to come and work in Lander, would I be interested in ·4· ·having her as an associate. ·5· · · · · · ·Initially I told her no because I didn't ·6· ·think the practice was busy enough.· But after some Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 2 Case 2:14-cv-00363-RJS Document 90-4 Filed 09/28/17 PageID.916 Page 3 of 7 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Colton Crane, D.M.D. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·7· ·discussion, told her she could come as long as she knew ·8· ·she might not be busy.· She could work a couple days a ·9· ·week or whatever. 10· · · · · · ·She agreed to that.· She came, started 11· ·working.· That was in I think 2011.· It's been a while, 12· ·but I think it was 2011 when she came and started 13· ·working with me. 14:20-15:22 20· · · · · · ·After a year or two, it became obvious that 21· ·there wasn't going to be enough work for both of us to 22· ·be full time.· So at that point we started looking at 23· ·other options. 24· · · · · · ·We looked at a practice in Dubois.· We looked 25· ·at this practice over here as a satellite practice. ·1· ·The original intent was for she and I to both work in ·2· ·both offices. ·3· · · · · · ·But I came over here first because I had been ·4· ·in the area longer and knew more people.· I'm on the ·5· ·college board.· So I figured that I would be able to ·6· ·establish a clientele more rapidly than she would. ·7· · · · · · ·I started work here two to three days a week. ·8· ·And then at the time we decided on -- for her to buy ·9· ·half the practice.· She informed she didn't want to buy 10· ·any part of the Riverton office, she only wanted to buy 11· ·the Lander office. 12· · · · · · ·We had some discussions.· And agreement was 13· ·made.· I sold her the Lander office.· And that was 14· ·probably three -- two and a half -- probably two and a 15· ·half years ago now.· It was December of 2013, I 16· ·believe.· Let's see, '14.· No.· It would have been 2012 17· ·is when I sold her that practice. 18· · · · · · ·I've been working both offices since. I 19· ·worked here with Dr. Sackett.· He's the person that 20· ·owned this practice previously.· He now works two days 21· ·a week.· I work here four days a week, and I work in Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 3 Case 2:14-cv-00363-RJS Document 90-4 Filed 09/28/17 PageID.917 Page 4 of 7 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Colton Crane, D.M.D. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 22· ·Lander one day a week with Dr. Ruehl. 16:21-17:1 21· · · · Q.· ·Do you have any opinions of Dr. Shane as a 22· ·practitioner? 23· · · · A.· ·I think that Dr. Shane is an excellent 24· ·practitioner.· I saw his work firsthand for two years. 25· ·And he was careful.· He was cautious.· I think he's ·1· ·very good at what he did. 17:7-10 7· · · · Q.· ·Do you recall -- do you have an independent ·8· ·memory of treating Gail O'Neal apart from your ·9· ·treatment records? 10· · · · A.· ·No. 19:8-20:22 ·8· ·remember.· Do you have an independent memory of ·9· ·treating Gail O'Neal on December 18th, 2012, apart from 10· ·your clinical notes? 11· · · · A.· ·I remember she came to the office. I 12· ·remember having a conversation with her.· I rendered no 13· ·treatment at that visit, merely visited with her, did a 14· ·quick exam, and discussed possible options for her to 15· ·pursue with the situation that she was in. 16· · · · Q.· ·Do you recall why she was seeing you at that 17· ·time? 18· · · · A.· ·She told me that she had been a patient of 19· ·Dr. Shane's, and that Dr. Shane had referred her to the 20· ·WhiteCap Institute in Utah.· And I really hadn't heard 21· ·of the WhiteCap Institute before.· So I didn't know 22· ·anything about them. 20:25-22:6; 22:7-10 25· · · · Q.· ·And when you did your examination of ·1· ·Gail O'Neal, what were your impressions? ·2· · · · A.· ·Well, first of all, it was a very brief exam ·3· ·because it was something that I felt like was beyond my ·4· ·ability to really treat.· So when we -- when I looked, Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 4 Case 2:14-cv-00363-RJS Document 90-4 Filed 09/28/17 PageID.918 Page 5 of 7 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Colton Crane, D.M.D. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·5· ·I could see a perforation going up into the sinus.· And ·6· ·my impression was that this was an area that was going ·7· ·to need someone besides me to fix it. ·8· · · · · · ·And so she and I had a discussion.· I told ·9· ·her that she really had two options.· I don't know if 10· ·you want me to keep going or if you want me to stop 11· ·because I've already answered the previous question. 12· · · · Q.· ·Maybe just summarize.· Maybe if you've 13· ·already answered, maybe just summarize briefly. 14· · · · A.· ·Well, anyway, I told her she had two options. 15· ·That one option would be to go back to the WhiteCap 16· ·Institute and let them try to fix whatever was wrong, 17· ·give them another chance to do a bone graft, place some 18· ·implants, or if she didn't feel comfortable going back 19· ·to the WhiteCap Institute for whatever reason, that I 20· ·would recommend she go see an oral surgeon because it 21· ·was beyond my scope of treatment. 22· · · · · · ·I told her that he would be a good person to 23· ·give her a second opinion and would be able to likely 24· ·fix whatever was wrong.· And that if she wanted me to, 25· ·I would be happy to restore the implants that he placed ·1· ·at some point. ·2· · · · Q.· ·Did you refer her to a specific oral surgeon? ·3· · · · A.· ·You know, I refer to two oral surgeons. I ·4· ·don't remember if I specifically said one or the other, ·5· ·but I always refer to Dr. Stern in Jackson or Dr. Hardy ·6· ·in Casper. 7· · · · · · ·I mean, this has been three years ago, and ·8· ·I've referred a lot of people to oral surgeons.· And I ·9· ·don't remember if I specifically referred her to one or 10· ·the other or gave her an option.· I don't remember. 22:11-14 11· · · · Q.· ·I'm going to hand you what has been 12· ·previously marked as Exhibit No. 2. 13· · · · · · . . ., this is Dr. Crane's Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Exhibit 2 5 Case 2:14-cv-00363-RJS Document 90-4 Filed 09/28/17 PageID.919 Page 6 of 7 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Colton Crane, D.M.D. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 14· ·records, Bates stamp numbers Crane 001 through 005. DEFENDANT COUNTER-DESIGNATIONS 16:11-20 11· · · · Q.· ·What was your professional relationship with 12· ·Dr. Shane?· Was it amicable or was it -- 13· · · · A.· ·At first it was amicable.· Yeah, it was fine. 14· ·I was an associate.· He was a doctor.· And then when I 15· ·found out he wasn't going to sell me the practice, then 16· ·it became a little tense. 17· · · · · · ·We always were professional with each other 18· ·and never -- I mean, we speak -- we're on good terms 19· ·now as far as things go.· So that's my impression of 20· ·the situation. 20:22-24 22· · · · Q.· ·Do you recall her saying anything along the 23· ·lines of she had lost faith or trust in Dr. Shane? 24· · · · A.· ·I don't remember her saying that.· I don't. 23:3-24:11 3· · · · Q.· ·Did you review any treatment records from any ·4· ·other dental practitioners? ·5· · · · A.· ·No.· I simply did a quick exam, looked at the ·6· ·situation, listened to her story, and said, Based on ·7· ·what you've told me, these are your two options.· That ·8· ·was the extent of our conversation. ·9· · · · Q.· ·Did you ever mention to Gail O'Neal in any 10· ·form that Dr. Clark had crippled her for life? 11· · · · A.· ·No, absolutely not. 12· · · · Q.· ·At any point did you make a determination or 13· ·conclusion that Dr. Clark was not qualified to treat 14· ·Gail O'Neal? 15· · · · A.· ·No.· What I -- I what did say to her was that 16· ·if she wasn't happy with the work that had been 17· ·rendered, that there was an oral surgeon who would be Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff objects to 23:24-24:11 pursuant to Rules 702-703 and 403 of the Federal Rules of Evidence. This is improper expert opinion testimony (Rule 702- 703), without sufficient foundation or basis. See Plaintiff’s Motion in Limine on this subject (Doc. 64). Further, despite the doctor’s admission that he does not know enough to have a strong opinion, this testimony suggests to the jury that this was just work that failed, and there was no violation of the standard of care. This is confusing and misleading to the jury, and should be barred by Rule 403. 9:3-14 and 10:14-20, sections both quoted by Plaintiff, demonstrate that Dr. Crane has foundation to talk about dental care, standard of care and causation of damages. He has certainly laid the foundation to 6 OVERRULED. Dr. Crane is qualified to offer an opinion as to these matters and his testimony will assist the trier of fact. Dr. Crane has a DMD from Harvard School of Dental Medicine, has passed the Northeastern Regional and Wyoming State boards, and has been a practicing dentist for approximately 12 years. He has also performed Case 2:14-cv-00363-RJS Document 90-4 Filed 09/28/17 PageID.920 Page 7 of 7 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Colton Crane, D.M.D. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 18· ·able to help her at this point. 19· · · · · · ·But I -- I didn't know enough information 20· ·about her case or Dr. Clark to make an assessment. I 21· ·just said, These are your two options based on -- 22· ·you've got to decide what you're most comfortable with 23· ·and then do that. 24· · · · Q.· ·Do you have any opinion about Dr. Clark's 25· ·treatment of Gail O'Neal? ·1· · · · A.· ·I mean, it's obvious that that upper right ·2· ·quadrant failed.· But anytime you're doing bone ·3· ·grafting and things like that, there's a chance it's ·4· ·going to fail. ·5· · · · · · ·So I don't think that it -- I don't think it ·6· ·would represent -- I really don't have a strong opinion ·7· ·of it.· I've seen work from oral surgeons fail.· I've ·8· ·seen work fail many times.· It's kind of the nature of ·9· ·treatment.· And so I would say I don't know enough of 10· ·the situation to have a strong opinion one way or the 11· ·other. Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling talk about failure rates of implants, and his ultimate opinion is that these implants were within the normal failure rates. This is not confusing to a jury. A jury will be able to understand the argument that a bad outcome does not necessarily mean a breach of the standard of care. If anything, this testimony will help them understand that there are four elements to negligence: Duty, breach, causation and damages. This testimony will help them understand that not all four were met. There was a duty, but it was not breached, even if the care caused damage. For that reason, this testimony is critical. Furthermore, Plaintiff is already eliciting opinions of quality of dental care regarding other providers, specifically, Dr. Shane, when asking his opinion on Dr. Shane in 16:21-17:1. Therefore, Plaintiff’s argument that Dr. Crane lacks foundation is contradictory. Finally, Finally, Plaintiff objects to the entire section, but only lines 23:24 – 24:11 actually contain opinions. The rest are facts about Dr. Crane’s treatment and should be allowed regardless of any ruling on Dr. Crane’s foundation. continuing education, including courses on dental implants, and has experience with seeing failed procedures. Dr. Crane’s opinions are sufficiently reliable— they are based on the application of his knowledge and training to his treatment of Plaintiff. Dr. Crane’s reasoning is sufficiently scientifically valid; there are no impermissible analytical gaps between premises and conclusions. Additionally, the probative value of the testimony is not substantially outweighed by any potential for confusing or misleading the jury. Instructions: One form should contain all designations for a witness. Plaintiff Designations (column 1) and Defendant Designations (column 2) will show the full deposition text that the party proposes to read in its case-in-chief. Completeness designations are proposed by the other party, under Fed. R. Civ. P. 32(a)(6), to be read with the designations. Counter–designations are read following the designations and completeness designations, similar to cross examination. This form should be provided in word processing format to the other party, who then will continue to fill in the form. The form is then returned to the proposing party for review, resolution of disputes, and further editing. The parties should confer and file a final version in PDF format using the event “Notice of Filing” and also submit a final word processing copy to the court at [email protected], for ruling. All objections which the objecting party intends to pursue should be listed, whether made at the deposition, as with objections as to form, or made newly in this form, if the objection is of a type that was reserved. 7 Case 2:14-cv-00363-RJS Document 90-5 Filed 09/28/17 PageID.921 Page 1 of 33 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Michael Shane, D.D.S. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) PLAINTIFF DESIGNATIONS 4:16-19 16· · · · Q.· ·(By Mr. Pendleton) And just for the record, 17· ·will you state your name and business address for us. 18· · · · A.· ·My name is Michael Shane.· My practice 19· ·location is 8125 Highway 789, Lander, Wyoming. 7:2-9, 15-23 2· · · · Q.· ·Education beginning with graduate school. ·3· ·Actually, let's start with undergraduate school. ·4· · · · A.· ·I have a Bachelor of Science degree with a ·5· ·major in zoology and minor in chemistry from ·6· ·Brigham Young University.· I graduated in 1970.· I went ·7· ·to dental school at the University of the Pacific in ·8· ·San Francisco.· I graduated in 1974, the degree of ·9· ·Doctor of Dental Surgery. . . . 15· · · · Q.· ·Did you do any other post-dental school 16· ·training? 17· · · · A.· ·Lots of hours of continuing education. 18· · · · Q.· ·And how many hours would you say you do per 19· ·year? 20· · · · A.· ·Well, while I practiced in California, we 21· ·were required to do 55 hours every two years.· So I did 22· ·that, in excess of that.· Here, I usually get, oh, 8 to 23· ·20 hours a year. 8:5-14 ·5· · · · Q.· ·. . . you mentioned that you had ·6· ·practiced in California for a while.· Why don't you ·7· ·take us through your work background starting from when ·8· ·you graduated in 1974. ·9· · · · A.· ·I graduated in 1974.· I began practice in 10· ·Castro Valley, California, which is just east of 11· ·San Francisco.· I practiced there for about four years 12· ·as an associate.· I then moved to San Jose, California, Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 1 Case 2:14-cv-00363-RJS Document 90-5 Filed 09/28/17 PageID.922 Page 2 of 33 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Michael Shane, D.D.S. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 13· ·where I started my own practice.· I practiced in 14· ·San Jose for 17 years and then moved to Wyoming. 9:1-8 ·1· · · · Q.· ·All right.· And so you practiced four years ·2· ·in Castro Valley, moved to San Jose, had your own ·3· ·practice there for 17 years, and then moved to Wyoming. ·4· ·So you've been in Wyoming approximately -- ·5· · · · A.· ·Since 1994, 21 years this year. ·6· · · · Q.· ·And have you practiced exclusively in Lander ·7· ·that entire time? ·8· · · · A.· ·Yes. 10:22-11:21 22· · · · Q.· ·I understand that you trained a little bit 23· ·with Dr. Clark at one point; is that correct? 24· · · · A.· ·Yes. 25· · · · Q.· ·When was that? Page 11 ·1· · · · A.· ·I don't remember the -- the date.· It's been ·2· ·five years ago perhaps. ·3· · · · Q.· ·And what was the purpose for that training? ·4· · · · A.· ·Implant training.· I spent a week there and ·5· ·did that course.· It was an implant course for a week. ·6· ·And then I went back later with two patients for a ·7· ·mentoring session with him.· And that's all.· Well, no, ·8· ·I have been back with him again for tissue transplant ·9· ·training, a little occlusion training. 10· · · · Q.· ·After the one-week training that you had with 11· ·him, how many times have you trained with him 12· ·thereafter? 13· · · · A.· ·Well, the mentor session and perhaps two 14· ·other times, two other classes. 15· · · · Q.· ·And so those two other classes, were they a 16· ·week-long session as well? 17· · · · A.· ·Two days. 18· · · · Q.· ·Two days.· And you said the topics focused on Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 2 Case 2:14-cv-00363-RJS Document 90-5 Filed 09/28/17 PageID.923 Page 3 of 33 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Michael Shane, D.D.S. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 19· ·tissue transplant and what else? 20· · · · A.· ·There was some occlusion, soft tissue 21· ·transplant, augmentation. 13:3-14:17 ·3· · · · Q.· ·Let's turn a little bit to your treatment of ·4· ·Gail O'Neal.· I'm going to hand you Exhibit No. 2. ·5· · · · · · ·(Exhibit 2 marked.) ·6· · · · · · ·. . . this is Gail O'Neal's ·7· ·treatment records from Dr. Shane.· It's Bates numbered ·8· ·Shane 1 through Shane 26. ·9· · · · · · ·. . . . 10· · · · Q.· ·. . . Do you recognize those 11· ·records, Dr. Shane? 12· · · · A.· ·Yes. 13· · · · Q.· ·And what are they? 14· · · · A.· ·These first few pages are treatment notes 15· ·when Gail was in my office.· Then the next -- the rest 16· ·of it are X-rays and intra oral photographs I took 17· ·during the course of treatment and notes from 18· ·Dr. Clark's treatment. 19· · · · Q.· ·Do you have an independent memory of treating 20· ·Gail O'Neal apart from your notes, your treatment 21· ·notes? 22· · · · A.· ·No. 23· · · · Q.· ·Let's jump into your notes real quick.· How 24· ·long approximately have you been treating Gail O'Neal? 25· · · · A.· ·Began in 1997, from 1997 to 2002, and then it ·1· ·began again in 2012. ·2· · · · Q.· ·Why was there a break from 2002 to 2012? ·3· · · · A.· ·I don't know. ·4· · · · Q.· ·From your treatment of Gail O'Neal, do you ·5· ·have any general impressions about her dental health ·6· ·and hygiene? ·7· · · · A.· ·Up to -- up to 2002, things were -- things ·8· ·were healthy.· There wasn't any advanced periodontal Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Exhibit 2 3 Case 2:14-cv-00363-RJS Document 90-5 Filed 09/28/17 PageID.924 Page 4 of 33 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Michael Shane, D.D.S. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·9· ·disease.· When we saw her again in 2012, she had 10· ·advanced periodontal disease involving most of her 11· ·posterior teeth in the upper arch. 12· · · · Q.· ·And had you placed a bridge on her upper 13· ·arch? 14· · · · A.· ·Yes. 15· · · · Q.· ·And do you recall approximately when that 16· ·was? 17· · · · A.· ·I can look, but it's 2002. 16:12-17:10 12· · · · Q.· ·Why don't we go into your notes now.· And for 13· ·sake of time and brevity, why don't you just go through 14· ·each date that you treated Gail and provide us with a 15· ·summary of your treatment and why you provided that 16· ·treatment. 17· · · · A.· ·Do you want me to read the notes or just 18· ·summarize the notes? 19· · · · Q.· ·If you can summarize them for the sake of 20· ·brevity, that might be a little more helpful. 21· · · · A.· ·We saw her first January 10th, 2012. I 22· ·examined her and informed her that she had -- there was 23· ·a lot of bone loss on the upper right and upper left. 24· ·We gave her some options about removing some bridges. 25· ·She could have crowns and some implants, perhaps a ·1· ·removable partial denture. ·2· · · · · · ·We talked to her about extracting tooth ·3· ·number 12 and number 16.· That's on the upper left.· We ·4· ·found an abscess on tooth number 18 in the lower left ·5· ·quadrant and told her that she needed a root canal ·6· ·there. ·7· · · · · · ·We talked a little bit about how -- how ·8· ·implants would be done, including sinus lifts, and told ·9· ·her that I would refer to Dr. Clark in Heber Utah to 10· ·have any implants done. Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 4 Case 2:14-cv-00363-RJS Document 90-5 Filed 09/28/17 PageID.925 Page 5 of 33 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Michael Shane, D.D.S. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 18:7-8, 18:17-19:19 ·7· ·. . . My notes, I have seeing her for the first time ·8· ·in January 2011.· And this is January 2012. 17· ·. . . Why don't you 18· ·start with January of 2011 and describe your treatment 19· ·of Gail O'Neal starting at that point. 20· · · · A.· ·She came in experiencing discomfort in her 21· ·upper left area, pointed to her very last tooth, which 22· ·is tooth number 16.· She had been taking ibuprofen for 23· ·that.· We took an X-ray, took some intraoral pictures. 24· · · · · · ·We explored gum tissue, did a perio probing. 25· ·Those numbers, the perio probing showed on tooth number ·1· ·16 that she had considerable bone loss, especially on ·2· ·the distal aspect of number 16. ·3· · · · · · ·We told her that it was periodontally ·4· ·involved, that there could be a fracture, which is ·5· ·possible.· Tooth had a perio abscess.· We told her at ·6· ·the time we could clean the root surface off and place ·7· ·a perio chip in there to help kill the bacteria in that ·8· ·area.· That would work as a temporary as long as -- ·9· ·temporary relief as long as the area was kept clean. 10· · · · · · ·If the tooth was cracked, we told her it 11· ·would have to be extracted.· Then we could either look 12· ·at either implants or partial denture.· The only other 13· ·treatment she had was just to do nothing. 14· · · · · · ·She reported that she'd like to hang onto the 15· ·tooth as long as she could because she doesn't want to 16· ·do anything right now, doesn't want to have the tooth 17· ·extracted until it bothers her more.· She was 18· ·acceptable to having the area cleaned and placing a 19· ·perio chip.· That's what we did. 20:7-21:21 7· · · · Q.· ·Please continue. ·8· · · · A.· ·We next saw her in January -- on ·9· ·January 26th, 2011.· And she was here for a hygiene Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 5 Case 2:14-cv-00363-RJS Document 90-5 Filed 09/28/17 PageID.926 Page 6 of 33 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Michael Shane, D.D.S. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 10· ·visit.· I believe that was a hygiene visit. A 11· ·panographic X-ray was taken.· Four bite wings were 12· ·taken. 13· · · · · · ·We did a comprehensive exam.· We asked her 14· ·about areas that were bothering her, and it was the 15· ·same as when she first come in.· The upper left area 16· ·was feeling better. 17· · · · · · ·We perio probed everything.· I told her that 18· ·she doesn't have a lot to do except on the upper left 19· ·side, talked to her about losing that tooth on the left 20· ·side.· She understood that. 21· · · · · · ·I told her that if she loses the tooth, then 22· ·she will lose the bridge also on that side.· And she 23· ·understood that.· I talked to her about seeing a 24· ·periodontist -- Dr. Okano is the one we use -- and 25· ·having him take a look at the area on that side.· She ·1· ·understood that. ·2· · · · · · ·Also told her that she had a 6 millimeter ·3· ·pocket on the lower left side of her mouth.· We talked ·4· ·to her about the importance of seeing the periodontist ·5· ·so she didn't lose any more bone.· She understood that. ·6· · · · · · ·We talked about the removal of the bridge on ·7· ·the upper left side.· And then -- let's see.· Once we ·8· ·removed that bridge, we talked about how to fill that ·9· ·space.· We talked about a partial denture or implant or 10· ·do nothing. 11· · · · · · ·I told her that if she does nothing that she 12· ·will be forced to chew on the other side and do more 13· ·chewing on the front of her mouth.· Those teeth just 14· ·weren't built to be chewed on the way back teeth are. 15· · · · · · ·I explained to her that Dr. Okano's office is 16· ·in Rock Springs, but he does come to Lander, and she 17· ·can see him to begin with.· We gave her Dr. Okano's 18· ·card.· I told her once she sees Dr. Okano, he will 19· ·write to me and let me know what he had found.· And Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 6 Case 2:14-cv-00363-RJS Document 90-5 Filed 09/28/17 PageID.927 Page 7 of 33 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Michael Shane, D.D.S. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 20· ·then she can return to our office to discuss the 21· ·results. 22:3-24:14 3· · · · Q.· ·If you look at -- it's about the middle of ·4· ·that record, there's a sentence that states, "Doctor ·5· ·states that implants are the best option." ·6· · · · A.· ·That's right.· I did.· It's there.· I felt ·7· ·that implants would be a better option than a removable ·8· ·partial denture. ·9· · · · Q.· ·And why did you think that was the best 10· ·option? 11· · · · A.· ·Fixed -- fixed prostheses are better than 12· ·removable.· They're cleaner.· Patients wear them 13· ·better.· They function better. 14· · · · Q.· ·Is that typically contingent on their ability 15· ·to properly receive an implant? 16· · · · A.· ·Correct. 17· · · · Q.· ·Let's turn to your next note. 18· · · · A.· ·Next note is February 18th, 2011.· This is a 19· ·hygiene visit.· I was at the hospital doing a hospital 20· ·case that day.· Hygienist did the treatment and 21· ·categorized her periodontal situation -- it's an 22· ·American Academy of Periodontology type 3, which means 23· ·that she had pockets between 4 and 8 millimeters and 24· ·would probably need surgery to correct the bony 25· ·defects. ·1· · · · Q.· ·Is that -- that severity of the pockets, is ·2· ·that why you referred her to Dr. Okano? ·3· · · · A.· ·Yes. ·4· · · · Q.· ·Why don't you go to your next note. ·5· · · · A.· ·The next note is August 17th, 2011.· This was ·6· ·six months later, another hygiene visit.· Patient's not ·7· ·reporting any problems.· She's aware that something ·8· ·needs to be done to the bridge on the upper left.· And ·9· ·she's waiting until she sells her calves to do Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 7 Case 2:14-cv-00363-RJS Document 90-5 Filed 09/28/17 PageID.928 Page 8 of 33 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Michael Shane, D.D.S. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 10· ·anything. 11· · · · · · ·Plaque buildup around the bridges, again, 12· ·same -- the same category of periodontal disease.· And 13· ·she's planning on visiting Dr. Okano after she sells 14· ·her calves. 15· · · · Q.· ·Do you recall if Gail O'Neal did, in fact, 16· ·visit Dr. Okano? 17· · · · A.· ·She did. 18· · · · Q.· ·Do you recall what the results of that visit 19· ·were? 20· · · · A.· ·Yes.· We have his notes, his letter to me. I 21· ·can refer to that.· Dr. Okano's letter is dated 22· ·December 12th, 2011.· That's when she was in for an 23· ·exam. 24· · · · · · ·She was well aware of the significant 25· ·periodontal concerns in the maxillary left area. Page 24 ·1· ·Dr. Okano also noted concerns in other regions and ·2· ·discussed overall concerns with potential treatment ·3· ·alternatives.· He said, "I believe Gail is receptive to ·4· ·pursuing much treatment from both of our offices to ·5· ·restore dental health and function." ·6· · · · · · ·Diagnosis was chronic isolated advanced ·7· ·periodontitis.· The factors are subgingival plaque, ·8· ·biofilms, and calculus.· Complicating factors were ·9· ·isolated severe periodontal destruction of key 10· ·prosthetic abutment teeth. 11· · · · · · ·She had a progressing vertical defect on the 12· ·distal of number 29, loss of several maxillary teeth, 13· ·compromises -- with compromises in prosthetic support 14· ·for the future. 25:7-26:22; 26:20-27:6 7· · · · Q.· ·You had already gone through your ·8· ·January 2012 visit with her? ·9· · · · A.· ·Uh-huh (affirmative). Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 26:20-22 is repeated in plaintiff’s designation and defendant’s designation. (26:24-27:6 should be completeness designation instead of counter designation.) 8 SUSTAINED. Case 2:14-cv-00363-RJS Document 90-5 Filed 09/28/17 PageID.929 Page 9 of 33 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Michael Shane, D.D.S. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 10· · · · Q.· ·Just a couple quick questions about that.· It 11· ·appears as though the bridge in her upper left had to 12· ·be removed, correct? 13· · · · A.· ·Correct. 14· · · · Q.· ·And so at that time your recommendations to 15· ·her were to have the bridge removed on the upper left, 16· ·to have number 12 and number 16 extracted, correct? 17· · · · A.· ·Correct. 18· · · · Q.· ·And then to have implants replaced in their 19· ·stead, correct? 20· · · · A.· ·Yes. 21· · · · Q.· ·Do you recall at that time in January of 2012 22· ·recommending any other implants besides number 12 and 23· ·number 16? 24· · · · A.· ·No. 25· · · · Q.· ·If you look at the bottom of January 2012, it ·1· ·notes, "Patient next visit to extract 2 and 4." ·2· · · · · · ·Was the idea then to extract 12 and 16 at ·3· ·that time and then 2 and 4 later? ·4· · · · A.· ·I don't recall.· This visit in January 2012 ·5· ·was -- was following Dr. Okano's visit.· And he ·6· ·indicated teeth that were hopeless, and 4 was one of ·7· ·them, yes.· So that's why that was scheduled. ·8· · · · Q.· ·And did you agree with Dr. Okano's assessment ·9· ·of the prognosis for certain teeth? 10· · · · A.· ·Yes. 11· · · · Q.· ·When you referred Gail or Ms. O'Neal to 12· ·Dr. Clark for implant work, did you make any 13· ·recommendations to him as to which teeth you thought 14· ·should receive an implant, or did you leave that 15· ·exclusively up to his judgment? 16· · · · A.· ·I left it to his judgment because we hadn't 17· ·taken -- didn't have the proper records, the proper 18· ·X-rays to tell what implants should be put where.· So I 19· ·left that to him. Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 9 Case 2:14-cv-00363-RJS Document 90-5 Filed 09/28/17 PageID.930 Page 10 of 33 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Michael Shane, D.D.S. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 20· · · · Q.· ·When you say "X-rays," are you referring to 21· ·cone beam CT scans? 22· · · · A.· ·Yes. 23· · · · Q.· ·Is that the proper type of scan that should 24· ·be conducted in order to find out which teeth should be 25· ·extracted -- excuse me -- which teeth should receive 1· ·implants and which ones shouldn't? ·2· · · · A.· ·Yes.· That will tell you where the bone is, ·3· ·how much bone, where the sinuses are, and whether or ·4· ·not sinus lifts or other procedures need to be done. ·5· ·If there's bone augmentation that needs to be done, ·6· ·that scan will tell. 27:7-28:21 ·7· · · · Q.· ·Why don't you go through your February 1st, ·8· ·2012, note, please. ·9· · · · A.· ·Okay.· I reviewed Dr. Okano's letter with 10· ·her.· I decided not to extract tooth number 4 at the 11· ·time.· I informed Gail of the options for a bridge or 12· ·an implant on the upper right and also informed of her 13· ·possible implants on the upper left. 14· · · · · · ·She was currently in need of periodontal 15· ·treatment.· So I'm referring her to Dr. Clark in Heber 16· ·for the implants in the upper right and upper left. I 17· ·informed the patient about a CT scan and 3D imaging to 18· ·show the areas better. 19· · · · · · ·She apparently said that she would schedule 20· ·an appointment with Dr. Okano for the periodontal 21· ·treatment and Dr. Clark in Heber for the implants. I 22· ·told her that her periodontal disease needs to be under 23· ·control before we do any restorative work on her lower 24· ·teeth. 25· · · · · · ·Patient was given Dr. Clark's information to ·1· ·make an appointment.· And I informed the patient of ·2· ·information about an implant in the lower left area, ·3· ·number 19. Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 10 Case 2:14-cv-00363-RJS Document 90-5 Filed 09/28/17 PageID.931 Page 11 of 33 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Michael Shane, D.D.S. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·4· · · · Q.· ·At that time you said you decided not to ·5· ·extract number 4.· Why did you decide that at that ·6· ·time? ·7· · · · A.· ·I don't recall, but the tooth -- the tooth ·8· ·was not -- well, it was hopeless.· But taking that ·9· ·tooth out at that time cosmetically would not -- would 10· ·have revealed a space in her mouth when she smiled.· So 11· ·I'm sure that's why I left it. 12· · · · Q.· ·And at that time you also had scheduled a 13· ·visit for a root canal on number 18, correct? 14· · · · A.· ·Correct. 15· · · · Q.· ·Number 18 is one of the treatment teeth that 16· ·Dr. Okano had identified, correct? 17· · · · A.· ·Well, he identified it as being guarded.· And 18· ·X-rays showed that she had an abscess at the apices. 19· ·Dr. Okano's letter says, "Tooth number 18 presented 20· ·with an endodontic lesion," and it's evident on the 21· ·X-rays. 31:10-20 10· · · · Q.· ·Let's go to your next note, Dr. Shane. 11· · · · A.· ·My next note was February 9th, 2012.· Gail 12· ·came in to have the root canal and number 18 done.· We 13· ·opened the tooth and filed the tooth, began taking 14· ·what's left of the pulp out of the tooth. 15· · · · · · ·We were unable to finish the root canal that 16· ·day because I couldn't get a very small file to go all 17· ·the way to the terminus of the root.· And so I -- I put 18· ·some calcium hydroxide in it, closed it up, told her 19· ·about that, and referred her to Dr. Flath, who's an 20· ·endodontist in Rock Springs, Wyoming. 31:24-34:12 24· · · · Q.· ·Are you aware of whether Ms. O'Neal completed 25· ·that treatment with Dr. Flath? ·1· · · · A.· ·She did.· She completed that on March 15th, ·2· ·2012.· And he sent us a post-op X-ray just with a note Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 11 Case 2:14-cv-00363-RJS Document 90-5 Filed 09/28/17 PageID.932 Page 12 of 33 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Michael Shane, D.D.S. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·3· ·that it had a really sharp curve in the root, which is ·4· ·why we couldn't get down. ·5· · · · Q.· ·Let's go to your next note, please. ·6· · · · A.· ·That's dated May 29th, 2012.· And Gail came ·7· ·in with a chief complaint.· She said she had implants ·8· ·done on the 17th of May and had -- stitches were there ·9· ·at the time. 10· · · · · · ·She also had a tooth extracted that -- that 11· ·the doctor did not plan on extracting.· Apparently the 12· ·doctor was me.· Patient said that on the upper left 13· ·above the stitches, she felt a sharp bump and had 14· ·concern, thought there might be a piece of bone coming 15· ·through. 16· · · · · · ·We examined it.· It wasn't a piece of bone. 17· ·I told her that the tissue up there looked healthy. 18· ·And I just tried to describe to her what she was 19· ·feeling.· It was just an edge from where the tooth was 20· ·extracted. 21· · · · · · ·Told her there was nothing there to be 22· ·concerned about.· She was concerned about the color of 23· ·her tongue at the time.· We asked her, you know, if she 24· ·was using a mouthwash.· She said yes. 25· · · · · · ·We told her that could be -- that could be ·1· ·part of it.· We also advised her to use a tongue ·2· ·scraper to help keep her tongue cleaner.· And her next ·3· ·visit was to have the sutures removed that Dr. Clark ·4· ·had put in. ·5· · · · Q.· ·So this note is post Dr. Clark's treatment, ·6· ·correct? ·7· · · · A.· ·Yes.· This was on the 29th.· He apparently ·8· ·did his work on the 17th of May. ·9· · · · Q.· ·And at this time on the 29th of May, did you 10· ·have any concerns about Gail O'Neal's dental treatment 11· ·from Dr. Clark? 12· · · · A.· ·No.· We didn't -- we said that sometimes Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 12 Case 2:14-cv-00363-RJS Document 90-5 Filed 09/28/17 PageID.933 Page 13 of 33 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Michael Shane, D.D.S. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 13· ·looking at the upper left side, that bony bump, assured 14· ·her that the tissue looked good.· Everything looked 15· ·good.· She didn't have an abscess or infection.· There 16· ·wasn't a need to be concerned about there or anyplace 17· ·else in her mouth.· It looked normal. 18· · · · Q.· ·Let's go to your next note. 19· · · · A.· ·Dated June 11th, 2012.· She was here to have 20· ·sutures removed.· And we removed sutures on the upper 21· ·right, upper left, lower left, and lower right.· At 22· ·that time we took three periapical X-rays, and I took 23· ·some intraoral photographs.· She thought she was only 24· ·getting 7 implants, but it looks like there may have 25· ·been 8.· I told her I would send the photographs and ·1· ·the X-rays to Dr. Clark. ·2· · · · Q.· ·The photos and X-rays, why did you take those ·3· ·and send them to Dr. Clark? ·4· · · · A.· ·Well, because she had a hole in the gum ·5· ·tissue in that upper -- upper right side.· And it ·6· ·didn't -- it wasn't normal.· I mean, it wasn't -- this ·7· ·had not healed the way I would expect it to heal.· So I ·8· ·sent four intraoral photographs and some radiographs to ·9· ·Dr. Clark. 10· · · · Q.· ·And this hole that you mentioned, is that an 11· ·oral antral fistula? 12· · · · A.· ·That's what it looked like. 34:25-35:7; 35:8-10 25· · · · Q.· ·When you sent those photos and X-rays to ·1· ·Dr. Clark, did you hear back from him at any point ·2· ·about his impressions? ·3· · · · A.· ·Yes.· He wanted her put on -- given a ·4· ·prescription for Augmentin, which is an antibiotic. ·5· · · · Q.· ·And are you referencing the June 19th, 2012, ·6· ·note that you have? ·7· · · · A.· ·Yes. 8· · · · Q.· ·And are you aware of whether she successfully Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 13 Case 2:14-cv-00363-RJS Document 90-5 Filed 09/28/17 PageID.934 Page 14 of 33 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Michael Shane, D.D.S. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·9· ·took the Augmentin at that point? 10· · · · A.· ·I have no record of that. 35:11-37:15; 37:16-20 11· · · · Q.· ·Why don't we move to your next note on 12· ·July 12th. 13· · · · A.· ·July 12th, she came in with -- her chief 14· ·complaint was that she still has a hole in the upper 15· ·right.· She said, quoting her, "When I used mouthwash 16· ·one day, it came out my nose."· She said, "When I suck 17· ·on a straw, I have no suction." 18· · · · · · ·So we took some more intraoral photographs. 19· ·I examined her and informed her that the hole was not 20· ·normal.· I told her that we'd email the photos to 21· ·Dr. Clark and phone him. 22· · · · · · ·I told the patient we would let Dr. Clark 23· ·know what the patient said, and Dr. Clark would contact 24· ·her on what needs to be done.· I told her that if 25· ·that -- that if the hole persists, it needed to be ·1· ·fixed.· Patient agrees with Dr. Shane, and she will ·2· ·wait for a phone call from Dr. Clark. ·3· · · · Q.· ·So at this part in your own words, what were ·4· ·your opinions of the hole, and how did you think it ·5· ·should be treated? ·6· · · · A.· ·Well, it looked-like an oral antral fistula ·7· ·that has to be surgically closed. ·8· · · · Q.· ·Is that something that you regularly ·9· ·practice, or is that something that you would typically 10· ·refer out to somebody else? 11· · · · A.· ·I would refer that out. 12· · · · Q.· ·And at that time, had you referred that out 13· ·to Dr. Clark to fix the hole? 14· · · · A.· ·Well, yes.· I sent him the photographs and 15· ·let him decide how he wanted to proceed with that. 16· · · · Q.· ·Did Dr. Clark at that time inform you of his 17· ·thoughts and impressions of the hole and how he was Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 14 Case 2:14-cv-00363-RJS Document 90-5 Filed 09/28/17 PageID.935 Page 15 of 33 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Michael Shane, D.D.S. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 18· ·going to treat it? 19· · · · A.· ·No. 20· · · · Q.· ·At any time during Gail O'Neal's treatment, 21· ·did Dr. Clark ever inform you of how he wanted to treat 22· ·the hole? 23· · · · A.· ·No. 24· · · · Q.· ·Why don't we go to your next note. 25· · · · A.· ·This would be July 18th, 2012.· Well, let's ·1· ·see.· By my request, those pictures were emailed to ·2· ·Dr. Clark. ·3· · · · Q.· ·Okay.· Let's go to the next note. ·4· · · · A.· ·July 31st.· Gail came in.· She said, "Over ·5· ·the weekend, I've had a bad smell and icky taste like ·6· ·it's rotten."· She said she has an appointment next ·7· ·week in Heber to see Dr. Clark. ·8· · · · · · ·"Patient said she called my office ·9· ·yesterday," the day before, "and was advised to come in 10· ·and have us take a look at it."· She told me it wasn't 11· ·as bad today as it was over the weekend or yesterday. 12· · · · · · ·I examined the patient and stated that her 13· ·mouth looked good.· There didn't seem to be infection. 14· ·And she said she just wanted to be sure of that before 15· ·she went next week for her appointment with Dr. Clark. 16· · · · Q.· ·Do you remember what your post-op 17· ·instructions were? 18· · · · A.· ·I know that I had told her at some point in 19· ·this to not blow her nose.· Sucking on a straw would be 20· ·difficult. 37:21-41:3 21· · · · Q.· ·Let's go to your next note. 22· · · · A.· ·Okay.· My next note, August 20th, she came in 23· ·to have -- just for a check.· Looked like she was 24· ·healing well.· The inside of her mouth, gingiva looked 25· ·good.· There were no special instructions.· Reappointed ·1· ·her to remove sutures. Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 37:16-20 moved from counter-designation to completeness designation. SUSTAINED. 15 Case 2:14-cv-00363-RJS Document 90-5 Filed 09/28/17 PageID.936 Page 16 of 33 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Michael Shane, D.D.S. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·2· · · · Q.· ·At that time did it appear as though she was ·3· ·healing well? ·4· · · · A.· ·The inside of her mouth.· The gum tissues ·5· ·looked healthy, nice and pink. ·6· · · · Q.· ·At that time did you have any concerns about ·7· ·any of the implants that Dr. Clark had placed? ·8· · · · A.· ·No. ·9· · · · Q.· ·And did you have any other concerns about any 10· ·other work Dr. Clark had done at that time? 11· · · · A.· ·No, except there was still the fistula. 12· · · · Q.· ·Let's go to your next note. 13· · · · A.· ·Okay.· This was August 29th, removed the 14· ·sutures on the upper right and took two more intraoral 15· ·pictures.· I asked the patient not to blow her nose. 16· · · · Q.· ·Let's go to the next note. 17· · · · A.· ·This is September 12th, 2012.· "Patient 18· ·became concerned on Sunday when she smelled a bad odor. 19· ·Today she rinsed her mouth out with mouthwash, and she 20· ·said it was a little pinkish in color and that her nose 21· ·was runny afterwards." 22· · · · · · ·I looked.· I took more intraoral pictures, 23· ·said that there still was a hole in the upper right 24· ·side.· And I told her that we'd send these pictures to 25· ·Dr. Clark.· I don't know who the doctor is on the ·1· ·notes.· It's Dr. Huber.· I think they got confused. ·2· ·Dr. Clark is in Heber. ·3· · · · Q.· ·So you don't know a Dr. Huber? ·4· · · · A.· ·No, there is no Dr. Huber. ·5· · · · Q.· ·And let's go to your next note. ·6· · · · A.· ·This will be October 10th, 2012.· She went to ·7· ·see Dr. Clark in Heber last Thursday.· They cleaned the ·8· ·area on the upper right, placed sutures.· She started ·9· ·having mouthwash and liquids that she had come out of 10· ·her nose again. 11· · · · · · ·There was a bad smell.· We put anesthetic in. Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 16 Case 2:14-cv-00363-RJS Document 90-5 Filed 09/28/17 PageID.937 Page 17 of 33 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Michael Shane, D.D.S. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 12· ·We kind of cleaned the surface area and placed four 13· ·more sutures to tighten the tissue around the fistula. 14· ·I took more intraoral pictures to send to Dr. Clark. 15· · · · Q.· ·So at this point Ms. O'Neal had been to 16· ·Dr. Clark about this fistula a couple times, correct? 17· · · · A.· ·Yes. 18· · · · Q.· ·And the fistula was still present, correct? 19· · · · A.· ·Yes. 20· · · · Q.· ·So at this point what are your impressions 21· ·and how -- I guess what are your overall impressions 22· ·about how that fistula is going to be fixed? 23· · · · A.· ·Well, I've had -- I've had very limited 24· ·experience with oral antral fistulas.· And how they're 25· ·repaired, I've read how they're repaired.· And at this ·1· ·point she just had sutures put in recently.· And I ·2· ·didn't know if that -- I didn't know if that was ·3· ·healing correctly, normally.· I didn't have that ·4· ·experience. ·5· · · · Q.· ·And so is my impression correct then that you ·6· ·were basically leaving the correction of the fistula ·7· ·hole up to Dr. Clark's expertise and letting him ·8· ·essentially deal with it exclusively? ·9· · · · A.· ·Yes. 10· · · · Q.· ·Am I correct in thinking then that any 11· ·treatment of the fistula is something that you left to 12· ·Dr. Clark's sole discretion? 13· · · · A.· ·Yes. 14· · · · Q.· ·. . . 16· · · · · · ·During this time, did you have any 17· ·interaction with Dr. Clark about the fistula and how it 18· ·was going to be repaired? 19· · · · A.· ·No. 20· · · · Q.· ·Again, that's something that you left up to 21· ·Dr. Clark? 22· · · · A.· ·Yes. Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 17 Case 2:14-cv-00363-RJS Document 90-5 Filed 09/28/17 PageID.938 Page 18 of 33 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Michael Shane, D.D.S. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 23· · · · Q.· ·And so at this time, Ms. O'Neal was coming to 24· ·your office for regular checkups.· And if there's any 25· ·concern with the work that Dr. Clark did, that's ·1· ·something that you relayed to Dr. Clark, and you let ·2· ·him deal with it exclusively, correct? ·3· · · · A.· ·Yes. 41:13-42:8 13· · · · Q.· ·Why don't we go to that visit. 14· · · · A.· ·At that visit, this was November 26th, 2012, 15· ·she said nothing was getting better.· Mouthwash still 16· ·comes out of her nose.· She's discouraged at this 17· ·point.· It's been since last May when this started. 18· ·She had hoped to have her teeth done by Christmas.· She 19· ·was frustrated and discouraged by the length of time it 20· ·was taking. 21· · · · · · ·I took the sutures out that were put in last, 22· ·took more intraoral pictures to send to Dr. Clark to 23· ·see what he wanted to do next.· She still had -- she 24· ·still had air going in and out, fluid coming out of her 25· ·nose. ·1· · · · · · ·The hole was smaller than it was.· She told ·2· ·me they were still sore.· And -- and I just told her ·3· ·once the sutures were out that at least that part would ·4· ·feel better.· And we'd let her know if we found out ·5· ·anything different. ·6· · · · Q.· ·Did you ever receive any information from ·7· ·Dr. Clark as to why the fistula hole was still present? ·8· · · · A.· ·No. 43:20-44:23; 44:16-45:16 20· · · · Q.· ·Let's turn to your last -- I think you have 21· ·three more notes.· Why don't you briefly go through 22· ·those. 23· · · · A.· ·I have a note for December 11th, 2012.· Gail 24· ·had called my office that day, wanted to know if at 25· ·this point I thought that it would be a good idea for Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling (44:16-23 is a duplicate of Plaintiff’s designation) 44:24-45:16 moved from counter designation to completeness designation (defense designated it as either) SUSTAINED. 18 Case 2:14-cv-00363-RJS Document 90-5 Filed 09/28/17 PageID.939 Page 19 of 33 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Michael Shane, D.D.S. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·1· ·her to see an ear, nose, and throat doctor, also ·2· ·wondered if it was possible to go forth with healing ·3· ·caps and crowns on the other side where the implants ·4· ·had healed. ·5· · · · · · ·And I thought that it would be a good idea at ·6· ·this point for her to see Dr. Merritt, who's an ear, ·7· ·nose, and throat specialist here in town.· And I -- we ·8· ·also suggested she have another pan taken, a panoramic ·9· ·taken so we can email that to Dr. Merritt, along with 10· ·my treatment notes and intraoral pictures. 11· · · · · · ·I also stated that it would be okay for Gail 12· ·to continue the process on the upper left.· We told her 13· ·the healing cap would be placed on the upper left, and 14· ·then impressions for crowns.· And the crown and number 15· ·18 could be done at this time. 16· · · · Q.· ·When you referred her to Dr. Merritt at this 17· ·time in December of 2012, did you have any 18· ·correspondence with Dr. Merritt after that 19· ·recommendation? 20· · · · A.· ·Yes. 21· · · · Q.· ·What was that correspondence? 22· · · · A.· ·I have a letter dated January 3rd, 2013, from 23· ·Dr. Merritt's office.· . . . Do you want me to read this 24· ·or -- 25· · · · Q.· ·You don't need to read it, but just give us ·1· ·your impressions from it. ·2· · · · A.· ·He said although she doesn't have a history ·3· ·of severe sinus disease, he thought that she had some ·4· ·chronic sinusitis on the right side for a while.· And ·5· ·that might be the cause for the headaches she had been ·6· ·having over the number of years. ·7· · · · · · ·Then he reviewed his -- his examination of ·8· ·her.· He did find some mucosal swelling and edema ·9· ·obstructing the right maxillary sinus outflow track. 10· ·And he described other problems she was having in the Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 19 Case 2:14-cv-00363-RJS Document 90-5 Filed 09/28/17 PageID.940 Page 20 of 33 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Michael Shane, D.D.S. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 11· ·sinuses on the right side of her -- of her sinuses. 12· · · · Q.· ·So was it your impression from what 13· ·Dr. Merritt said that the -- the fistula hole was not 14· ·healing properly because of the sinusitis versus 15· ·Dr. Clark's care? 16· · · · A.· ·That would have been my -- my assumption. 46:11-21 11· · · · Q.· ·Then why don't you just read your last note 12· ·in January of 2013. 13· · · · A.· ·So January 7th, 2013, Dr. Stern and 14· ·Bridgette, that's an office staff of his, called 15· ·requesting Dr. Shane contact Gail regarding her sinus 16· ·opening. 17· · · · · · ·They also requested we send copies of pre-op 18· ·and recent pans and notes from WhiteCap.· We emailed 19· ·both, as well as intraoral pictures from November 26th, 20· ·2012.· And a note here that Dr. Merritt had referred 21· ·Gail to Dr. Stern. 52:24-53:3 24· · · · Q.· ·Okay.· Did you -- other than the notes for 25· ·that day, it's fairly brief, do you recall if you did ·1· ·anything else on that June 11th visit other than the ·2· ·examination and taking the photos to send to Dr. Clark? ·3· · · · A.· ·No.· I have no record of doing anything else. 53:11-54:8 11· · · · Q.· ·On the July 12th note, you mentioned -- it 12· ·says, "Dr. Shane examined the patient and informed the 13· ·patient that the hole is not normal."· What did you 14· ·mean by that? 15· · · · A.· ·And what was the date again? 16· · · · Q.· ·It was the July 12th, 2012. 17· · · · A.· ·I examined her and said that she still had a 18· ·hole in the upper right. 19· · · · Q.· ·Right.· And then it goes down and it says, 20· ·"Photos taken," and the next line says, "Dr. Shane Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 20 Case 2:14-cv-00363-RJS Document 90-5 Filed 09/28/17 PageID.941 Page 21 of 33 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Michael Shane, D.D.S. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 21· ·examined the patient and informed the patient that the 22· ·hole is not normal." 23· · · · · · ·And I just wanted to know what you meant by 24· ·"not normal"? 25· · · · A.· ·Well, an oral antral fistula is not a normal ·1· ·outcome of this -- of the procedure that she had had. ·2· · · · Q.· ·It says in that note further down that he ·3· ·"told the patient he will let Dr. Clark know what the ·4· ·patient said, and that Dr. Clark should contact her on ·5· ·what needs to be done." ·6· · · · · · ·Was that your expectation is that Dr. Clark ·7· ·would follow up with Gail O'Neal about this hole? ·8· · · · A.· ·Yes. 54:12-23; 54:24-55:8 12· · · · Q.· ·It looks like on August 29th when you removed 13· ·the sutures, you took more pictures.· It doesn't 14· ·specify in the notes, but were those pictures of the 15· ·hole again? 16· · · · A.· ·Yes. 17· · · · Q.· ·And the -- was the reason you were taking the 18· ·photos to -- so that you could keep Dr. Clark informed 19· ·of what was going on? 20· · · · A.· ·Yes.· That's the reason I took them. 21· · · · Q.· ·Did you send all of the pictures to Dr. Clark 22· ·that you took? 23· · · · A.· ·Yes. 24· · · · Q.· ·Okay.· I just had noted on some of the notes, 25· ·like on the 9/12 note, actually there's an entry ·1· ·afterwards that said, "Emailed pics taken today along ·2· ·with the information."· But on the 8/29 note, there is ·3· ·no mention of sending the pictures to Dr. Clark. ·4· · · · · · ·Do you know why it is in the record sometimes ·5· ·and not in the records another time? ·6· · · · A.· ·I don't know why that was not in the record. ·7· ·My office receptionist is the one that did the emailing Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 54:24-55:8 moved from counter-designation to completeness designation. SUSTAINED. 21 Case 2:14-cv-00363-RJS Document 90-5 Filed 09/28/17 PageID.942 Page 22 of 33 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Michael Shane, D.D.S. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·8· ·of these. 55:12-22 12· · · · Q.· ·Okay.· But your memory is that all of the 13· ·pictures were sent to Dr. Clark regardless of whether 14· ·there's a separate entry saying they were? 15· · · · A.· ·Yes. 16· · · · Q.· ·It looks -- if I counted these right, I think 17· ·you saw Gail about 10 times after her first surgery. 18· ·And on most, if not all, of those visits, I think all 19· ·but the first one, if there wasn't sutures holding the 20· ·hole together, there was a hole there.· Is that 21· ·consistent with your recollection? 22· · · · A.· ·Yes. DEFENDANT COUNTER-DESIGNATIONS 12:8-20 ·8· · · · Q.· ·From those experiences that you had with ·9· ·Dr. Clark, do you have any opinion as to his abilities 10· ·and skills as a practitioner? 11· · · · A.· ·I consider him an expert in -- in the 12· ·placement of implants, surgeries related to it, both 13· ·soft tissue and hard tissue surgeries. 14· · · · Q.· ·And are these opinions based primarily off of 15· ·any literature you've read or primarily based off of 16· ·your interactions with him? 17· · · · A.· ·My interactions with him, watching 18· ·surgeries -- watching him do surgeries, seeing slide 19· ·presentations of results of other surgeries that he has 20· ·done, and conversations with other people in the class. Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff objects to 12:8-20 pursuant to Rules 702-703 of the Federal Rules of Evidence. Dr. Shane lacks the basis and foundation to testify as to these opinions in front of a jury. Not all general dentists place implants, and it appears from Dr. Shane’s testimony that he does not place implants himself (he refers that out to other providers), and that his only training/education on implants was a short course taught by the defendant himself. This is an insufficient basis to rely on for an expert opinion that the defendant is an implant expert. Further, this is inadmissible reputation testimony under Rule 608 of the Federal Rules of Evidence. See Plaintiff’s MIL No. 64. Dr. Shane has the foundation to testify to these opinions. His early testimony demonstrates that he is qualified to issue opinions as to dentistry. Page 25 of his deposition also shows that he trained with Dr. Clark, and is therefore very familiar with his care. This training was also for implant dentistry. Plaintiff can make the argument that his training came from the Defendant, and that the argument is therefore biased, but that is an argument that goes to weight, not admissibility. Dr. Shane has met the threshold 22 SUSTAINED.. The testimony is improper reputation evidence, which does not go to Dr. Clark’s character for truthfulness and is not helpful to understand Dr. Shane’s testimony or a fact in issue. See FRE 404(a), 608(a), 701.. Case 2:14-cv-00363-RJS Document 90-5 Filed 09/28/17 PageID.943 Page 23 of 33 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Michael Shane, D.D.S. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling of demonstrating enough training and experience to give this expert opinion. This opinion is also no different than the one Plaintiff elicits from Dr. Crane about Dr. Shane in 16:21-17:1 of Dr. Crane’s deposition. 14:18-16:11 18· · · · Q.· ·Okay.· So in that time period from when you 19· ·say she was healthy, had good dental health in 2002 to 20· ·when she had advanced periodontal disease in 2012, did 21· ·it surprise you that she had that advanced periodontal 22· ·disease in that time period? 23· · · · A.· ·Yes. 24· · · · Q.· ·Why would that surprise you? 25· · · · A.· ·Well, her oral condition when she -- when I ·1· ·last saw her in 2002, things -- she was healthy. ·2· · · · Q.· ·This advanced periodontal disease, how is ·3· ·that typically acquired? ·4· · · · A.· ·The most common cause of periodontal disease ·5· ·is plaque and calculus from inadequate home care. ·6· ·There can be things that can make it worse, diabetes, ·7· ·those kinds of things can just make the healing process ·8· ·slow and not work as well.· But principally periodontal ·9· ·disease is a plaque-generated disease. 10· · · · Q.· ·Was it your impression when you saw her in 11· ·2012 that her home healthcare was inadequate? 12· · · · A.· ·I think I have, you know, if you look at -- 13· ·I'd have to look at the notes.· But when she had her 14· ·teeth cleaned, there was -- there was considerable 15· ·plaque and calculus on her teeth.· And that's not 16· ·surprising given the depth of the pockets around the 17· ·teeth that were failing. 18· · · · Q.· ·And so at that time did you have any -- did 19· ·you make any etiological determinations as to why she 20· ·had the advanced periodontal disease? 21· · · · A.· ·No, aside from -- aside from the observation 23 Case 2:14-cv-00363-RJS Document 90-5 Filed 09/28/17 PageID.944 Page 24 of 33 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Michael Shane, D.D.S. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 22· ·that she had plaque and calculus, subgingival calculus 23· ·on her teeth, no. 24· · · · Q.· ·When you treated her in 2012, was there any 25· ·indication that her home dental hygiene was inadequate? ·1· · · · A.· ·When she -- when she came in to have her ·2· ·teeth examined, that showed that she had -- she had ·3· ·plaque on her teeth and calculus on her teeth, which ·4· ·would indicate to some extent that her home care was ·5· ·inadequate.· The subgingival calculus was beyond her ·6· ·control at that point.· It can't be brushed off, can't ·7· ·be cleaned off at home. ·8· · · · Q.· ·And the subgingival calculus is something ·9· ·that develops when plaque and calculus is not 10· ·adequately taken care of; is that correct? 11· · · · A.· ·Yes. 24:16-25:6 16· · · · · · ·Is my understanding correct then that you had 17· ·referred Ms. O'Neal to Dr. Okano for periodontal work 18· ·and also to Dr. Clark for the implant work? 19· · · · A.· ·Yes.· And I told her I would refer her -- 20· ·that was in January.· I told her I would refer her to 21· ·Dr. Clark.· And it was later -- let's see.· Then later 22· ·that year she saw Dr. Okano. 23· · · · Q.· ·And I just want to be sure on this point 24· ·because I know Dr. Okano does implant work as well. I 25· ·just want to be sure what the referral was on each of ·1· ·these because it sounds like the referral to Dr. Okano ·2· ·was strictly for periodontal work and not for implants. ·3· ·And then the referral to Dr. Clark was for implants ·4· ·exclusively; is that correct?· Is my understanding ·5· ·correct? ·6· · · · A.· ·That's correct. 28:22-29:8 22· · · · Q.· ·At this time with the amount of dental 23· ·treatment that Ms. O'Neal needed, were you overall Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 24 Case 2:14-cv-00363-RJS Document 90-5 Filed 09/28/17 PageID.945 Page 25 of 33 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Michael Shane, D.D.S. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 24· ·concerned about her dental health, or is this, I guess, 25· ·somewhat normal and typical? ·1· · · · A.· ·Oh, she had a lot more destruction in her ·2· ·mouth than we see normally.· I mean, this was -- this ·3· ·is a pretty involved case.· She was going to lose three ·4· ·or four teeth. ·5· · · · · · ·She would lose function -- she would lose ·6· ·virtually all of her maxillary posterior teeth.· So she ·7· ·was chewing, and eating was going to be a problem for ·8· ·her.· So I was concerned about that. 29:19-30:14; 30:15-17 19· · · · Q.· ·Because you had mentioned previously in 2011 20· ·in your notes that you presented her with three 21· ·options.· Option 1 is to do essentially nothing, and 22· ·she'd have to chew on her front teeth in the other side 23· ·of her mouth.· Number 2 would be to do a partial 24· ·denture.· And then option 3 would be to do a series of 25· ·implants; is that correct? ·1· · · · A.· ·That's correct. ·2· · · · Q.· ·When you had mentioned those things to her, ·3· ·is that decision something that is ultimately left up ·4· ·to the practitioner that's providing that service to ·5· ·her, as well as the preference of the patient ·6· ·themselves? ·7· · · · A.· ·Yes. ·8· · · · Q.· ·And are you aware of any literature from the ·9· ·American Dental Association that talks about the 10· ·success rates of implants? 11· · · · A.· ·Yes. 12· · · · Q.· ·Are implants successful 100 percent of the 13· ·time? 14· · · · A.· ·No. 15· · · · Q.· ·Is that something that should be relayed to a 16· ·patient before an implant is placed? 17· · · · A.· ·Yes. Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 25 Case 2:14-cv-00363-RJS Document 90-5 Filed 09/28/17 PageID.946 Page 26 of 33 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Michael Shane, D.D.S. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 30:18-21; 30:22-31:2 18· · · · Q.· ·Are you aware of whether you provided that 19· ·information to Ms. O'Neal prior to any implants being 20· ·placed? 21· · · · A.· ·I don't think I did. 22· · · · Q.· ·Do you recall if -- I should say do you know 23· ·if Dr. Okano provided that information to her? 24· · · · A.· ·No. 25· · · · Q.· ·Do you know if Clark provided that ·1· ·information to her? ·2· · · · A.· ·No. 31:3-9 ·3· · · · Q.· ·So at this time in February of 2012, just to ·4· ·be clear, your recommendation for Ms. O'Neal is that ·5· ·she proceed with Dr. Okano's recommendation for ·6· ·periodontal work, and that she also see Dr. Clark in ·7· ·Heber, Utah for implants on the upper right and upper ·8· ·left, correct? ·9· · · · A.· ·Yes. 42:9-43:19 9· · · · Q.· ·Throughout your treatment from 2011 through 10· ·2012, were you aware of any sinus problems that 11· ·Ms. O'Neal had? 12· · · · A.· ·I was not aware of any. 13· · · · Q.· ·You had mentioned earlier that you treated 14· ·Ms. O'Neal from 1997 to 2002 and then again from about 15· ·2011 through 2013, correct? 16· · · · A.· ·Yes.· Correct. 17· · · · Q.· ·Would you consider yourself her family 18· ·dentist during those time periods? 19· · · · A.· ·Except for the nine-year hiatus. 20· · · · Q.· ·As her dentist, did you ever have any 21· ·information from her about headaches that she had had 22· ·or any sinus history that she had? 23· · · · A.· ·I don't think so, no. Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 26 Case 2:14-cv-00363-RJS Document 90-5 Filed 09/28/17 PageID.947 Page 27 of 33 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Michael Shane, D.D.S. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 24· · · · Q.· ·If you had received information about a sinus 25· ·history or headaches that she had, could that have ·1· ·affected or changed the treatment that you provided to ·2· ·her? ·3· · · · A.· ·Not that I provided, no. ·4· · · · Q.· ·Do you think it could have affected any of ·5· ·the treatment that she received from any other ·6· ·practitioner? ·7· · · · A.· ·Yes. ·8· · · · Q.· ·And how so? ·9· · · · A.· ·Well, if there was an ongoing sinus 10· ·infection, that could have -- that could have 11· ·jeopardized the success of implants -- well, of a sinus 12· ·lift. 13· · · · Q.· ·And if she had sinus problems, would you 14· ·expect her to inform you or other practitioners of that 15· ·problem prior to the placement of implants? 16· · · · A.· ·I would have to guess that during the 17· ·discussion of whether or not implants should be placed 18· ·that that subject would have come up.· But I have no 19· ·way of knowing if it did or didn't. 45:22-46:7 22· · · · Q.· ·At that time had you referred Ms. O'Neal to 23· ·Dr. Stern, or is that something that Dr. Merritt did? 24· · · · A.· ·Dr. Merritt did that. 25· · · · Q.· ·Have you ever had any experience with ·1· ·Dr. Stern? ·2· · · · A.· ·Yes. ·3· · · · Q.· ·And what is your opinion of Dr. Stern? ·4· · · · A.· ·I think he's a fine oral surgeon. ·5· · · · Q.· ·Okay.· You said that with a smile.· Do you ·6· ·have any other opinions about him? ·7· · · · A.· ·He and I have had some issues over the years. Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff objects to 46:5-7 as irrelevant and not probative of the issues in this case, pursuant to Federal Rules of Evidence 402 and 403. A key issue in this case, and an argument which Defendant will make, is that Dr. Stern is biased against Dr. Clark, and his opinions should therefore be discounted. This testimony will help validate that defense. Dr. Clark testified as follows in his deposition: “But unfortunately, at the end of all this, she is asked to go to an oral surgeon that has, frankly, I have to tell you, has been very vindictive towards me. I think you read the interrogatories that he literally called me up and I had the most unbelieveable conversation in my professional life 27 SUSTAINED. Whether Dr. Shane and Dr. Stern had issues over the years is not relevant. The testimony does not show Dr. Stern is biased against Dr. Clark. Also, 46:3-4 is improper Case 2:14-cv-00363-RJS Document 90-5 Filed 09/28/17 PageID.948 Page 28 of 33 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Michael Shane, D.D.S. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling where he said, ‘I don’t think I can even call you doctor.’ You are – you know, he called me everything under the book. And he said that I had – I had permanently maimed Gail O’Neal. That broke my heart. He said you have permanently disfigured her. You have permanently set her up for never having teeth again in that area.” See Deposition of Dr. Clark at 43:21-44:7. Defendant will use this testimony to demonstrate to the jury that Dr. Stern’s opinions should be discounted because of the way he treats other dental providers, and that his opinions are not based on objective evidence, but that he has these types of issues with other dental providers as well. reputation evidence, which does not go to Dr. Stern’s character for truthfulness and is not helpful to understand Dr. Shane’s testimony or a fact in issue. See FRE 404(a), 608(a), 701. 46:22-49:11 22· · · · Q.· ·Besides that note in January of 2013, did you 23· ·have any correspondence with Dr. Stern about 24· ·Gail O'Neal? 25· · · · A.· ·Yes.· He sent me a letter dated January 22nd, ·1· ·2013, indicating that he had seen Gail that day.· He ·2· ·enclosed his clinic notes.· He had received records ·3· ·from Dr. Clark, and he spent a lot of time going over ·4· ·them and trying to interpret them. ·5· · · · · · ·And in surgery, he said once her infection ·6· ·has settled down, Dr. Merritt will create a natural ·7· ·drainage pathway from her sinus.· If the sinus drains ·8· ·naturally, the proper oral antral fistula closure will ·9· ·be effective. 10· · · · · · ·He explained to her that due to multiple 11· ·unsuccessful attempts at closure and placement of 12· ·multiple foreign material, the bone grafts, that the 13· ·likelihood of success would decrease with each attempt. 14· ·But he thought that a suitable outcome could be had 15· ·with her. 16· · · · Q.· ·Did you have any concerns with Dr. Sterns' 17· ·recommendations at that time? 28 OVERRULED. The testimony is Case 2:14-cv-00363-RJS Document 90-5 Filed 09/28/17 PageID.949 Page 29 of 33 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Michael Shane, D.D.S. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) 18· · · · A.· ·No.· I have to backtrack on one thing I said. 19· ·I did have a conversation with Dr. Clark about his 20· ·conversations with Dr. Stern relating to Gail.· And 21· ·Dr. Stern was less than happy to involve Dr. Clark in 22· ·any treatment of Gail. 23· · · · · · ·I believe Dr. Clark had offered to come over 24· ·to Dr. Stern's office and be involved or watch or talk 25· ·to him about closing that fistula.· And Dr. Stern was ·1· ·not going to let that happen. ·2· · · · Q.· ·Do you know why Dr. Stern was not willing to ·3· ·let that happen? ·4· · · · A.· ·No. ·5· · · · Q.· ·Is it common for a practitioner like ·6· ·Dr. Stern to allow another practitioner to come and ·7· ·assist with the treatment of a patient? ·8· · · · A.· ·I have never asked to go see, but I have ·9· ·heard of other practitioners, specialists that would 10· ·allow another practitioner to come and watch a 11· ·procedure or see it. 12· · · · Q.· ·If Dr. Clark had requested to you to come up 13· ·to your office here in Lander and assist with treating 14· ·Ms. O'Neal here, would you have allowed that? 15· · · · A.· ·Yes. 16· · · · Q.· ·Dr. Shane, are you aware of any criticisms of 17· ·you that Ms. O'Neal has given in this lawsuit? 18· · · · A.· ·No. 19· · · · Q.· ·Would you be surprised if she had provided 20· ·criticisms of you in this lawsuit? 21· · · · A.· ·Yes. 22· · · · Q.· ·Do you have any thoughts on Ms. O'Neal not 23· ·returning to receive any further treatment from you 24· ·after January of 2013? 25· · · · A.· ·I was a little puzzled by it, but I was not ·1· ·overly concerned about it. ·2· · · · Q.· ·Has Ms. O'Neal ever presented to you any Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff objects to 47:18-48:1 as hearsay pursuant to Rules 801-803 of the Federal Rules of Evidence. Dr. Shane is merely repeating what Dr. Clark told him in a phone conversation that happened after Plaintiff had finished treatment with both of them, and therefore does not meet the requirements of a hearsay exception and is inadmissible. This is not hearsay because he is not describing what the individuals said; rather, he is testifying regarding his impressions. Plaintiff objects to 48:2-11 for lack of personal knowledge pursuant to Rule 602 of the Federal Rules of Evidence. This objections doesn’t really apply to this testimony. The first question is if he knew why Dr. Stern wasn’t willing to let the visit happen. He responded by stating that he did not know. This is not an inappropriate question or answer. As for whether it is common, Dr. Shane is qualified to testify what practitioners do. He did not state give any opinions as to Dr. Stern’s actions, or what Dr. Stern does, so personal knowledge of Dr. Stern’s actions aren’t needed to give this testimony. Plaintiff objects to 48:12-15 as irrelevant and more prejudicial than probative pursuant to Rules 402 and 403 of the Federal Rules of Evidence. This is relevant. Dr. Clark has stated that he offered Gail O’neal additional treatment from other providers at no charge to her to fix the problem in a manner that she could receive dental implants in that area, but she refused and instead went to Dr. Stern, who used a buccal fat pad which precluded implants. This testimony will help validate this argument. 29 not hearsay. It is not offered for the truth of the matter asserted. Dr. Shane is testifying as to his impressions from his conversation with Dr. Clark. OVERRULED. The first question goes to Dr. Shane’s personal knowledge. And there is sufficient foundation for the second response. SUSTAINED. Whether Dr. Shane would have allowed Dr. Clark to assist in treatment if Dr. Clark had requested is not relevant to whether Plaintiff refused Dr. Case 2:14-cv-00363-RJS Document 90-5 Filed 09/28/17 PageID.950 Page 30 of 33 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Michael Shane, D.D.S. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·3· ·concerns that she had about your treatment or ·4· ·Dr. Clark's treatment? ·5· · · · A.· ·No. ·6· · · · Q.· ·Do you have any opinion in this case of ·7· ·Dr. Clark's care? ·8· · · · A.· ·I consider Dr. Clark an expert from the ·9· ·things I've seen and been associated with him and have 10· ·always -- my experience with him is he's compassionate 11· ·and caring and very thorough. Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff objects to 48:16-18 for lack of personal knowledge pursuant to Rule 602 of the Federal Rules of Evidence. The answer is appropriate for the question, and the answer doesn’t require any personal knowledge. The question asked if he was aware of any criticisms, and he is not, so he answered no. This is an appropriate question. Plaintiff objects to 48:19-49:5 as irrelevant and more prejudicial than probative pursuant to Rules 402 and 403 of the Federal Rules of Evidence. This is relevant because Plaintiff criticized Dr. Shane’s care during her own deposition. She stated: “My confidence in Dr. Shane was a little bit shaken. And I wasn’t – you know, I just didn’t feel like he was as helpful as he could have been at resolving – in helping me find a solution, when he’d been my family dentist for, you know, 30 years or whatever, so…” See Deposition of Gail O’neal at 72:24-73:10. Therefore, criticisms of Dr. Shane are relevant, especially since he will be on the special verdict form, and Defendant has asked to apportion fault to him. Plaintiff objects to 49:6-11 pursuant to Rules 702-703 of the Federal Rules of Evidence. Dr. Shane lacks the basis and foundation to testify as to these opinions in front of a jury. Not all general dentists place implants, and it appears from Dr. Shane’s testimony that he does not place implants himself (he refers that out to other providers), and that his only training/education on implants was a short course taught by the defendant himself. This is an insufficient basis to rely on for an expert opinion that the defendant is an implant expert. Further, this is inadmissible reputation testimony under Rule 608 of the Federal Rules of Evidence. See Plaintiff’s MIL No. 64. 30 Clark’s offer for treatment by other providers. OVERRULED. The question is not improper. OVERRULED. The testimony is relevant to apportionment of fault. SUSTAINED IN PART. The testimony is improper reputation evidence, which does not go to Dr. Clark’s character for truthfulness and is not helpful to understand Dr. Shane’s Case 2:14-cv-00363-RJS Document 90-5 Filed 09/28/17 PageID.951 Page 31 of 33 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Michael Shane, D.D.S. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Dr. Shane has the foundation to testify to these opinions. His early testimony demonstrates that he is qualified to issue opinions as to dentistry. Page 25 of his deposition also shows that he trained with Dr. Clark, and is therefore very familiar with his care. This training was also for implant dentistry. Plaintiff can make the argument that his training came from the Defendant, and that the argument is therefore biased, but that is an argument that goes to weight, not admissibility. Dr. Shane has met the threshold of demonstrating enough training and experience to give this expert opinion. Furthermore, Defendant has designated Dr. Shane as a treating expert witness, so Plaintiff was put on notice that Dr. Shane could give an expert opinion. This testimony should be allowed. Plaintiff objects to 53:8-9 as irrelevant and more prejudicial than probative pursuant to Rules 402 and 403 of the Federal Rules of Evidence. This testimony is relevant. Plaintiff is claiming that Dr. Clark’s treatment caused her injury, and has made an issue regarding the timing of antibiotics (See Amended Complaint at ¶58: “No post-op antibiotics were given.” Plaintiff could point to a failure to give or a delay in giving antibiotics as a cause for infection. It is therefore relevant to provide testimony that the delay in prescribing antibiotics is not surprising in this case to Plaintiff’s treating dentist. The testimony is therefore relevant and should be allowed. testimony or a fact in issue. See FRE 404(a), 608(a), 701. OVERRULED. The testimony is relevant to breach of the standard of care and causation. The probative value is not substantially outweighed by any prejudice. 53:4-10 ·4· · · · Q.· ·Okay.· Do you know why it took eight days ·5· ·before Dr. Clark got back to you with a request to ·6· ·start Gail on antibiotics? ·7· · · · A.· ·I don't know why. ·8· · · · Q.· ·Were you surprised that it took that long for ·9· ·him to get back to you? 10· · · · A.· ·No. 56:4-57:1 ·4· · · · Q.· ·(By Ms. McAllister) Are you aware Dr. Clark ·5· ·is not an oral surgeon? ·6· · · · A.· ·Yes, I'm aware of that. ·7· · · · Q.· ·Do you know -- why did you not recommend to ·8· ·Gail to see an oral surgeon during any these follow-ups 31 Case 2:14-cv-00363-RJS Document 90-5 Filed 09/28/17 PageID.952 Page 32 of 33 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Michael Shane, D.D.S. taken Friday, May 22, 2015 Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·9· ·when this hole continued to persist? 10· · · · A.· ·Because of Dr. Clark's expertise and his 11· ·experience in dealing with sinus lifts and implants. 12· · · · Q.· ·Do you know what the difference is between a 13· ·dentist like Dr. Clark and an oral surgeon? 14· · · · A.· ·Yes. 15· · · · Q.· ·How would you explain that to a lay person? 16· · · · A.· ·An oral surgeon is a dentist that's completed 17· ·four years of dental school and then has completed two 18· ·to three years of additional training to become an oral 19· ·surgeon. 20· · · · Q.· ·And what would you -- under what 21· ·circumstances would you recommend a patient see an oral 22· ·surgeon rather than an dentist? 23· · · · A.· ·If I'm going to have teeth extracted that -- 24· ·that we can't do in our general dentist's office or if 25· ·I'm going to have a growth of some sort removed, a ·1· ·biopsy done, I would send them to an oral surgeon. 57:13-16; 57:17-58:8 (Pendleton Objection omitted) 13· · · · Q.· ·You had testified earlier about a potential 14· ·for sinus problems affecting treatment relating to 15· ·implants, right? 16· · · · A.· ·Yes. 17· · · · Q.· ·Would it surprise you to know that Dr. Clark 18· ·recommended going forward with implants in the upper 19· ·right even after seeing the sinus issues in that 20· ·March 2012 scan? 21· · · · A.· ·I don't have an opinion on that. 22· · · · Q.· ·You just know that it's a potential issue for 23· ·someone with sinus problems, it's a potential issue 24· ·that could affect implant treatment? ·2· · · · · · ·THE WITNESS:· I know that -- I know that a ·3· ·sinus infection can be -- can create a problem in doing ·4· ·sinus lifts. ·5· · · · Q.· ·(By Ms. McAllister) And -- and sinus lifts -- Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling 32 Case 2:14-cv-00363-RJS Document 90-5 Filed 09/28/17 PageID.953 Page 33 of 33 Case Name O’Neal v. P.K. Clark/Whitecap Institute Case Number 14-CV-363 Deposition of Michael Shane, D.D.S. taken Friday, May 22, 2015 Defense Objections/Responses – RED Plaintiff Objections/Responses – BLUE Exhibits Ruling Plaintiff Designations – BLUE Defendant Completeness—PURPLE Defendant Counter-Designations – RED (at end) ·6· ·you knew Dr. Clark did a sinus lift in the upper right ·7· ·for Gail O'Neal, right? ·8· · · · A.· ·Yes. 58:9-12; 58:13-59:4 ·9· · · · Q.· ·Okay.· Were you aware that in December of 10· ·2012, Gail started getting treatment for sleep apnea, 11· ·including she was recommended to use a C-Pap machine? 12· · · · A.· ·I was not aware of that. 13· · · · Q.· ·And if that treatment began in December of 14· ·2012, that would not have affected any of the treatment 15· ·you gave her, correct? 16· · · · A.· ·It would not have affected my treatment, no. 17· · · · Q.· ·All of your treatment was before that time? 18· · · · A.· ·Before December 2012? 19· · · · Q.· ·Right. 20· · · · A.· ·Yes. 21· · · · Q.· ·And do you know the date of Gail's last visit 22· ·with Dr. Clark? 23· · · · A.· ·I do not know that date. 24· · · · Q.· ·Okay.· If the last date we've gotten a record 25· ·for was October 2012, then Gail would have been ·1· ·finished with -- actually with Dr. Clark prior to ·2· ·December of 2012 when she started using the C-Pap, ·3· ·correct? ·4· · · · A.· ·If that's what your records show.· Instructions: One form should contain all designations for a witness. Plaintiff Designations (column 1) and Defendant Designations (column 2) will show the full deposition text that the party proposes to read in its case-in-chief. Completeness designations are proposed by the other party, under Fed. R. Civ. P. 32(a)(6), to be read with the designations. Counter–designations are read following the designations and completeness designations, similar to cross examination. This form should be provided in word processing format to the other party, who then will continue to fill in the form. The form is then returned to the proposing party for review, resolution of disputes, and further editing. The parties should confer and file a final version in PDF format using the event “Notice of Filing” and also submit a final word processing copy to the court at [email protected], for ruling. All objections which the objecting party intends to pursue should be listed, whether made at the deposition, as with objections as to form, or made newly in this form, if the objection is of a type that was reserved. 33

=== Closing Argument Pointers ===

PRIMER FOR CLOSING ARGUMENTS DO’S There are some basic components of a well-written closing argument: • Argue the evidence of your case, but highlight the important components don’t waste time on every single piece of evidence —you don’t want to bore the jury. • Use a chronology/timeline, and make sure to have evidence to support every event on your chronology/timeline. • Use demonstratives to keep the juror’s attention & emphasize key evidence. • Argue the theme of your case. • Use “pull out quotes” to highlight critical language in documents. • Argue the jury instructions—pick the top 5 or 6 & explain them to the jury. • Tell the jury how to answer the Verdict Form. • Ask the jury for a specific amount of damages. • Before asking for damages, argue liability & causation. During closing arguments, counsel may display and discuss tangible objects involved in the transaction (real evidence) that have been admitted into evidence.1 He may use those objects to illustrate and support his argument. Counsel may also use tangible objects created for the trial to help illustrate and augment testimony (demonstrative evidence).1.50 They may be graphs, charts, diagrams, models or pictures. He may also use visual aids created specifically for the closing argument, such as a diagram on a blackboard, or a list of the elements of damages in a personal injury case. He may use his own hands or other parts of his body for the purpose of illustrating his argument. Also, there is no prohibition against using any other object in the courtroom for illustrative purposes. The ultimate question that a court must resolve, is whether the use of the object will unfairly introduce new evidence or is it being used merely for the purpose of fairly illustrating the argument. If the court determines that the use of the physical objects or visual aids will be of assistance to the jury, rather than mislead or confuse them, the court will in its discretion ordinarily permit its use.2 However, a jurisdiction may have a statute or case law prohibiting or restricting the use of certain evidence during closing arguments.3 3 Lane Goldstein Trial Technique § 23:35 (3d ed.) Counsel may during his closing argument read portions of documents that have been admitted into evidence. Such documents may include letters, contracts, leases, rules and regulations, standards, hospital and medical records, etc. Portions of such documents may even be photographed and enlarged for the purpose of making it easier for the jury to view during the arguments.1 3 Lane Goldstein Trial Technique § 23:36 (3d ed.) Generally contents of books, articles, and printed material of various types that have not been admitted into evidence cannot be read to the jury or quoted during closing arguments. Unless they have been admitted into evidence, the great weight of authority, holds that counsel may not discuss their contents. An exception may arise with reference to passages out of the Bible, Shakespeare or the like that are a matter of “common knowledge.”1 Factual data appearing in printed material cannot be “introduced into evidence” for the first time during closing arguments. 1 3 Lane Goldstein Trial Technique § 23:37 (3d ed.) The best way to avoid misconduct in closing argument is to prepare and craft the close in a careful manner. A primary function of a good close is to pinpoint for the jurors specific items of evidence which compel a favorable result. If you have properly prepared, those items of evidence are readily identifiable in the record (along with all reasonable inferences arising from that evidence) because they are either items that: (i) you selected in advance to prove your themes, or (ii) opposing counsel selected to prove his themes, but which had the unintended consequence of defeating his case and bolstering yours. Accordingly, there should be no necessity to risk “misstating the evidence.” Second, by hewing to the exact terms of instructions settled by the court, objections of misstating the law are obviated. Third, a delivery which reflects the commitment and sincerity of counsel accomplishes more (with perfect safety from objection) than any “vouching for witnesses,” expressing personal opinions, attacking the court or counsel, or employing inflammatory language. The most important objective of an effective closing argument is to portray the evidence succinctly and clearly, in the most favorable and logical fashion possible in order to convince the jury of the merit of your client's position. Interruptions by opposing counsel based upon your improper conduct not only disrupt the flow of your closing argument, but also risk conveying a message to the jury that you are not playing by the rules. A sustained objection directed to your own conduct can undermine the credibility of your entire closing argument and the position of your client. Best overall discussion: Steven Lubet: Modern Trial Advocacy: Analysis and Practice (3rd Ed. 2004) 2 DON’T’S There seem to be some pretty common prohibited activity during closing statements: state personal beliefs • waive closing argument • misstate the evidence or law • vouch for a witness or comment on credibility of a witness • • appeal to prejudice or bigotry • appeal to emotion, sympathy or passion • attack a judge’s ruling on evidence • use improper language that excites prejudice or passion • • • exceed the scope of rebuttal by bringing up new theories of the case, sandbagging • use legalese • • object during closing unless it’s really, really objectionable • wait until the last minute to write your closing argument invoke the “Golden Rule” comment on privilege read the closing argument It is improper to discuss “evidence” that has never been offered. It is also improper to discuss offered “evidence” that has been excluded.1 The nature of the “evidence” and the surrounding circumstances will determine whether or not such discussion is prejudicial error.2 A prompt curative instruction from the court may remove prejudice.3 3 Lane Goldstein Trial Technique § 23:26 (3d ed.) The scope of closing argument is within the discretion of the trial court, and rulings thereon will not be disturbed absent a gross abuse of discretion.1 Closing argument must be confined to the evidence adduced at trial and the reasonable inferences that can be drawn from that evidence.2 Counsel may not express personal opinions concerning the evidence or witnesses.3 Counsel may not make arguments that appeal to the prejudices of the jury,4 nor inject collateral issues into closing arguments.5 Prosecutors may not comment on the post-advisement silence of a defendant.6 H. Patrick Furman, Avoiding Error in Closing Argument, Colo. Law., JANUARY 1995, at 33 Clearly, counsel may argue whether a witness has passed the credibility test8 and may tell the jury that the jurors make the determination of whether a witness is credible.9 However, the right to comment on the credibility of witnesses is not unlimited. Counsel may not argue credibility in terms that reflect their personal opinions.10 This rule is particularly strict for prosecutors: “Expressions of personal opinion as to the veracity of witnesses are particularly inappropriate when made by prosecutors in criminal trials.”11 Thus, a statement that a witness 3 “lied” during his or her testimony has been held inappropriate,12 as has a statement that a witness was “honest.”13 H. Patrick Furman, Avoiding Error in Closing Argument, Colo. Law., JANUARY 1995, at 33 Closing argument should be confined to issues relating to guilt or innocence.16 It is improper for counsel to inject collateral issues, such as sympathy for a defendant or fear about the general crime problem, into closing argument. For example, it has been held improper for either counsel to ask jurors to “stand in the shoes” of a witness, victim or defendant. H. Patrick Furman, Avoiding Error in Closing Argument, Colo. Law., JANUARY 1995, at 33 Arguments drawn from matters of common knowledge, matters about which the court will take judicial notice and well-known historical facts are proper.1 They may be used for the purpose of explaining, supporting and emphasizing the evidence. There need not be formal evidence presented in order to justify such argument. 3 Lane Goldstein Trial Technique § 23:15 (3d ed.) It is generally improper for counsel to argue facts that are a matter of his own personal knowledge or opinion.1 Similarly, counsel may not mention his personal beliefs regarding the strength of the evidence.2 As a matter of fact, most State Codes of Professional Responsibility provide that an attorney shall not assert his personal knowledge of the facts in issue, except when testifying as a witness. 3 Lane Goldstein Trial Technique § 23:16 (3d ed.) Counsel should suppress exhibitions of personal animosity.1 Personal attacks on opposing counsel are perhaps the most common breach of this rule.2 Charges that opposing counsel manufactured evidence, suborned perjury, was untruthful or engaged in other unethical behavior are highly improper and are generally considered by courts to be incurable.3 In determining whether counsel's remarks constitute reversible error, courts consider: (1) the degree to which counsel's remarks have a tendency to mislead the jury; (2) whether the remarks were isolated or extensive; (3) absent the remarks, the strength of competent proof introduced to establish the guilt of the accused; and (4) whether the comments were deliberately placed before the jury to divert attention to extraneous matters.4 Attacks on opposing counsel's tactics or strategy are usually permissible.5 3 Lane Goldstein Trial Technique § 23:17 (3d ed.) 4 It is highly improper for counsel in his argument to the jury to misstate the law.5 However, a misstatement concerning the law may be cured by an appropriate instruction to the jury.6 Furthermore, the court can exercise its discretion in limiting closing arguments to prevent counsel from arguing abstract legal propositions.7 It is the court's responsibility to instruct the jury as to the applicable law.8 3 Lane Goldstein Trial Technique § 23:20 (3d ed.) Counsel has the right to state to the jury the propositions of law upon which he relies and to predicate his argument on such propositions. Consequently, it is reasonable to assume that instructions given or to be given by the court may serve as a basis for his argument.1 Counsel cannot argue the law based upon instructions that have been refused.2 The risk that the court may refuse the instructions and impliedly condemn the argument is eliminated by a conference and a ruling on the instructions before the argument. 3 Lane Goldstein Trial Technique § 23:21 (3d ed.) Most courts take the position that it is improper to address jurors by their name or to otherwise single them out.1 Such conduct may impair the juror's obligation to remain independent in his judgment. The error may be harmless, especially where the court has instructed the jury to disregard counsel's reference and where counsel is admonished by the court that such remarks are improper. Of course, the error may be waived by opposing counsel if he fails to make a timely objection. 3 Lane Goldstein Trial Technique § 23:22 (3d ed.) The general rule is that it is improper to appeal to the sympathy of the jury.1 They must not be diverted from determining their verdict on the basis of the facts. For example, it is improper for counsel to suggest that the jury “place themselves in the plaintiff's shoes” in determining an award for damages.2 However, some jurisdictions may give the court discretion to admit such arguments.2.50 3 Lane Goldstein Trial Technique § 23:23 (3d ed.) There is a great frustration when an attorney believes his opponent's objection was sustained improperly. The temptation is to refer in closing arguments to the objection, thereby implying that supporting evidence was kept from the jury. However, it is improper to comment upon an opponent's objections that have been sustained. It is also improper to suggest that the court erred when it overruled one of counsel's objections. Counsel must not complain about any of the court's rulings in closing arguments.1 3 Lane Goldstein Trial Technique § 23:25 (3d ed.) Requesting the jury to respond to special interrogatories must be handled very delicately. In many jurisdictions, it is proper to urge the jury to answer the interrogatories in a specific way.1 5 3 Lane Goldstein Trial Technique § 23:29 (3d ed.) However, it would be improper to inform the jury that they should harmonize the answer to the interrogatory with a specific verdict.2 That is, it is improper to advise the jury of the effect of specific answers to the interrogatories. 3 Lane Goldstein Trial Technique § 23:29 (3d ed.) In a personal injury action, any comment deliberately made to inform the jury that the defendant is insured for the accident will likely constitute reversible error. 3 Lane Goldstein Trial Technique § 23:31 (3d ed.) Or that the Plaintiff was insured. Unless the wealth or poverty of party litigants is in issue, there should be no reference to their financial status.1 Contrasting the financial status of the parties will have a tendency to encourage jurors to possibly favor one side or the other. As to whether there is prejudicial error in connection with an improper argument dealing with the financial status of the parties rests largely in the discretion of the trial court.2 The trial court may correct such improper argument by instructing the jury to disregard such statements. 3 Lane Goldstein Trial Technique § 23:32 (3d ed.) Requesting jurors to put themselves in the position of a party is commonly known as a “Golden Rule” argument, and this is generally considered improper.1 This may be done by asking them “what would you want if it were your arm?” or “what would you have done if the plaintiff darted out in front of your car?” An improper “golden rule” argument can also be implied, even if the argument does not directly ask the jurors to place themselves in the victim's position.2As with the prosecution, it is improper for the defendant's attorney to ask the jurors to imagine themselves in the defendant's position.3 3 Lane Goldstein Trial Technique § 23:33 (3d ed.) When your opponent transgresses, consider whether making an objection is worth the risk of being overruled (which has the obvious impact of suggesting to the jury that your opponent has correctly stated the evidence). If you have your turn coming up, it may be wiser simply to show the jury—with specific testimony or exhibits—how unfairly counsel has presented the case to them. 4 Bus. & Com. Litig. Fed. Cts. § 42:11 (3d ed.) Coreas v. U.S, 565 A.2d 594 (D.C. Ct. App. 1989) (where prosecutor sandbagged defendant by bringing up new theory during rebuttal, resulted in reversal). 6

=== Civil Motion Referral and Unreferral ===

Assignment of Motions to Judges in CM/ECF This paper describes how Orders of Referral (sometimes called Orders of Reference) are handled in CM/ECF. District Judges may enter an order referring cases or individual motions to a magistrate judge. After an Order of Referral is entered in CM/ECF, the CM/ECF logic dictates the content of the docket text that will appear in conjunction with motions that it thinks are covered by the Order of Reference. The docket text will state that the motion is referred to the magistrate judge, but sometimes the CM/ECF logic is incorrect. When such a software mistake occurs, a judge will “unrefer” any motions that are not covered by the Order of Reference, as explained below. This paper is intended to provide a guide to the CM/ECF allocation of motions between district judges and magistrate judges. Direct communication with judges’ chambers can always help clarify what CM/ECF might confuse. Glossary: CM/ECF: Referral: Case Management/Electronic Case Files – the current case filing system in federal courts. The process by which the presiding district judge directs a magistrate judge to handle certain motions in a case. “A” Referral: Referral of all pretrial, non-dispositive matters. “A” refers to the statute, 28 U.S.C. §636(b)(1)(A). A magistrate judge resolves these matters by a direct order. See also Fed R. Civ. P. 72(a). Objections are reviewed under a “clearly erroneous” standard. “B” Referral: Referral of all matters in a case, including dispositive matters. “B” refers to the statute, 28 U.S.C. §636 (b)(1)(B). A magistrate judge resolves these matters by Report and Recommendation. See also Fed R. Civ. P. 72(b). Objections are reviewed under a “de novo” standard. Dispositive: Refers to case- or claim-dispositive matters. This term is not used in the statute, but it is used in Rule 72. The statute contains an illustrative list of matters1 for which a referred magistrate judge can issue only a report and recommendation, not a direct order. CM/ECF Motion Referral Tracking: An important feature of CM/ECF is its ability to designate (in referred cases) which motions are to be decided by magistrate judges and which motions are to be decided by district judges. This division is apparent in the court’s internal Motions Report which lists all motions for a case under the presiding judge’s name but lists only referred motions under the referral judge’s name. 1 The statute lists “motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action.” 28 U.S.C. §636 (b)(1)(A). 1 CM/ECF internal logic automates designations of motions as referred or not referred. This logic is different for cases referred under 28 U.S.C. §636(b)(1)(A) and cases referred under 28 U.S.C. §636(b)(1)(B). For example, dispositive motions such as motions to dismiss and motions for summary judgment would be referred in cases in which there is a “B” referral but not in cases in which there is an “A” referral. Motions related to discovery, such as motions to compel or motions for scheduling would be referred in a case under an “A” referral as well as under a “B” referral. CM/ECF referral logic can be customized by the court. For example, when CM/ECF was first installed in this court, CM/ECF automatically referred Motions in Limine to magistrate judges in “A” referral cases. Because these are trial-related motions, the logic was changed so that the docket text would no longer show that Motions in Limine were referred to the magistrate judge in cases with an “A” referral. CM/ECF logic is not accurate for all motions in all cases. Because CM/ECF does not understand all court operations and motions can be filed under different CM/ECF events, CMECF cannot correctly categorize every motion. CM/ECF has Utility Events which permit modification of referrals that are made by the CM/ECF logic. Summary of CM/ECF Logic and Local Practices. The following is a list of the motions CM/ECF will refer in “A” referral cases and in “B” referral cases. The list of the motions commonly referred in “A” referral cases also denotes those motions that may be automatically unreferred by the magistrate judge and those which are often unreferred after consultation between the magistrate judge and the district judge. In this District, non-dispositive matters that are trial- related or related to a dispositive motion are generally decided by the district judge in “A” referral cases. 2 Motions Referred by CM/ECF Logic Motions in “A” Referral Cases Motions in “B” Referral Cases Properly Referred by CM/ECF Logic Motion for Scheduling Conference Motion to Add Parties Motion to Unseal Motion to Substitute Party Motion for Service of Process Motion for More Definite Statement Motion to Compel Motion for Sanctions (discovery) Motion to Enforce Discovery Order Motion to Appoint Counsel If not pertaining to trial or dispositive motion: Motion for Extension of Time Motion to Continue Motion to Strike Motion to Amend Complaint (these motions can potentially be dispositive and consultation may be needed) Referred by CM/ECF Logic but Will Be Unreferred by MJ Motion to Consolidate Motion Under Rule 56(d) Motion to Amend Judgment Motion for Markman Hearing Motion for Daubert hearing Motion to Enforce Settlement Motion to Certify Class Motion to Change Venue Motion to Bifurcate Trial Motion in Limine Motion to Sever If pertaining to trial or dispositive motion or if close to trial or motion hearing: Motion for Extension of Time Motion to Continue Motion to Strike Motion to Amend Complaint Referred by CM/ECF Logic but DJ and MJ Consultation Needed Motion to Remand to State Court, Agency Motion for Joinder Motion to Stay Motion for ADR Motion to Compel Arbitration Motion to Withdraw* Motion to Disqualify Counsel* *if close to trial or while dispositive motion is pending) All “A” referral motions plus these and related motions: Motion to Dismiss Motion for Judgment on the Pleadings Motion for Summary Judgment Motion to Exclude Expert or Strike Expert Report Motion for Daubert Hearing Motion for Markman Hearing/Claim Construction Motion for James Hearing Motion to Suppress 3

=== Who Hears the Motion? ===

Which Judge should hear this motion? Is it a scheduling matter? Yes No Who conducted prior scheduling? District Judge Magistrate Judge Return to District Judge Yes Dispositive Motion Date passed? No Return to Magistrate Judge Is the case referred to a Magistrate Judge? No Yes, referral under 636 (b)(1)(A) Yes, referral under 636 (b)(1)(B) District Judge Is the matter dispositive (as defined in 28 U.S.C. 636 (b)(1 or intimately* related to trial? Yes “Intimately related to trial” includes motions to continue, motions in limine, Markman and Daubert hearings No Magistrate Judge 14

=== Judge Nuffer Sentencing Hints ===

Judge Nuffer Sentencing Hints Docket entry at the time of plea or verdict requires documents in advance of sentencing: 06/28/2018 581 DOCKET TEXT ORDER as to Timote Fangupo No attached document IT IS HEREBY ORDERED that all letters, victim impact statements and restitution claims (including names, addresses, amounts) must be submitted to the presentence investigation officer ten days before the sentencing hearing. If restitution is contested or if other sentencing related matters will require more than 15 minutes, a motion should be filed for a separate hearing before the sentencing date to determine the contested matter, or to provide additional time on the calendar. Signed by Judge David Nuffer on 6/28/2018.(asb) (Entered: 06/28/2018) Have restitution resolved before the sentencing hearing. I cannot enter a judgment and order of conviction until all elements, including restitution, are set. Make timely objections to the PSR. Don’t surprise the probation officer or me with guideline issues. Raise them as objections, raise them in your memo, and raise them in the hearing if they still are valid. A sentencing memorandum should deal with the highlights of 3553(a) factors that support your position. Don’t list all of them in statutory sequence but make an attempt to discuss the most important first. Discuss concurrency with opposing counsel and arrive at an agreement or a clear statement of the issues. Object, as needed, to proposed supervised release conditions or lack of them in the PSR. At times I may continue sentencing to gather more information, to allow a defendant to perform better on release, for medical reasons, etc. Presence of victim and family is important. Defense Counsel – If background not in the PSR is important, ask that it be in the PSR. Prepare your client to allocute – or not; don’t let me know that he has never heard of this right. Be sure your client is familiar with the plea agreement and admitted conduct. Talk with your client about designation – and the reasons why – so that I can make a record and include that information in the PSR. Review supervised release conditions with the defendant.

=== Thesis ===

David Nuffer Candidate for Master of Judicial Studies Duke University Law School Durham, North Carolina March 2018 THESIS Certification of Legal Questions to the Utah Supreme Court Faculty Advisor: Francis McGovern 3/28/2018 5:37 PM Contents Abstract .......................................................................................................................................... iii Acknowledgments.......................................................................................................................... iv Overview of the Certification Process ............................................................................................ v Introduction ..................................................................................................................................... 1 Legal Context .................................................................................................................................. 3 The Development of Certification in the United States .................................................................. 3 Legal Precedent and Alternatives ............................................................................................... 3 Florida First In Certification—and U.S. Supreme Court Commentary ...................................... 5 Uniform Certification of Questions of Law Act ......................................................................... 6 Debate on Value of Certification............................................................................................... 10 Development of Utah’s Certification Process ............................................................................... 14 1975 Certification Rule ............................................................................................................. 15 Comparison with Colorado Rule of Appellate Procedure 21.1 ............................................. 16 Comparison with Uniform Certification of Questions of Law Act (1967) ........................... 16 Holden v. NL Industries Invalidates the 1975 Certification Rule ............................................. 17 1984 Judicial Article of Utah Constitution ............................................................................... 19 Effectuating the Constitutional Revision .................................................................................. 20 Utah Code Provision ............................................................................................................. 20 Utah Rule of Appellate Procedure 41 ................................................................................... 20 Cases Bridging the Certification Processes .............................................................................. 28 Early Certification Cases Under the New Rule ........................................................................ 29 Statistical Overview ...................................................................................................................... 30 Certification by the Tenth Circuit - Summary Statistics ........................................................... 30 Certification in the District and Bankruptcy Courts - Summary Statistics ............................... 32 Certification of Questions of Utah Law from Federal Courts ...................................................... 34 Federal Court Certification Processes ....................................................................................... 34 Federal Court Considerations for Certifying Questions of Utah Law ...................................... 35 Arguments and Authorities Against Certification ................................................................. 36 Criteria for Certification ....................................................................................................... 40 Motion to Certify Denied .......................................................................................................... 41 Remarkable Cases ..................................................................................................................... 45 Significant Legal Issues ........................................................................................................ 51 Certifications by Article I Judges .......................................................................................... 53 The Role of Justice and Judge Parrish .................................................................................. 54 Impact of Certification on Cases .............................................................................................. 58 Certification Motion Causes Cases to Settle ......................................................................... 58 Cases Settle While Questions Pend in Utah Supreme Court ................................................ 59 Answer to Certified Questions Causes Cases to Settle ......................................................... 60 Certification Answer Dispositive for Motion in Federal Case .............................................. 62 Certified Answer Irrelevant ................................................................................................... 62 Deference for Answers to Certified Questions ......................................................................... 63 Utah Supreme Court Responses to Certification Orders .............................................................. 63 Utah Supreme Court Standards When Responding to Certified Questions .............................. 63 Is Certification Worth It? .............................................................................................................. 67 i Costs and Benefits for the Parties ............................................................................................. 67 Costs and Benefits for the Federal and State Systems .............................................................. 68 Summary and Reconciliation of Costs and Benefits ................................................................ 69 Recommendations for Improvement of the Utah Certification Process ....................................... 69 Changes in Federal Practice ...................................................................................................... 70 Recommendation of a Local Federal Rule ............................................................................... 70 Changes in State Rule and Practice .......................................................................................... 77 Conclusions ................................................................................................................................... 80 Appendices .................................................................................................................................... 82 Appendix - Recommendations for Further Study ..................................................................... 82 More detailed study within the scope of the thesis ............................................................... 82 Tenth Circuit involvement in certification ............................................................................ 83 Study of inter-institutional dynamics of certification ........................................................... 83 Other Topics .......................................................................................................................... 83 Appendix—Bibliography .......................................................................................................... 84 Appendix—Uniform Acts ......................................................................................................... 85 Appendix—List of All Cases Considering Certification .......................................................... 89 Appendix—Questions Certified to the Utah Supreme Court ................................................... 94 Appendix—Methods of Gathering Utah Cases Related to Certification ................................ 129 ii Abstract For 30 years, federal courts have certified questions of state law to the Utah Supreme Court. This thesis examines the history and utility of the process and recommends changes to the process in the federal district court and in the Utah Supreme Court. The current focus of federal judges in certifying questions is on utility for the case before the court. But certification of questions from a federal court to a state court is an expression of federalism—a humble acknowledgment by a federal authority which is often regarded as supreme that the state is the proper and best authority to declare its own law. Certification of questions is a rare instance of direct communication between state and federal courts, and a chance for both systems to cooperate in resolution of a single case, in their respective roles. Certification of legal questions from federal courts to state courts has emerged in the last 75 years. Similar purposes were accomplished previously in American law by very cumbersome procedures, and antecedents existed in English law. From Florida’s adoption of the first statutory certification procedure in 1945 through a 1960 U.S. Supreme Court endorsement of certification and promulgation of the Uniform Certification of Questions of Law Act, all states except North Carolina have adopted a certification procedure. The Utah procedure and practice began in 1975 with a rule later found to violate the Utah Constitution. But in 1984, a constitutional authorization paved the way for a valid process which has been used regularly, and most frequently in the last three years since a justice of the Utah Supreme Court became a district judge in the District of Utah. Thirty years of experience with certification in Utah federal and state courts is thoroughly examined in this thesis. Case histories and court practices demonstrate the usefulness of certification in Utah. But the thesis also suggests changes to Utah certification, by adoption of a new rule in the U.S. District Court for the District of Utah; by changes to the applicable Utah Rule of Appellate Procedure; and by changed practices of judges and lawyers. This thesis can serve as the basis for reflection, discussion and improvement between participants in the process of certification. This thesis also suggests other areas of study for the future, some related to Utah’s experience and other more general topics. Utah’s foundation for certification of questions from the federal court to the Utah Supreme Court has been laid. And now the process can be refined and improved for the future. iii Acknowledgments My work was greatly aided by my faculty adviser Francis McGovern; by Jack Knight and Mitu Gulati whose rigorous introduction to legal scholarship opened me to legal scholarship; the Judges Seminar class which inspired the topic; and the professors and staff of the Master of Judicial Studies program at Duke Law School, who made learning so challenging, enriching, and pleasant. Considerable background work was done by intern Elizabeth Thomas who made the first case survey, and case manager Anndrea Bowers who managed the case folders and refined the database hyperlinks. Robert Janzen built the invaluable Access database that enabled case recording and quick reference while writing, and law clerks Andrew Munson, Jon Williams, Alex Jacobson, and Michael Thomas populated the database. Andrew, Alex, Michael, law clerk Melina Shiraldi and Probation Clerk Mary Castleberry proofread and edited the thesis. Clerks and librarians of the federal and state courts enabled historical research in periods before electronic records. My wife’s patience with my month-long absences to Duke Law School each May for two years, her tolerance of my transformation into a monastic academic author for the last year, and her sustaining encouragement, are the only reasons this project was completed. The assimilation and interpretation in the thesis, with all errors, are mine. iv Overview of the Certification Process This section of the thesis serves as an introduction for those unfamiliar with the process of certification—delivering questions to a state appellate court by a court of another jurisdiction. Those familiar with the process may skip this section. This section introduces some terminology peculiar to certification. The law of the state having the greatest relationship to the parties’ dispute usually must be applied to resolve the dispute. Even if a case is filed in the court of another state or in a federal court, the law of the state having the greatest relationship generally must be applied. So, courts of one state (or a federal court) may attempt themselves to determine the applicable law by research, if precedent exists, or by prediction if there is no precedent, or the courts may certify a legal question to a court in the state of the governing law. This thesis only discusses certification of legal questions to the Utah Supreme Court by the Tenth Circuit Court of Appeals, the District Court for the District of Utah, and the Bankruptcy Court for the District of Utah. The certification process has many stages as outlined in these charts: Federal Court with Lawsuit or Appeal Legal question arises, dependent on Utah state law Suggestion to certify is made by the court (“sua sponte”) or by a motion from a party Court determines to certify, by an order granting the motion or by advising the parties in an order or hearing Attorneys and the judge draft facts and question to send to Utah Supreme Court Judge signs and sends “certification order” to Utah Supreme Court with documents from court record Utah Supreme Court Court receives certification order Court issues an order accepting or rejecting the question certified and requests documents from federal court record Court sets briefing schedule, receives briefs and holds argument (all these steps may be modified) After argument, court confers and assigns opinion to a justice (another justice may write a separate opinion) Justices issue opinion(s) answering questions (majority opinion controls) Opinion(s) sent to federal court Federal Court with Lawsuit or Appeal Federal court applies answer of Utah Supreme Court v Introduction Certification is a unique opportunity for state and federal courts to directly interact, though in a heavily formalized manner. When a federal court certifies a question to a state court, the parties’ dispute is partially shared between two independent judicial systems. Other circumstances in which a dispute is shared between the courts of two different sovereign jurisdictions are very rare. In certification, contrary to usual supremacy of federal over state systems, state courts set the procedures federal courts must follow. And a state court always has discretion to refuse, receive, and even reformulate the question from the federal court. In certifying a question to a state court, a federal court acknowledges the sovereignty of the state and the presumed expertise and right of a state court to interpret state law. Certification is a unique feature of American federalism. Certification from federal courts to state appellate courts is also an unusual process for the state appellate court. Certification interactions are different than the exchanges between courts of a single system, which are usually between a superior court and an inferior court. In those instances, the superior court instructs, rejects, or approves the actions of the inferior court. In certification, the responding court has a role delimited by the questioning court. Certification interaction, where a responding court receives a narrow, certified question, is similar to the role of an appellate court focused on a subset of issues raised in a trial court. But certification, on a partially developed record, is very different than an appeal from a fully tried case. In certification, the certifying court assesses the determinative nature of a question of state law, formulates facts on which the state court will make a decision, and prepares a certification order—before trial on the merits. Certification nearly places a state court in the position of answering a hypothetical question, which is generally disfavored by courts. Utah was an early adopter of certification. The Utah Supreme Court adopted a rule permitting certification in 1975. But in 1981, after the roster of justices on the court had entirely changed, the rule was found unconstitutional. Fortunately, other issues with the Judicial Article in Utah’s Constitution resulted in a revision of that Article in 1984. The revision included authorization for the Utah Supreme Court to respond to certified questions. A new statute and court rule followed in 1986. Since that time, Utah’s 30 years of experience with certification has created a rich database of over 130 cases. We can examine the benefits and detriments of certification in specific cases.1 1 The reader is cautioned by a note appearing in a scholarly article over twenty years ago, relating the responses of two judges to a survey on the issue of certification: “As to the value of this survey, two of the more interesting comments provided by the respondents were: ‘This is a truly tedious subject about which I have not given three minutes of thought in the last 22 years!’; and ‘This is a very interesting issue – AJS is to be complimented on addressing it.’” Jona Goldschmidt, Certification of Questions of Law: Federalism in Practice, 2 n.1, American Judicature Society (1995). 1 But certification is more than case-specific. Certification has institutional significance that has not been emphasized as federal courts have considered certification to the Utah Supreme Court. Certification recognizes the primary role of the Utah Supreme Court as the interpreter of Utah law. While a federal court is empowered to interpret the law of any state or foreign jurisdiction, certification expresses federalism, and recognizes the superior role of the Utah Supreme Court in setting Utah precedent. The unique nature of certification calls for careful consideration of its benefits, processes and detriments, which this thesis undertakes. The practices of the Utah Supreme Court, the various judges of the Utah federal district court and bankruptcy court, 2 and the panels of the Tenth Circuit Court of Appeals are reviewed. This thesis examines: • • • • • • • • • • the types of cases and issues that have used certification; the best stages of proceedings to seek certification; the federal judges who most often suggest certification and grant motions to certify; the principles which have guided lawyers and judges as questions are formulated for certification and included in certification orders; the sua sponte use of certification of questions by the Tenth Circuit Court of Appeals in 13 cases, where nine of the answers have resulted in reversal of a trial court decision; the processes followed in the federal courts which certify questions to the Utah Supreme Court; the factors considered by the federal courts in granting certification, including outdated factors still cited in certification decisions; the role of Jill Parrish, former Utah Supreme Court justice and now federal district judge in changing the use of certification by the district court; the criteria which appear to have been used for the decision of the Utah Supreme Court to accept, reject, or reformulate certified questions; and the impact of certification on the case at issue, including delay from the certification process and the role of certification in resolving the case. If judges so choose, the data and analysis in this thesis may serve as a basis for direct non-case related communication about certification between the state and federal courts. This thesis recommends changes in the Utah certification process. A new local rule is proposed for the federal district court. Changes are recommended to the 30-year-old Utah Rule of Appellate Procedure on certification. These changes will better balance case specific and inter- governmental considerations. The rule proposals may be considered by the rules committees of the respective courts. 2 The term “trial court” is sometimes used to include the federal district court and bankruptcy court in the District of Utah. 2 Legal Context The United States of America is unique in having dual sovereignties, with fifty state legal and court systems and a single federal system which overlaps the fifty states geographically and, in many instances, jurisdictionally. Federal courts may consider disputes arising under state law, and some federal disputes, such as tax matters, depend on application of state law. A state or federal court in one state may decide a case under the law of another state. The web of interrelated systems requires courts whose regular work is with the law of the sponsoring government to occasionally apply the law of a different sovereign. Conflict of law rules determine how these courts select the law to apply. “Federal courts [after Erie R.R. Co. v Tompkins3] must, when a state law question is posed within the context of a federal case, apply state substantive law as the rule of decision.”4 After a court determines that the law of the state in which it sits should not apply, the court proceeds into less familiar legal territory. A state or federal court in which a case is pending is not engaged full-time in application of the law of another state; is not an integral and constitutional part of that state’s legal system; is not as familiar with the culture and policies of the other state; and, possibly most importantly, does not have the constitutional role as final arbiter of that state’s law. The court in which the case is pending is, however, required to locate authority and interpret it, or in some instances it may certify legal questions to a court of the jurisdiction where the law originates. The Development of Certification in the United States Legal Precedent and Alternatives The idea of certifying questions from one judicial system to another is not an American invention: The British Law Ascertainment Act of 1859 permitted a court in one part of the British Commonwealth to remit a case for an opinion on a question of law to a court in another part of the Commonwealth. The Foreign Law Ascertainment Act of 1861 allowed questions of law to be certified between British courts and courts of foreign countries, provided that each country had signed a convention governing such procedure.5 3 304 U.S. 64 (1938). 4 William G. Bassler and Michael Potenza, Certification Granted: The Practical and Jurisprudential Reasons Why New Jersey Should Adopt a Certification Procedure, 29 Seton Hall L. Rev. 491, 491 (1998-1999). 5 Ira P. Robbins, The Uniform Certification of Questions of Law Act: A Proposal for Reform, 18 J. Legis. 127, 132 (1992). 3 These enactments were made long after the dissolution of ties between England and the American colonies, so they were not part of the common law adopted in the colonies. But they may have influenced the adoption of certification processes in the United States. There was a federal statute of long standing which allows federal courts of appeal to certify questions of law to the U.S. Supreme Court.6 This procedure is no longer in use because the Supreme Court has limited its caseload.7 That could be an analog to certification from courts of states or federal courts to the courts of states. Before certification procedures were in place, American federal courts would take alternative approaches when decisive questions of state law were presented on which the federal court was unwilling to opine. The federal court could stay its proceedings and direct parties to file a declaratory judgment action in a state court, if the state accepted such actions.8 Or a federal court could simply abstain from proceeding with the case, leaving the parties to re-file in another court—or lack a remedy. Abstention was disfavored: “Abdication of the obligation to decide cases can be justified under this doctrine only in the exceptional circumstances where the order to the parties to repair to the state court would clearly serve an important countervailing interest.”9 Those interests were generally confined to comity and where a “federal constitutional issue . . . might be mooted or presented in a different posture by a state court determination of pertinent state law.”10 And declaratory actions were sometimes rejected. In United Services Life Insurance Company v. Delaney11 the Fifth Circuit instructed the parties to “initiate a proceeding in a Texas court seeking a declaratory judgment about of the meaning of the pertinent clauses of the respective insurance contracts, with a review of such judgment by a court of last resort of the State of Texas.”12 The parties did file the declaratory action, but were told by the Texas trial court (which was affirmed by the Texas Supreme Court) that the declaratory case could not be heard due to “a constitutional lack of power.”13 “[T]he rendition of advisory opinions by courts is unauthorized by our constitution . . . .”14 6 28 U.S.C. § 1254(2) (2006); see also Amanda L. Tyler, Setting the Supreme Court's Agenda: Is There a Place for Certification?, 78 Geo. Wash. L. Rev. 1310 (2010). 7 Edward A. Hartnett, Questioning Certiorari: Some Reflections Seventy-Five Years After the Judges’ Bill, 100 Colum. L. Rev. 1643, 1712 (2000). 8 Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 30 (1959). 9 Allegheny Cty. v. Frank Mashuda Co., 360 U.S. 185, 188–89 (1959). 10 Id. at 189. 11 328 F.2d 483 (5th Cir. 1964). 12 Id. at 485. 13 United Servs. Life Ins. Co. v. Delaney, 396 S.W.2d 855, 863 (Tex. 1965). 14 Id. at 864. 4 Florida First In Certification—and U.S. Supreme Court Commentary Florida was the first state to adopt a procedure to accept questions certified from federal courts. The 1945 Florida statute was followed by an implementing rule in 1961.15 Before the rule was adopted, the U.S. Supreme Court instructed the Fifth Circuit to use the statutory process,16 and spoke in glowing terms about the procedure: The Florida Legislature, with rare foresight, has dealt with the problem of authoritatively determining unresolved state law involved in federal litigation by a statute which permits a federal court to certify such a doubtful question of state law to the Supreme Court of Florida for its decision. Even without such a facilitating statute we have frequently deemed it appropriate, where a federal constitutional question might be mooted thereby, to secure an authoritative state court's determination of an unresolved question of its local law.17 The Supreme Court directed that the Fifth Circuit, on remand, use the procedure,18 and the Supreme Court used the procedure itself in later Florida cases decided in 1963.19 These endorsements were cited as motivation the formulation of the Uniform Certification of Questions of Law Act (1967) (“Uniform Act (1967)”).20 15 Bassler, supra n.4, at 494 n.13. 16 The Supreme Court noted that the promulgation of rules was not “a jurisdictional requirement for the entertainment by the Florida Supreme Court of a certificate” from a federal court. Clay v. Sun Ins. Office, Ltd., 363 U.S. 207, 212 (1960). 17 Id. (citations omitted). When the Fifth Circuit invoked the process on remand, the procedure was upheld against a challenged in the Florida Supreme Court. Goldschmidt, supra n.1, at 94 n.233 (citing Sun Ins. Office, Ltd. v. Clay, 133 So.2d 735 (Fla. 1961), rev’d, 319 F.2d 505 (5th Cir. 1963), rev’d, 377 U.S. 180 (1964). The Fifth Circuit refused to follow the Florida Supreme Court’s answer to the substantive question, but was in turn reversed by the U.S. Supreme Court. 18 See Clay, 363 U.S. at 213 (Black, J., dissent). 19 Dresner v. Tallahassee, 375 U.S. 136 (1963); Aldrich v. Aldrich. 375 U.S. 249 (1963). 20 “The Florida provision has also been used by the Supreme Court of the United States, Dresner v. City of Tallahassee, 375 U.S. 136 (1963) question answered 164 So.2d 208 (1964), and Aldrich v. Aldrich, 375 U.S. 75, 249 (1963), questions answered 163 So.2d 276 (1964).” Uniform Act (1967) at Prefatory Note. 5 Uniform Certification of Questions of Law Act Dissatisfaction with abstention and the positive attention to the Florida example led to the Uniform Act (1967). 21 Even before the Uniform Act was promulgated, three other states followed Florida’s lead with legislation of their own.22 “Prior to formulation of the Uniform Act [(1967)] . . . scholarly work had been done in the area, primarily by Allan Vestal, then Professor of Law at the University of Iowa and one of the Commissioners on Uniform State Laws [which] formed the basis for many of the policies ultimately realized in the U.L.A [Uniform Laws Annotated].”23 A uniform law was needed because “[u]niformity would make probable the greater use of certification. If attorneys and judges are faced not with an unfamiliar act, but rather with a carbon of the act of their own states, they will be more willing to use the device.”24 The Uniform Act (1967) was “patterned in large measure on Florida Appellate Rule 4.61.”25 The Uniform Act (1967) was quite simple. It was drafted as a model legislative enactment, unlike the 1995 revision which also contemplated enactment as a court rule. The Uniform Act (1967) specified: That a designated court could answer questions from specified courts that were “questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the [specified appellate courts] of this state”;26 That the process could initiate on motion or sua sponte (on the court’s own suggestion);27 The contents of a certification order—a statement of relevant facts and “the questions of law to be answered”;28 21 Uniform Act (1967); 12 U.L.A. 86 (1996). The Tarlton Law Library at the University of Texas has two boxes of “materials related to drafting the Uniform Certification of Question of Law Act.” https://legacy.lib.utexas.edu/taro/utlaw/00040/law-00040p30.html (last visited January 27, 2018). 22 Ira P. Robbins, The Uniform Certification of Questions of Law Act: A Proposal for Reform, 18 J. Legis. 127, 133 n.44 (1992). The states were Hawaii, Maine, and Washington. 23 Id. at 131. 24 Uniform Act (1967) at Prefatory Note n.1. 25 Id. at Prefatory Note n.2. 26 Id. § 1. 27 Id. § 2. 28 Id. § 3. 6 The form of an order and the method of transmitting it and a sufficient record to the receiving court;29 For an equal allocation of costs between the parties;30 That the receiving court rules regarding briefs and argument would apply to certification proceedings;31 For transmittal of the state court opinion to the certifying court and the parties;32 That specified courts of the enacting state could certify to other courts, on similar grounds,33 using the process of the receiving state;34 and Severability,35 construction,36 title,37 and effective date.38 After 25 years of experience with the Uniform Act (1967), Professor Ira Robbins proposed a new act to remedy issues which had arisen in the states which had enacted the earlier uniform act.39 They had often enacted variants of the Uniform Act (1967) which in his view were ill advised. His proposals included: Restricting the power to answer questions to the highest state court, to avoid inefficiency of a state appeal;40 Ensuring that all federal courts and the highest court in a state may certify;41 29 Id. § 4. 30 Id. § 5. 31 Id. § 6. 32 Id. § 7. 33 Id. § 8. 34 Id. § 9. 35 Id. § 10. 36 Id. § 11. 37 Id. § 12. 38 Id. § 13. 39 Robbins, supra n.5; see also Ira P. Robbins, Interstate Certification of Questions of Law: A Valuable Process in Need of Reform, 76 Judicature 125 (1992). 40 Robbins, supra n.5, at 177-78. 41 Id. at 178. 7 Providing reciprocity, so that a court which may receive questions may also certify questions;42 Allowing certification of questions which “may be determinative” rather than requiring that the question “must be determinative”;43 Allowing certification of questions when “no controlling” precedent exists, rather than the “no clear controlling” standard;44 Allowing initiation of certification sua sponte or on motion;45 Encouraging preferential treatment of certification cases, by requiring the responding court to act “as soon as practicable . . .”;46 and Clarifying who generates the statement of facts in the certification order, by specifying that the parties may propose facts, but that the court has final responsibility.47 Comparing Robbins’ recommendations to the Uniform Act (1967) shows that only the last two features in the above list were new. His intention was therefore principally to unify existing versions of the Uniform Act (1967) by calling attention to the problems with the variants which had been adopted. His recommendations were influential.48 The Uniform Act (1967) was revised in 1995. Beyond Robbins article, a deep study by the American Judicature Society was also influential in the Uniform Certification of Questions of Law Act (1995) (“Uniform Act (1995)”). A survey of “all federal judges on the U.S. district courts and circuit courts of appeals and all state supreme court justices”49 along with a compilation of all rules and statutes governing certification was “presented to a group of U.S. district and circuit judges and state supreme court justices who, in December 1994, attended a National Workshop on Certification of Questions of Law . . . .”50 The workshop resulted in several recommendations: 42 Id. at 179. 43 Id. at 179-80. 44 Id. at 180. 45 Id. at 181. 46 Id. 47 Id. 48 Uniform Certification of Questions of Law Act (1995) (“Uniform Act (1995)”); 12 U.L.A. 71 (1995). 49 Goldschmidt, supra n.1, at 1. 50 Id. at 2. 8 Whether a litigant was a plaintiff who initiated a federal case or a defendant who removed a state case should have no bearing on the certification process;51 State courts should establish standards and criteria for accepting questions, including the Oregon standard “that the answer ‘would have the potential of resolving at least one claim’ in the litigation”;52 The priority of treatment and time limits of a certified case should be determined on a case-by-case basis;53 A certifying court should be free to communicate with an accepting court;54 Reformulation of questions should be permitted;55 Certifying courts should not have discretion to reject answers to certifying questions;56 and Answers to certified questions should be binding precedent.57 The National Conference of Commissioners On Uniform State Laws released the 1995 revision in the fall of that year. According to Jonas Goldschmidt, the principal changes in the Uniform Act (1995) are: (1) the Act now allows for certification to and from tribal courts, and·Canadian and Mexican courts, including the highest or intermediate appellate courts; (2) it provides that certification is only appropriate where no controlling answer to the question is provided by a constitutional provision, statute, or appellate decision; (3) it provides that a certified question may be reformulated by the answering court; (4) it requires that the certification be accompanied by an agreed statement of facts, or, if one cannot be agreed upon, by a statement of facts determined by the court; and, most notably, (5) the Act now contains a provision stating that the receiving court “shall notify the certifying court of acceptance or rejection of the question; and, in accordance with 51 Id. at 75. 52 Id. at 76. 53 Id. 54 Id. 55 Id. 56 Id. at 77. 57 Id. 9 notions of comity and fairness, it shall respond to an accepted certified question as soon as practicable.”58 As a result of the discussion leading up to and the publication of the Uniform Act (1995) and continued advocacy for certification, almost all states and the District of Columbia, Puerto Rico,59 the Northern Mariana Islands and Guam provide for certification.60 North Carolina is the only state without a certification procedure.61 Debate on Value of Certification Despite the rapid spread and current prevalence of certification procedures, debate about the practice persisted. Proponents argued the superiority of certification over the former practice of abstention, under which the court uncertain about the law of a state would stay or dismiss its proceedings, and leave the parties to find the answer to state law from a court of that state. Abstention left parties without resolution of their dispute in the court where the case was originally filed and pushed them to a state trial court declaratory judgment proceeding that could lead to an appeal. The delay and expense were not minimal. Principles of comity are cited in favor of certification,62 along with the wisdom of deferring interpretation of state law to the highest court in a state. If state supreme courts are regarded in practice as the final arbiter of state law issues, inconsistencies between state and federal decisions are reduced.63 One federal judge has referred to the relief from “guesswork” that certification affords.64 Certification can also be said to dampen forum shopping. A prospective litigant has no incentive to seek an alternative federal interpretation of state law if the federal court policy is that that a state law issue will be certified to a state court. And certification has the benefit of bringing a discrete legal issue to the state supreme court before the 58 Id. at 102. 59 Eric Eisenberg, A Divine Comity: Certification (at Last) in North Carolina, 58 Duke L.J. 69, 71 (2008); Sharika Robinson, Right, but for the Wrong Reasons: How A Certified Question to the Supreme Court of North Carolina Could Have Alleviated Conflicting Views and Brought Clarity to North Carolina State Law, 34 N.C. Cent. L. Rev. 230 (2012). 60 Gregory L. Acquaviva, The Certification of Unsettled Questions of State Law to State High Courts: The Third Circuit's Experience,115 Penn St. L. Rev. 377, 384-85, and 385 n.59 (2010-2011). 61 “North Carolina is the only state in the Fourth Circuit without such a mechanism.” Stahle v. CTS Corp., 817 F.3d 96, 113 (4th Cir. 2016) (Thacker, Circuit Judge, concurring); “North Carolina is the sole state in the union that does not permit a federal court to certify questions of state law to the high state court for resolution.” United States v. Kelly, 917 F. Supp. 2d 553, 560 (W.D.N.C. 2013). 62 M. Bryan Schneider, “But Answer Came There None”: The Michigan Supreme Court and the Certified Question of State Law, 41 Wayne L. Rev. 273, 301 (1994-1995); Brian Mattis, Certification of Questions of State Law: An Impractical Tool in the Hands of the Federal Courts, 23 U. Miami L. Rev. 717, 724-25 (1968-1969). 63 Schneider, supra n.62, at 299-301; Mattis, supra n.62, at 724. 64 George v. Haslam, 112 F. Supp. 3d 700, 715 (M.D. Tenn. 2015) (quoting Renteria–Villegas v. Metro. Gov't of Nashville & Davidson Cty., 2011 WL 4048523, at *12 (M.D. Tenn. September 12, 2011). 10 expense of trial is incurred. In this respect, filing a case in federal court has an advantage over filing in state court. But these benefits are not universally acknowledged to outweigh the time and expense that certification proceedings cause. There is no question that certification takes time, while the question is formulated, the order drafted and entered, and the state court process ensues.65 A 1983 study by the Federal Judicial Center found that the median delay is approximately six months.66 But if the legal question were not certified to the state court, it would have been briefed, argued and decided in the federal court, possibly in that same time frame and with similar expense. Some have argued that federal judges are just as able to determine state law issues as their state court colleagues, sometimes with more staff resources, and that there are benefits from “cross-pollination” when two judicial systems look at legal questions.67 Whether that outweighs comity is a matter of opinion. But this comparison of relative competency, usually by a competitive federal court, fails to recognize the value of decisions of state law made by the court constitutionally entrusted with the duty to decide those issues. It fails, usually from an outside perspective, to recognize the benefit of decisions by a court integrated into a system of state law, by judges who have experience in that state’s legal system and better understand the policy and values of the state. In some instances, answers from a state supreme court have been ignored or rejected by the certifying federal court, causing some to object that the state court is giving advisory opinions.68 In other instances, the federal case resolves while the certification issue is still pending or without regard to the answer, because other decisive issues arise after certification. Because certification can occur early in a federal case, the question can be regarded as abstract.69 Formulation of an issue too early can consume a great deal of time and may, as discovery and motions develop, prove to be an inaccurate forecast. Piecemeal litigation is generally disfavored.70 The American common law system discourages interlocutory appeals, but certification is just that—the federal court presents an issue to an appellate state court, before trial has taken place. 65 Mattis, supra n.62, at 725-27 (1969). 66 Bassler, supra n.4, at 511; Schneider, supra n.62, at 296. 67 Bassler, supra n.4, at 516-20. 68 Id. at 520-25; John B. Corr and Ira P. Robbins, Interjurisdictional Certification and Choice of Law, Vand. L. Rev. 411, 419-20 (1988); Mattis, supra n.62, at 734. 69 Bassler, supra n.4, at 525; Schneider, supra n.62, at 294-95; Corr & Robbins, supra n.68, at 422. 70 Mattis, supra n.62, at 727-28. 11 Early in the American certification experience, some expressed fear of overloading state dockets.71 But no jurisdiction reports this as a problem,72 though some state courts reject a much higher percentage of certified questions than other courts.73 Some practitioners express that certification may misshape issues in a case. Some feel that judges attempt to avoid federal constitutional issues by finding a state law issue that might vitiate the constitutional claim. This could allow the federal judge to defer action, dodge a hard issue, and defer truly deserved relief from constitutional violations. But certification has strong advocates. The U.S. Supreme Court, as noted above, praised the process in Clay v. Sun Insurance Office Limited. And it has further said certification “does, of course, in the long run save time, energy, and resources and helps build a cooperative judicial federalism.”74 Judge Guido Calabresi of the Second Circuit penned a stirring opinion (in dissent) that “federal courts in general, and this circuit in particular, have tended to be far too reluctant to certify questions to the state courts.”75 His fundamental premise was that “[r]eluctance to certify is wrong because it leads to precisely the kind of forum shopping that Erie R.R. Co. v. Tompkins was intended to prevent.”76 The majority opinion in the case relied on authority from intermediate New York courts which would “prevent the state’s highest court from reaching the issue . . . .”77 [I]n the absence of certification, the party that is favored by the lower court decisions will almost invariably seek federal jurisdiction”78 to avoid contrary binding state precedent. And similar result would occur when an old state decision is contrary to emerging authority in other states.79 The party favored by the outdated case law will avoid state court. Thus, he concluded “When federal courts, in effect, prevent state courts from deciding unsettled 71 Bassler, supra n.4, at 511, 514. 72 Schneider, supra n.62, at 297-98. 73 Id. at 315-17. The 27 certification orders over a 20-year period reported in the article would not seem to be a burden. But the Michigan Supreme Court answered only eight. 74 Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974). 75 McCarthy v. Olin Corp., 119 F.3d 148, 157 (2d Cir. 1997) (Calabresi, J., dissenting). Judge Calabresi cited Martin Flumenbaum and Brad S. Karp, Certification of Unsettled Law Issues, N.Y.L.J., January 29, 1992, at 3 (“noting that the procedure for certification to the New York Court of Appeals ‘has been used only sparingly by the Second Circuit,’ which in 1992 had certified only five issues over the preceding six-year period.”). 76 McCarthy, 119 F.3d at 157 (citations omitted). 77 Id. at 158. 78 Id. at 157-58. 79 Id. at 158 n.1. 12 issues of state law, they violate fundamental principles of federalism and comity.”80 Those courts “end up ‘mak[ing] important state policy, in contravention of basic federalism principles.’ ”81 He rejected the argument that federal courts use certification to shift unwanted burdens to state courts: [I]t is well known that state court judges have expressed both publicly and privately their desire for certification and their irritation with the fact that federal courts often decide interesting and important questions rather than certifying them to the courts that should be deciding them. More importantly, a state court that feels overburdened, or that for any other reason does not wish to decide the certified question, is always free to refuse to answer it.82 Judge Calabresi gave the example of cases deciding ownership of stolen property in which the statute of limitations was used as a defense to a claim for recovery. The issue of reasonable diligence in attempting to recover the property was presented. The Second Circuit “elected not to certify this question of New York law to the New York Court of Appeals”83 and found that reasonable diligence was necessary to recovery of property. Judge Calabresi recounts what happened when that same issue later arose in another case in state court: Three years later, the New York Court of Appeals was presented with precisely the same issue [as the Second Circuit], and held that the statute of limitations does not require a showing of reasonable diligence. See Solomon R. Guggenheim Found. v. Lubell, 77 N.Y.2d 311, 567 N.Y.S.2d 623, 626-27, 569 N.E.2d 426, 429-30 (1991). The [New York] Court of Appeals remarked, somewhat acidly: Although the [Second Circuit] acknowledged that the question posed by the case was an open one, it declined to certify it to this Court, stating that it did not think that it “[would] recur with sufficient frequency to warrant use of the certification procedure.” Actually, the issue has recurred several times in the three years since DeWeerth was decided, including the case now before us. We have reexamined the relevant New York case law and we conclude that the Second Circuit should not have imposed a duty of reasonable diligence on the owners of stolen art work for purposes of the Statute of Limitations.84 After the state court opinion Guggenheim made New York law clear, the claimant in the wrongly decided Second Circuit case attempted to re-open her claim.85 But it was too late. So the stolen 80 Id. at 158. 81 Id. (quoting Hakimoglu v. Trump Taj Mahal Assocs., 70 F.3d 291, 302 (3d Cir. 1995) (Becker, J., dissenting . 82 Id. at 160. 83 Id. at 159. 84 Id. 85 Id. 13 painting that should have been her painting was not hers because the Second Circuit failed to certify a question of state law. Judge Calabresi persuasively argues that state courts should make significant state law decisions. The court considering certification still must consider whether the existing state cases are sufficiently clear. But if there is a serious question of state law, the issue should be certified. Development of Utah’s Certification Process Just as the Uniform Act (1967) was being promulgated, a Utah case illustrated the conundrum presented by Utah’s lack of a certification procedure. In Black v. United States., District Judge Sherman Christensen considered “whether in Utah a husband can maintain an action for loss of consortium by reason of negligent injury of his wife by a third person.”86 Judge Christensen traced Utah law from territorial times and concluded that where “the state Supreme Court has not had occasion to pass upon the particular question, it still is my duty to ascertain the best I can from all available sources what the local law is and apply it.”87 Not finding a clear statement that a right to loss of consortium existed in Utah, Judge Christensen declined to recognize the claims stated and struck them: Unless and until the Utah State Legislature or the Supreme Court of the State of Utah expressly charts the course, it would be presumptuous under the circumstances for the federal court to initiate and foster such a new and, in my judgment, retrogressive and confusing system for the state.88 Judge Christensen was thus compelled to deny the plaintiff’s claim. If a certification process had existed, the Utah Supreme Court could have authoritatively rejected—or possibly recognized— the plaintiff’s claim. On appeal after trial, different issues were raised which also depended upon state law— and were also without precedent. To determine the answer to each of these issues it is necessary to apply the substantive law of Utah as found in the statutory and case law of that state. Counsel for Philco and plaintiff each state that no precedent of any kind exists under the Utah law that serves as a persuasive guideline. . . . [W]e consider it unnecessary and certainly undesirable to advance a foreguess as to how the Utah Supreme Court would decide the issues were they presented to that high court.89 86 263 F.Supp. 470, 471 (D. Utah 1967). 87 Id. at 472-73. 88 Id. at 480. 89 Black v. United States, 421 F.2d 255, 258 (10th Cir. 1970). 14 If certification had existed in Utah, the Utah Supreme Court could have spoken on these issues. 1975 Certification Rule Utah adopted a Certification Rule on April 17, 1975 (“1975 Certification Rule”).90 While based in part on the Uniform Act (1967), it appears to be most closely modeled on Colorado Rule of Appellate Procedure 21.1 (“Colorado Rule”). The 1975 Certification Rule reads: (a) Power to Answer. The Supreme Court may answer questions of law certified to it by the Supreme Court of the United States, a Court of Appeals of the United States, or a United States District Court, when requested by the certifying court, if there is involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the Supreme Court. (b) Method of Invoking. This rule may be invoked by an order of any of the courts referred to in section (a) upon said court's own motion. (c) Contents of Certification Order. A certification order shall set forth: (1) The question of law to be answered; and (2) A statement of all facts relevant to the questions certified and showing fully the nature of the controversy in which the questions arose. (d) Preparation of Certification Order. The certification order shall be prepared by the certifying court, signed by the judge presiding at the hearing, and forwarded to the Supreme Court by the clerk of the certifying court under its official seal. The Supreme Court may require the original or copies of all or of any portion of the record before the certifying court to be filed under the certification order, if, in the opinion of the Supreme Court, the record or portion thereof may be necessary in answering the questions. (e) Costs of Certification. Fees and costs shall be the same as in civil appeals docketed before the Supreme Court and shall be equally divided between the parties unless otherwise ordered by the certifying court in its order of certification. (f) Briefs and Arguments. Upon the agreement of the Supreme Court to answer the questions certified to it, notice shall be given to all parties. The plaintiff in the trial court, or the appealing party in the appellate court shall file his opening brief within thirty days from the date of receipt of the notice, and the opposing parties shall file an answer brief within thirty days from service upon him of copies of the opening brief. A reply brief may be filed within twenty days of the service of the answer brief. Briefs shall be in the manner and form of briefs as provided in this Court. (g) Opinion. The written opinion of the Supreme Court stating the law governing the questions certified shall be sent by the clerk under the seal of the Supreme Court to the Certifying court and to the parties. 90 Holden v. NL Indus., Inc., 629 P.2d 428, 429 (Utah 1981). Unfortunately, no records of the adoption of the 1975 Certification Rule could be located at the Utah Supreme Court or in the Utah State Law Library. 15 Comparison with Colorado Rule of Appellate Procedure 21.1 The only variations between the Colorado Rule and the 1975 Certification Rule are: a. b. c. elimination by Utah of the United States Court of Claims as a potentially certifying court; elimination by Utah of the possible initiation of certification by motion of the parties, even though that feature was included in the Uniform Act (1967). (The 1975 Certification Rule only permitted sua sponte certification.); and minor technical changes, such as changes in briefing times, and reference to Utah rules regarding argument rather than referring to the Colorado argument rule.91 Comparison with Uniform Certification of Questions of Law Act (1967) The 1975 Certification Rule92 varies in more significant ways from the Uniform Act (1967). The 1975 Certification Rule: a. b. c. d. e. omits references93 to many potential certifying courts: “the United States Court of International Trade, the Judicial Panel on Multidistrict Litigation, the United States Claims Court, the United States Court of Military Appeals, the United States Tax Court, [or the highest appellate court or the intermediate appellate court of any other state] . . . .”; requires the certification order to set forth the “question of law to be answered” rather than referring to “questions of law”;94 has a more complete description of the briefing process;95 omits the procedures and the power to certify to the courts of other states;96 and omits provisions on severability,97 construction,98 short title99 and effective date.100 91 The 1975 Certification Rule has other minor puzzling variations from the Colorado Rule, such as subtitle (f)’s reference to “Arguments” rather than “argument,” though that subsection in both rules and in the Uniform Act (1967) has no text about oral argument, and capitalization of “Certifying” when referring to the originating court in (g)—but not in other parts of the rule. 92 The 1975 Certification Rule and the Colorado Rule have the same variations from the Uniform Act (1967). 93 Compare 1975 Certification Rule at (a) with Uniform Act (1967) § 1. 94 Compare 1975 Certification Rule at (c)(1) with Uniform Act (1967) § 3(1). 95 1975 Certification Rule at (f). 96 Uniform Act (1967) §§ 8-9. 97 Id. § 10. 98 Id. § 11. 99 Id. § 12. 100 Id. § 13. 16 Holden v. NL Industries Invalidates the 1975 Certification Rule In 1981, the Utah Supreme Court struck down the 1975 Certification Rule as unconstitutional in Holden v. NL Industries.101 After an adverse ruling from the trial court, plaintiff’s counsel asked for and was granted certification of two questions. The Supreme Court’s acceptance was expressly tentative, because the “defendant . . . filed a motion in opposition to acceptance of certification.”102 After briefly recounting the status of certification procedures nationally and reciting the 1975 Certification Rule, Justice Dallin Oaks searched for a jurisdictional basis on which the Utah Supreme Court might accept questions certified from federal courts. First, he looked to the Utah Constitution Judicial Article:103 The Supreme Court shall have original jurisdiction to issue writs of mandamus, certiorari, prohibition, quo warranto and habeas corpus. Each of the justices shall have power to issue writs of habeas corpus, to any part of the State, upon petition by or on behalf of any person held in actual custody, and may make such writs returnable before himself or the Supreme Court or before any district court or judge thereof in the State. In other cases the Supreme Court shall have appellate jurisdiction only, and power to issue writs necessary and proper for the exercise of that jurisdiction. He concluded “This section grants no ‘original jurisdiction’ to answer certified questions since certification does not involve one of the writs to which this Court’s original jurisdiction is limited.”104 A comparison with Colorado’s Constitution was important to his decision. The Colorado Constitution granted jurisdiction to the Colorado Supreme Court “to issue writs . . . and such other original and remedial writs as may be provided by rule of court with authority to hear and determine the same.”105 Citation of the Colorado Constitution made sense because Utah’s 1975 Certification Rule appears to have been derived from the Colorado rule. Justice Oaks then looked to the constitutional reference to appellate jurisdiction as providing authority to answer certified questions. This possibility was rejected because of one word: Article VIII, Section 4 . . . provides: “In other cases the Supreme Court shall have appellate jurisdiction only . . . .” The comparable provision in most state constitutions omits the word only. In the absence of that negative, the constitutional conferral of appellate jurisdiction would be susceptible to the 101 629 P.2d 428; see also Bassler, supra n.4, at 934; Goldschmidt, supra n.1, at 95. 102 Holden, 629 P.2d at 429. 103 Utah Const. art. VII, § 4. 104 Holden, 629 P.2d at 430. 105 Id. (citing Colo. Const. art. VI, § 3). 17 construction that the court's jurisdiction could be enlarged by an exercise of legislative or judicial power, by law or by court rule.106 He compared the Utah result with a decision of the Washington Supreme Court,107 under a constitution omitting the word “only” and generously providing ‘“appellate jurisdiction in all actions and proceedings . . . .”108 “Since this provision contained no limitation similar to that in the Utah Constitution, the Washington Legislature was free to define its court’s jurisdiction to include the functions specified in the [Washington] certification legislation.”109 And he also contrasted the favorable findings of constitutionality in Florida and Alabama.110 Finally, Justice Oaks examined whether “appellate jurisdiction only” might include responding to questions from a federal trial court. He found that it did not, because appellate jurisdiction applies to inferior courts, not to courts of other jurisdictions. “Appellate jurisdiction” obviously connotes review of the action of an inferior court. “Inferior court” has been appropriately defined as “any court subordinate to the chief appellate tribunal in the particular judicial system.” Federal courts are not “inferior courts” to this Court. Consequently, this Court's answer to a certified question in a case that originated in or is to be adjudicated in a federal court is not an exercise of “appellate jurisdiction” within the meaning of the Utah Constitution.111 So the Utah Supreme Court withdrew its own 1975 Certification Rule as unconstitutional and dismissed Holden’s request for certification, but with a salute to the idea of certification: The procedure devised to permit federal courts to certify questions of state law for state courts to answer is a commendable effort to further the interest of justice through cooperative efforts by state and federal courts. If our constitutional powers permitted us to be involved in that kind of cooperative effort, and if other legal questions unnecessary to the disposition of this case could be resolved, we would have no hesitancy. But under the current language of our constitution, we must conclude that this Court has no jurisdiction to provide federal courts the requested ruling on state law.112 106 Id. 107 In re Elliott, 446 P.2d 347 (Wash. 1968). 108 Holden, 629 P.2d at 430. 109 Id. 110 Id. at 431 (citing Sun Ins. Office, Ltd., 133 So.2d at 742) (construing Fla. Const. art. V, §§ 3-4; Ala. Const. art. VI, § 140 (Amend. No. 328 . 111 Holden, 629 P.2d at 431. 112 Id. at 431-32. 18 How could a court unanimously strike down a rule it adopted only six years earlier? The composition of the Utah Supreme Court changed completely between 1975 and 1981.113 None of the justices present in 1975 were still present in 1981. The members of the Holden court were not personally committed to the 1975 Certification Rule. Utah’s constitutional quandary is notable because Holden is the only case to find a certification procedure unconstitutional.114 While Arkansas’s Constitution had similar restrictions,115 the Arkansas Constitution was amended116 in 2000 to grant “[o]riginal jurisdiction to answer questions of state law certified by a court of the United States, which may be exercised pursuant to Supreme Court rule.”117 Thus, Utah stands alone as adopting a certification procedure, invalidating it, and—after a constitutional amendment—readopting certification. 1984 Judicial Article of Utah Constitution The Utah Constitution judicial article was amended in 1984 and one part of the amendment permitted certification.118 But the amendment was not caused by Holden. The revision of Article VIII was precipitated by a dispute between the courts and legislature over judicial nomination and appointment processes. The result was “a complete rewrite of the judicial article of the Utah Constitution that finally settled [that] dispute and several other long- standing issues with a set of wide-ranging compromises that brought all interested parties to the table.”119 The new version of Article VIII, Section 3 expressly confers jurisdiction to answer questions from federal courts: The Supreme Court shall have original jurisdiction to issue all extraordinary writs and to answer questions of state law certified by a court of the United States. The Supreme Court shall have appellate jurisdiction over all other matters to be exercised as provided by statute, and power to issue all writs and orders necessary for the exercise of the Supreme Court’s jurisdiction or the complete determination of any cause. 113 In 1975, Justices J. Allen Crockett, F. Henri Henriod, E. R. Callister, R. L. Tuckett, and A. H. Ellett were on the Utah Supreme Court. In 1981, the Utah Supreme Court consisted of Richard J. Maughan, Gordon R. Hall, I. Daniel Stewart, Richard C. Howe, and Dallin H. Oaks. https://en.wikipedia.org/wiki/List_of_Justices_of_the_Utah_Supreme_Court (last visited January 12, 2018). 114 Goldschmidt, supra n.1, at 95. 115 Id. at 96. 116 Coby W. Logan, Certifying Questions to the Arkansas Supreme Court: A Practical Means for Federal Courts in Clarifying Arkansas State Law, 30 U. Ark. Little Rock L. Rev. 85, 87 (2007). 117 Ark. Const. amend. LXXX, § 2. 118 Goldschmidt, supra n.1, at 95 n.244. 119 In re Young, 976 P.2d 581, 587 (Utah 1999) (citing Utah Const. Rev. Comm'n Rep., 15-16 (January 1984 . 19 The Utah Supreme Court is now empowered “to answer questions of state law certified by a court of the United States.”120 Thus “[a]ny court of the United States”121 may certify a question to the Utah Supreme Court, but other state courts may not. And the Utah Court of Appeals may not receive certified questions.122 Effectuating the Constitutional Revision Utah Code Provision Utah Code Ann. § 78A-3-102, which defines Utah Supreme Court jurisdiction, states in subsection (1) that “The Supreme Court has original jurisdiction to answer questions of state law certified by a court of the United States.” This is a verbatim mirror of the Utah Constitution provision, which fortunately prevents any separation of powers issue arising from a conflict between the constitutional powers of the court and the legislative enactment.123 Utah Rule of Appellate Procedure 41 Following approval of the 1984 Constitutional Amendment, Utah Rule of Appellate Procedure 41 was adopted.124 Rule 41provides: RULE 41. CERTIFICATION OF QUESTIONS OF LAW BY UNITED STATES COURTS (a) Authorization to answer questions of law. The Utah Supreme Court may answer a question of Utah law certified to it by a court of the United States when requested to do so by such certifying court acting in accordance with the provisions of this rule if the state of the law of Utah applicable to a proceeding before the certifying court is uncertain. (b) Procedure to invoke. Any court of the United States may invoke this rule by entering an order of certification as described in this rule. When invoking this rule, the certifying court may act either sua sponte or upon a motion by any party. (c) Certification order. (c)(1) A certification order shall be directed to the Utah Supreme Court and shall state: 120 Utah Const. art. VIII, § 3. 121 Utah R. App. P. 41(b). 122 The amendment also expanded writ power to “all extraordinary writs” from “writs of mandamus, certiorari, prohibition, quo warranto and habeas corpus.” Utah Const. art. VII, § 3. Notably, legislative control was limited to appellate jurisdiction. 123 In re Young, 976 P.2d 581. 124 Unfortunately, no records of adoption of Utah R. App. 41 could be located in the Utah Supreme Court or Utah State Law Library. The year of adoption is not clear. It was likely adopted in 1986 after the massive revision of the Utah Judicial Code was enacted, following the 1984 Constitutional Revision. H.B. 100, Judicial Article Implementation, Utah Session Laws 1986 Ch. 47, was passed February 26, 1986. That was the first statutory recognition of the jurisdiction of the Utah Supreme Court “to answer questions of state law certified by a court of the United States.” Utah Code Ann § 78-2-2 (1986). 20 (c)(1)(A) the question of law to be answered; (c)(1)(B) that the question certified is a controlling issue of law in a proceeding pending before the certifying court; and (c)(1)(C) that there appears to be no controlling Utah law. (c)(2) The order shall also set forth all facts which are relevant to the determination of the question certified and which show the nature of the controversy, the context in which the question arose, and the procedural steps by which the question was framed. (c)(3) The certifying court may also include in the order any additional reasons for its entry of the certification order that are not otherwise apparent. (d) Form of certification order; submission of record. A certification order shall be signed by the judge presiding over the proceeding giving rise to the certification order and forwarded to the Utah Supreme Court by the clerk of the certifying court under its official seal. The Supreme Court may require that all or any portion of the record before the certifying court be filed with the Supreme Court if the record or a portion thereof may be necessary in determining whether to accept the certified question or in answering that question. A copy of the record certified by the clerk of the certifying court to conform to the original may be substituted for the original as the record. (e) Acceptance or rejection of certification. Upon filing of the certification order and accompanying papers with the clerk, the Supreme Court shall promptly enter an order either accepting or rejecting the question certified to it, and the clerk shall serve copies of the order upon the certifying court and all parties identified in the certification order. If the Supreme Court accepts the question, the Court will set out in the order of acceptance (1) the specific question or questions accepted, (2) the deadline for notifying the Supreme Court as to those portions of the record which shall be copied and filed with the Clerk of the Supreme Court, and (3) information as to when the briefing schedule will be established. (f) Briefing; oral argument. The form of briefs and proceedings on oral argument will be governed by these rules except as such rules may be modified by the Supreme Court to accommodate the differences between the appeal process and the determination of a certified question. The clerk of the Supreme Court will provide written notice to the parties as to the schedule for the filing of briefs and content requirements, as well as the schedule and procedures for oral argument. (g) Appearance of counsel pro hac vice. Upon acceptance by the Supreme Court of the question of law presented by the certification order, counsel for the parties not licensed to practice law in the state of Utah may appear pro hac vice upon motion filed pursuant to the Code of Judicial Administration. 21 The procedure of Utah R. App. P. 41 differs from the 1975 Certification Rule in many respects. The new rule: allows certification by any “court of the United States,”125 rather than enumerating potential certifying federal courts;126 refers to a certified “question of law,” 127 rather than “questions of law”;128 permits certification when “the law of Utah is . . . uncertain,”129 and that “there appears to be no controlling Utah law,”130 rather than referring to certification when “there is no controlling precedent”;131 requires that the question be a controlling issue of law, and that the order state the same,132 while the 1975 Certification Rule permitted certification of a question “which may be determinative”;133 permits certification orders “upon a motion by a party,” in addition to the sua sponte certification permitted in the 1975 Certification Rule;134 requires that the certification order include all facts “which are relevant to the determination of the question certified,”135 rather than those relevant to the “questions certified”;136 requires the certification order to specify “the context in which the questions arose, and the procedural steps by which the question was framed”;137 125 Utah R. App. P. 41(a). 126 1975 Certification Rule at (a). 127 Utah R. App. P. 41(a), (c)(1). 128 1975 Certification Rule at (a). 129 Utah R. App. P. 41(a). 130 Id. at 41(c)(1)(C). 131 1975 Certification Rule at (a). 132 Utah R. App. P. 41(c)(1)(B). 133 1975 Certification Rule at (a). 134 Utah R. App. P. 41(b), compare with 1975 Certification Rule at (b). 135 Utah R. App. P. 41(c)(2). 136 1975 Certification Rule at (c)(1)(2). 137 Utah R. App. P. 41(c)(2). 22 permits the certification order to include “any additional reasons for . . . entry of the certification order that are not otherwise apparent”;138 refers to the Supreme Court’s determination “whether to accept the certified question,”139 and has a new subsection (e) regarding the acceptance process and an order of acceptance (which was not treated in the 1975 Certification Rule, and which implies questions may be rejected); has a new provision regarding pro hac vice admission of counsel;140 permits flexibility in briefing and argument, providing that the normal rules and timeframes “may be modified by the Supreme Court to accommodate the differences between the appeal process and determination of a certified question”;141 and has technical refinements, such as including the state name in places as a descriptor of the “Utah” Supreme Court,142 referring generally to other rules of the court regarding briefing and oral argument (and actually mentioning oral argument), and providing for certification of a copy of the certifying court’s record.143 Comparison with Uniform Act (1995) Utah Rule 41 varies from the Uniform Act (1995)144 in several respects, which is to be expected as Rule 41 preceded the Uniform Act (1995) by a decade: The Utah Rule does not permit the Utah Supreme Court (or the Utah Court of Appeals) to certify a question to another court;145 The Utah Rule does not permit courts of states, tribes, or Mexican courts to certify questions;146 138 Id. at 41(c)(2). 139 Id. at 41(d). 140 Id. at 41(g). 141 Id. at 41(f). 142 Id. at 41(a), (c)(1), (d). 143 Id. at 41(c)(2). 144 While the Uniform Act (1995) was promulgated nearly a decade after Utah R. App. 41, it is the most recent uniform law on the subject of certification, so it is the most universal standard for comparison of Utah and national practice. 145 Uniform Act (1995) § 2. 146 Id. § 3. 23 The Uniform Act (1995) allows certifying to obtain an answer that “may be determinative of an issue,”147 while the Utah Rule requires a certified issue to be “controlling”148 which may mean it must control the federal litigation, not merely an issue in it;149 While the Utah Rule requires that there be “no controlling Utah Law”150 and that “the state of the law of Utah applicable to a proceeding before the certifying court [be] uncertain”151on the certified issue, the Uniform Act (1995) specifies sources of law which might be regarded as controlling—“no controlling appellate decision, constitutional provision, or statute of this State”;152 Rule 41 specifies that certification may be raised in the federal court “either sua sponte or upon a motion by any party”;153 The Uniform Act (1995) expressly permits the receiving court to “reformulate a question of law certified to it”154 and also requires the certification order to expressly state that the receiving court may reformulate the question,155 while the Utah Rule has no such provision;156 The Uniform Act (1995) requires the certification order to contain “the names and addresses of counsel of record and parties appearing without counsel”;157 The Uniform Act (1995) contemplates that parties will have an opportunity to “agree upon a statement of facts”158 in the certification order; 147 Id. § 3. 148 Utah R. App. P. 41(c)(1)(B). 149 Some jurisdictions adopt the Uniform Act (1995) with a requirement that the issue be determinative of the “cause” or their courts interpret their enactment in that manner. See Eric C. Surette, Construction and Application of Uniform Certification of Questions of Law Act, 69 A.L.R. 6th 415, §§ 27-28 (2011). 150 Utah R. App. P. 41(c)(1)(C). 151 Id. at 41(a). 152 Uniform Act (1995) § 3. 153 Utah R. App. P. 41(b). 154 Uniform Act (1995) § 4. 155 Id. § 6(a)(3). 156 The Utah Supreme Court has determined it has this authority. In re W. Side Prop. Assocs., 13 P.3d 168 (Utah 2000). 157 Uniform Act (1995) § 6(a)(4). 158 Id. § 6(b). 24 Rule 41 requires a certification order to set forth “the procedural steps by which the question was framed”;159 The Uniform Act (1995) requires that the accepting court “in accordance with notions of comity and fairness, respond to an accepted certified question as soon as practicable”;160 Rule 41 allows the Supreme Court to specify a briefing schedule,161 and applies standard appellate rules to briefs and argument, unless “modified by the Supreme Court to accommodate the differences between the appeal process and the determination of a certified question,162 while the Uniform Act (1995) suggests application of “the rules and statutes governing briefs, arguments, and other appellate procedures”;163 The Uniform Act (1995) specifies that the responding court “shall state in a written opinion the law answering the certified question and send a copy of the opinion to the certifying court, counsel of record, and parties appearing without counsel”;164 The Uniform Act (1995) specifies that “[f]ees and costs are the same as in [civil appeals] docketed before the [Supreme Court] of this State and must be equally divided between the parties unless otherwise ordered by the certifying court”;165 Rule 41 provides for appearance of counsel pro hac vice in certification proceedings, which is apparently not permitted in other proceedings before the Utah Supreme Court;166 and The Uniform Act (1995) has technical sections on severability,167 construction,168 and citation title.169 Both Rule 41 and the Uniform Act (1995) require the certification order to state the question of law to be answered,170 facts relevant to the controversy and the nature of the 159 Utah R. App. P. 41(c)(2). 160 Uniform Act (1995) § 7. 161 Utah R. App. P. 41(e)(3). 162 Id. at 41(f). 163 Uniform Act (1995) § 8. 164 Id. § 9. 165 Id. § 10. 166 Utah R. App. P. 41(g). 167 Uniform Act (1995) § 12. 168 Id. 169 Id. § 13. 170 Id. § 6(a)(1); Utah R. App. P. 41(c)(1)(A). 25 controversy,171 and contain requirements for delivery of the certification order and record to the receiving court.172 Comparison with Utah’s Interlocutory Appeal Rule The Utah Rule can also be compared to Utah’s rule on interlocutory appeals from lower courts.173 Certification comes before a federal court adjudication, while interlocutory appeals are taken from an entered order in litigation underway in an inferior court. In interlocutory appeals, the lower court assures the Utah appellate court that enough record exists to adjudicate the question. A certified question is more hypothetical and posed in advance of a decision. Receipt of certified questions and interlocutory appeals is discretionary with the appellate court. The appellate court controls its review of these matters, and can exercise unrestrained discretion in accepting or rejecting them. Both processes require the receiving appellate court consider similar issues: Interlocutory Appeals Certification of Questions The issue presented174 The question of law to be answered176 A concise analysis of the statutes, rules or cases believed to be determinative of the issue stated175 A concise statement of facts material to a consideration of the issue presented and the order sought to be reviewed177 All facts which are relevant to the determination of the question certified178 The terms and circumstances of the case but without unnecessary detail179 The nature of the controversy, the context in which the question arose, 171 Uniform Act (1995) § 6(a)(2); Utah R. App. P. 41(c)(2). 172 Uniform Act (1995) § 5; Utah R. App. P. 41(d). 173 Utah R. App. P. 5. 174 Id. at 5(c)(1)(B). 175 Id. at 5(c)(1)(C). 176 Id. at 41(c)(1)(A). 177Id. at 5(c)(1)(A). 178 Id. at 41(c)(2). 179 Id. at 5(c)(1)(B). 26 Interlocutory Appeals Certification of Questions and the procedural steps by which the question was framed180 That the question certified is a controlling issue of law in a proceeding pending before the certifying court183 A statement of the reasons why an immediate interlocutory appeal should be permitted181 The reason why the appeal may materially advance the termination of the litigation182 Each process requires consideration of unique factors. A party petitioning for interlocutory appeal must demonstrate “that the issue was preserved in the trial court,”184 and “state the applicable standard of appellate review and cite supporting authority.”185 Those factors have no corollary in certification. The federal court certifies that the question relates to a “live” issue, to which the answer is required to make a dispositive decision. And the federal court has not made a substantive decision, so no standard of review applies. But the Utah Supreme Court has full discretion with regard to the certifying order—the question(s) may be accepted, reformulated, or rejected. Certification requires that “[t]he state of the law of Utah applicable to a proceeding before the certifying court is uncertain”186 and “there appears to be no controlling Utah law.”187 Because a question presented on interlocutory appeal is often mixed law and fact, that process does not require isolation of a unique, undecided legal issue. Initiation of the interlocutory and certification processes is different because of the method in which they arise. Utah certification may be initiated by the federal court sua sponte188 and is then ordered by the court,189 but interlocutory appeals require a party petition.190 Because 180 Id. at 41(c)(2). 181 Id. at 5(c)(1)(C). 182 Id. at 5(c)(1)(D). 183 Id. at 41(c)(1)(B). 184 Id. 185 Id. at 5(c)(1)(B). 186 Id. at 41(a). 187 Id. at 41(c)(1)(C). 188 Id. at 41(b). 189 Id. at 41(a). 190 Id. at 5(a). 27 of its decision-making responsibility, the federal court controls the certification process, while parties have the burden of going forward in interlocutory appeals. Comparing factors relevant in interlocutory appeal and certification informs some recommendations for procedural improvements at the end of this thesis. Cases Bridging the Certification Processes Stubbs v. United States191 bridged the time between the 1975 Certification Rule and the certification procedure enabled by the 1984 constitutional revision. Stubbs’ first appeal, taken in 1979, was from Stubbs’ suit against the federal government to quiet title and partition property. The case was largely decided on federal law. The second appeal involving Stubbs, decided in 1985, was from a separate case the government was compelled to file against Stubbs because he “apparently persisted in asserting rights to the property . . . .”192 This appeal presented many state law issues. As to one, the circuit court stated “[t]he United States has suggested that we might certify this question [about effect of a deed] to the Supreme Court of Utah for its definitive answer.”193 But the Tenth Circuit declined to certify because the issue was subordinate to another decisive issue, on which the law and facts were clear. “We do not do so because we are satisfied that even if we have erroneously interpreted Utah law on this issue, the stipulated facts sufficiently establish that the United States had acquired good title by adverse possession by 1955.”194 Apparently, the Tenth Circuit felt that the passage of the constitutional revision in 1984 was sufficient to enable certification even though the statute and rule had not yet been enacted. Worthen v. Kennecott Corp.195 originated before certification was available and ended after it was available. District Judge David Winder received a motion for certification196 but “[t]he trial court denied such a motion because, at the time of trial, no such procedure was available under Utah law.”197 Judge Winder was the trial judge in Holden v. NL Industries.198 Undeterred, “Appellant . . . urged [the Tenth Circuit] to certify the question concerning the dual capacity doctrine to the Utah Supreme Court.”199 Apparently, this request was made at argument. Examining Utah law, Circuit Judge McKay (who is from Utah) wrote that “[t]he combination of 191 620 F.2d 775 (10th Cir. 1980). 192 United States v. Stubbs, 776 F.2d 1472, 1473 (10th Cir. 1985). 193 Id. at 1475. 194 Id. 195 780 F.2d 856 (10th Cir. 1985). 196 The motion is not listed on the case docket, but it may have been embedded in the summary judgment motion papers filed in 1984 and 1985, or in the motion to amend or alter the decision filed in February 1985. 197 Worthen, 780 F.2d at 860. 198 629 P.2d 428. 199 Worthen, 780 F.2d at 860. 28 the clarity of the issue and the amount of time which has transpired since this matter was first raised leads us to conclude that this is not a case appropriate for the necessarily duplicative efforts of referring the case to the Utah Supreme Court.”200 Judge McKay clarified that he was not generally disposed against certification but that timeliness was a significant consideration. “We do not mean thereby to imply that we are hostile to suggestions of certification of state law to the appropriate state courts. Ordinarily, such suggestions are best raised on appeal by motion before the case has been fully submitted and argued.”201 Early Certification Cases Under the New Rule According to currently available records, District Judge Bruce Jenkins was the first federal judge to certify a question to the Utah Supreme Court under Rule 41, adopted after the constitutional revision. In late 1989, he certified a question to the Utah Supreme Court. The Court accepted the question but the parties settled the case in late 1991, before an answer was received. The first full use of the new certification process was in 1990-91 in Grundberg v. Upjohn Co. District Judge Thomas Greene at the federal court faced a case202 with multiple causes of action arising out of a daughter’s shooting of her mother while the daughter was under the influence of Halcion. One cause of action alleged strict liability, and Judge Greene certified the question “whether Utah adopts the ‘unavoidably unsafe products’ exception to strict products liability as set forth in comment k to section 402A of the Restatement (Second) of Torts (1965) (“comment k”).” His certification order was issued December 19, 1990; the Utah Supreme Court accepted the question January 8, 1991; and the opinion issued only four months later on May 14, 1991.203 The pace is even more remarkable as the decision was 3-2, with two separate dissenting opinions.204 The majority “characterize[ed] all FDA-approved prescription medications as ‘unavoidably unsafe,’” thus “expanding the literal interpretation of comment k.”205 Following the Utah Supreme Court’s decision, the parties briefed its impact on the case, and settled it in August 1991.206 Over a year before he certified the question in Grundberg, Judge Greene received a motion to certify in Hansen v. Sea Ray Boats, Inc.207 His order certifying the question did not 200 Id. 201 Id. 202 Grundberg, 2:89-cv-00274-JTG. When referring to cases in the District of Utah, the local case citation will be used and where possible, will be linked to the case docket. 203 Grundberg v. Upjohn Co., 813 P.2d 89 (Utah 1991). 204 Id. at 99-100. 205 Id. at 90. 206 Order Dismissing Case, Grundberg, 2:89-cv-00274-JTG, docket no. 695, filed August 12, 1991. 207 Motion to Amend Judgment or in the Alternative for Certification, Hansen, 2:88-cv-00708-JTG, docket no. 95, filed December 29, 1989. 29 issue for nearly a year, 208 just six weeks before his certification order in Grundberg. The opinion from the Supreme Court did not come for another 16 months.209 The majority opinion was shorter than Grundberg’s and the two concurrences were less than three lines. But Hansen took two and a half years in the certification process, compared to Grundberg where the process only took five months. Hansen did answer three questions, but stayed inside the parameters of the Restatement and prior Utah precedent. Grundberg and Hansen are contrasts in speed and complexity. Oddly, speed was inversely proportional to the complexity of the Utah Supreme Court opinion. These early cases illustrate that delay may – or may not—result from certification and that the delay cannot be predicted accurately by complexity of issues or by the identity of the presiding federal judge. Statistical Overview Before examining groups of cases, a statistical overview provides perspective. As far as could be determined, as of February 28, 2018, 134 Tenth Circuit, Utah federal district court and Utah bankruptcy court cases have considered certification or—in cases before 1971210—the need for it. Of those cases,211 about half did not certify a question to the Utah Supreme Court. And about half of the cases did certify a question. In one case,212 the district judge is currently considering a motion to certify. Certification by the Tenth Circuit - Summary Statistics In 13 of the cases that did certify a question, the certification occurred in the Tenth Circuit Court of Appeals,213 rather than in the district or bankruptcy court. The district judges from whom those appeals were taken are: 208 Order of Certification, Hansen, 2:88-cv-00708-JTG, docket no. 150, filed November 2, 1990. 209 Hansen v. Sea Ray Boats, Inc., 830 P.2d 236 (Utah 1992). 210 Black v. United States, C138-66 (D. Utah). 211 The thesis does not consider cases certified to the Utah Supreme Court from courts other than the U.S. District Court for the District of Utah, the Bankruptcy Court for the District of Utah, and the Tenth Circuit Court of Appeals. Nor does it consider cases in those courts which considered certification of questions to the courts of states other than Utah. 212 Roberts v. CR England, 2:12-cv-00302-RJS-BCW. 213 United States v. Badger, 818 F.3d 563 (10th Cir. 2016); Hogan v. UTOPIA, 635 Fed. App’x 509 (10th Cir. 2015); Haik v. Salt Lake City Corp., 567 Fed. App’x 621 (10th Cir. 2014) (2:12-cv-00997-TS in the district court); Krehbiel v. Travelers Ins. Co., 387 Fed. App’x 827 (10th Cir. 2010); Century Indem. v. Hanover Ins., 417 F.3d 1156 (10th Cir. 2005); Morgan v. McCotter, 365 F.3d 882 (10th Cir. 2004); Boyd v. Jones, 85 Fed. App’x 77 (10th Cir. 2003) (denied because a recent Utah Supreme Court opinion addressed the issue, resulting in reversal of the trial court decision); Johnson v. Life Inv’rs Ins. Co. of Am., 216 F.3d 1087 (10th Cir. 2000); Hale v. Danny's Constr. Co., Inc., 210 F.3d 389 (10th Cir. 2000); Bragg v. Buck, 1997 WL 474520 (10th Cir. 1997) (case reversed on a different issue, making certification unnecessary); Adams v. Gen. Accident Ins. Co. of Canada, 133 F.3d 932 (10th Cir. 1997); Lyman v. San Juan Cty., 588 Fed. App’x 764 (10th Cir. 1994) (certification was sought on appeal by a different party, of a different issue than was sought in a motion to certify in the district court); Anaconda Minerals Co. v. Stoller Chem. Co., 990 F.2d 1175, 1178 (10th Cir. 1993) (stating “We remain convinced that the Utah Supreme Court would construe the 30 Trial court judge District Judge Dee Benson District Judge Paul Cassell District Judge Thomas Greene District Judge Bruce Jenkins District Judge Dale Kimball District Judge Ted Stewart District Judge Clark Waddoups TOTAL Certified by Circuit 3 1 1 2 3 1 2 13 years on bench214 26 5 ½ 25 31 20 18 9 The Tenth Circuit Court of Appeals has also considered motions for certification to the Utah Supreme Court. The Tenth Circuit: • has never (18 instances) certified a question to the Utah Supreme Court on motion of a party made for the first time on appeal;215 and • has never (7 instances) reversed a district court judge’s decision not to certify a question to the Utah Supreme Court.216 The Tenth Circuit practice demonstrates the importance of timely motions for certification in the district court and that there is no second chance at the appellate court. The substantial number of sua sponte certifications suggests that certification is not raised often enough in the district court. In nine of the cases in which questions were certified sua sponte, the answer resulted in reversal pollution exclusion as we did in Hartford [Accident & Indem. Co. v. U.S. Fid. & Guar. Co., 962 F.2d 1484 (10th Cir. 1992)].”); Wright v. Deland, 986 F.2d 1432 (10th Cir 1993); Littlefield v. Mobil Expl. & Producing, N. Am., Inc., 131 F.3d 152 (10th Cir. 1992); Harline v. Gladwell, 950 F.2d 669 (10th Cir. 1991); Jorgensen v. Larsen, 930 F.2d 922 (10th Cir. 1991); Worthen, 780 F.2d 856 (10th Cir. 1985). 214 Years starting in 1986, when certification was first available. 215 Garza v. Burnett, 547 Fed. App’x 908 (10th Cir. 2013); Fundamentalist Church of Jesus Christ of Latter-day Saints v. Horne, 698 F.3d 1295 (10th Cir. 2012); In re Reinhart, 505 Fed. App’x 761 (10th Cir. 2012); In re Reinhart, 477 Fed. App’x 510 (10th Cir. 2012); Whitney v. Div. of Juvenile Justice Servs., 468 Fed. App’x 871 (10th Cir. 2012); McArthur v. State Farm Mut. Ins. Co., 467 Fed. App’x 792 (10th Cir. 2012); Ohio Cas. Ins. Co v. Unigard Ins. Co., 458 Fed. App’x 705 (10th Cir. 2012); Mecham v. Frazier, 295 Fed. App’x 267 (10th Cir. 2008); Tabor v. Metal Ware Corp., 251 Fed. App’x 577 (10th Cir. 2007); Olseth v. Larson, 236 Fed. App’x 443 (10th Cir. 2007); Robert J. DeBry & Assocs., P.C. v. Quest Dex, Inc., 190 Fed. App'x 685 (10th Cir. 2006); Richardson v. Navistar Int’l Transp. Corp., 231 F.3d 740 (10th Cir. 2000); Hirpa v. IHC Hosp., Inc., 141 F.3d 1184 (10th Cir. 1998). 216 Cincinnati Ins. Co. v. AMSCO Windows, 593 Fed App’x 802 (10th Cir. 2014); Haik, 567 Fed. App’x 621 (this case was 2:13-cv-01051-TS in the district court); Rawlings v. Gilt Edge Flour Mills, 378 Fed. Appx. 859 (10th Cir. 2010); Soc’y of Lloyd's v. Reinhart, 402 F.3d 982 (10th Cir. 2005); Snyder v. Cache Cty., 18 Fed. App’x 693 (10th Cir. 2001); Copier v. Smith & Wesson Corp., 138 F.3d 833 (10th Cir. 1998). In one other case, the district court did not resolve a certification motion before the appeal, and the Tenth Circuit denied the motion to certify. Anderson v. Toomey, 324 Fed. App’x 711 (10th Cir. 2009). 31 of the district court’s opinion.217 But in four instances, the Supreme Court’s answer did not change the ruling below.218 The Tenth Circuit’s track record for judging the need to certify is impressive—in two thirds of the cases it certifies, the answer results in a reversal of the district court. The Tenth Circuit certified questions to the Utah Supreme Court most frequently in in 2005-07 (three certification orders) and 2009-12 (seven certification orders). Certification in the District and Bankruptcy Courts - Summary Statistics When certification is sought by motion in the trial court, the rate of success is about 30%. The rate of success varies widely by judge. District Judge Dee Benson has granted the most motions for certification. Trial court judge District Judge Aldon Anderson District Judge Dee Benson District Judge Tena Campbell District Judge Paul Cassell District Judge Thomas Greene District Judge Bruce Jenkins District Judge Dale Kimball District Judge David Nuffer District Judge Jill Parrish District Judge David Sam District Judge Robert Shelby220 District Judge Ted Stewart District Judge Clark Waddoups District Judge David Winder221 Magistrate Judge Paul Warner Magistrate Judge Evelyn Furse Bankr. Judge Judith Boulden TOTAL motions 2 9 10 1 9 9 11 2 1 3 2 4 4 2 1 1 1 72 granted 1 6 1 1 5 1 3 0 0 1 0 0 1 2 0 1 1 24 per cent granted 50% 66% 10% 100% 56% 11% 27% 0% 0% 33% 0% 0% 25% 100% 0% 100% 100% 33% years on bench219 10 26 22 5 ½ 25 31 20 14 2 ½ 31 5 18 9 23 11 5 ½ 24 217 Garza, 547 Fed. App’x 908; Horne, 698 F.3d 1295; In re Reinhart, 505 Fed. App’x 761; Ohio Cas. Ins. Co., 458 Fed. App’x 705; Mecham, 295 Fed. App’x 267; Tabor, 251 Fed. App’x 577; Olseth, 236 Fed. App’x 443; Richardson, 231 F.3d 740; Hirpa, 141 F.3d 1184. 218 In re Reinhart, 477 Fed. App’x 510; Whitney, 468 Fed. App’x 871; McArthur, 467 Fed. App’x 792; Robert J. DeBry & Assocs., P.C., 190 Fed. App’x 685. 219 Years starting in 1986, when certification was first available. 220 One motion is pending decision. Roberts, 2:12-cv-00302-RJS-BCW. 221 One case in which Judge Winder granted certification was Holden v. NL Industries, 629 P.2d 428, which resulted in overturning the 1975 Certification Rule. 32 As might be expected, when the judge is the one who thinks of certification, certification is far more likely to happen. But certification is not guaranteed, even then. Trial court judges have sua sponte raised certification five times and later decided not to certify. Trial court judge District Judge Dee Benson District Judge Tena Campbell District Judge Paul Cassell District Judge Thomas Greene District Judge Bruce Jenkins District Judge Dale Kimball District Judge David Nuffer District Judge Jill Parrish District Judge David Sam District Judge Robert Shelby District Judge Ted Stewart District Judge Clark Waddoups District Judges Waddoups/Shelby/Nuffer Magistrate Judge Brook Wells Magistrate Judge Evelyn Furse Bankruptcy Judge Kevin Anderson Bankr. Judges Glen Clark / Bill Thurman Bankruptcy Judge Kimball Mosier TOTAL raised sua sponte certification occurred 5 5 2 1 3 0 1 8 1 1 2 0 1 1 1 2 1 1 36 4 5 2 1 2 0 1 7 0 1 2 0 1 1 1 2 1 1 32 per cent certified 80% 100% 100% 100% 67% 0% 100% 75% 0% 100% 100% 0% 100% 100% 100% 100% 100% 100% 88% years on bench222 26 22 5 ½ 25 31 20 14 2 ½ 31 5 18 9 14 5 ½ 2 9 Trial court judges have made 50% more certifications sua sponte than on motion. On the average, on motion or sua sponte about 2 cases per year in the trial court have certified questions since 1986. But in 2016 and 2017, 11 cases have certified questions. Sua sponte certification seems to arise at a hearing on a dispositive motion, when the judge recognizes that a controlling issue is an issue of state law. Motions to certify which are granted also arise in the context of dispositive motions. The motions to certify are more often granted if made in the briefing, with an admission that existing case law is unclear. But the motions are denied if made at the hearing on the motion; after the movant has stated the law is clear in briefing; or after the trial court judge has ruled or indicated an inclination. Pro se parties fare poorly in attempts to certify, as did certification requests after an adverse ruling. A pro se party has never had an issue certified in the Utah federal district court, 222 Years starting in 1986, when certification was first available. 33 though six have tried.223 Certification requests after an adverse ruling have succeeded only one out of nine times.224 While well over 60 federal cases issued certification orders, only 47 opinions from the Utah Supreme Court answer certified questions. In three cases, the request was rejected.225 No explanation was given in the rejection orders.226 Nine cases settled while the certified question was pending in the Utah Supreme Court.227 Six cases with certified questions are currently pending in the Utah Supreme Court.228 It is clear from the records that 14 of the Utah Supreme Court answers to certified questions were case-dispositive,229 by causing the case to settle or clarifying grounds for entry of judgment soon after the certified question was answered. And other cases were likely aided by answers but the cases had other issues that required additional motions or trial. Certification of Questions of Utah Law from Federal Courts Utah trial level federal courts, including district judges, bankruptcy judges and magistrate judges have certified questions to the Utah Supreme Court. And the Tenth Circuit has also certified questions. This section will examine the processes, standards and case patterns in these courts. The processes in these courts to generate the certification orders are not identical. Federal Court Certification Processes The Tenth Circuit Court of Appeals has a rule on certification of questions of state law, adopted in 1999.230 Very brief, it treats only five subjects: 223 See infra p. 45. 224 See infra pp. 44-45. 225 Novell v. Handiman, 2:01-cv-00173-TS; Kennard v. Leavitt, 2:01-cv-00171-DB; Stoker v. Salt Lake Cty., 2:90-cv- 248-BSJ. 226 In Kennard, 2:01-cv-00171-DB, the trial court record reflects that the Utah Supreme Court had two matters pending that likely involved similar issues. 227 See infra pp. 60-61. 228 Mitchell v. Roberts, 2:16-cv-00843-EJF; HealthBanc Int’l, LLC v. Synergy Worldwide, Inc., 2:16-cv-00135-JNP- PMW; GeoMetWatch v. Hall, 1:14-cv-00060-JNP-PMW; CR England v Swift, 2:14-cv-781-DB; In re Hendry, 2:14- bk-27398-KA; Katterman v. Salt Lake Cty., 2:13-cv-01122-EJF. 229 See infra pp. 61-63. 230 Certification of Questions of State Law (A) Certification; Abatement. When state law permits, this court may: (1) certify a question arising under state law to that state's highest court according to that court's rules; and (2) abate the case in this court to await the state court's decision of the certified question. (B) Motion. The court may certify on its own or on a party's motion. (C) Time to File. A motion to certify should be filed at the same time as, but separately from, the moving party's brief on the merits. 34 • authorization of certification and abatement of an appeal; • certification may be raised by a party or by the court; • any motion should be filed with, but separate from, a brief; • any response should be filed with the other party’s next brief or, if the motion was filed with a reply brief, 14 days after the reply brief; and the motion will be considered by the argument panel, at argument. • While the rule provides guidance, it has never been invoked successfully by a party seeking certification. In contrast, the Utah federal district and bankruptcy courts have no defined procedures for promulgating certification orders. Because many judges sit on these courts and they always make individual decisions, there is no uniform practice in these courts. As was seen in the statistical summary, many successful certifications begin with the judge’s suggestion. In those instances, parties are often directed to meet and confer, or submit proposed certification orders. Sometimes a sua sponte certification may occur without party input. Other successful certification processes begin with a motion. The motion process includes briefing which may concur in the idea of certification and propose versions of the facts and questions for an eventual order. Or a party may oppose another party’s motion to certify, asserting the law is clear. Certainly, the better orders are those in which parties and the judge participate in formulation. The Utah Supreme Court advised this course: “In formulating the wording of the questions to be certified, a few federal courts ask counsel for both sides to provide assistance. However, most courts prepare the questions themselves without input from counsel which has, at times, led to the wrong questions being asked.”231 Federal Court Considerations for Certifying Questions of Utah Law Because certification is discretionary,232 there is precedent for the decision to certify and for the decision not to certify. A discretionary decision may only be overturned if it is “an arbitrary, capricious, whimsical, or manifestly unreasonable judgment.”233 On the background of such discretion, the courts feel free to use broad language supporting their decision on a certification motion. And these broad statements of law permitting certification or refusal (D) Response; Time to File. A response may be filed at the same time as the answer or reply brief or within 14 days after the motion is served. (E) When Considered. A motion to certify is ordinarily referred to the panel of judges assigned to decide the appeal on the merits and is considered at the same time as the arguments on the merits. 10th Cir. R. 27.2. 231 In re W. Side Prop. Assocs., 13 P.3d at 170. 232 Armijo v. Ex Cam, Inc., 843 F.2d 406, 407 (10th Cir. 1988) (citing Lehman Bros., 416 U.S. at 391). 233 FDIC v. Oldenburg, 34 F.3d 1529, 1555 (10th Cir. 1994). 35 buttress future courts looking to support their discretionary, nearly irreversible decisions. Some of the arguments made and authorities cited cannot, however, survive critical examination. Arguments and Authorities Against Certification One argument against a federal plaintiff’s motion to certify is that forum selection at filing means that the filer trusts the forum to answer all legal questions presented, even if the forum is federal and the question is one of state law. In rejecting a request to certify, the Tenth Circuit stated: “One who chooses to litigate his state action in the federal forum must ordinarily accept the federal court's reasonable interpretation of extant state law rather than seeking extensions via the certification process.”234 The quotation implies that certification is an extension of the case schedule in federal court and assumes, contrary to usual thinking, that plaintiffs favor delay. Usually, plaintiffs are anxious to conclude their claims—but they want the claim decided on accurate, authoritative interpretations of state law. And a plaintiff’s selection of a forum may involve many factors beyond selection an interpreter of law.235 The Tenth Circuit has often, when rejecting a request to certify, reflected attitudes from the era when certification was emerging and less proven. In that era of more dominant federal control, federal courts assumed they were as well or better equipped to decide questions of state law. In one instance, about six years after Utah’s certification process was implemented, the Tenth Circuit expressed full confidence in its ability to predict Utah law: The Utah Supreme Court has not yet considered the meaning of “sudden and accidental” in the context of the pollution exclusion [in an insurance policy]. In such a case of first impression, our responsibility is to give the clause the interpretation we believe the Utah court would. We are informed by decisions of 234 Littlefield, 131 F.3d 152, n.5 (citing Reynolds v. Bridgestone/Firestone, Inc., 989 F.2d. 465, 472 (11th Cir. 1993); Croteau v. Olin Corp., 884 F.2d. 45, 46 (1st Cir. 1989); Armijo, 843 F.2d at 407). 235 A corollary is that a plaintiff who is involuntarily in federal court after removal from state court is not entitled to certification. The Tenth Circuit rejected that absolute rule: [W]e are unable to discern when a federal district court, under plaintiff-appellant's argument, would ever be able to deny certification in a Utah case that had been removed if there were any possible argument that there is uncertainty on the Utah law. Any plaintiff seeking redress under Utah law whose case was subsequently removed to federal court would be able to raise the same argument Ms. Copier has, and if the district court could not rule out even the slightest degree of uncertainty in the law of the state, it could never deny certification. Such a rule would be clearly wrong. Copier, 138 F.3d at 839. Of the six cases removed to Utah federal district court in which certification was sought, certification was granted in three. Carson v. Am. Family Mut. Ins., 2:09-cv-00663-DB; Whitney v. Div. of Juvenile Justice Servs., 2:09-cv-00030-DAK (certification granted; answer dispositive); Anderson v. Toomey, 2:07-cv-00673-TS; Jensen v. State of Utah, 2:05-cv-00739-TS; Clark v. United States, 2:98-cv-00304-DB (certification granted; answer dispositive); Soter's Inc., v. Deseret Fed., 2:89-cv-00979-DB (certification granted; answer dispositive). 36 the Utah appellate courts and by precedent of federal courts in this and other circuits.236 That case then decided the issue using cases from the First, Second and Sixth Circuits, the State of New York, and the Utah Court of Appeals. The Tenth Circuit did not consider the possibility of certification to the Utah Supreme Court for an authoritative answer. The Tenth Circuit has also said “[c]ertification is not to be routinely invoked whenever a federal court is presented with an unsettled question of state law.”237 One oft-cited reason for the federal court to proceed to answer a state law question was stated in the 1943 U.S. Supreme Court opinion in Meredith v. City of Winter Haven.238 “[I]t has from the first been deemed to be the duty of the federal courts, if their jurisdiction is properly invoked, to decide questions of state law whenever necessary to the rendition of a judgment.”239 That statement was made, however, long before certification procedures were in place, and in a case in which the Court of Appeals had directed the trial court to dismiss without prejudice so that the plaintiff could refile in state court.240 The U.S. Supreme Court directed that the judgment of the district court, deciding the issue, be reinstated.241 Meredith was decided when the only alternatives for a federal court considering an issue of state law were to decide the issue or abstain. Meredith could not consider certification. Certification, where a forum is maintained, is very different than abstention, where the federal court denies its services. In an era when certification is available in all states but one, Meredith’s statement about the duties of trial courts should not be cited. As recently as 2005, in Society of Lloyd’s v. Reinhart the Tenth Circuit stated that “[w]hile certification is appropriate ‘where the legal question at issue is novel and the applicable state law is unsettled,’ it is never compelled.”242 For that last phrase, the Lloyd’s opinion cited Lehman Bros. v. Schein243 which is a pro-certification opinion that • does not use the word “compelled,” but states that even where certification is available, it is never “obligatory”; 236 Hartford Accident & Indem. Co., 962 F.2d at, 1487-88. 237 Armijo, 843 F.2d at 407 (citing L. Cohen & Co. v. Dun & Bradstreet, 629 F.Supp. 1419, 1425 (D. Conn. 1986 . 238 320 U.S. 228 (1943). Despite its age, this precedent continues to be used. L. Cohen & Co., cited above, relied on it and cited other pre-1960’s case law such as R.R. Comm’n of Texas v. Pullman Co., 312 U.S. 496 (1941); Burford v. Sun Oil Co., 319 U.S. 315 (1943); and Cty. of Allegheny v. Frank Mashuda Co., 360 U.S. 185 (1959). 239 Meredith, 320 U.S. at 234; see also Copier, 138 F.3d at 839; Memorandum Decision and Order, Self v. Teleperformance Grp. USA, 2:08-cv-00395-PMW, docket no. 126, filed February 4, 2009; Order on Motions to Dismiss, Jensen, 2:05-cv-00739-TS, docket no. 52, filed June 16, 2006, 2006 WL 1702585, at *21 (D. Utah June 16, 2006). 240 Meredith, 320 U.S. at 230. 241 Id. at 238. 242 402 F.3d at 1001 (citations omitted). 243 416 U.S. at 390-91. 37 • led off that paragraph with a sentence and footnote clarifying that certification was only available in nine states at the time of the opinion;244 • noted that certification “does, of course, in the long run save time, energy, and resources and helps build a cooperative judicial federalism”; and remanded so the lower court could consider certification. • Lloyd’s and Lehman also cited Meredith v. Winter Haven, decided in the abstention era. As stated above, that case law is of little value now that certification is readily available. Reliance on Lehman Bros. as speaking against certification is flawed. The Tenth Circuit has also cited a Florida case for the proposition that certification “is to be utilized with restraint and distinction.”245 For several reasons, this citation in Ormsbee Development Company v. Grace is misleading. The careless citation of the case is revealed by Ormsbee’s use of the word “distinction.” That word does not appear in the Florida opinion. Florida ex rel. Shevin v. Exxon Corp. actually stated: “We use much judgment, restraint and discretion in certifying.”246 The erroneous use of the word “distinction” has been perpetuated by its use in Ormsbee.247 But it has also been corrected. In spite of Ormsbee’s misquotation, District Judge Bruce Jenkins cited Ormsbee using the correct word from Shevin: “While the decision to certify is discretionary and certification should be used with restraint . . . .”248 More important than the use of the wrong word, Shevin is actually not a case to use against certification. The case should be seen in its perspective as coming from Florida, the first state with a certification process. Further, the quotation should be placed in context of the opinion’s general endorsement of the certification process: [O]nly the Florida Supreme Court can decide this state law question in a manner that is, by definition, correct. Thus the defendants' strong urging that the issue be certified to that Court has considerable force. Both the United States Supreme Court and this Court have lauded the certification process, not only because it produces definitive answers but also because it ‘helps build a cooperative judicial federalism’. However, as has been noted by Chief Judge Brown, one of the strongest advocates of the process, certification should never be automatic or 244 Forty-nine states now have certification rules. Eisenberg, supra n.59. 245 Ormsbee Dev. Co. v. Grace, 668 F.2d 1140, 1149 (10th Cir. 1982) (citing Florida ex rel. Shevin v. Exxon Corp., 526 F.2d 266 (5th Cir. 1976), cert. denied, 429 U.S. 829 (1976 . 246 526 F.2d at 274 (emphasis added). 247 Reynolds v. United States, CIV.A. 98-B-1003, 2000 WL 134550, at *1 (D. Colo. January 21, 2000); L. Cohen & Co., 629 F.Supp. at 1424. 248 Cyprus Plateau Mining Corp. v. Commonwealth Ins. Co., 972 F. Supp. 1379, 1383 (D. Utah 1997) (citing Ormsbee Dev. Co., 668 F.2d at 1149). 38 unthinking. ‘We use much judgment, restraint and discretion in certifying. We do not abdicate.’249 [W]e decline to certify the state law question in this case to the Florida Supreme Court. In taking this action, we intend to cast no doubt on the general efficacy of the certification process. And we certainly recognize the supremacy of the Florida Supreme Court as interpreter of state law . . . .250 And the case had many reasons certification was not used. The plaintiff was the Attorney General of the State of Florida: We have before us the Attorney General, elected by the people of Florida, whose opinions on questions involving the duties of various state officials are persuasive, though certainly not binding, in Florida courts. He has brought this action in what he has determined to be the public interest and has proceeded for two years without apparent opposition from the Florida Legislature or the state governmental entities he purports to represent. To impede the progress of this action through the certification process itself seems to us to involve some disregard of the state governmental processes that comity principles require us to respect.251 There were also strong practical reasons not to certify in Shevin. Shevin was an “antitrust action against seventeen major oil companies” which the trial court dismissed, directing the parties to proceed with a declaratory action in state court before the federal court would hear their antitrust claims.252 The Shevin appeal was presented after the case had been pending two years and stated only federal claims.253 And there was abundant state precedent on the question presented: [T]he narrow issue of the Florida Attorney General’s standing to bring this action does not seem to us an extremely close one. And we come to this conclusion with the aid of a long line of Florida decisions . . . as well as the body of common law dealing with the powers of attorneys general. This clearly is not a case in which we are required to ‘guess’ state law from one or two questionable precedents.254 Shevin’s circumstances, praise of the certification process, comparison with available alternatives, and broad language in favor of certification in its careful—not casual—analysis 249 Florida ex rel. Shevin, 526 F.2d at 274 (quoting Barnes v. Atl. & Pac. Life Ins. Co., 514 F.2d 704, 705 n.4 (5th Cir. 1975 (citations omitted). 250 Id. at 276. 251 Id. at 275. 252 Id. at 267. 253 Id. at 275. 254 Id. 39 makes citation of Shevin against certification improper. And returning to Ormsbee, the Tenth Circuit case citing Shevin, certification was never really viable. In Orsmbee, the court said “certification . . . is not appropriate when, as here, the issue certified would not be determinative of the issues before us on appeal.”255 So, Orsmbee should not be cited against certification. Criteria for Certification Two opinions from the Utah district court have stated certification is appropriate “when the case concerns a matter of vital public concern, where the issue will likely recur in other cases, where resolution of the question to be certified is outcome determinative of the case, and where the state supreme court has yet to have an opportunity to illuminate a clear path on the issue.”256 District Judge Dale Kimball’s language was cited by District Judge Jill Parrish, but she added an additional point, extending beyond his last criterion: “And the United States Supreme Court has instructed that federal district courts may avail themselves of state certification procedures when facing ‘[n]ovel, unsettled questions of state law.’”257 Judges Kimball and Parrish list five instances when certification is appropriate: 1. when the case concerns a matter of vital public concern; 2. where the issue will likely recur in other cases; 3. where resolution of the question to be certified is outcome determinative of the case; 4. where the state supreme court has yet to have an opportunity to illuminate a clear path on the issue; and 5. when facing “[n]ovel, unsettled questions of state law.” 258 In an extensive footnote, when considering certification sua sponte, Judge Bruce Jenkins cited language from a Tenth Circuit opinion259 which correlates with the last three criteria used by Judges Kimball and Parrish. The Circuit opinion used language from the Uniform Act (1995). When the Circuit opinion borrowed the standards of the Uniform Act (1995) in setting standards for the certifying court, the state law became federal precedent: The Tenth Circuit has determined that certification is appropriate where it appears that the question to be certified may be determinative of the action now pending 255 Orsmbee Dev. Co.,668 F.2d at 1149. 256 Memorandum Decision and Order Certifying Question to Utah Supreme Court, Carranza v. Mountainlands Health Clinic, 2:07-cv-00291-DAK, docket no. 31, filed May 14, 2009, 2009 WL 1392839, at *4 (D. Utah May 14, 2009) (citing State Farm Mut. Auto. Ins. Co. v. Pate, 275 F.3d 666, 672 (7th Cir. 2001); see also Memorandum Decision and Order, Burningham v. Wright Med. Grp., Inc., 2:17-cv-00092-JNP-PMW, docket no. 48, filed January 23, 2018, 2018 WL 542708, at *3 (D. Utah January 23, 2018). 257 Memorandum Decision and Order, Burningham, 2:17-cv-00092-JNP-PMW, docket no. 48, filed January 23, 2018, 2018 WL 542708, at *3 (D. Utah January 23, 2018) (citing Arizonans for Official English v. Arizona, 520 U.S. 43, 77 (1997 . 258 Id. 259 Swink v. Sunwest Bank (In re Fingado), 955 F.2d 31 (10th Cir. 1992). 40 before the federal court and where there is no controlling authority on the question from the state's highest court or its intermediate appellate court.260 The Uniform Act (1995) criteria are also the likely foundation of the last three criteria in the Kimball-Parrish list above. District Judge Jenkins also added that certification is appropriate “where the question has not been addressed by the state courts with ‘sufficient clarity.’ ”261 Thus, even if a question had been addressed by the state court, but without precision, certification could be used as an opportunity for state law to be made more understandable. The criteria established illustrate the major purposes of certification—some of which are in conflict when the practical impact of certification is considered. One consideration is case specific—the issue certified must be case determinative. But other case specific considerations such as time and expense may push against certification. And other considerations are systemic. The existence of a novel question of law, unsettled by state authority, likely to bear in other cases, requires the court and parties to look beyond their current case. This is an opportunity for counsel and the court to look at the larger purposes of the judicial system and the respective roles of federal and state courts. Comity and federalism are much larger than any current case and future cases. So, those factors external to the case may drive a case to bear a burden for the benefit of others. The parties are most likely to emphasize the case specific factors, unless one of them is a recurrent litigant or a governmental entity. Therefore, the court must require the parties to address factors external to the case and may need to develop those factors itself if the parties do not adequately address them. Motion to Certify Denied As stated earlier, in about half of cases in which certification is considered, no question is certified. There are several common reasons. No State Law Question. Of course, certification is not needed if the state law question is not decisive. Framing the issues in the case can make certification irrelevant. In SEC v. Merrill Scott Limited,262 District Judge Tena Campbell rejected an attempt to “certify a question of Utah property and trust law to the Utah Supreme Court regarding a trust beneficiary's ability to control property held in trust.”263 At the hearing, she stated “This is not a state law question. This is a question of securities transactions, the antifraud provisions.”264 In her later order denying certification she added: “The Tenth Circuit has made clear that certification is appropriate only 260 Cyprus Plateau Mining Corp., 972 F.Supp. at 1383 (citing Swink, 955 F.2d at 33), compare with Uniform Act (1995) § 2. 261 Cyprus Plateau Mining Corp., 972 F. Supp. at 1383 (citing Delaney v. Cade, 986 F.2d 387, 391 (10th Cir. 1993 . 262 2:02-cv-00039-TC. 263 Order at 3, Merrill Scott Ltd., 2:02-cv-00039-TC, docket no. 970, filed May 2, 2007. 264 March 8, 2007 Hrg. Tr. at 64, Merrill Scott Ltd., 2:02-cv-00039-TC, docket no. 949, filed March 22, 2007. 41 where novel or unsettled issues of state law exist. . . . This case turns on the application of federal law . . . .”265 Utah Law is Clear. In Evans v. State of Utah,266 same-sex couple plaintiffs alleged deprivation of their property and liberty interests resulting from the State of Utah's failure to recognize same-sex marriages solemnized in the time between issuance of an order in the District Court validating such marriages and a stay of that order entered by the U.S. Supreme Court.267 Defendants filed two motions to certify issues to the Utah Supreme Court. District Judge Dale Kimball denied the motions: “Because Utah law is clear and not ultimately controlling of the case before this court, the court concludes that there is no basis for certifying the state law questions to the Utah Supreme Court.”268 No Unusual Difficulty in Deciding. In Society of Lloyd's v. Reinhart,269 certification was not used sua sponte by the Tenth Circuit because the issue was not hard to resolve: While no Utah court has rendered a decision on the precise issue in question, our analysis above establishes that there is no unusual difficulty in deciding the state law question or a likelihood that Lloyd's theory of liability would be adopted by the Utah courts. Thus, given the above conclusions, certification is unnecessary.270 Failure to Disclose Known Authority. While a lack of candor with the court may not doom a certification motion, it certainly played a role in Self v. Teleperformance Group USA.271 Magistrate Judge Paul Warner noted that the decisive issue on which certification was sought had been ruled on by another judge in the district recently, and that counsel clearly knew of the decision because counsel was also engaged in that other case: Two weeks after Judge Stewart’s October 1, 2008 decision was rendered in Sweat, Plaintiffs’ counsel filed the motion to certify in this case but, for whatever reason, failed to mention Judge Stewart’s ruling in Sweat. It is not lost on the court that Plaintiffs’ counsel did not believe it was necessary to request certification of the above-referenced issue until after Judge Stewart ruled against the plaintiffs on the same issue in Sweat.272 265 Order at 3, Merrill Scott Ltd., 2:02-cv-00039-TC, docket no. 970, filed May 2, 2007. 266 2:14-cv-00055-DAK. 267 Memorandum Decision and Order, Evans, 2:14-cv-00055-DAK, docket no. 45, filed May 19, 2014. 268 Id. at 34. 269 402 F.3d 982. 270 Id. at 1002. 271 2:08-cv-00395-PMW. 272 Memorandum Decision and Order at 4, Self, 2:08-cv-00395-PMW, docket no. 126, filed February 4, 2009. 42 Timing of Motion, After Party Asserts Law is Clear. A party seeking certification should at the latest raise it when a dispositive motion raises the issue. In American National Property v. McNeely,273 District Judge Dale Kimball pointed out the danger in waiting too long. The motion was made three days before a hearing and denied a day after the hearing. The court considers Defendant’s present motion to be untimely. A party cannot assert that Utah law is clear on an issue and then seek redress from another court when it receives an unfavorable ruling. At this stage of the litigation, if Defendant disagrees with the court’s analysis, his recourse is to file an appeal to the Tenth Circuit. Defendant can ask the Tenth Circuit to certify the issue prior to its analysis of the issue. Prior to this court’s analysis of the issue, Defendant’s only position was that the issue was clear and that the court should certify the question only if the court thought it was unclear or disagreed with Defendant. [The Court’s d]isagreement with a party’s position does not make the issue unclear.274 When a motion suggests the issue, certification should be raised. Stating that the law is clear will work against a party later seeking certification, who must necessarily claim the law is not settled. Motion Made After Adverse Decision. A motion is clearly untimely after an adverse decision. Perhaps the untimeliest motion was made in another case District Judge Dale Kimball handled. In Utah Division of Forestry v. United States,275 the motion was made in 2004, three years after a summary judgment ruling. In 1.800. Vending v. Wyland,276 the motion was not as late, and District Judge Clark Waddoups explained why a motion to certify is too late when made after an adverse ruling: Surprisingly, Defendants believed the court had sufficient guidance to rule in Defendants’ favor on the motion for summary judgment and sought certification only after the court rejected its argument. If such a procedure were to be allowed, it would in effect allow a party to make a motion, argue the merits, and then after losing on an issue, use certification as an interlocutory appeal from an interim decision by a federal court to the Utah Supreme Court.277 273 1:16-cv-00007-DAK. 274 Memorandum Decision and Oder Denying Motion to Certify Question to Utah Supreme Court, McNeely, 1:16- cv-00007-DAK, docket no. 32, filed November 22, 2016. 275 2:97-cv-00927-DAK. 276 1:14-cv-00121-CW. 277 Memorandum Decision and Order Denying Motion to Certify a Question at 3, Wyland, 1:14-cv-00121-CW, docket no. 94, filed January 11, 2017. 43 In six other cases a motion to certify was made after an adverse ruling and denied,278 but in one case a district judge granted a motion to certify after an adverse ruling was made against the movant.279 The Tenth Circuit has stated: “We generally will not certify questions to a state supreme court when the requesting party seeks certification only after having received an adverse decision from the district court.”280 Prematurity. Sometimes the determinative issues have not emerged, making certification at an early stage unwise. In Spurlino v. Holcim, District Judge Jill Parrish denied a motion to certify for that reason: “While the court agrees that certification of the question may eventually be appropriate, it would be premature to do so now. . . . At this early stage of the proceeding, Plaintiff has not developed a factual record showing it would benefit [from the issue of law].”281 Pro Se Movants. Pro se parties also fare poorly when asking for certification.282 In Edwards v. Utah Board of Pardons,283 a pro se habeas petitioner sought post-conviction relief from a state criminal sentence and almost a year after the District Court dismissed his petition for failure to exhaust state remedies,284 the petitioner filed a motion for certification.285 The motion did not propose a question to certify—it only requested the clerk certify and transmit all records to the Utah Supreme Court. That motion was found moot286 after the petitioner’s appeal. The Tenth Circuit dismissed the appeal as untimely because the appeal was filed five months after the District Court dismissed his petition.287 278 Allen v. Bamboo HR, 2:16-cv-00905-RJS; First Am. Title Ins. Co. v. Nw. Title Ins. Agency, 2:15-cv-00229-DN; Schubert v. Genzyme, 2:12-cv-00587-DAK; W. States Contracting v. Spilsbury, 2:10-cv-01141-TC; Baker v. D&RG, 2:94-cv-00017-JTG; Powderham v. Synergy Worldwide, 2:92-cv-00516-TC. 279 Gibbs v. Unum Life Ins. Co., 2:00-cv-00549-PGC. The certification and case were resolved the next month, by settlement. 280 Massengale v. Oklahoma Bd. of Exam’rs in Optometry, 30 F.3d 1325, 1331 (10th Cir. 1994) (citing Armijo, 843 F.2d at 407). 281 Order Denying Without Prejudice Plaintiff’s Motion for Certification of Questions of Law to the Utah Supreme Court at 1-2, Spurlino, 2:14-cv-00461-JNP, docket no. 73, filed January 27, 2016. 282 Stone v. Third Dist. Court, 2:12-cv-00390-CW; Anderson, 2:07-cv-00673-TS; Anderson, 324 Fed. App’x 711; Whiteman v. Friel, 2:05-cv-00424-TC; Snyder v. Cache Cty., 1:98-cv-00151-DAK; Snyder, 18 Fed. App’x 693; Wright, 986 F. 2d 1432. 283 2:01-cv-00834-TS. 284 Order, Edwards, 2:01-cv-00834-TS, docket no. 20, filed February 23, 2004. 285 Motion to [sic] Certification and Transmission of Records, Edwards, 2:01-cv-00834-TS, docket no. 21, filed January 21, 2005. 286 Order Denying Pending Motions as Moot, Edwards, 2:01-cv-00834-TS, docket no. 30, filed October 25, 2005. 287 Ltr re Record on Appeal, Edwards, 2:01-cv-00834-TS, docket no. 28, filed October 18, 2005. 44 No Stated Reason. Sometimes, no reason for denial is given. Because the decision is entirely discretionary, even a brief denial will suffice. In Whiteman v. Friel,288 District Judge Tena Campbell denied the motion by endorsement. 289 Lack of Subject Matter Jurisdiction. In Haik v. Salt Lake County Board of Health290 the District Court and Tenth Circuit denied motions to certify because the federal courts lacked subject matter jurisdiction. Remarkable Cases For several reasons, cases involving certification may be remarkable. Certification creates a unique interplay between two sovereigns. By the nature of the process, the issues certified are significant. In these first 30 years of the Utah experience, some cases have procedural features worth examining. The personalities of judges involved may impress themselves on the various orders and opinions. Lawyer and party strategies make each case unique. This section of the thesis will examine some cases that deserve attention beyond their contribution to the pattern of cases in which certification was considered and used. Reformulation: In the first case291 which reformulated a certified question, the Utah Supreme Court reviewed the history of certification generally and in Utah. “The practice of certifying questions of state law to a state supreme court is a fairly recent device that arose from the judge-made doctrine of abstention, whereby a federal court would abstain until the state court had resolved the state questions.”292 The opinion noted U.S. Supreme Court approval of certification and the constitutional infirmities in Utah’s 1975 Certification Rule. Then, the opinion explained why the need for reformulation arises (lack of lawyer participation in formulation);293 how the need is accommodated by the federal court (by an express statement that “the particular phrasing of the question should not restrict the state court from reformulating the question as it sees fit”);294 the power of the receiving court to reformulate a question;295 and why the Utah Supreme Court found it necessary to reformulate the question.296 The opinion did not note the lack of an express reformulation provision in Utah’s Rule 41. 288 2:05-cv-00424-TC. 289 Order, Whiteman, 2:05-cv-00424-TC, docket no. 20, filed February 27, 2006. 290 2:13-cv-01051-TS. 291 In re W. Side Prop. Assocs., 13 P.3d 168. 292 Id. at 170. 293 Id. 294 Id. 295 Id. at 171 296 Id. 45 That case is also interesting because it was a 3-2 decision, with the dissent boldly stating it “would advise the bankruptcy court to employ the guidelines set out in this dissenting opinion.”297 The bankruptcy court followed the position of the majority.298 An unfinished order: A mechanical problem required two certification orders in Gardner v. Galetka,299 The first certification order300 was unfinished—omitting the certified question—and rejected for not containing the federal court’s statement of the question submitted.301 The corrected order containing the questions was submitted after briefing four months later. 302 Public policy exceptions to at-will employment: Among the high-profile cases which have turned on certified questions is Ray v. Wal-Mart Stores, Inc.303 Utah is an at-will employment state, but a wrongful termination suit may be maintained if a termination violates public policy. The plaintiff-employees responded to shoplifting incidents where the shoplifters were armed. They did not follow Wal-Mart policy to withdraw but instead pinned the shoplifters and confiscated the weapons. They were then terminated. The question whether this stated a violation of the Utah policy of self-defense was certified sua sponte and answered. The Utah Supreme court held that self-defense resulting in termination may give rise to a wrongful termination claim and is an exception to the rule of at-will employment, but limited the exception to circumstances where an employee reasonably believes that force is necessary to defend against an imminent threat of serious bodily harm and the employee has no opportunity to withdraw.304 Ammons v. La-Z-Boy, Inc.305 is another at-will employment case in which certification was important. In response to the question about another public policy exception to at-will 297 Id. at 173. 298 Order Disallowing Salt Lake County’s Request for Allowance of Administrative Expense Claim, In re W. Side Prop. Assocs., 97-20887, docket no. 170, filed March 22, 2001; see also Reorganized Debtor’s Motion for Entry of Order (i) Disallowing Salt Lake County’s Request for Allowance of Administrative Expense Claim and (ii) Closing the Case, In re W. Side Prop. Assocs., 97-20887, docket no. 165, filed February 13, 2001. 299 2:95-cv-00846-TC. 300 Order of Certification, Gardner, 2:95-cv-00846-TC, docket no. 641, filed April 27, 2005. 301 Order, Gardner, 2:95-cv-00846-TC, docket no. 646, filed July 8, 2005. 302 Order of Certification, Gardner, 2:95-cv-00846-TC, docket no. 662, filed November 7, 2005. 303 1:11-cv-00104-RJS. 304 Ray v. Wal-Mart Stores Inc., 359 P.3d 614, 617 (Utah 2015). 305 1:04-cv-00067-TC. 46 employment, the Utah Supreme Court held306 that retaliatory discharge for seeking workers’ compensation violates public policy, so that a wrongful discharge claim is recognized as an exception to the general rule of at-will employment. But the court declined to recognize causes of action for harassment or discrimination307 or for retaliatory discharge for an opposing employer’s treatment of fellow employees who applied for workers’ compensation benefits.308 Certification reviews state court proceedings: Some certification cases illustrate the interplay between state and federal courts, even beyond the certification process. Richardson v. Navistar International Transportation Corp.309 was a federal case brought against different defendants following a state case arising out of the same automobile accident. The question was the effect of the state case on the federal case. Plaintiffs brought a negligence action in Utah state court against various parties involved in an accident but did not include Navistar International Transportation Corp. (“Navistar”) or Toyota Motor Sales U.S.A., Inc. (“Toyota”). In a bifurcated proceeding, the state court jury returned a special verdict allocating 100% of fault among the named defendants. The parties to that suit settled before the damages stage of the trial, and the state trial court entered a judgment of dismissal with prejudice. Plaintiffs then filed an action against Navistar and Toyota in federal district court asserting negligence and strict product liability claims. Defendants raised the defense of collateral estoppel and moved to dismiss the suit based on the state jury’s allocation of 100% of the fault in the prior state court proceeding. The district court granted Navistar and Toyota’s motion for summary judgment. Plaintiffs appealed. The Tenth Circuit then certified a question310 to the Utah Supreme Court. The Utah Supreme Court held that because “the parties reached a settlement before the state court entered a judgment allocating fault pursuant to the Liability Reform Act . . . the jury's verdict on allocation had no binding or preclusive effect on any party or court.” The Tenth Circuit then held that the federal action was not barred by collateral estoppel, and the law of the case doctrine applied after the Utah Supreme Court opinion to preclude a federal court from considering whether Utah’s comparative negligence law required allocation of all fault in one action.311 The District Court was reversed and the case remanded for further proceedings. On remand, the parties stipulated to dismissal, presumably in settlement.312 Soter’s Inc., v. Deseret Federal Savings & Loan Association,313 is another federal case showing the inter-relations of state and federal courts. The case was tried to a jury in state 306 Touchard v. La-Z-Boy, Inc., 148 P.3d 945, 955 (Utah 2006). 307 Id. at 955-956. 308 Id. at 956. 309 2:95-cv-00752-DB. 310 Richardson v. Navistar Int’l Transp. Corp., 170 F.3d 1264 (10th Cir. 1999). 311 Richardson, 231 F.3d 740. 312 Judgment of Dismissal, Richardson, 2:95-cv-00752-DB, docket no. 53, filed March 4, 2002. 313 2:89-cv-00979-DB. 47 court.314 Post-trial motions raised issues with the meaning of the jury’s answers to interrogatories on issues of waiver. But before the motions could be resolved, the defendant was put into a federal receivership.315 The receiver then removed the action to federal court. District Judge Bruce Jenkins certified seven questions on the Utah law of waiver.316 The Supreme Court decided that the state court jury was improperly instructed, which effectively required a new trial. But because the Supreme Court was hearing certified questions rather than an appeal, the Supreme Court did not even suggest a new trial. That procedural decision was for the federal judge, who then re-tried the case in federal court.317 On request of a federal court, the Utah Supreme Court decided that a state trial court had misapplied Utah law. In a third case, the Utah Supreme Court was asked to determine the effect of one of its own orders. In Fundamentalist Church of Jesus Christ of Latter-day Saints v. Wisan,318 the Tenth Circuit asked the Utah Supreme Court whether its dismissal of an application for an extraordinary writ due to laches was a final decision on the merits so that res judicata applied to bar similar claims in a federal civil suit. The district court “attempted to discern the Utah Supreme Court's likely approach.”319 But the Tenth Circuit, on appeal, decided to certify the question to the Utah Supreme Court, noting that “[c]ertification by this court in no way implies an abuse of discretion by the district court in failing to certify, but only indicates our independent judgment on the question.”320 The Utah Supreme Court determined that its decision on the writ had preclusive effect,321 so the Tenth Circuit vacated the district court’s decision and remanded.322 Following the Tenth Circuit's directive, the district court dismissed the action on res judicata grounds.323 Tenth Circuit Recommends Certification: McArthur v. State Farm Mut. Ins. Co.,324 like Fundamentalist Church, is a case in which the Tenth Circuit certified a question decided by the district judge. The Circuit stated its view of the need to certify a little differently than it had stated it in Fundamentalist Church: 314 Soter’s, Inc. v. Deseret Fed. Savings & Loan Ass’n, 857 P.2d 935, 937 (Utah 1993). 315 Id. at 937. 316 Id. at 938. 317 Minute Entry, Soter’s, Inc., 2:89-cv-00979-DB, docket no. 187, filed May 1, 1995. After the Utah Supreme Court decision but before trial, Judge Jenkins recused and the case was tried by Judge Dee Benson. Notice of Recusal and Reassignment, Soter’s, Inc., 2:89-cv-00979-DB, docket no. 155, filed October 31, 1994. 318 465 Fed. App’x 768 (10th Cir. 2012). 319 Id. at 772. 320 Id. 321 Fundamentalist Church of Jesus Christ of Latter-day Saints v. Horne, 289 P.3d 502 (Utah 2012). 322 Horne, 698 F.3d at 1302. 323 Order of Dismissal, Fundamentalist Church of Jesus Christ of Latter-day Saints v. Wisen, 2:08-cv-00772-DB, docket no. 197, filed February 7, 2013. 324 2:09-cv-00416-TS. 48 Needless to say, the outcome of this proceeding turns upon important state law questions of public policy, statutory interpretation, and insurance contract construction which we believe the Supreme Court of Utah should have the opportunity to address in the first instance. Therefore, we conclude certification of the above questions would further the interests of comity and federalism by giving the Supreme Court of Utah an opportunity to answer the questions should it elect to do so under Utah R.App. P. 41(e).325 The Utah Supreme Court agreed with the trial judge and the Tenth Circuit affirmed in a very brief opinion.326 Multiple attempts at certification: Iverson v. State Farm Mutual Insurance Company327 tells counsel seeking certification to keep trying. District Judge Dee Benson refused to certify a question about automobile insurance, stating “[i]n light of Utah statutory language, as well as cases from this and other jurisdictions, there is enough guidance for this Court to make a determination without the need to certify.”328 But after a chambers conference four months later,329 and another chambers conference two months after that,330 he certified a differently stated question.331 From the first motion332 to the order certifying, nine months elapsed. Quick certification: Tight cooperation between the federal district court and the Utah Supreme Court was demonstrated in Utah Republican Party v. Herbert.333 The case, filed on January 15, 2016, challenged election procedures modified by the Utah State Legislature in 2015. Four days after the case was filed, the district court ordered the parties to meet, confer and 325 McArthur v. State Farm Mut. Ins. Co., 407 Fed. App’x 264 (10th Cir. 2010). 326 Id. at 267. 327 1:06-cv-00113-DB. 328 Order on Motion to Certify Question of State Law, Iverson, 1:06-cv-00113-DB, docket no. 41, filed April 16, 2008. 329 Minute Entry, Iverson, 1:06-cv-00113-DB, docket no. 48, filed August 21, 2008; August 21, 2008 Hrg. Tr., Iverson, 1:06-cv-00113-DB, docket no. 60 filed March 11, 2009. 330 Minute Entry, Iverson, 1:06-cv-00113-DB, docket no. 52, filed October 1, 2008; October 1, 2008 Hrg. Tr., Iverson, 1:06-cv-00113-DB, docket no. 62, filed March 11, 2009. 331 Order Certifying Question of Law to the Utah Supreme Court, Iverson, 1:06-cv-00113-DB, docket no. 55, filed December 8, 2008. 332 Motion to Certify Question of State Law, Iverson, 1:06-cv-00113-DB, docket no. 33, filed February 25, 2008. 333 2:16-cv-00038-DN. 49 submit questions to certify.334 Ten days later, the plaintiff and defendant filed a joint motion to certify.335 A certification order issued six days later.336 The next day, the Utah Democratic Party moved to intervene and moved to certify another question. Six days later, after accelerated briefing, a second certification order issued with two questions.337 The Utah Supreme Court’s opinion issued April 8, 2016.338 It declined to answer the third question, stating that it was “based on ambiguous statements of intent by different representatives of the Republican Party.”339 “[R]elief, premised on hypothetical future facts, is inappropriate in this procedural setting.”340 “[T]here is no controversy ripe for resolution . . . .”341 The certification process, from the suggestion of the need on January 19, 2016, to the opinion of the Utah Supreme Court on April 8th, took less than three months. Construing a clear statute under the rule against absurdity: In Garfield County v. United States,342 the Utah Supreme Court construed a clear statute contrary to its language to avoid an absurd result. The case was one of dozens brought by Utah counties to declare rights of way across federal land. Litigants in multiple cases had raised as a defense Utah Code § 78B–2– 201(1), which imposes a seven-year time period for the state to bring an action for title to property. The federal courts questioned whether this statute and its predecessor were statutes of limitations or statutes of repose. Three district judges joined in a sua sponte certification order, formulated with input from the parties. The Utah Supreme Court accepted the question: We hold that the plain language of both versions of the statute reveals them to be statutes of repose. . . . Because of the absurdity that results from applying section 201 and its predecessor as statutes of repose in this context, we construe these statutes as statutes of limitations with respect to R.S. 2477 right of way claims. 334 Order, Utah Republican Party, 2:16-cv-00038-DN, docket no. 7, filed January 19, 2016. 335 Joint Motion to Certify Question to the Utah Supreme Court, Utah Republican Party, 2:16-cv-00038-DN, docket no. 14, filed January 29, 2016. 336 Memorandum Decision and Order of Certification, Utah Republican Party, 2:16-cv-00038-DN, docket no. 22, filed February 4, 2016. 337 Second Memorandum Decision and Order of Certification, Utah Republican Party, 2:16-cv-00038-DN, docket no. 34, filed February 11, 2016. 338 Utah Republican Party v. Cox, 373 P.3d 1286 (Utah 2016). 339 Id. at 1289. 340 Id. 341 Id. 342 2017 WL 3187505 (Utah 2017). 50 The Utah Supreme Court found that the plain language of the statute, applied in a dispute with the federal government, created the absurd result of terminating causes of action before they existed. We hold that the plain language of both versions of the statute reveals them to be statutes of repose. The application of this interpretation to the State's R.S. 2477 rights of way leads to the result that the State effectively and inevitably lost title to any such rights of way after seven years without any opportunity to prevent such loss. This result—the automatic expiration of the State's title to R.S. 2477 rights of way—is absurd . . . .343 The opinion has a strong dissent by two Utah Court of Appeals judges who sat on the case. Judge Fred Voros, the author, summarized: [T]he claimed absurd result—that Utah would enjoy rights of way granted by the United States without a judicial remedy for quieting title to them against the United States—was the prevailing law nationwide for 106 years, from the passage of the Mining Act in 1866 until the passage of the Quiet Title Act in 1972. For this reason, I believe the majority opinion represents the most expansive application of the absurdity doctrine in American law. I am unaware of the absurdity doctrine ever being employed, in Utah or elsewhere, to reject as absurd not a proposed rule of law, but a long-existing rule of law—in this case, a rule of law governing all American states and territories for over a century. If that rule of law in fact mandated absurd results, surely in 106 years some court somewhere would have noticed. Yet no party cites, nor am I able to discover, any court questioning the rationality of the rule of law that we today declare absurd.344 In Garfield County, the Utah Supreme Court was of divided views, as it had been in In re West Side Property Associates.345 But in Garfield County, the dissent did not “advise the [federal] court to employ the guidelines set out in this dissenting opinion.”346 Significant Legal Issues Answers to certified questions have clarified many significant aspects of Utah law. The unique questions presented by certification have enhanced Utah law, by authoritative declarations from the Utah Supreme Court. 343 Id. at *1. 344 Id. at *16. 345 13 P.3d 168. 346 Id. at 173. 51 In Hansen v. Sea Ray Boats, Inc.,347 District Judge Thomas Greene, with input from counsel, certified three questions.348 These questions arose out of Mrs. Hansen’s presence while four other plaintiffs, including her son, received electric shocks in the waters behind a Sea-Ray boat at Lake Powell. The Utah Supreme Court summarized the threshold issue: “Plaintiffs ask us to expand the zone of danger rule [for negligent infliction of emotional injury] found in the Restatement to include recovery for persons who are not actually within the zone of danger but who reasonably and subjectively believe they are in danger.”349 The Court answered in the negative: “We decline to extend recovery to those outside the zone of danger even though they may reasonably fear for their own safety and even though they may witness injury to a close relative.”350 In Burkholz v. Joyce,351 a victim of years of alleged sexual abuse sued her abuser. The case was filed before enactment of a Utah statute of limitation specific to child abuse claims which provided additional time to assert these claims. The plaintiff also alleged tolling by minority, mental disability, and the discovery rule.352 On these difficult facts, the Utah Supreme Court determined the statute of limitations barred the claims: “In making this decision we in no way mean to discount the trauma Burkholz has suffered. However, . . . we find ourselves constrained by the policy underlying the statute of limitations and principles underlying the discovery rule's narrow exception to the statute of limitations and conclude that under these circumstances, no other result is tenable.”353 Carranza v. Mountainlands Health Clinic,354 raised the issue of existence of a claim for wrongful death of an unborn child. The Utah Supreme Court determined—with a two-justice majority, a two justice concurrence in the result, and a one justice dissent—that such a claim does exist.355 From acceptance of the difficult question to issuance of its multi-part opinion, the Utah Supreme Court required 28 months. In Miller v. United States,356 John and Joan Miller filed a suit in federal court to recover for injuries in an auto accident. The defendant was an employee of the United States Air Force who had been drinking liquor at the Noncommissioned Officers Club at Hill Air Force Base. The Millers’ complaint included a claim under the Federal Tort Claims Act (“FTCA”) alleging that Mr. Valle had been negligently and carelessly served alcohol at the club in violation of the Utah 347 2:88-cv-00708-JTG. 348 Hansen, 830 P.2d 236. 349 Id. at 240. 350 Id. at 243. 351 2:96-cv-00252-TC. 352 Burkholz v. Joyce, 972 P.2d 1235, 1236 (Utah 1998). 353 Id. at 1237. 354 2:07-cv-00291-DAK. 355 Carranza v. Mountainlands Health Clinic, 267 P.3d 912 (Utah 2009). 356 1:02-cv-00037-TC. 52 Dramshop Act and that the federal government, as the dramshop, was liable for the Millers’ injuries. District Judge Tena Campbell’s certification order357 cited Utah cases holding that the strict liability Utah Dramshop Act is an exclusive remedy, eliminating a state law claim for negligence which is an essential predicate to an FTCA claim. Judge Campbell’s order also cited a Seventh Circuit case358 holding that even if a state dramshop act eliminated a state court claim for negligence, the negligence claim should survive for the limited purpose of supporting an FTCA claim. In essence, the Seventh Circuit (without certifying the question to the Illinois Supreme Court) declared a narrow exception to the exclusive remedy of the Illinois dramshop act for purposes of the FTCA. In response to the questions in Miller, the Utah Supreme Court held359 that Utah's Dramshop Act was a strict liability statute, and that “Utah does not recognize a common law cause of action in negligence for the sale of alcohol to persons who cause injury to third parties while under the influence of alcohol.”360 A separate opinion concurred in the result but dissented, because the majority’s opinion went beyond the question certified.361 Certifications by Article I Judges In several cases, judges appointed under Article I of the U.S. Constitution have issued certification orders when they are responsible to decide controlling issues. This occurs when a bankruptcy judge is conducting an adversary proceeding or when a magistrate judge handles a civil case on consent of the parties. Cases certified by bankruptcy judges include In re West Side Properties,362 from Bankruptcy Judge Judith Boulden; In re Kunz363 and In re Rockwell364 jointly certified by Bankruptcy Judges Glen Clark and William Thurman; In re Simmons365 certified by Bankruptcy Judge Kimball Mosier; and In re Hendry366 and In re Kiley367 certified by Bankruptcy Judge Kevin Anderson. 357 Order, Miller, 1:02-cv-00037-TC, docket no. 22, filed January 3, 2003. 358 Smith v. Pena, 621 F.2d 873 (7th Cir. 1980). 359 Miller v. United States, 104 P.3d 1202 (Utah 2004). 360 Id. at 1206. 361 Id. at 1207. 362 97-20887 (Utah Bankr.). 363 2:02-bk-40422-GEC. 364 2:02-bk-42013-WTT. 365 2:13-bk-33821-RKM. 366 2:14-bk-27398-KA. 367 2:15-bk-27838-KA. 53 Cases certified by Magistrate Judges include National Indemnity et al v. United States Sports Specialty368 certified by Magistrate Judge Brooke Wells while the case was pending consent and Katterman v. Salt Lake County369 and Mitchell v. Roberts370 certified by Magistrate Judge Evelyn Furse. Magistrate Judge Paul Warner considered but rejected certification in Self v. Teleperformance Group USA.371 The Role of Justice and Judge Parrish Of all judges and justices involved in certification from the federal courts to the Utah Supreme Court, save perhaps Justice Dallin Oaks who wrote the opinion invalidating the 1975 Certification Rule, Jill Parrish has the most prominent role. She served as a justice of the Utah Supreme Court from 2003 to 2015 and in that capacity wrote six opinions on questions certified from federal courts. Serving as a district judge in the District of Utah since August 2015, she has already certified more questions to the Utah Supreme Court than any other federal judge. She is the only person who has served in a judicial capacity on both sides of the certification process. Opinions on Utah Supreme Court In Smith v. United States she wrote the opinion372 responding to questions certified by District Judge Dee Benson.373 The issue was whether a legislative cap on noneconomic damages in medical malpractice cases applied in cases of wrongful death and, if so whether the limitation was valid under the Utah Constitution’s prohibition of such damage caps in wrongful death cases. Justice Parrish’s unanimous opinion declared the cap unconstitutional in such cases. This is the only opinion Justice Parrish wrote in response to questions certified from a trial court judge. Justice Parrish responded374 to the Tenth Circuit’s certification375 in In re Reinhart about the effect of Utah garnishment exemptions in bankruptcy. The district court had affirmed a decision of the bankruptcy court finding the Utah statutory exemption created a bankruptcy exemption,376 but on further appeal, the Tenth Circuit certified questions. Justice Parrish held 368 2:07-cv-00996-TS (certified by Magistrate Judge Brooke Wells while the case was pending consent to exercise of jurisdiction by a magistrate judge). 369 2:13-cv-01122-EJF. 370 2:16-cv-00843-EJF. 371 2:08-cv-00395-PMW. 372 356 P.3d 1249 (Utah 2015). The opinion was released the week before Judge Parrish came to the federal district bench. 373 Smith v. U.S. Dep’t of Veterans Affairs, 2:12-cv-00968-DB. 374 In re Reinhart, 291 P.3d 228 (Utah 2012). 375 In re Reinhart, 416 Fed. App’x 761 (10th Cir. 2011). 376 Order, Gladwell v. Reinhart, 2:06-cv-00325-BSJ, docket no. 34, filed March 12, 2010. 54 that the garnishment exemption did not, by its terms, create a bankruptcy exemption. Then, the Tenth Circuit remanded to the district court to remand to the bankruptcy court.377 Justice Parrish’s opinion was the second she had written in In re Reinhart. Her first was written a year earlier.378 The earlier opinion was also in response to a Tenth Circuit certification.379 The issue on this appeal was an exemption of a retirement plan. Following the answer of the Utah Supreme Court, the Tenth Circuit affirmed the exemption on the principal but not on the earnings, reversing the trial court in part.380 In Whitney v. Division of Juvenile Justice Services381 Justice Parrish again wrote in response to certification from the Tenth Circuit.382 While the possibility of certification was raised in the district court, the nine-line motion had only cursory argument.383 The response to the certified question confirmed the correctness of the district court decision, so the Tenth Circuit affirmed.384 Justice Parrish also wrote for the court in Ohio Casualty Insurance Company v. Unigard Insurance Company385 in response to a question from the Tenth Circuit.386 No question of certification arose in the District Court on the issue of allocation of defense costs between insurers, but the Utah Supreme Court answered the question of first impression supporting the Tenth Circuit reversal of the District Court.387 Justice Parrish responded to questions certified by the Tenth Circuit in Mecham v. Frazier.388 Justice Parrish held that immunity protected the state officers from suit, requiring the Tenth Circuit to reverse the district judge’s denial of immunity on the state law claims.389 Because a separate opinion of the Tenth Circuit had already reversed the district judge’s denial of 377 In re Reinhart, 505 Fed. App’x 761. 378 In re Reinhart, 267 P.3d 895. 379 In re Reinhart, 362 Fed. App’x 919 (10th Cir. 2010). 380 In re Reinhart, 477 Fed. App’x 510. 381 274 P.3d 906 (Utah 2012). 382 Whitney v. Div. of Juvenile Justice Servs., 404 Fed. App’x 316 (10th Cir. 2010). 383 Motion for Certification of Law [sic] by United States District Court, District of Utah, Whitney, 2:09-cv-00030- DAK, docket no. 37, filed April 23, 2009. 384 Whitney, 468 Fed. App’x 871. 385 268 P.3d 180 (Utah 2012). 386 Ohio Cas. Ins. Co. v. Unigard Ins. Co., 564 F.3d 1192 (10th Cir. 2009). 387 Ohio Cas. Ins. Co., 458 Fed. Appx. 705. 388 193 P.3d 630 (Utah 2008). 389 Mecham v. Frazier, 295 Fed. App’x 267 (10th Cir. 2008). 55 qualified immunity on the federal claims,390 the federal case was then dismissed by the federal district court. Five of the six opinions written by Justice Parrish were in response to questions from the Tenth Circuit Court of Appeals. Of those, four resulted in trial court reversals. During her tenure on the Utah Supreme Court, the Court issued twenty-seven opinions in response to certified questions, eleven of which were certified from the Tenth Circuit. This background may in part explain her readiness, as a district judge, to certify questions. She raises the possibility sua sponte more than she faces it on motions—having received only one motion to certify in her cases. And she denied that motion. Questions Certified as District Court Judge Judge Parrish first faced certification as a district court judge in Spurlino v. Holcim391 Judge Parrish denied a motion to certify questions about the Utah Uniform Unfair Practices Act. She stated: While the court agrees that certification of the question may eventually be appropriate, it would be premature to do so now. . . . Plaintiff has not developed a factual record showing it would benefit from the [competitive injury] inference, if such an inference is indeed permissible under Utah law. Additionally, Defendants argue they have defenses that will defeat Plaintiff’s claims even if the . . . inference applies.392 At almost the same time, in Dircks v. Travelers Indemnity Company of America,393 Judge Parrish suggested that claims for declaratory relief regarding underinsured motorist coverage required interpretation of the Utah statute, making certification advisable.394 The parties provided input and a certification order issued with a single question.395 The question was answered396 and judgment was entered for the plaintiff.397 390 Mecham v. Frazier, 500 F.3d 1200 (10th Cir. 2007). 391 2:14-cv-00461-JNP. 392 Order Denying Without Prejudice Plaintiff’s Motion for Certification of Questions of Law to the Utah Supreme Court, Spurlino, 2:14-cv-00461-JNP, docket no. 73 at 2, filed January 27, 2016. 393 2:14-cv-00118-JNP-DBP. 394 Order Staying Case, Dircks, 2:14-cv-00118-JNP-DBP, docket no. 38, filed December 17, 2015. 395 Order Certifying Questions to the Utah Supreme Court, Dircks, 2:14-cv-00118-JNP-DBP, docket no. 41, filed January 29, 2016. 396 Dircks v. Traverlers Indem. Co. of Am., 2017 WL 4675471 (Utah 2017). 397 Order Granting Plaintiffs’ Motion for Summary Judgment and Denying Defendant’s Motion for Summary Judgment, Dircks, 2:14-cv-00118-JNP-DBP, docket no. 50, filed December 1, 2017; Judgment, Dircks, 2:14-cv- 00118-JNP-DBP, docket no. 51, filed December 1, 2017. 56 Two questions regarding Utah insurance laws were certified in Lancer Insurance Co. v. Lake Shore Motor Coach Lines,398 after Judge Parrish obtained input from the parties. Both questions were answered,399 resulting in declaratory judgment against the insurer.400 In Zimmerman v. University of Utah, simultaneous with an order on two dispositive motions, Judge Parrish certified three questions401 regarding Utah’s constitutional free speech clause and employment law. The questions were accepted, but only one was answered due to poor briefing by the parties.402 Judge Parrish suggested certification of questions about a Utah statute of limitations at argument of a motion to dismiss in Loveridge v. Prudential Insurance Company of America.403 The defendant-movant requested a 21-day stay and then withdrew the motion. The case settled shortly thereafter. In GeoMetWatch v. Hall,404 Judge Parrish certified three questions about governmental immunity to the Utah Supreme Court sua sponte405 but on the parties’ motions, substantially amended the questions and expanded the order.406 The questions are pending at the Utah Supreme Court.407 In Flores v. Unified Police Department of Greater Salt Lake,408 Judge Parrish certified two governmental immunity questions,409 but revoked her order 21 days later when the case settled.410 398 Order Certifying Questions to the Utah Supreme Court, Lancer Ins. Co., 2:14-cv-00785-JNP, docket no. 58, filed March 28, 2016. 399 Lancer Ins. Co. v. Lake Shore Motor Coach Lines, Inc., 391 P.3d 218 (Utah 2017). 400 Order Denying [32] Motion for Summary Judgment and Granting [42] Motion for Summary Judgment, Lancer Ins. Co., 2:14-cv-00785-JNP, docket no. 65, filed February 17, 2017. 401 Order Certifying Questions to the Utah Supreme Court, Zimmerman, 2:13-cv-01131-JNP-BCW, docket no. 76, filed July 1, 2016, 2016 WL 3647857 (D. Utah July 1, 2016). 402 Zimmerman v. Univ. of Utah, 2018 WL 523483 (Utah January 23, 2018). 403 Minute Entry, Loveridge, 2:16-cv-00377-JNP, docket no. 18, filed August 22, 2016. 404 1:14-cv-00060-JNP-PMW. 405 Order Certifying Questions to the Utah Supreme Court, GeoMetWatch, 1:14-cv-00060-JNP-PMW, docket no. 475, filed March 29, 2017. 406 Memorandum Decision and Amended Order Certifying Questions to the Utah Supreme Court, GeoMetWatch, 1:14-cv-00060-JNP-PMW, docket no. 489, filed April 21, 2017. 407 GeoMetWatch v. Hall, 20170264-SC. 408 2:16-cv-00224-JNP-BCW. 409 Amended Order Certifying Questions to the Utah Supreme Court, Flores, 2:16-cv-00224-JNP-BCW, docket no. 19, filed April 3, 2017. 410 Order Striking Certification of Questions to the Utah Supreme Court, Flores, 2:16-cv-00224-JNP-BCW, docket no. 23, filed April 24, 2017. 57 The application of the economic loss rule to fraudulent inducement claims was certified by Judge Parrish in HealthBanc International, LLC v. Synergy Worldwide, Inc.411 The case is pending at the Utah Supreme Court.412 Recently Judge Parrish ordered “the parties to meet, confer, and submit a proposed statement of facts and proposed questions for certification” in Burningham v. Wright Medical Group.413 They did so, and she signed the certification order.414 The case is pending at the Utah Supreme Court. The influence of Justice and Judge Parrish is unique because of her positions the Utah federal district court and the Utah Supreme Court. Those courts are most involved in certified questions of Utah law. Her inclination to raise the issue sua sponte may influence other judges to consider certification more often. Impact of Certification on Cases The certification process impacts cases. While an authoritative decision on state law is the desired result of the process, there are other benefits. The mere filing of a motion to certify, or the pendency of a motion, or entry of a certification order may cause a case to settle. And as would be expected, the answer to a certified question may provide a basis for settlement or for entry of an order deciding a dispositive motion. Certification Motion Causes Cases to Settle The mere suggestion of certification may advance a case—perhaps by focusing a critical issue, or perhaps by creating a concern about delay. In Loveridge v. Prudential Insurance Company of America,415 District Judge Jill Parrish expressed the inclination to certify a question of applicability of a statute of limitations after hearing arguments on a motion to dismiss.416 Defendant then requested a three-week stay of the case, withdrew the motion to dismiss and a few months later, the parties filed a stipulated notice of dismissal.417 411 Order Certifying Questions to the Utah Supreme Court, HealthBanc Int’l, LLC, 2:16-cv-00135-JNP-PMW, docket no. 97, filed July 6, 2017. 412 HealthBanc Int’l, LLC v. Synergy Worldwide, Inc., 20170591-SC. 413 Memorandum Decision and Order, Burningham, 2:17-cv-00092-JNP, docket no. 48, filed January 23, 2018. 414 Order Certifying Questions to the Utah Supreme Court, Burningham, 2:17-cv-00092-JNP, docket no. 51, filed February 15, 2018. 415 2:16-cv-00377-JNP. 416 Minute Entry, Loveridge, 2:16-cv-00377-JNP, docket no. 18, filed August 2, 2016. 417 Joint Stipulation of Dismissal With Prejudice, Loveridge, 2:16-cv-00377-JNP, docket no. 23, filed February 22, 2017. 58 At a final pretrial conference in Jeppson v. Thoman,418 District Judge David Sam directed the parties to prepare an order certifying an issue under the Utah Governmental Immunity Act. Instead, a motion for summary judgment was filed six weeks later, and the case settled six months after that. In the interim, time had been extended for any response to the motion. In Davis County Construction v. Davis County,419 the case settled eighteen months after the certification motion was filed. On the same day the motion was filed, an order from District Judge David Sam set an accelerated briefing schedule and gave notice of a hearing five days later—which was apparently never held. Cases Settle While Questions Pend in Utah Supreme Court In at least nine other instances, cases have settled while certification is pending after a certification order is sent to the Utah Supreme Court. The time between entry of the order and settlement may range from days to a year. During that time, the parties examine—and perhaps brief—their positions. The close look at the controlling issues which are certified, and the spectre of additional time and expense to complete litigation facilitates settlement. Flores v. Unified Police Department of Greater Salt Lake420 moved very quickly. The question was certified April 3, 2017, and amended April 21, 2017—and the case was dismissed April 24, 2017. Gibbs v. Unum Life Insurance Company of America421 settled a week after the certification order issued. Pace v. Swerdlow422 settled less than two months after a question was certified. In Westport Insurance v. Ong,423 an order of certification was followed within two weeks by a motion to amend it. In the course of resolution of that motion, the parties settled the case less than four months later. Haights Creek Irrigation Company v. United Technologies424 was dismissed less than four months after the certification order issued. 418 2:94-cv-00519-DS. 419 1:89-cv-00054-DS. 420 2:16-cv-00224-JNP-BCW. 421 2:00-cv-00549-PGC. 422 2:06-cv-00027-DB. 423 1:07-cv-00010-DAK. 424 1:91-cv-00042-DKW. 59 Johnson v. Riddle425 and In re Hendry426 settled six months after the certification order issued. In McCourt v. Semken,427 the Utah Supreme Court did not respond to accept or reject a November 1989 certification order until January 1991 and then the plaintiff voluntarily dismissed the case in December 1991. Gines v. Ingersoll-Rand Company428 settled a year after the certification order issued. Answer to Certified Questions Causes Cases to Settle In another 12 cases, the answer to the certified issues apparently assisted in settlement. A retaliatory termination cause of action based on reporting co-worker law violations was determined not to exist in the Utah Supreme Court’s answer429 to the question posed in Fox v. MCI Communications Corp.430 The case promptly resolved. In Spackman v. Board of Education of Box Elder County,431 the Utah Supreme Court’s determination432 that two state constitutional provisions were self-executing, thus validating two of the plaintiff’s causes of action, enabled a settlement. Egbert, v. Nissan North America433 resolved after two certification orders issued by District Judges Paul Cassell and Dee Benson (successively presiding in the case). Issues certified related to Utah tort law. The parties settled before resolution of a summary judgment motion filed after the opinions434 were received from the Utah Supreme Court. A claim for descendant’s benefits came before the district court in Burns v. Astrue.435 The parties stipulated to certification of whether an agreement to be a sperm donor constituted a record of consent to being a parent for purposes of intestacy, entitling the child to social 425 2:98-cv-00599-TS. 426 2:14-bk-27398-KA. 427 2:87-cv-01052-BSJ. 428 2:89-cv-00543-JTG. 429 Fox v. MCI Commc’ns Corp., 931 P.2d 857 (Utah 1997). 430 2:93-cv-00042-BSJ. 431 1:98-cv-00120-TC. 432 Spackman v. Bd. Educ. Box Elder Cty., 16 P.3d 533 (Utah 2000). 433 2:04-cv-00551-DB. 434 Egbert v. Nissan N. Am., Inc., 167 P.3d 1058 (Utah 2007); Egbert v. Nissan Motor Co., Ltd., 228 P.3d 737 (Utah 2010). 435 2:09-cv-00926-DAK. 60 security survivor’s benefits. After the Utah Supreme Court opinion436 declaring that the donation agreement did not constitute consent to being a parent, the parties stipulated to dismiss the federal case. In Whitney v. Division of Juvenile Justice Services437 the Tenth Circuit (in an interlocutory appeal) determined that a district judge’s decision denying governmental immunity was correct—after the Circuit received an answer from the Utah Supreme Court438 to the question certified from the Circuit. The case settled shortly after remand. In Thayer v. Washington County School District439 settlement was reached after the Utah supreme Court’s determined440 that governmental immunity did not bar suit for death of a student by a firearm used in a school play rehearsal. The statutory interpretations provided by the Utah Supreme Court441 to a question certified by two bankruptcy judges together in In re Kunz442 and In re Rockwell443 enabled settlement by clarifying status of funds transferred between two IRA accounts. After the Utah Supreme Court’s opinion issued,444 both parties in Iverson v. State Farm Mutual Insurance Company445 moved for summary judgment, and filed settlement papers five months later. Ray v. Wal-Mart Stores, Inc.446 settled after the Utah Supreme Court’s opinion447 defining the parameters of a public policy which could be the basis of a claim for wrongful termination of employment. Wal-Mart provoked the settlement by filing a motion for summary judgment. 436 Burns v. Astrue, 289 P.3d 551 (Utah 2012). 437 2:09-cv-00030-DAK. 438 Whitney, 274 P.3d 906. 439 2:09-cv-00565-DB. 440 Thayer v. Washington Cty. Sch. Dist., 285 P.3d 1142 (Utah 2012). 441 In re Kunz, 99 P.3d 793 (Utah 2004). 442 2:02-bk-40422-GEC. 443 2:02-bk-42013-WTT. 444 Iverson v. State Farm Mut. Ins. Co., 256 P.3d 222 (Utah 2011). 445 1:06-cv-00113-DB. 446 1:11-cv-00104-RJS. 447 Ray, 359 P.3d 614. 61 After the opinion from the Utah Supreme Court448 in Grundberg v. Upjohn Company,449 District Judge Thomas Greene invited the parties to brief the impact of the ruling and the case settled three months later. The role of the answer of the Utah Supreme Court450 is not as clear in Peterson v. Browning451 because the case settled a year and a half after the appellate opinion and records are not available. Certification Answer Dispositive for Motion in Federal Case In two federal district cases, the answer to the certified question was dispositive for a federal court motion. Just two days after the Utah Supreme Court’s opinion452 in Lancer Insurance Co. v. Lake Shore Motor Coach Lines,453 District Judge Jill Parrish granted one previously pending motion for summary judgment and denied the other party’s motion. In Clark v. United States454 the answer of the Utah Supreme Court455 spawned a motion to dismiss based on governmental immunity. The motion was granted six months after the certified question was answered. Certified Answer Irrelevant In at least one case, a certified question turned out to be irrelevant to the case outcome. In Waddoups v. Noorda456 the question was whether a statute barring claims for negligent credentialing of physicians was retroactive. But two weeks after the Utah Supreme Court opinion,457 the plaintiff agreed to dismiss the claim458 after determining it had no factual basis. 448 Grundberg v. Upjohn Co., 813 P.2d 89 (Utah 1991). 449 2:89-cv-00274-JTG. 450 Peterson v. Browning, 832 P.2d 1280 (Utah 1992). 451 1:87-cv-00121-JTG. 452 Lancer Ins. Co., 391 P.3d 218. 453 2:14-cv-00785-JNP. 454 2:98-cv-00304-DB. 455 Clark v. United States, 998 P.2d 268 (Utah 2000). 456 1:11-cv-00133-CW. 457 Waddoups v. Noorda, 321 P.3d 1108 (Utah 2013). 458 Notice of Non-Opposition to Intermountain Healthcare, Inc. dba Logan Regional Hospital’s Motion for Summary Judgment on Plaintiffs’ Negligent Credentialing Claim, Waddoups, 1:11-cv-00133-CW, docket no. 233, filed November 14, 2013. 62 Deference for Answers to Certified Questions Utah’s federal trial courts seem to have had no question about applying the answer to certified questions, but have not expressly considered the possibility of acting otherwise. When the Utah Supreme Court has responded to a certified question, the Tenth Circuit gives full deference; [T]he Utah Supreme Court issued a clear statement of the applicable law in Utah. Whether we would answer the question differently is immaterial. The Utah Supreme Court has spoken, and on this issue of state law, we are in no position to question the propriety of that distinguished court's decision.459 This regard for the decision of the state court is in marked contrast to “one Ohio federal district court, [which] having received a divided opinion from the Ohio Supreme Court, chose to dismiss the disputed state law claim without prejudice, anticipating that the Court could change its mind in the future.”460 Utah Supreme Court Responses to Certification Orders Utah Supreme Court Standards When Responding to Certified Questions The Utah Supreme Court has substantial control over the certification process. While its rule authorizes certification, the Court retains the right to “enter an order either accepting or rejecting the question certified to it.”461 The Court has rejected questions at the outset, without comment.462 And it has rejected questions it has previously accepted, with explanatory commentary; While it is clear that we have original jurisdiction to answer the certified question, there does appear to be significant uncertainty as to whether the federal district court has jurisdiction over these claims. Accordingly, we revoke our acceptance of the certified question as improvident.463 In that instance of revocation, the Court added some advice, even though the certification was revoked: 459 Burkholz v. Joyce, 211 F.3d 1277 (Table), *3 (10th Cir. 2000). 460 Rebecca A. Cochran, Federal Court Certification of Questions of State Law to State Courts: A Theoretical and Empirical Study, 29 J. Legis. 157, 208 (2002-2003). 461 Utah R. App. P. 41(e). 462 Findings of Fact, Conclusions of Law and Final Judgment, Kennard, 2:01-cv-00171-DB, docket no. 43, filed August 1, 2002, 246 F.Supp.2d 1177, 1181 (D. Utah 2002). 463 Order [of Utah Supreme Court] at 1, Endow, 1:13-cv-00108-TC, docket no. 36, filed July 20, 2015, 2015 WL 4394047 (Utah July 17, 2015). 63 While we do not decide whether the federal district court has jurisdiction over the Plaintiff’s UADA claims, we note that Ms. Endow faces serious jurisdictional problems as to these claims, problems that were not brought to the attention of the federal district court in the Defendants' motion to dismiss. The court therefore had no opportunity to consider them. First, the commencement of the Plaintiff's federal law claims may bar the continuation of her UADA claims under the plain language of the Act. Further, she may have failed to exhaust her administrative remedies under the UADA with respect to the individual defendants. Because of these serious jurisdictional concerns, any opinion we issue on the certified question may be advisory, and we do not issue advisory opinions.464 The Court further elaborated in a footnote to draw the line between observing, advising and deciding: We underscore that we do not decide whether the federal district court has jurisdiction over the Plaintiff’s UADA claims. We were not presented with full briefing or a full record concerning these issues. For instance, while it does not appear that the Plaintiff filed an administrative claim against the individual defendants, we were only given one of the many documents relating to her administrative claim.465 The federal district court eventually dismissed the UADA claims.466 The Utah Supreme Court reformulated questions or gave partial answers to certified questions in three cases. In In re West Side Properties,467 one of two questions was reformulated (after a lengthy discussion of the certification process) because as it was submitted, “there is no unclear issue of state law for us to address, and therefore, the exercise of certification would be futile.”468 One of three certified questions was not accepted in TruGreen Companies v. Bitton469 The questions certified were: 1. Whether under Utah law a former employer is entitled to an award of lost profits damages, or instead an award of restitution or unjust enrichment damages, where a former employee has breached contractual non-competition, non- disclosure, and employee nonsolicitation provisions? 464 Id. at 1-2. 465 Id. at 2 n.4. 466 Order Dismissing the Fourth, Sixth and Eighth Causes of Action, Endow, 1:13-cv-00108-TC, docket no. 52, filed October 23, 2015. 467 13 P.3d 168. 468 Id. at 171. 469 1:06-cv-00024-BSJ. 64 2. Whether Utah law recognizes an unjust enrichment measure of damages for tortious interference with a competitor’s contractual and economic relations? 3. Whether “actual damages” under Utah Code Ann. § 13-5a-103(1)(b)(i), the Utah Unfair Competition Act, means the plaintiff’s lost profits or an award of damages defined by the defendant’s revenues?470 Without comment, the court accepted only the first two of the questions.471 The recent opinion in Zimmerman v. University of Utah472 declined to answer two accepted questions and made clear that the Utah Supreme Court’s power to accept or reject did not end at an initial acceptance order: The power to elect to decide a certified question encompasses the power to decline to resolve it conclusively in appropriate circumstances. And on reflection we see reasons not to render a conclusive answer to the first two questions certified in this case. Because these questions are not adequately briefed by the parties we decline to resolve them here. Instead we answer only the third question, which is squarely presented and amply addressed in the parties’ briefs.473 In nine paragraphs the Court discussed how the inadequacies of the briefing made answers ill- advised.474 “The answer to these questions may yet prove crucial to the disposition of this case. But the parties have not given us the kind of adversary briefing that we would need to resolve these important issues with confidence, and we therefore decline to do so.”475 After the hurdle of acceptance is passed, the Utah Supreme Court has defined standards for proceeding. First, the Court will not revisit facts stated in the certification order from the District Court. When one party “attempted to reargue the facts as found by the federal district court,” the Court declared that “[i]n answering a question on certification from the district court, we do not refind the facts; we simply answer the certified question of law.”476 This restraint is well suited to the role of the Utah Supreme Court as an arbiter of law and not a court of evidentiary 470 Order Certifying Questions of Law to the Utah Supreme Court, TruGreen Cos., 1:06-cv-00024-BSJ, docket no. 287, filed June 8, 2007. 471 Order of Acceptance, TruGreen Cos., 1:06-cv-00024-BSJ, docket no. 293, filed August 16, 2007. 472 2018 WL 523483. 473 Id. at *2. 474 Id. at *5-10. 475 Id. at *11. 476 Burkholz, 972 P.2d at 1237 (citing Hansen, 830 P.2d at 239). 65 presentation. The prohibition against refinding facts prevents unnecessary distractions from the legal issues presented for decision, and retains respect for the role of the certifying court. Second, the Court has also stated that it accepts the decision of the federal court as to the dispositive nature of the certified question. “[T]hose courts’ conclusion that these statutes could be dispositive is a legal conclusion that we are not in a position to review on certification and must accept for purposes of answering the certified question.”477 Third, a certified question presents a unique procedural setting for application of legal standards. The Court has said: “A certified question from the federal district court does not present us with a decision to affirm or reverse a lower court's decision; as such, traditional standards of review do not apply.” Accordingly, we merely answer the question presented, leaving “resolution of the parties' competing claims and arguments . . . up to the federal courts, which of course retain jurisdiction to decide [the] case.”478 Fourth, the Court may answer a question broadly. In Egbert v. Nissan Motor Co., Ltd.,479 a party argued that an issue raised by the other party “exceeds the scope of the certified question and thus we should only look to the narrow question [certified].”480 This court has noted that it “will reformulate the question if necessary regardless of whether the federal court has expressly stated this in the certification.” Therefore, even if the question were limited to the narrow reading proposed . . . , we would reformulate the question . . . in order for our answer of the certified question to clarify the disputed issue of law and to assist the federal district court.481 This approach is similar to the “speaking rejection” used to advise the federal court in Endow v. Utah Transit Authority482 Finally, the Utah Supreme Court does not attempt to impose its views on the certifying federal court. 477 Garfield Cty, 2017 WL 3187505, at *5. 478 Id. (citing and quoting U.S. Fid. & Guar. Co. v. U.S. Sports Specialty Ass'n, 270 P.3d 464 (Utah 2012); Horne, 289 P.3d 502); see also Ray, 359 P.3d at 619. 479 228 P.3d 737. 480 Id. at 740. 481 Id. 482 Order [of Utah Supreme Court] at 1, Endow, 1:13-cv-00108-TC, docket no. 36, filed July 20, 2015, 2015 WL 4394047 (Utah July 17, 2015). 66 [E]xcept to clarify our law, we do not pretend to possess or exercise the authority to dictate the preclusive effect of our decision to the courts of a separate sovereign. Those courts retain the independent authority to decide whether and to what extent to apply our law or to recognize limitations on or caveats to it.”483 Is Certification Worth It? The last 30 years of certification practice have demonstrated its value, and exposed its weaknesses. One’s opinion on the value of certification depends on the point of view. If certification is examined only from the point of view of an individual case, the deficiencies in certification—time and expense, and uncertainty about both while the parties are in the process and the federal court is waiting—raise serious questions. When a systemic view is taken, considering certification in the American federalist structure, the value of certification is more apparent. But certification involves real cases, so the problems for those cases and benefits to our federal-state system must both be regarded. Costs and Benefits for the Parties In most cases which pass through the certification process, the parties benefit by an authoritative declaration of Utah law. Many cases demonstrate that the answer resolves the case or important issues in it. But other cases in which certification is raised also benefit. Discussion of certification focuses the parties and may resolve issues. Motions to certify questions often resolve a case. So, the process has value to parties in a practical sense. But what is the value of a decision by the Utah Supreme Court compared to a decision by the federal court? A decision by the federal court on an issue of state law is not authoritative and is subject to question—and to appeal to the Tenth Circuit, if the decision is made by a trial court judge, and even possible certification by the Tenth Circuit—whereas a decision by the Utah Supreme Court terminates debate on the issue.484 So, the parties not only benefit by the answer but by the finality of the answer to a certified question. And there is clearly enhanced benefit to having a decision thought through by a team of judges rather than by one federal trial judge. But certification also costs the parties. Years may elapse between the suggestion of certification and the eventual answer from the Utah Supreme Court. Some of this delay can be attributable to the undefined process for certifying questions in federal court. It has taken over a year, in some instances, for the federal trial court to certify a question. The cost of briefing and argument may, due to formalities in the Utah Supreme Court briefing process, be greater than the same briefing and argument in the federal court, if the federal court were to decide the question. The time to decide an issue in the Utah Supreme Court is usually longer than the time required for such a decision in a federal trial court. The Utah Supreme Court treats certification as a standard appeal, with a time frame which may be as long as the entire complaint-to-trial process in federal court. The decision of the Utah Supreme Court may be slower than a federal trial court 483 Horne, 289 P.3d at 506. A later footnote in the opinion noted the fine points of relations of federal and state court decisions and rules. Id. at n.14. 484 Burkholz, 211 F.3d 1277 (Table), at *3. 67 decision because the Utah Supreme Court is better equipped—and accustomed—to consider broader issues, including state law context, implications for other areas of the law, and state policy, than a federal trial court might consider. Decisions also take longer in the Utah Supreme Court because five judges must make a decision—or decisions, in the case of concurrences and dissents—while in the trial court, one judge makes the decision. If an issue is legitimately subject to certification, efficiency for the parties dictates that certification occur in the trial court. Certification often terminates or narrows a case in the trial court, and may prevent appeals to the Tenth Circuit. A party aggrieved by a failure to certify an issue will harbor the hope that the Tenth Circuit will certify, and is motivated to appeal. An answer by the Utah Supreme Court to the trial court removes that hope and likely resolves, at least partially, the case, preventing a federal appeal. As is the case in most litigation, an early decision benefits the parties’ need for resolution. The parties will expend more time and perhaps more money in receiving an answer to a certified question from the Utah Supreme Court. But they receive an authoritative answer, from a system designed to render a decision, formulated through debate among the justices, that is not subject to appeal. The value of a Utah Supreme Court decision on an issue of state law is much greater than the decision of a federal trial court. The facts of a specific case will, however, dictate whether certification is advisable in that case, based on the benefits to the parties. Costs and Benefits for the Federal and State Systems The value of the certification process and the value of certification in a specific case must also consider the value of certification to the federal and state judicial systems. The Utah Supreme Court is the constitutionally designated authority for decisions on Utah state law. Federal courts are authorized and required to apply state law but they do not have the assignment to declare state law. State and federal authority are always debated, but the constitutional roles of these separate courts are respected and acknowledged by certification of questions. Old precedent, from a time when certification was unavailable or novel, sometimes referred to the abilities and resources of federal trial courts, implying that they were as well suited to define state law as a state appellate court. Use of this aged guidance in the present time when certification is readily available can appear to demonstrate a lack of humility and lack of respect by the federal trial court. The federal courts have limited jurisdiction and while applying state law is necessary for federal courts, the boundary between applying and declaring needs to be observed. The federal court may do its best, but get the answer wrong, with terrible consequences for the case before the court and for future cases.485 By assignment and constitutional role, the federal court cannot speak with authority on state law. The five justices of the Utah Supreme Court are authoritative specialists in Utah state law and the Utah constitution. The Utah Supreme Court is able to concentrate on the issue(s) certified, with more focused briefing than that which might occur in a state appeal. Undistracted 485 McCarthy, 119 F.3d at 160, supra, at n.82. 68 by a multitude of issues after trial, the justices are able to turn full attention to the legal issue(s), on a clear and simply summarized factual and procedural record.486 Federal court recognition of the value of the answer to a certified question is a demonstration of comity between the courts of different sovereigns. Certification is a clear statement of support for the federal-state division of authority, which not only benefits the state but also benefits the federal system. Our branches of government need more opportunity to demonstrate the mutual respect that is shown by certification of questions. Even if a question is rejected or reformulated, the federal court which issues a certification order has reflected the respect due the Utah Supreme Court. If the Utah Supreme Court feels an issue is clear—or that a forthcoming opinion in an appeal will answer the question—it is able to so state in rejecting a certified question. Summary and Reconciliation of Costs and Benefits When evaluating certification in a specific case, the parties and court must consider the values of the judicial system, in addition to the demands of their case. The existence of a novel question of law, unsettled by state authority, likely to bear in other cases, requires the court and parties to look beyond their current dispute. This is an opportunity for counsel and the court to look at the larger purposes of the judicial system and the respective roles of federal and state courts. Comity and federalism are much larger than any current case and future cases. So, those factors external to the case may drive a case to bear a burden for the benefit of others. The parties are, unless one of them is a recurrent litigant or a governmental entity, most likely to emphasize case specific factors. The court must require the parties to address factors external to the case and may need to develop those factors itself if the parties do not adequately address them. Focus on these multiple considerations is challenging but will ensure that certification is wisely employed. Recommendations for Improvement of the Utah Certification Process The process of certification to the Utah Supreme Court can be improved based on the experience of the last 30 years. The wide variations in the federal trial court • • • in suggesting certification by motion or sua sponte; in time taken to promulgate a certification order after certification is suggested; and in the process of generating the certification order can all be standardized through a local federal court rule on certification. Defining the current ad hoc certification process in the federal trial court would likely save time and money, and introduce clarity for the parties and for judges. The process in the Utah Supreme Court may also be clarified and accelerated. Improvements might include statement of a reason for rejection of a certified question, including 486 Burkholz, 972 P.2d at 1237, supra at n.476. 69 express reference to a case pending before the Court in which the question will likely be answered; reduction of timeframes for delivery of the record, briefing; and issuance of opinion(s); and introduction of a process for revision of deficient certification orders. Reducing the time to receive an answer to a certified question would be the single greatest benefit to the parties in a case with a certified question, and to the federal court in which the case is pending. Changes in Federal Practice In contrast to the Tenth Circuit Court of Appeals, which has a rule on certification of questions, and the more comprehensive rule of the Utah Supreme Court, certification practice in the District of Utah is less defined, arising ad hoc in each case. A rule is likely the best way to formalize the practice, to raise awareness of the availability of certification, and to reduce sua sponte certification on appeal—and perhaps reduce appeals. Recommendation of a Local Federal Rule Because a federal court may certify questions to any other court capable of receiving the question, a local federal court rule must be broadly drawn. But such a rule will draw on the experience deepest experience of the court—which for the Utah federal district court is with the Utah Supreme Court. The Tenth Circuit has a rule on certification487 which is quite complete compared to the rule in the Second Circuit.488 But neither are as complete as needed for a local rule in the District of Utah. The text of a proposed rule follows uninterrupted with a later explanation of the sources and rationale for the rule components. DUCivR __ - __ Certification of Questions of Law By certification of questions of law, the district court federal court respects the role of other tribunals, agencies, and courts. Answers to certified questions are authoritative, issued by the institution entrusted with the responsibility of interpretation. The relationships of federal and state governments are properly respected by certification of questions of law to a state court. (a) Certification of Questions of Law 487 10th Cir. R. 27.2. 488 Certification of Questions of State Law: (a) General Rule. If state law permits, the court may certify a question of state law to that state's highest court. When the court certifies a question, the court retains jurisdiction pending the state court's response to the certified question. (b) Motion or Request. A party may move to certify a question of state law by filing a separate motion or by including a request for certification in its brief. 2d Cir. R. 27.2. 70 When the law or rule of another jurisdiction, agency, tribunal, or court permits, this court may certify a question arising under the law of that jurisdiction to the appropriate agency, tribunal, or court as designated and under the procedures in that law or rule, if:489 (1) the pending litigation involves a question to be decided under the law of the other jurisdiction; (2) the answer to the question may be determinative of an issue in the pending litigation; and (3) the question is one for which an answer is not provided by a controlling appellate decision, constitutional provision, or statute of the other jurisdiction.490 (b) Motion or Suggestion for Certification A party should move to certify the question of law at the earliest opportunity. Or the court may suggest certification of the question. Any motion or response to a suggestion by the court should discuss: (1) the question and its role in the case as determinative of an issue; (2) the relationship of that question to the case as a whole and the effect of certification on other procedures in the case such as discovery and motions; (3) available authority on the question from appellate decisions, constitutional provisions, or statutes of the other jurisdiction; (4) available guidance on the question from decisions of other sources; (5) the facts which are relevant to the determination of the question and which show the nature of the controversy and the context in which the question arises;491 (6) the anticipated time and expense of receiving an answer to the question; (7) the benefits of an authoritative decision to other litigation or disputes in this or other courts, tribunals, or agencies; (8) the relationship of the issue to the policy of the other jurisdiction; (9) how comity and federalism will be affected by a decision to certify or not certify; and 489 Broadened from Tenth Circuit rule. 10th Cir. R. 27.2. 490 Uniform Act (1995) § 2. 491 Utah R. App. P. 41(c)(2). 71 (10) other matters material to the decision to certify or not to certify. (c) When the court suggests certification or when a motion is filed, the court shall set a hearing to be held within 28 days. (d) Any response to the motion or suggestion shall be filed within 14 days. (e) If, at the hearing, the court determines that a question shall be certified, the court shall expressly state which, if any, activities in the case shall abate pending the decision on the certified question. (f) If, at the hearing, the court determines that a question shall be certified, the parties shall meet, confer and within 7 days of the hearing propose an Order Certifying Question which shall clearly state, with adequate discussion and support: (1) the question of law to be answered;492 (2) that the question certified is a controlling issue of law in the proceeding493 and why the answer to the question will materially advance the termination of the litigation; (3) that there appears to be no controlling Utah law;494 (4) that the agency, tribunal, or court receiving the question may reformulate the question;495 (5) all facts which are relevant to the determination of the question certified and which show the nature of the controversy, the context in which the question arose, and the procedural steps by which the question was framed; (5) any additional reasons for its entry of the certification order that are not otherwise apparent;496 (6) a listing of the record documents which the parties believe should be sent to court, agency or tribunal, receiving the certified question; 492 Id. 41(c)(1)(A). 493 Id. 41(c)(1)(B). 494 Id. 41(c)(1)(C). 495 Uniform Act (1995) § 6(a)(3). 496 Utah R. App. P. 41(c)(3). 72 (7) the names and addresses of counsel of record and parties appearing without counsel;497 (8) such other matters as may be appropriate. (g) This rule shall be construed broadly to permit and enable timely certification of questions. (h) The answer to the certified question shall be considered binding on that issue.498 The following table lists the components of the proposed local rule with explanation as to the source and function. DUCivR __ - __ Certification of Questions of Law Explanation By certification of questions of law, the district court federal court respects the role of other tribunals, agencies, and courts. Answers to certified questions are authoritative, issued by the institution entrusted with the responsibility of interpretation. The relationships of federal and state governments are properly respected by certification of questions of law to a state court. (a) Certification of Questions of Law When the law or rule of another jurisdiction, agency, tribunal or court permits, this court may certify a question arising under the law of that jurisdiction to the appropriate agency, tribunal or court as designated and under the procedures in that law or rule, if: This statement of purpose places the policy reasons for certification in front of the parties, who are more concerned about the practical effects on their own case. The rule’s provisions require the court to consider both. This subparagraph is drawn from the Tenth Circuit rule, but broadened to match language in the Uniform Act (1995) § 1 to include all possible entities to which certification might be made. 497 Uniform Act (1995) § 6(a)(4). 498 Burkholz, 211 F.3d 1277 (Table), at *3. 73 DUCivR __ - __ Certification of Questions of Law Explanation (1) the pending litigation involves a question to be decided under the law of the other jurisdiction; These subparagraphs are drawn from the Uniform Act (1995) § 2. (2) the answer to the question may be determinative of an issue in the pending litigation; and (3) the question is one for which an answer is not provided by a controlling appellate decision, constitutional provision, or statute of the other jurisdiction. (b) Motion or Suggestion for Certification This subparagraph is drawn to meet the requirements of Utah R. App. P. 41. A party should move to certify the question of law at the earliest opportunity. Or the court may suggest certification of the question. Any motion or response to a suggestion by the court should discuss It adds many considerations for the district court which may not be as relevant to the entity receiving the certified question. (1) the question and its role in the case as determinative of an issue; (2) the relationship of that issue to the case as a whole and the effect of certification on other procedures in the case such as discovery and motions; (3) available authority on the issue from appellate decisions, constitutional provisions, or statutes of the other jurisdiction; (4) available guidance from decisions of other courts on the question; (5) the facts which are relevant to the determination of the question and which show the nature of the controversy and the context in which the question arises; (6) the anticipated time and expense of receiving an answer to the question; Subparagraph (5) includes language from Utah R. App. P 41(c)(2). 74 DUCivR __ - __ Certification of Questions of Law Explanation (7) the benefits of an authoritative decision to other litigation or disputes in this or other courts, tribunals or agencies; (8) the relationship of the issue to the policy of the other jurisdiction; (9) how comity and federalism will be affected by a decision to certify or not certify; and (10) other matters material to the decision to certify or not to certify. (c) When the court suggests certification or when a motion is filed, the court shall set a hearing to be held within 28 days. Setting a hearing at the earliest date will reduce time in the certification process. (d) Any response to the motion or suggestion shall be filed within 14 days. (e) If, at the hearing, the court determines that a question shall be certified, the court shall expressly state which, if any, activities in the case shall abate pending the decision on the certified question. Defining response time for sua sponte suggestions of certification is new but otherwise this subparagraph conforms to DUCivR 7-1(b)(3)(B). Requiring the court and parties to consider the effect of certification on the case schedule will cause the realities of that effect to be carefully considered. (f) If, at the hearing, the court determines that a question shall be certified, the parties shall meet, confer and within 7 days of the hearing propose an Order Certifying Question which shall clearly state, with adequate discussion and support: The requirement that the parties meet and confer takes the advice offered in In re West Side Property Associates499 that attorney input creates better certification orders. 499 13 P.3d at 170-71. 75 DUCivR __ - __ Certification of Questions of Law Explanation (1) the question of law to be answered; (2) that the question certified may be determinative of an issue in the proceeding and why the answer to the question will materially advance the termination of the litigation; (3) that there appears to be no controlling Utah law; These subparagraphs are drawn from Utah R. App. P 41(c)(1) but modified consistent with Uniform Act (1995) § 3, to refer to questions “determinative of an issue” rather than “controlling issues of law.” The additional requirement that the answer materially advance the termination of the litigation places the issue in context of the entire case. (4) that the agency, tribunal, or court receiving the question may reformulate the question; This subparagraph is drawn from the Uniform Act (1995) § (6)(a)(3). (5) all facts which are relevant to the determination of the question certified and which show the nature of the controversy, the context in which the question arose, and the procedural steps by which the question was framed; From Utah R. App. P. 41(c)(2). (5) any additional reasons for its entry of the certification order that are not otherwise apparent; From Utah R. App. P. 41(c)(2). (6) a listing of the record documents which the parties believe should be sent to court, agency or tribunal receiving the certified question; This subparagraph anticipates (and may accelerate) transmission of the record under Utah R. App. P. 41(d). (7) the names and addresses of counsel of record and parties appearing without counsel; and From Uniform Act (1995) § 6(a)(4). (8) such other matters as may be appropriate. (e) Within 28 days of the motion or suggestion, the court shall set a hearing or issue an Order Certifying Question. (f) If an Order Certifying Question issues, the court shall expressly state in a separate order which, if any activities in the case shall abate pending the decision on the certified question. (g) This rule shall be construed broadly to permit and enable timely certification of questions. This subparagraph sets a sense of urgency in certification. This provision requires that the status of the pending case be expressly treated. 76 DUCivR __ - __ Certification of Questions of Law Explanation (h) The answer to the certified question shall be considered binding on that issue. Consistent with Burkholz v. Joyce,500 this provision encourages due regard for an answer to a certified question, which is received at personal and institutional costs. Changes in State Rule and Practice Some potential changes in state practice and the state rule have been noted above. Reformulation of questions was implemented by decision in Utah,501 while the Uniform Act (1995) includes it in rule text.502 Rejection orders might state reasons for rejection to guide future practitioners, and if the reason for rejection is a pending appeal dealing with the issue, that other case might be identified. And time frames might be defined. The following table shows recommended revisions in Utah Rule of Appellate Procedure 41. The variations from the Uniform Act (1995) are noted.. RULE 41. CERTIFICATION OF QUESTIONS OF LAW BY UNITED STATES COURTS Explanation (a) Authorization to answer questions of law. The Utah Supreme Court may answer a question of Utah law certified to it by a court of the United States when requested to do so by such certifying court acting in accordance with the provisions of this rule if the state of the law of Utah applicable to a proceeding before the certifying court is uncertain. The limitations of Utah Const. Art. VIII, Sec. 3 prohibit broadening subparagraphs (a) and (b) to match the Uniform Act (1995) § 3 to add “by [an appellate [the highest] court of another State [or of a tribe ] [or of Canada, a Canadian province or territory, Mexico, or a Mexican state] (b) Procedure to invoke. Any court of the United States may invoke this rule by entering an order of certification as described in this rule. When invoking this rule, the certifying court may act either sua sponte or upon a motion by any party. 500 211 F.3d 1277 (Table), at *3. 501 In re W. Side Prop. Assocs., 13 P.3d 168. 502 Uniform Act (1995) § 4. 77 RULE 41. CERTIFICATION OF QUESTIONS OF LAW BY UNITED STATES COURTS Explanation (c) Certification order. (c)(1) A certification order shall be directed to the Utah Supreme Court and shall state: (c)(1)(A) the question of law to be answered; (c)(1)(B) that the question certified is a controlling issue of law may be determinative of an issue in a the proceeding pending before the certifying court and that the answer to the question will materially advance the termination of that proceeding; and (c)(1)(C) that there appears to be no controlling Utah law.; and (c)(1)(C) that this Court may reformulate a question of law certified to it. Subparagraph (c) reflects the odd function of a certification rule in a receiving court, defining the order to issue from a certifying court. It may be that a conference between rules committees of the Utah Supreme Court and District of Utah can correlate expectations and deliveries and consistency of rules in each court. Compare the proposal for a local federal rule, subparagraph (d)(2), derived from Utah R. App. P. 41(c)(1)(B) but modified consistent with Uniform Act (1995) § 3. From Uniform Act (1995) § 4. Adding this subparagraph makes clear the holding of In re West Side Property Associates.503 (c)(2) The order shall also set forth all facts which are relevant to the determination of the question certified and which show the nature of the controversy, the context in which the question arose, and the procedural steps by which the question was framed including opportunities for the parties to meet, confer and contribute to the content of the certification order. The new text reflects the assumption in Uniform Act (1995) § 6(b) that the parties will contribute to the certification order. In re West Side Property Associates observed that when “courts prepare the questions themselves without input from counsel . . . the wrong questions [may be] asked.”504 (c)(3) The certifying court may also include in the order any additional reasons for its entry of the certification order that are not otherwise apparent. (d) Form of certification order; submission of record. A certification order shall be signed by the judge presiding over the proceeding giving rise to the certification order and forwarded to the Utah Supreme Court by the clerk of the certifying court under its official seal. The Supreme Court may 503 13 P.3d 168. 504 Id. at 170. Record transmission should be accelerated by the new federal rule subparagraph (d)(6). 78 RULE 41. CERTIFICATION OF QUESTIONS OF LAW BY UNITED STATES COURTS Explanation require that all or any portion of the record before the certifying court be filed with the Supreme Court if the record or a portion thereof may be necessary in determining whether to accept the certified question or in answering that question. A copy of the record certified by the clerk of the certifying court to conform to the original may be substituted for the original as the record. (e) Acceptance, reformulation or rejection of certification. Upon filing of the certification order and accompanying papers with the clerk, the Supreme Court shall promptly enter an order either accepting, reformulating or rejecting the question certified to it, and the clerk shall serve copies of the order upon the certifying court and all parties identified in the certification order. If the Supreme Court accepts the question, the Court will set out in the order of acceptance (1) the specific question or questions accepted, (2) the deadline for notifying the Supreme Court as to those portions of the record which shall be copied and filed with the Clerk of the Supreme Court, and (3) information as to when the briefing schedule will be established. If the Supreme Court rejects the question, the Court may set out in the order of rejection any reasons for rejection and any pending appeal which already presents the certified question. (f) Briefing; oral argument. The form of briefs and proceedings on oral argument will be governed by these rules except as such rules may be modified by the Supreme Court to accommodate the differences between the appeal process and the determination of a certified question and the schedule of proceeding giving rise to the certification order and the implications of delay on the proceeding. The clerk of the Supreme Court will provide written notice to the parties as to the schedule for the filing of briefs and content requirements, as well as the schedule and procedures for oral argument. In recognition of the narrowness of the issue(s) presented and the defined record, in accordance with notions of The specific reference to reformulation puts parties on notice of that possibility. The suggestion that a rejection order may provide information beyond a bare rejection may allow parties to be informed as to better practice or the possibility that a question may be answered by an appellate case in process. A rejection order that comments on the basis for rejection may assist the federal court in reframing a deficient certification order. The new language is drawn in part from the proposed local federal rule (b) and Uniform Act (1995) § 7. 79 RULE 41. CERTIFICATION OF QUESTIONS OF LAW BY UNITED STATES COURTS Explanation comity and fairness, the Supreme Court will respond to an accepted or reformulated certified question as soon as practicable. (g) Appearance of counsel pro hac vice. Upon acceptance by the Supreme Court of the question of law presented by the certification order, counsel for the parties not licensed to practice law in the state of Utah may appear pro hac vice upon motion filed pursuant to the Code of Judicial Administration. This subparagraph might be better placed as a separate Rule of Appellate Procedure. These refinements of the Utah Rules of Appellate Procedure may contribute to more clarity in the certification process. Conclusions Certification has been successfully implemented in Utah. Though the first effort in 1975 was unsuccessful, a constitutional amendment in 1984 made possible certification of legal questions to the Utah Supreme Court. The experience of the last 30 years confirms the value of certification. Some of the most interesting and important issues in state law are resolved in the answers to certified questions.505 Certification confirms the relative roles of the state and federal courts, and helps resolve cases. Answers to certified questions are authoritative, issued by the court with constitutional responsibility to interpret state law. Those answers put to rest hopes of obtaining a different answer from a different federal judge at the trial or appellate level. The rate of certification and the rate of acceptance of certified questions by the Utah Supreme Court suggests the utility of the process and that relationships of the federal courts and the Utah Supreme Court are good. The transition of former Justice Jill Parrish to the federal district bench has increased the use of certification. With changes, the process can be improved to reduce burdens in individual cases, by more clearly defining processes and time frames in the federal court and clarifying the state appellate rule. This thesis proposes a new rule for the federal district court, and changes to the Utah Rule of Appellate Procedure. 505 See Appendix listing certified questions. 80 Beyond the rule proposals, defining and reducing timeframes in the Utah Supreme Court would also reduce burdens on individual cases. As was demonstrated in Grundberg (5 months)506 and Utah Republican Party (4 months),507 the certification process can be completed in a very short time. Not every case needs such accelerated treatment, but if a defined timeframe were available, the relative burden on parties would decrease, allowing more certifications to occur, thus recognizing more often the rightful place of the Utah Supreme Court in declaring Utah law. Increased awareness of the process and definition of criteria for its use will likely increase wise use of certification, and contribute to the achievements already made by the federal courts and by the Utah Supreme Court, for the benefit of citizens, litigants and counsel. 506 Supra, at 30 n.202-06. 507 Supra, at 50-51 n.333-341. 81 Appendices Appendix - Recommendations for Further Study In the somewhat unstudied area of certification of questions to the Utah Supreme Court, numerous byways for further study were encountered. Some of these were within the original scope of the thesis but deferred due to the time available for the thesis. More detailed study within the scope of the thesis Several projects could be undertaken within the scope of this thesis which confines itself to the cases involved with certification of questions to the Utah Supreme Court. What were the origins of the 1975 Certification Rule? How do counsel and parties involved in certification evaluate the process and its effect on time and expense in a case? How do judges and justices evaluate certification processes and the substantive impact of certification on the case at hand and (in the Utah Supreme Court) on other appellate caseload? Would informal discussions, outside the context of any specific case, between judges of federal courts and justices of the Utah Supreme Court cause improvements in the certification process? Would an interactive process between the Utah Supreme Court and the federal court help improve the quality of certification orders and answers to certified questions? How do the internal procedures of the Utah Supreme Court differ for interlocutory appeals and answering certified questions? Are the internal standards and processes for evaluation, acceptance and rejection the same or different? Are the time frames for processing these cases similar or different? In both instances, the trial court awaits a decision to move forward with resolution of a pending case, as contrasted with an appeal in which the parties have reached decision on most issues before the Utah Supreme Court considers the case. Did the federal court in Miller v. United States properly analyze the Federal Tort Claims Act issue after the Utah Supreme Court ruled? When a federal tort case is dependent on state common law is the state court decision final as was suggested in Miller or does the federal court have the ability to find a limited claim present as was done in Smith v. Pena? Would a comprehensive review of all certification orders from the trial courts and Tenth Circuit reveal best practices for such orders? 82 Tenth Circuit involvement in certification The brief look at the practices of the Tenth Circuit in certification of questions to Utah has suggested many areas for future study. Which judges on the Tenth Circuit have been the most active in certification? Does the Tenth Circuit deny all motions for certification in all its cases or just in those involving Utah? How does the Tenth Circuit rate of sua sponte certification to the Utah Supreme Court compare to the Tenth Circuit rate of sua sponte certification to other courts? In nine of the cases in which questions were certified sua sponte by the Tenth Circuit to the Utah Supreme Court, the answer resulted in reversal of the district court’s opinion. In four instances, the Supreme Court’s answer did not change the ruling below. How was the Tenth Circuit so well able to target cases for certification which affected the trial court result? Study of inter-institutional dynamics of certification If certification procedures originate in the legislature are they more or less used than procedures originating in the courts? How is acceptance of certified questions affected by other relationships of state courts and federal counterparts? How does certification compare with the EU Preliminary Ruling Process? Other Topics Study of certification practices in other states would yield helpful comparative information. Review of opinions written on the subject of certification by Judge Guido Calabresi of the Second Circuit, an advocate of certification, would provide guidance from a judge who is possibly the most published on the subject. 83 Appendix—Bibliography Gregory L. Acquaviva, The Certification of Unsettled Questions of State Law to State High Courts: The Third Circuit's Experience,115 Penn St. L. Rev. 377, 384-85, 385 n.59 (2010-2011). William G. Bassler and Michael Potenza, Certification Granted: The Practical and Jurisprudential Reasons Why New Jersey Should Adopt a Certification Procedure, 29 Seton Hall L. Rev. 491,491 (1998-1999). John B. Corr and Ira P. Robbins, Interjurisdictional Certification and Choice of Law, Vand. L. Rev. 411, 419-420 (1988). Eric Eisenberg, A Divine Comity: Certification (at Last) in North Carolina, 58 Duke L.J. 69, 71 (2008). Jona Goldschmidt, Certification of Questions of Law: Federalism in Practice, 2 n.1, American Judicature Society (1995). Edward A. Hartnett, Questioning Certiorari: Some Reflections Seventy-Five Years After the Judges’ Bill, 100 Colum. L. Rev. 1643, 1712 (2000). Coby W. Logan, Certifying Questions to the Arkansas Supreme Court: A Practical Means for Federal Courts in Clarifying Arkansas State Law, 30 U. Ark. Little Rock L. Rev. 85, 87 (2007). Brian Mattis, Certification of Questions of State Law: An Impractical Tool in the Hands of the Federal Courts, 23 U. Miami L. Rev. 717, 724-725 (1968-1969). Ira P. Robbins, Interstate Certification of Questions of Law: A Valuable Process in Need of Reform, 76 Judicature 125 (1992). Ira P. Robbins, The Uniform Certification of Questions of Law Act: A Proposal for Reform, 18 J. Legis. 127, 133 n.44. (1992). Sharika Robinson, Right, but for the Wrong Reasons: How A Certified Question to the Supreme Court of North Carolina Could Have Alleviated Conflicting Views and Brought Clarity to North Carolina State Law, 34 N.C. Cent. L. Rev. 230 (2012). M. Bryan Schneider, “But Answer Came There None”: The Michigan Supreme Court and the Certified Question of State Law, 41 Wayne L. Rev. 273, 301 (1994-1995). Eric C. Surette, Construction and Application of Uniform Certification of Questions of Law Act, 69 A.L.R. 6th 415, §§ 27-28 (2011). Amanda L. Tyler, Setting the Supreme Court's Agenda: Is There a Place for Certification?, 78 Geo. Wash. L. Rev. 1310 (2010). Uniform Certification of Questions of Law Act (1967); 12 U.L.A. 86 (1996). 84 Uniform Certification of Questions of Law Act (1995); 12 U.L.A. 71 (1995). Appendix—Uniform Acts Uniform Certification of Questions of Law Act 1967 § 1. [Power to Answer]. The [Supreme Court] may answer questions of law certified to it by the Supreme Court of the United States, a Court of Appeals of the United States, a United States District Court, the United States Court of International Trade, the Judicial Panel on Multidistrict Litigation, the United States Claims Court, the United States Court of Military Appeals, the United States Tax Court, [or the highest appellate court or the intermediate appellate court of any other state], when requested by the certifying court if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the [Supreme Court] [and the intermediate appellate courts] of this state. § 2. [Method of Invoking]. This [Act] [Rule] may be invoked by an order of any of the courts referred to in section 1 upon the court’s own motion or upon the motion of any party to the cause. § 3. [Contents of Certification Order]. A certification order shall set forth (1) the questions of law to be answered; and (2) a statement of all facts relevant to the questions certified and showing fully the nature of the controversy in which the questions arose. § 4. [Preparation of Certification Order]. The certification order shall be prepared by the certifying court, signed by the judge presiding at the hearing, and forwarded to the [Supreme Court] by the clerk of the certifying court under its official seal. The [Supreme Court] may require the original or copies of all or of any portion of the record before the certifying court to be filed with the certification order, if, in the opinion of the [Supreme Court], the record or portion thereof may be necessary in answering the questions. § 5. [Costs of Certification]. Fees and costs shall be the same as in [civil appeals] docketed before the [Supreme Court] and shall be equally divided between the parties unless otherwise ordered by the certifying court in its order of certification. § 6. [Briefs and Argument]. Proceedings in the [Supreme Court] shall be those provided in [local rules or statutes governing briefs and arguments]. § 7. [Opinion]. The written opinion of the [Supreme Court] stating the law governing the questions certified shall be sent by the clerk under the seal of the Supreme Court to the certifying court and to the parties. § 8. [Power to Certify]. The [Supreme Court] [or the intermediate appellate courts] of this state, on [its] [their] own motion or the motion of any party, may order certification of questions of law to the highest court of any state when it appears to the certifying court that there are involved in any proceeding before the court questions of law of the receiving state which may be determinative of the cause then pending in the certifying court and it appears to the certifying court that there are no controlling precedents in the decisions of the highest court or intermediate appellate courts of the receiving state.] § 9. [Procedure on Certifying]. The procedures for certification from this state to the receiving state shall be those provided in the laws of the receiving state.] 85 § 10. [Severability]. If any provision of this [Act] [Rule] or the application thereof to any person, court, or circumstance is held invalid, the invalidity does not affect other provisions or applications of the [Act] [Rule] which can be given effect without the invalid provision or application, and to this end the provisions of this [Act] [Rule] are severable § 11. [Construction]. This [Act] [Rule] shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it. § 12. [Short Title]. This [Act] [Rule] may be cited as the Uniform Certification of Questions of Law [Act] [Rule]. This [Act] [Rule] shall take effect __________. § 13. [Time of Taking Effect]. Uniform Certification of Questions of Law [Act] [Rule] (1995) § 1. Definitions[s]. In this [Act] [Rule]: (1) “State means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any territory or insular possession subject to the jurisdiction of the United States. [(2) “Tribe” means a tribe, band, or village of native Americans which is recognized by federal law or formally acknowledged by a State.] § 2. Power to Certify. The [Supreme Court] [or an intermediate appellate court] of this State, on the motion of a party to pending litigation or its own motion, may certify a question of law to the highest court of another State [or of a tribe] [or of Canada, a Canadian province or territory, Mexico, or a Mexican state] if: (1) the pending litigation involves a question to be decided under the law of the other jurisdiction; (2) the answer to the question may be determinative of an issue in the pending litigation; and (3) the question is one for which an answer is not provided by a controlling appellate decision, constitutional provision, or statute of the other jurisdiction. § 3. Power to Answer. The [Supreme Court] of this State may answer a question of law certified to it by a court of the United States or by [an appellate] [the highest] court of another State [or of a tribe] [or of Canada, a Canadian province or territory, Mexico, or a Mexican state], if the answer may be determinative of an issue in pending litigation in the certifying court and there is no controlling appellate decision, constitutional provision, or statute of this State. The [Supreme Court] of this State may reformulate a question of law certified to it. § 4. Power to Reformulate Question. § 5. Certification Order; Record. 86 The court certifying a question of law to the [Supreme Court] of this State shall issue a certification order and forward it to the [Supreme Court] of this State. Before responding to a certified question, the [Supreme Court] of this State may require the certifying court to deliver all or part of its record to the [Supreme Court] of this State. § 6. Contents of Certification Order. (a) A certification order must contain: (1) the question of law to be answered; (2) the facts relevant to the question, showing fully the nature of the controversy out of which the question arose; (3) a statement acknowledging that the [Supreme Court] of this State, acting as the receiving court, may reformulate the question; and (4) the names and addresses of counsel of record and parties appearing without counsel. (b) If the parties cannot agree upon a statement of facts, the certifying court shall determine the relevant facts and state them as a part of its certification order. § 7. Notice; Response. The [Supreme Court] of this State, acting as a receiving court, shall notify the certifying court of acceptance or rejection of the question and, in accordance with notions of comity and fairness, respond to an accepted certified question as soon as practicable. § 8. Procedures. After the [Supreme Court] of this State has accepted a certified question, proceedings are governed by [the rules and statutes governing briefs, arguments, and other appellate procedures]. Procedures for certification from this State to a receiving court are those provided in the rules and statutes of the receiving forum. § 9. Opinion. The [Supreme Court] of this State shall state in a written opinion the law answering the certified question and send a copy of the opinion to the certifying court, counsel of record, and parties appearing without counsel. § 10. Cost of Certification. Fees and costs are the same as in [civil appeals] docketed before the [Supreme Court] of this State and must be equally divided between the parties unless otherwise ordered by the certifying court. § 11. Severability. If any provision of this [Act] [Rule] or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this [Act] [Rule] which can be given effect without the invalid provision or application, and to this end the provisions of this [Act] [Rule] are severable. § 12. Uniformity of Application and Construction. This [Act] [Rule] shall be applied and construed to effectuate its general purpose to make uniform law with respect to the subject of the [Act] [Rule] among States [enacting] [adopting] it. § 13. Short Title. 87 This [Act] [Rule] may be cited as the Uniform Certification of Questions of Law [Act] [Rule] (1995). This [Act] [Rule] takes effect on __________. § 14. Effective Date. 88 Appendix—List of All Cases Considering Certification All Cer�fica�on Cases - sorted by trial court judge Case name Case number Judge Dist. Ct. Cert? Cir. United States v Stubbs Stoker v. Salt Lake Cty. In re Hendry In re Kiley Pace v. Swerdlow CR England v Swi� C 76 67 A. Anderson No 2:90-cv-248-BSJ A. Anderson 2:14-bk-27398-KA Anderson 2:15-bk-27838-KA Anderson 2:06-cv-00027-DB Benson 2:14-cv-00781 DB Benson Compressor Pump v. Allis-Chalmers 2:89-cv-00451-DB Benson Land v. EG&G Defense Materials 2:04-cv-00479-DB Benson Kennard v. Leavit 2:01-cv-00171-DB Benson Carson v. Am. Family Mut. Ins. 2:09-cv-00663-DB Benson Clark v. United States 2:98-cv-00304-DB Benson Egbert et al v. Nissan North America et 2:04-cv-00551-DN Benson Fundamentalist Church of Jesus Christ 2:08-cv-00772-DB Benson Iverson v. State Farm Mut. Ins. Co. 1:06-cv-00113-DB Benson Ohio Cas. Ins. Co. v. Cloud Nine 1:05-cv-00088-DB Benson Richardson v. Navistar Int’l Transp. 2:95-cv-00752-DB Benson Smith v. U.S. Dep’t of Veterans Affairs 2:12-cv-00968-DB Benson Thayer v. Washington Cty. Sch. Dist. 2:09-cv-00565-DB Benson In re W. Side Prop. Assocs. 97-20887 Boulden SEC v. Merrill Scot, Ltd. 2:02-cv-00039-TC Campbell Society of Lloyd's v. Bennet 2:02-cv-00204-TC Campbell Shipley v. Forest Labs. 1:06-cv-00048-TC Campbell Bower v. Temple Mountain Energy 2:09-cv-01141-TC Campbell Whiteman v. Friel 2:05-cv-00424−TC Campbell Hale v. Fingerhut Co., Inc. 2:95-cv-00660-TC Campbell Utah Life & Disability v. Teacher Ins. 2:00-cv-00530-TS Campbell Pay Less Drug Stores v. Tender II, Ltd. 2:95-cv-00179-TC Campbell W. States Contrac�ng v. Spilsbury 2:10-cv-01141-TC Campbell Morgan v. McCoter 2:99-cv-00073-TC Campbell United Pac. Ins. Co v. Knudsen Constr. 2:97-cv-00235-TC Campbell Adams v. Gen. Accident Ins. Co. 2:92-cv-00516-TC Campbell DB ID 43 67 156 157 111 153 134 40 123 130 133 142 72 109 151 100 59 32 107 53 62 58 124 49 89 45 110 16 149 44 22 89 Y Y Y Y Y Y Y Y No No Y No Y Y No Y No No Y Y Y No No No No No No No No No No No No Burkholz v. Joyce 2:96-cv-00252-TC Campbell Endow v. Utah Transit Auth. 1:13-cv-00108-TC Campbell Gardner v. Galetka 2:95-cv-00846-TC Campbell Miller v. United States 1:02-cv-00037-TC Campbell Spackman v. Bd. Ed. Box Elder Cty. 1:98-cv-00120-TC Campbell Ammons v. La-Z-Boy, Inc. 1:04-cv-00067-TC Campbell Gibbs v. Unum Life Ins. Co. 2:00-cv-00549-PGC Cassell Machan v. Unum Life Ins. Co. 2:00-cv-00904-PGC Cassell Robert J. DeBry & Assocs. v. Quest Dex 1:03-cv-00099-PGC Cassell TruGreen Cos. v. Biton 1:06-cv-00024-BSJ Cassell Black v United States C 138-66 Christensen In re Kunz In re Rockwell Mitchell v. Roberts Katerman v. Salt Lake Cty. 2:02-bk-40422-GEC Clark 2:02-bk-42013-WTT Thurman 2:16-cv-00843-EJF 2:13-cv-01122-EJF Furse Furse Baker v. D&RG 2:94-cv-00017-JTG Greene Bills v. Utah Farm Bur. Ins. Co. 2:91-cv-00193-JTG Greene Jorgensen v. Larsen 2:88-cv-00761-JTG Greene Young v. Delta Airlines 2:99-cv-00859-JTG Greene Albright v. Granite Bd. of Ed. 2:90-cv-00639-JTG Greene Gines v. Ingersoll-Rand Co. 2:89-cv-00543-JTG Greene Grundbergl v. Upjohn Co. 2:89-cv-00274-JTG Greene Hansen v. Sea Ray Boats, Inc. 2:88-cv-00708-JTG Greene Y Y Y Y Y Y Y Y No Y No Y Y Y Y No No No No No Y Y Y Y Hirpa v. IHC Hosp., Inc. 1:90-cv-00086-JTG Greene No Y Peterson v. Browning 1:87-cv-00121-JTG Greene Steiner Corp. v. Johnson & Higgins 2:88-cv-00410-JTG Greene Sullivan v. Scoular Grain Co. 2:87-cv-00330-JTG Greene United W. Bank v. Moyes 2:08-cv-00218-BSJ Jenkins McCourt v. Semken 2:87-cv-01052-BSJ Jenkins MacArthur v. San Juan Cty. 2:00-cv-00584-BSJ Jenkins Wright v. Deland 2:90-cv-00829-BSJ Jenkins Strawberry Water v. United States 2:01-cv-00295-BSJ Jenkins Jensen v. NSLC 1:93-cv-00134-BSJ Jenkins MacArthur v. San Juan Cty. 2:00-cv-00584-BSJ Jenkins Y Y Y No Y No No No No No 127 143 73 85 64 27 77 56 138 36 14 154 154 147 122 30 119 121 18 23 78 79 90 92 105 66 70 51 83 55 19 69 115 139 90 Cyprus Plateau Mining v. Commonwealth 2:96-cv-00401-BSJ Jenkins Copier v. Smith & Wesson 2:95-cv-00723-BSJ Jenkins Cincinna� Ins. Co. v. AMSCO Windows 2:10-cv-00542-BSJ Jenkins Century Indem. v. Hanover Ins. 2:97-cv-00925-BSJ Jenkins Fox v. MCI Commc’ns Corp. 2:93-cv-00042-BSJ Jenkins Gladwell v. Reinhart Mecham v. Frazier 2:06-cv-00325-BSJ Jenkins 1:04-cv-00033-CW Jenkins Soter's, Inc. v. Deseret Fed. 2:89-cv-00979-DB Jenkins Rose v. Utah State Bar 2:10-cv-1001-WPJ Johnson Johnson v. Life Inv’rs Ins. 2:96-cv-00283-DAK Kimball Rawlings v. Gilt Edge Flour Mills 1:07-cv-00031-DAK Kimball Am. Nat. Prop. & Cas. V. McNeely 1:16-cv-00007-DAK Kimball Westport Ins. v. Ong 1:07-cv-00010-DAK Kimball Utah Div. Forestry v United States 2:97-cv-00927-DAK Kimball Snyder v. Cache Cty. Evans v. State of Utah Schubert v. Genzyme Burns v. Astrue 1:98-cv-00151-DAK Kimball 2:14-cv-00055-DAK Kimball 2:12-cv-00587-DAK Kimball 2:09-cv-00926-DAK Kimball Carranza v. Mountainlands Health Clinic 2:07-cv-00291-DAK Kimball Garza v. Burnet Gladwell v. Reinhart 1:06-cv-00134-DAK Kimball 2:08-cv-00562-DAK Kimball Whitney v. Div. of Juvenile Jus�ce Servs. 2:09-cv-00030-DAK Kimball In re Simmons Hahn v. Reyes 2:13-bk-33821-RKM Mosier 2:16−cv−00666−DN Nuffer First Am. Title Ins. Co. v. Nw. Title Ins. 2:15-cv-00229-DN Utah Republican Party v. Herbert 2:16-cv-00038-DN Nuffer Nuffer Spurlino v. Holcim 2:14-cv-00461-JNP Parrish Burningham v Wright Med. Grp. 2:17-cv-00092-JNP Parrish Loveridge v. Pruden�al Ins. Co. of Am. 2:16-cv-00377-JNP Parrish Dircks v. Travelers Indem. Co. of Am. 2:14-cv-00118-JNP Parrish Flores v. Unified Police Dep’t 2:16-cv-00224-JNP Parrish GeoMetWatch v. Hall 1:14-cv-00060-JNP Parrish HealthBanc Int’l v. Synergy Worldwide 2:16-cv-00135-JNP Parrish Lancer Ins. Co. v. Lake Shore Motor 2:14-cv-00785-JNP Parrish Y Y Y Y Y No No No No Y No No Y No No No No Y No No No No Y Y No No N Y No No Y No No Y Y Y Y Y 136 135 132 131 71 106 146 63 96 117 102 25 50 46 61 145 38 128 129 75 103 5 155 80 26 47 65 159 54 140 60 76 91 21 91 Zimmerman v. Univ. of Utah 2:13-cv-01131-JNP Parrish Equitable Life Ins. v. Research Park 2:87-cv-00866-DS Davis Cty. Constr. v. Davis Cty. 1:89-cv-00054-DS Bragg v. Buck Litlefield v. Mobil Expl. Harline v. Gladwell Jeppson v. Thoman Scot v. Hammock 1:94-cv-00127-DS 2:94-cv-01078-DS 1:90-cv-00117-DS 2:94-cv-00519-DS 2:89-cv-00267-TC Sam Sam Sam Sam Sam Sam Sam United States v. Badger 2:10-cv-00935-DB Shelby Roberts v. C.R. England 2:12-cv-00302-RJS Shelby Allen v. Bamboo HR 2:16-cv-00905-RJS Shelby Ray v. Wal-Mart Stores, Inc. 1:11-cv-00104-RJS Shelby Jensen v. State of Utah Johnson v. Riddle Hogan v. Utah Telecomms. 2:05-cv-00739-TS 2:98-cv-00599-TS 1:11-cv-00064-TS Edwards v. Utah Bd. of Pardons 2:01-cv-00834-TS Novell v. Handleman 2:01-cv-00173-TS Haik v. Salt Lake Cty. Bd. of Health 2:13-cv-01051-TS Anderson v. Toomey Boyd v. Jones et al. Haik v. Salt Lake City Corp. 2:07-cv-00673-TS 2:00-cv-00472-TS 2:12-cv-00997-TS McArthur v. State Farm Mut. Ins. Co. 2:09-cv-00416-TS Stewart Stewart Stewart Stewart Stewart Stewart Stewart Stewart Stewart Stewart 1.800. Vending v. Wyland 1:14-cv-00121-CW Waddoups Stone v. Third Dist. Court 2:12-cv-00390-CW Waddoups Powderham v. Synergy Worldwide 2:08-cv-00548-CW Waddoups Krehbiel v. Travelers Ins. Co. 2:08-cv-00110-CW Waddoups Olseth v. Salt Lake City Corp. 2:02-cv-01122-CW Waddoups Tabor v. Metal Ware Corp. 2:99-cv-00503-CW Waddoups Waddoups v Noorda 1:11-cv-00133-CW Waddoups Garfield Cty. v. United States 2:11-cv-01045-CW Waddoups Self v. Teleperformance Grp. USA 2:08-cv-00395-PMW Warner Nat’l Indem. & Guar. v. U.S. Sports 2:07-cv-00996-TS Wells Anaconda Minerals v. Stoller 2:87-cv-00118-DKW Winder Worthen v. Kennecot Corp. C 84 0468 Winder Y No No No No No No Y No No Y No Y No No Y No No No No No No No No No No No Y Y No Y No No Y Y Y 17 144 137 126 52 95 116 39 42 97 24 101 12 99 93 141 112 88 29 125 87 82 20 68 104 118 152 31 15 74 57 37 28 48 92 Haights Creek Irriga. Co. v. United Tech. 1:91-cv-00042-DKW Winder Holden v NL Indus., Inc. C-79-0391 Winder Y No 86 94 93 Appendix—Questions Certified to the Utah Supreme Court =========================================================== Utah Supreme Court Hansen v. Sea Ray Boats, Inc. 830 P.2d 236 (Utah 1992) 900512 Dist. Ct. Cert.? Y 2:88-cv-00708-JTG Federal Trial Court Hansen v. Sea Ray Boats, Inc. (1) whether a person not actually threatened with bodily harm who incorrectly but reasonably believes that he or she is actually threatened with bodily harm has a claim for negligent inflic�on of emo�onal distress that sa�sfies the “threat of harm” requirement of sec�on 313 of the Restatement (Second) of Torts (1965), as adopted by this court in Johnson v. Rogers; (2) whether a person who witnesses others receiving bodily harm and fears for his or her own safety, although that person does not comprehend the source of the harm and therefore does not fear harm from that par�cular source, has a claim for negligent inflic�on of emo�onal distress that sa�sfies the “fear for one's own safety” requirement of sec�on 313 of the Restatement (Second) of Torts (1965), as adopted by this court in Johnson v. Rogers; Y Tenth Circuit Circ. Ct. Cert.? =========================================================== Utah Supreme Court In re W. Side Prop. Assocs. 13 P.3d 168 (Utah 2000) 981425 Federal Trial Court In re W. Side Prop. Assocs. 97-20887 1. Does Salt Lake County's assessment of property tax on a building omited from West Side Property Associates' tax assessment no�ces for 1992 through 1996, when other buildings and the land were assessed, cons�tute an escaped property assessment as defined by Utah Code Ann. § 59–2–102(8)(a)(i).1 2. If Salt Lake County's assessment is a valid escaped property assessment, upon what date was the tax incurred. Dist. Ct. Cert.? Y Y 94 Tenth Circuit Circ. Ct. Cert.? =========================================================== Utah Supreme Court Garfield Cty. v. United States 2017 WL 3187505 (Utah 2017) 20150335 Federal Trial Court Garfield County (1) et al. v. United Are Utah Code § 78B–2–201(1) and its predecessor statutes of limita�ons or statutes of repose? 2:11-cv-01045-CW Dist. Ct. Cert.? Y Y Tenth Circuit Circ. Ct. Cert.? =========================================================== Utah Supreme Court Garza v. Burnet 321 P.3d 1104 (Utah 2013) 20120180 Federal Trial Court Garza v. Burnet Tenth Circuit 1:06-cv-00134-DAK Dist. Ct. Cert.? No Y Under Tenth Circuit decisions at the �me Gerardo Thomas Garza filed his complaint, approximately two years remained in limita�ons period. A Supreme Court decision soon a�er filing, however, overturned those decisions and rendered his complaint approximately ten months late. Under Utah law, does an intervening change in controlling circuit law merit equitable tolling under these circumstances? Circ. Ct. Cert.? Y 95 =========================================================== Utah Supreme Court GeoMetWatch v. Hall 20170264-SC Y Dist. Ct. Cert.? Y 1:14-cv-00060-JNP Federal Trial Court GeoMetWatch v. Hall 1. Are the Utah State University Research Founda�on and the Utah State University Advanced Weather Systems Founda�on en�tled to immunity under the Governmental Immunity Act of Utah (“Immunity Act” or the “Act”) as a “public corpora�on” and/or an “instrumentality of the state?” 2. Utah Code sec�ons 63G-7-501 and -502 vest “exclusive, original jurisdic�on over any ac�on brought under” the Immunity Act in “the district courts” and venue “in the county in which the claim arose or in Salt Lake County.” Do these provisions reflect an intent by the State of Utah to limit the Immunity Act’s waiver of sovereign immunity to suits brought in Utah district courts? 3. If ques�on 2 is answered in the affirma�ve, does the Office of the Atorney General for the State of Utah or any li�gant have authority under Utah law to waive the jurisdic�onal and venue provisions enacted by the Utah Legislature in the Immunity Act? Tenth Circuit Circ. Ct. Cert.? =========================================================== Utah Supreme Court Gibbs v. Unum Life Ins. Co. 20030277-SC Dist. Ct. Cert.? Y 2:00-cv-00549-PGC Federal Trial Court Gibbs v. Unum Life Insurance 1. In a first party insurance situa�on, may an insured recover consequen�al damages, other than atorney's fees, for breach of the express terms of an insurance contract? If so, what are the consequen�al damages that are recoverable for breach of the express terms of an insurance contract and how are they dis�nguished from the consequen�al damages for breach of the implied covenant of good faith and fair dealing that are recoverable under Beck v. Farmers Insurance Exchange, 701 P.2d 795, 801 (Utah 1985)? 2. Did Utah Code Ann. § 31 A-26-30 I, en�tled "Timely Payment of Claims," allow a private cause of ac�on by the insured against his or her insurer for viola�on of the Y 96 Tenth Circuit Circ. Ct. Cert.? =========================================================== Utah Supreme Court Gines v. Ingersoll-Rand Co. 910516 Federal Trial Court Gines v. Ingersoll-Rand Co. Not available Tenth Circuit 2:89-cv-00543-JTG Dist. Ct. Cert.? Y Y Circ. Ct. Cert.? =========================================================== Utah Supreme Court Grundberg v. Upjohn Co. 813 P.2d 89 (Utah 1991) 900573 Federal Trial Court Grundberg v. Upjohn Co. Whether Utah adopts the “unavoidably unsafe products” excep�on to strict products liability as set forth in comment k to sec�on 402A of the Restatement (Second) of Torts (1965) (“comment k”). 2:89-cv-00274-JTG Dist. Ct. Cert.? Y Tenth Circuit Circ. Ct. Cert.? Y 97 =========================================================== Utah Supreme Court Federal Trial Court McCourt v. Semken, et al No digital documents available. Tenth Circuit 2:87-cv-01052-BSJ Dist. Ct. Cert.? Y Y Circ. Ct. Cert.? =========================================================== Utah Supreme Court Fundamentalist Church of Jesus Christ 20120158 289 P.3d 502 (Utah 2012) Federal Trial Court Fundamentalist Church of Jesus Tenth Circuit 2:08–cv–00772-DB Dist. Ct. Cert.? No Y Circ. Ct. Cert.? Y Under Utah preclusion law, is the Utah Supreme Court's discre�onary review of a pe��on for extraordinary writ and subsequent dismissal on laches grounds a decision “on the merits” when it is accompanied by a writen opinion, such that later adjudica�on of the same claim is barred? 98 =========================================================== Utah Supreme Court Federal Trial Court Haights Creek Irriga. v. United Tech Not available Tenth Circuit 1:91-cv-00042-DKW Dist. Ct. Cert.? Y Y Circ. Ct. Cert.? =========================================================== Utah Supreme Court Fox v. MCI Commc’ns Corp. 931 P.2d 857 (Utah 1997) 950280 Federal Trial Court Fox v. MCI Commc’ns Corp. Does the termina�on of a private sector employee in retalia�on for the good faith repor�ng to company management of the alleged viola�on by one or more co-workers of computer fraud and embezzlement laws, implicate “a clear and substan�al public 2:93-cv-00042-BSJ Dist. Ct. Cert.? Y Y Tenth Circuit Circ. Ct. Cert.? =========================================================== Utah Supreme Court HealthBanc Int’l v. Synergy Worldwide 20170591-SC Federal Trial Court HealthBanc Int’l v. Synergy Worldwide 2:16-cv-00135-JNP Does Utah’s economic loss rule apply to a fraudulent inducement claim? Dist. Ct. Cert.? Y Tenth Circuit Y 99 Circ. Ct. Cert.? =========================================================== Utah Supreme Court Hirpa v. IHC Hosps., Inc. 948 P.2d 785 (Utah 1997) 960180 Federal Trial Court Hirpa v. IHC Hosps., Inc. Tenth Circuit 1:90-cv-00086-JTG Dist. Ct. Cert.? No Y Circ. Ct. Cert.? Y (1) Do the provisions of the Utah Good Samaritan Statute, par�cularly Utah Code Ann. § 58–12–23, apply to grant a licensed physician immunity when that physician provides emergency care at an emergency occurring in a hospital which has employed the responding physician as its medical director? (2) If sec�on 58–12–23 does apply in the circumstances appearing here, does the sec�on violate the Utah Cons�tu�on? =========================================================== Utah Supreme Court Holden v. N L Indus., Inc. 629 P.2d 428 (Utah 1981) 17159 Federal Trial Court C-79-0391 Holden v NL Indus., Inc. Whether the exclusive remedy provision of Utah's Workmen's Compensa�on Act, s 35-1- 60, bars plain�ffs' claims against defendant-employer, or whether, as an excep�on to that rule, plain�ffs can collect (1) for the tort of fraud, which caused his death, or (2) for ac�ons, conduct and rela�onships atributable to defendant's status as manufacturer and supplier independent of its status as an employer, the so-called “dual capacity Dist. Ct. Cert.? No Y Tenth Circuit Circ. Ct. Cert.? 100 =========================================================== Utah Supreme Court Federal Trial Court Johnson v. Riddle Is Plain�ff’s Utah Consumer Sales Prac�ces Act (“UCSPA”) claim against Defendants, who are atorneys, barred by the judicial proceedings privilege when the claim is based upon collec�on ac�vi�es such as no�ces, phone calls, and documents made pursuant to a collec�on lawsuit? 2:98-cv-00599-TS Dist. Ct. Cert.? Y Y Tenth Circuit Circ. Ct. Cert.? =========================================================== Utah Supreme Court Richardson v. Navistar Int’l Transp. 8 P.3d 263 (Utah 2000) 990253 Federal Trial Court Richardson v. Navistar Int’l Transp. Tenth Circuit 2:95-cv-00752-DB Dist. Ct. Cert.? No Y Under Utah law, may plain�ffs who have entered into a judicially approved setlement with mul�ple defendants a�er a trial in which a jury allocated 100% of the fault among the par�es pursuant to the Utah compara�ve fault scheme, Utah Code Ann. §§ 78-27-37 to -43, maintain a subsequent tort ac�on for the same injuries, arising out of the same transac�on or occurrence, against addi�onal known defendants who were not par�es to Circ. Ct. Cert.? Y 101 =========================================================== Utah Supreme Court Ray v. Wal-Mart Stores, Inc. 359 P.3d 614 (Utah 2015) 20130940 Federal Trial Court Ray v. Wal-Mart Stores, Inc. Is the right of self-defense a substan�al public policy excep�on to the at-will employment doctrine, which provides the basis for a wrongful discharge ac�on? 1:11-cv-00104-RJS Dist. Ct. Cert.? Y Y Tenth Circuit Circ. Ct. Cert.? =========================================================== Utah Supreme Court In re Reinhart 267 P.3d 895 (Utah 2011) 20091087 Federal Trial Court Gladwell v. Reinhart Tenth Circuit 2:08-cv-00562-DAK Dist. Ct. Cert.? No Y Can a Keogh plan be “described in” sec�on 401(a) of the IRC despite failing to fulfill that sec�on's requirements for qualifica�on, thereby en�tling debtor to exempt the plan from his bankruptcy estate property? Circ. Ct. Cert.? Y 102 =========================================================== Utah Supreme Court Peterson v. Browning 832 P.2d 1280 (Utah 1992) 900401 Federal Trial Court Peterson v. Browning Does an ac�on for termina�on of employment based upon the public policy excep�on to the employment-at-will doctrine for viola�on of or refusal to violate federal, other state, or Utah law sound in tort or contract? 1:87-cv-00121-JTG Dist. Ct. Cert.? Y Y Tenth Circuit Circ. Ct. Cert.? =========================================================== Utah Supreme Court In re Reinhart 291 P.3d 228 (Utah 2012) 20110257 Federal Trial Court Gladwell v. Reinhart Tenth Circuit 2:06-cv-00325-BSJ Dist. Ct. Cert.? No Y Circ. Ct. Cert.? Y 1. Does Utah Code Ann. § 70C–7–103 create an exemp�on in bankruptcy, or does it only limit a judgment creditor's garnishment remedy outside bankruptcy? 2. If § 70C–7–103 does create an exemp�on in bankruptcy, do pre-pe��on wages such as those claimed by the debtor in this case qualify as “disposable earnings” under the statute? 3. If § 70C–7–103 does create an exemp�on in bankruptcy, and the debtor's pre-pe��on wages qualify as “disposable earnings” under the statute, do the debts in this case 103 =========================================================== Utah Supreme Court Dist. Ct. Cert.? 2:17-cv-00092-JNP Federal Trial Court Burningham v Wright Med. Grp. 1. Under Utah law, does the unavoidably unsafe excep�on to strict products liability in design defect claims recognized in Comment k to Sec�on 402A of the Restatement (Second) of Torts apply to implanted medical devices? 2. If the answer to Ques�on 1 is in the affirma�ve, does the excep�on apply categorically to all implanted medical devices, or does the excep�on apply only to some devices on a case-by-case basis? 3. If the excep�on applies on a case-by-case basis, what is the proper analysis to determine whether the excep�on applies? 4. If the answer to Ques�on 1 is in the affirma�ve, does the excep�on require a showing that such devices were cleared for market through the FDAs premarket approval process as opposed to the § 510(k) clearance process? Y Tenth Circuit Circ. Ct. Cert.? =========================================================== Utah Supreme Court Utah Republican Party v. Cox 373 P.3d 1286 (Utah 2016) 20160077 Federal Trial Court Utah Republican Party v. Herbert 2:16-cv-00038-DN In interpre�ng Utah Code § 20A-9-101(12)(d), § 20A-9-406(3) and § 20A-9-406(4), does Utah law require that a QPP permit its members to seek its nomina�on by “either” or "both" of the methods set forth in § 20A-9-407 and § 20A-9-408, or may a QPP preclude a member from seeking the party’s nomina�on by gathering signatures under § 20A-9-408? The statutes that may be at issue include: Utah Code § 20A-9-101(12)(d), Utah Code § 20A-9-406(3), Utah Code § 20A-9-406(4) and Utah Code § 20A-9-401. Dist. Ct. Cert.? Y Y Tenth Circuit Circ. Ct. Cert.? 104 =========================================================== Utah Supreme Court Tabor v. Metal Ware Corp. 168 P.3d 814 (Utah 2007) 20060504 Federal Trial Court Tabor v. Metal Ware Corp. Tenth Circuit 2:99-cv-00503-CW Dist. Ct. Cert.? No Y 1. Does Utah law recognize an excep�on to the general rule of successor nonliability under the circumstances of this case? 2. Does Utah law impose on successor corpora�ons a post-sale duty to independently warn customers of defects in products manufactured and sold by the predecessor corpora�on? If so, what factors should determine whether a successor has discharged Circ. Ct. Cert.? Y =========================================================== Utah Supreme Court Thayer v. Washington Cty. Sch. Dist. 285 P.3d 1142 (Utah 2012) 20100648 Federal Trial Court Thayer v. Washington Cty. Sch. Dist. 2:09-cv-00565-DB Because the disposi�on of the state immunity claim turns on important and unsetled ques�ons of Utah law, I cer�fy the following legal ques�on to the Utah Supreme Court: Considering the facts discussed above, did the conduct of the school district officials and those ac�ng on the school district’s behalf cons�tute the issuance of a “permit, license, cer�ficate, approval, order, or similar authoriza�on” under Utah Code Ann. §63G-7-301(5)(c) such that the state actors are en�tled to immunity from liability pursuant to the Utah Governmental Immunity Act? Dist. Ct. Cert.? Y Y Tenth Circuit Circ. Ct. Cert.? 105 =========================================================== Utah Supreme Court TruGreen Cos., LLC v. Mower Bros. 199 P.3d 929 (Utah 2008) 20070451 Dist. Ct. Cert.? Y 1:06-cv-00024-BSJ Federal Trial Court TruGreen Cos. v. Biton 1. Whether under Utah law a former employer is en�tled to an award of lost profits damages, or instead an award of res�tu�on or unjust enrichment damages, where a former employee has breached contractual non-compe��on, non-disclosure, and employee nonsolicita�on provisions? 2. Whether Utah law recognizes an unjust enrichment measure of damages for tor�ous interference with a compe�tor’s contractual and economic rela�ons? 3. Whether “actual damages” under Utah Code Ann. § 13-5a-103(1)(b)(i), the Utah Unfair Compe��on Act, means the plain�ff’s lost profits or an award of damages defined by the defendant’s revenues? Y Tenth Circuit Circ. Ct. Cert.? =========================================================== Utah Supreme Court U.S. Fid. & Guar. v. U.S. Sports Specialty 20090657 270 P.3d 464 (Utah 2012) Federal Trial Court Nat’l Indem. v. U.S. Sports Specialty 2:07-cv-00996-TS 1. Does an insurer have a right to reimbursement or res�tu�on against an insured? 2. If an insurer does have a right to reimbursement or res�tu�on against an insured are there any prerequisites to receiving such a right? 3. And finally, if such a right exists, does an insurer’s payment in excess of a policy’s limit impact any such right. Dist. Ct. Cert.? Y Y Tenth Circuit Circ. Ct. Cert.? 106 =========================================================== Utah Supreme Court Whitney v. Div. Juvenile Jus�ce Servs. 20100983 274 P.3d 906 (Utah 2012) Federal Trial Court Whitney v. Div. Juvenile Jus�ce Servs. 2:09-cv-00030-DAK Dist. Ct. Cert.? N Y Tenth Circuit Is a juvenile delinquent placed in a community-based proctor home incarcerated in a place of legal confinement, such that Utah has not waived its state sovereign immunity for injuries arising out of, in connec�on with, or resul�ng from his placement, pursuant to the Governmental Immunity Act of Utah, Utah Code § 63G–7–301(5)(j)? Circ. Ct. Cert.? Y =========================================================== Utah Supreme Court Waddoups v Noorda 321 P.3d 1108 (Utah 2013) 20120310 Federal Trial Court Y Waddoups v Noorda Does sec�on § 78B-3-425 of the Utah Code clarify exis�ng law and therefore retroac�vely apply to bar negligent creden�aling claims filed prior to its enactment? 1:11-cv-00133-CW Dist. Ct. Cert.? Y Tenth Circuit Circ. Ct. Cert.? 107 =========================================================== Utah Supreme Court Zimmerman v. Univ. of Utah 2018 WL 523483 (Utah 2018) 20160572-SC 2:13-cv-01131-JNP Federal Trial Court Zimmerman v. Univ. of Utah 1. Is the Free Speech Clause of the Utah Cons�tu�on self-execu�ng? 2. If ques�on 1 is answered in the affirma�ve, what are the elements of a claim brought under the clause? 3. Does an employee who receives no�ce that his or her employment will be terminated effec�ve on a future date suffer an adverse employment ac�on for purposes of the Utah Protec�on of Public Employees Act when he or she receives the no�ce, when the employment is actually terminated, or both? Dist. Ct. Cert.? Y Y Tenth Circuit Circ. Ct. Cert.? =========================================================== Utah Supreme Court Lancer Ins. Co. v. Lake Shore Motor 391 P.3d 218 (Utah 2017) 20160244 Federal Trial Court Lancer Ins. Co. v. Lake Shore Motor 2:14-cv-00785-JNP 1. Does Utah Code Ann. § 31A-22-303(1)(a)(v) impose liability on an insured driver for damages to third par�es resul�ng from the driver’s unforeseeable loss of consciousness while driving, thereby abroga�ng the common law principle that liability for personal injury may not be imposed absent fault or negligence? 2. If ques�on 1 is answered in the affirma�ve, is the driver’s liability limited to the limits of the applicable insurance policy or the applicable minimum statutory limit? Dist. Ct. Cert.? Y Tenth Circuit Circ. Ct. Cert.? Y 108 =========================================================== Utah Supreme Court Gardner v. Galetka 151 P.3d 968 (Utah 2007) 20051029 Federal Trial Court Gardner v. Galetka If Gardner had presented the ineffec�ve assistance claim at issue in Gardner v. Galetka, 2004 UT 42, 94 P.3d 263 in State court in a successive pe��on in 1990, would the pe��on have been procedurally barred? 2:95-cv-00846-TC Dist. Ct. Cert.? Y Y Tenth Circuit Circ. Ct. Cert.? =========================================================== Utah Supreme Court Scot v Hammock 870 P.2d 947 (Utah 1994) 910112 Federal Trial Court Scot v. Hammock Not available. Tenth Circuit 2:89-cv-00267-TC Dist. Ct. Cert.? Y Y Circ. Ct. Cert.? 109 =========================================================== Utah Supreme Court Miller v United States 104 P.3d 1202 (Utah 2005) 20030054 Federal Trial Court Miller v. United States Whether a federal government employee who ordinarily would be immune from suit in cases of strict liability, may be liable under Utah's Dramshop Act if the Plain�ffs 1:02-cv-00037-TC Dist. Ct. Cert.? Y Y Tenth Circuit Circ. Ct. Cert.? =========================================================== Utah Supreme Court Federal Trial Court Westport Ins. v. Ong I. Under Utah law, can a liability insurance company seek reimbursement of defense costs from its insured in the absence of a policy provision permi�ng such reimbursement? 2. If the answer to Ques�on No. I is yes, on what state law theory is the cause of 1:07-cv-00010-DAK Dist. Ct. Cert.? Y Tenth Circuit Circ. Ct. Cert.? Y 110 =========================================================== Utah Supreme Court Machan v. Unum Life Ins. Co. 116 P.3d 342 (Utah 2005) 20030789 Dist. Ct. Cert.? Y 2:00-cv-00904-PGC Federal Trial Court Machan v. Unum Life Ins. Co. 1. In a first party insurance situa�on, may an insured recover consequen�al damages, other than atorney's fees, for breach of the express terms of an insurance contract? If so, what are the consequen�al damages that are recoverable for breach of the express terms of an insurance contract and how arc they dis�nguished from the consequen�al damages for breach of the implied covenant of good faith and fair dealing that are recoverable under Beck v. Farmers Insurance Exchange, 701 P.2d 795, 801 (Utah 1985)? 2. Did Utah Code Ann.§ 3 lA-26-301, en�tled 'Timely Payment of Claims," allow a private cause of ac�on by the insured against his or her insurer for viola�on of the Y Tenth Circuit Circ. Ct. Cert.? =========================================================== Utah Supreme Court Smith v. United States 356 P.3d 1249 (Utah 2015) No. 20131030 Federal Trial Court Smith v. U.S. Dep’t Veterans Affairs 2:12-cv-00968-DB 1. Does the limita�on on a plain�ffs recovery of noneconomic damages in Utah Code Ann. § 78B-3-410 apply to claims alleging wrongful death caused by medical malprac�ce? 2. If the answer to Ques�on No.1 is in the affirma�ve, is Utah Code Ann. § 78B-3 410 Dist. Ct. Cert.? Y Y Tenth Circuit Circ. Ct. Cert.? 111 =========================================================== Utah Supreme Court Flores v. Unified Police Dep’t 20170268-SC 2:16-cv-00224-JNP Federal Trial Court Flores v. Unified Police Dep’t Utah Code sec�ons 63G-7-501 and -502 vest “exclusive, original jurisdic�on over any ac�on brought under” the Immunity Act in “the district courts” and venue “in the county in which the claim arose or in Salt Lake County.” Do these provisions reflect an intent by the State of Utah to limit the Immunity Act’s waiver of sovereign immunity to suits brought in Utah district courts? 2. If ques�on 1 is answered in the affirma�ve, does the Unified Police Department of Greater Salt Lake have authority under Utah law to waive the jurisdic�onal and venue provisions enacted by the Utah Legislature in the Immunity Act? Dist. Ct. Cert.? Y Y Tenth Circuit Circ. Ct. Cert.? =========================================================== Utah Supreme Court Soter's, Inc. v. Deseret Fed. Savings 857 P.2d 935 (Utah 1993) 920015 Federal Trial Court Soter's Inc., v. Deseret Fed. Savings 2:89-cv-00979-DB Materials are not available. Dist. Ct. Cert.? Y Y Tenth Circuit Circ. Ct. Cert.? 112 =========================================================== Utah Supreme Court Spackman v. Bd. Ed. Box Elder Cty. 16 P.3d 533 (Utah 2000) 990553 Federal Trial Court Y Spackman v. Bd. Ed. Box Elder Cty. Whether the Free and Equal Public Educa�on Clause of the Utah Cons�tu�on (Art. X, § 1) and/or the Due Process Clause of the Utah Cons�tu�on (Art. I, §7) are self-execu�ng cons�tu�onal provisions that may be directly enforced without implemen�ng 1:98-cv-00120-TC Dist. Ct. Cert.? Y Tenth Circuit Circ. Ct. Cert.? =========================================================== Utah Supreme Court Steiner Corp. v. Johnson & Higgins 996 P.2d 531 (Utah 2000) No. 981732 Federal Trial Court Steiner Corp. v. Johnson & Higgins (1) whether, under Utah law, the negligent acts of a plain�ff in causing or contribu�ng to the situa�on that the plain�ff hired a professional to resolve can be the basis for compara�ve or contributory negligence defense; and (2) how a plain�ffs negligent acts in causing or contribu�ng to the situa�on that the plain�ff hired a professional to resolve can be considered in determining causa�on and damages. 2:88-cv-00410-JTG Dist. Ct. Cert.? Y Tenth Circuit Circ. Ct. Cert.? Y 113 =========================================================== Utah Supreme Court Federal Trial Court Stoker v. Salt Lake Cty. Not available. Tenth Circuit 2:90-cv-00248-BSJ Dist. Ct. Cert.? Y Y Circ. Ct. Cert.? =========================================================== Utah Supreme Court Sullivan v. Scoular Grain Co. of Utah 853 P.2d 877 (Utah 1993) No. 910482 Federal Trial Court Sullivan v. Scoular Grain Co. of Utah 2:87-cv-00330-JTG Unknown - documents not available Dist. Ct. Cert.? Y Y Tenth Circuit Circ. Ct. Cert.? 114 =========================================================== Utah Supreme Court Touchard v. La-Z-Boy, Inc. 148 P.3d 945 (Utah 2006) No. 20050361 Federal Trial Court Ammons v. La-Z-Boy, Inc. Whether the exercise of rights under the Utah Workers' Compensa�on Act, Utah Code Ann. §34A-2-101, et. seq., ("UWCA") implicates "a clear and substan�al public policy" of the State of Utah that would provide a basis for a claim of wrongful termina�on in viola�on of public policy; and if so, 1:04-cv-00067-TC Dist. Ct. Cert.? Y Whether this cause of ac�on applies in the following circumstances: (a) where the employee has not filed for benefits under the UWCA but is retaliated against for opposing an employer's treatment of other injured employees who are en�tled to file for benefits under the UWCA; (b) the employee is not fired but resigns under circumstances that cons�tute a "construc�ve discharge"; and ( c) the employee who has filed for benefits under the UWCA is neither fired nor construc�vely discharged, but experiences other discriminatory treatment or harassment from an employer because Tenth Circuit Circ. Ct. Cert.? Y 115 =========================================================== Utah Supreme Court Katerman v. Salt Lake Cty. 0170324-SC Federal Trial Court Y Katerman v. Salt Lake Cty. 1. Does Utah’s Governmental Immunity Act, Utah Code sec�ons 63G-7-101 through -904, apply to dog bite claims against governmental en��es and their employees brought pursuant to Utah Code sec�on 18-1-1, “Liability of Owners-Scienter-Dogs Used in Law Enforcement”? 2:13-cv-01122-EJF Dist. Ct. Cert.? Y 2. Utah Code sec�on 63G-7-202(3)(a) provides that “an ac�on under this chapter [Utah’s Governmental Immunity Act] against a governmental en�ty for an injury caused by an act or omission that occurs during the performance of an employee’s du�es, within the scope of employment, or under color of authority is a plain�ff’s exclusive remedy.” Is the “exclusive remedy” provision of Utah Code sec�on 63G-7-202(3)(a) preempted or limited by Utah Code sec�on 18-1-1, “Liability of Owners-Scienter-Dogs Used in Law Enforcement”? 3. Utah Code sec�on 63G-7-101(2) provides that “[t]he scope of the waivers and reten�ons of immunity found in this comprehensive chapter: (a) applies to all func�ons of government, no mater how labeled; and (b) governs all claims against governmental en��es or against their employees or agents rising out of the performance of the employee’s du�es, within the scope of employment, or under color of authority.” Does Utah Code sec�on 63G-7-101(2) apply to dog bite claims against governmental en��es and employees brought pursuant to Utah Code sec�on 18-1-1, “Liability of Owners- Tenth Circuit Circ. Ct. Cert.? 116 =========================================================== Utah Supreme Court Clark v. Pangan 998 P.2d 268 (Utah 2000) 981694 Federal Trial Court Clark v. United States "As a mater of Utah state law is it possible for the inten�onal tort of batery to be within the scope of a person's employment, and if it is possible for batery to be within the scope of one's employment, what test is to be employed to determine whether the bater was within the scope of employment." 2:98-cv-00304-DB Dist. Ct. Cert.? Y Y Tenth Circuit Circ. Ct. Cert.? =========================================================== Utah Supreme Court Mecham v. Frazier 193 P.3d 630 (Utah 2008) No. 20070730. Federal Trial Court Mecham v. Frazier Tenth Circuit 1:04-cv-00033-CW Dist. Ct. Cert.? No Y Circ. Ct. Cert.? Y 1. Does the Utah Governmental Immunity Act confer to state officers an immunity from suit (immediately appealable) or merely an immunity from liability (not immediately appealable)? 2. Does the Utah Governmental Immunity Act require that a No�ce of Claim against state officials in their individual capacity expressly aver “fraud” or “malice”? 117 =========================================================== Utah Supreme Court Mitchell v. Roberts 20170447-SC 2:16-cv-00843-EJF Federal Trial Court Mitchell v. Roberts 1. Can the Utah Legislature expressly revive �me-barred claims through a statute? 2. Specifically, does the language of Utah Code sec�on 78B–2–308(7), expressly reviving claims for child sexual abuse that were barred by the previously applicable statute of limita�ons as of July 1, 2016, make unnecessary the analysis of whether the change enlarges or eliminates vested rights? Dist. Ct. Cert.? Y Y Tenth Circuit Circ. Ct. Cert.? =========================================================== Utah Supreme Court Carranza v. United States 267 P.3d 912 (Utah 2011) 20090409 Federal Trial Court Dist. Ct. Cert.? Y Carranza v. Mountainlands Health "Does Utah's wrongful death statute allow an ac�on for the wrongful death of an unborn child?" 2:07-cv-00291-DAK Y Tenth Circuit Circ. Ct. Cert.? 118 =========================================================== Utah Supreme Court Burns v. Astrue 289 P.3d 551 (Utah 2012) 20100435 Federal Trial Court Burns v. Astrue "Is a signed agreement to donate preserved sperm to the donor's wife in the event of his death sufficient to cons�tute 'consent[] in a record' to being the 'parent' of a child conceived by ar�ficial means a�er the donor's death under Utah intestacy law, Utah 2:09-cv-00926-DAK Dist. Ct. Cert.? Y Y Tenth Circuit Circ. Ct. Cert.? =========================================================== Utah Supreme Court Egbert v. Nissan N. Am., Inc. 167 P.3d 1058 (Utah 2007) 20060433-SC 2:04-cv-00551-DN Federal Trial Court Egbert v. Nissan N. Am., Inc. First Cer�fica�on (docket no. 277): 1. In a product liability case where a manufacturer's product complies with applicable government safety standards, should the jury be instructed that a presump�on of non- defec�veness has arisen under Utah Code Ann. 78-15-6(3)? If so, should the instruc�on require clear and convincing evidence of a defect to rebut the presump�on, or is proof by a preponderance of the evidence sufficient for rebutal? 2. Does Utah recognize the "enhanced injury" theory of liability outlined in 16(a) of the Restatement (Third) of Torts: Products Liability? Dist. Ct. Cert.? Y Second cer�fica�on (docket no. 330, filed 10/1/2008): 1. Is Utah Code Ann. 78-15-6(3) cons�tu�onal? 2. Does Utah recognize Restatement (Third) of Torts: Products Liability 16 (b)-(d)? Tenth Circuit Circ. Ct. Cert.? Y 119 =========================================================== Utah Supreme Court Robert J. DeBry & Assocs. v. Quest Dex 20050299 144 P.3d 1079 (Utah 2006) Federal Trial Court Robert J. DeBry & Assocs. v. Quest Dex 1:03-cv-00099-PGC Dist. Ct. Cert.? No Y Tenth Circuit "Whether Defendants violated Utah Code Ann. 13-11a-3(1)(b), (d), or (t) when they published in their 2003-2004 Ogden -area telephone directory a table of numerical prefixes associated with a 'local calling area' and adver�sements by third par�es that include a market expansion line telephone number without any physical business address; and if so, whether Defendants are exempt from liability under Utah Code Ann. Circ. Ct. Cert.? Y =========================================================== Utah Supreme Court Dircks v. Travelers Indem. Co. 2017 WL 4675471 (Utah 2017) 20160065-SC Federal Trial Court Dircks v. Travelers Indem. Co. "Does Utah Code Ann. 31A-22-305.3 require that all vehicles covered under the liability provisions of a motor vehicle insurance policy also be covered under the underinsured motorist provisions of that policy with equal coverage limits, unless a named insured signs an acknowledgment form mee�ng the requirements of the statute?" 2:14-cv-00118-JNP Dist. Ct. Cert.? Y Tenth Circuit Circ. Ct. Cert.? Y 120 =========================================================== Utah Supreme Court Dist. Ct. Cert.? Y 2:01-cv-00171-DB Federal Trial Court Y Kennard v. Leavit 1. Does Utah Code Ann. § 24–1–15(2)(a)(iii) of the Utah Property Protec�on Act authorize a state court judge to approve a law enforcement officer's transfer of property in obedience to a federal forfeiture order, because disobeying the federal order would place the officer in jeopardy of being found in contempt and thus “unduly burden” the officer for purposes of that provision? For purposes of this ques�on, “federal forfeiture order” includes a federal court order, federal warrant for arrest in rem, federal agency administra�ve order, or seizure order obtained by a federal agency. 2. Alterna�vely, does Utah Code Ann. § 24–1–15(2)(a) even require a seizing agency or prosecu�ng atorney to pe��on a state court to authorize such a transfer when the seizing agency or prosecu�ng atorney is already under a federal forfeiture order? For purposes of this ques�on, “federal forfeiture order” includes a federal court order, federal warrant for arrest in rem, federal agency administra�ve order, or seizure order Tenth Circuit Circ. Ct. Cert.? =========================================================== Utah Supreme Court Burkholz v. Joyce 972 P.2d 1235 (Utah 1998) 970252 Federal Trial Court Burkholz v. Joyce "Whether the excep�onal circumstances version of the discovery rule tolls the applicable statute of limita�ons, where, during the limita�ons period, the plain�ff's knowledge of the opera�ve facts underlying his cause of ac�on is interrupted by a period of psychological repression during which plain�ff is unaware of such facts." 2:96-cv-00252-TC Dist. Ct. Cert.? Y Tenth Circuit Circ. Ct. Cert.? Y 121 =========================================================== Utah Supreme Court Ohio Cas. Ins. Co v. Unigard Ins. Co. 268 P.3d 180 (Utah 2012) 20090340. Federal Trial Court Ohio Cas. Ins. Co. v. Cloud Nine Tenth Circuit 1:05-cv-00088-DB Dist. Ct. Cert.? No Y Should the defense costs in the EdiZone case be allocated between Ohio Casualty and Unigard under the “equal shares” method set forth in the “other insurance clause” of Ohio Casualty's policy, or, in the alterna�ve, because the policies were issued for successive periods, should those defense costs be allocated using the �me-on-risk method described in Sharon Steel Corp. v. Aetna Casualty & Surety Co., 931 P.2d 127, 140 Circ. Ct. Cert.? Y =========================================================== Utah Supreme Court Iverson v. State Farm Mut. Ins. 256 P.3d 222 (Utah 2011) 20081016 Federal Trial Court Y Iverson v. State Farm Mut. Ins. How should Utah Code Ann. 31A-22-305(9)(b) and 31A-22-305(9)(h) [now codified as Utah Code 31A-22-305.3] be interpreted and applied to the undisputed background facts of this case? 1:06-cv-00113-DB Dist. Ct. Cert.? Y Tenth Circuit Circ. Ct. Cert.? 122 =========================================================== Utah Supreme Court In re Simmons 20140514-SC 73 Federal Trial Court In re Simmons Is an individual en�tled to a homestead exemp�on under UCA 78B-5-503(2) in "Property," as defined in UCA 78-5-503(1)(d), that is �tled in the name of a self-setled revocable trust created by the individual? 2:13-bk-33821-RKM Dist. Ct. Cert.? Y Y Tenth Circuit Circ. Ct. Cert.? =========================================================== Utah Supreme Court Endow v. Utah Transit Auth. 2015 WL 4394047 (Utah 2015) 20140024-SC Federal Trial Court Endow v. Utah Transit Auth. "Does the Utah An�discrimina�on Act, Utah Code Ann. 34A-5-101 et seq., provide for individual liability?" 1:13-cv-00108-TC Dist. Ct. Cert.? Y Tenth Circuit Circ. Ct. Cert.? Y 123 =========================================================== Utah Supreme Court Federal Trial Court Pace v. Swerdlow To what extent, if any, does Utah law provide witness immunity for retained expert 2:06-cv-00027-DB Dist. Ct. Cert.? Y Y Tenth Circuit Circ. Ct. Cert.? =========================================================== Utah Supreme Court Federal Trial Court Novell v. Handleman Does the Utah version of the UCC govern transac�ons involving the "licensing" of so�ware products (when so�ware is "sold" on computer disks, but the developer retains the intellectual property rights)? 2:01-cv-00173-TS Dist. Ct. Cert.? Y Does the Utah version of the UCC apply to distribu�on agreements? Tenth Circuit Circ. Ct. Cert.? Y 124 =========================================================== Utah Supreme Court In re Kiley 20170472-SC Dist. Ct. Cert.? Y 2:15-bk-27838-KA Federal Trial Court In re Kiley 1. What is the nature and scope of a party's interest in marital property as of the filing of a divorce complaint -- contrasted with the nature and scope of such interest upon the entry of a divorce decree alloca�ng such marital property? Stated differently, upon the filing for divorce, is a spouse's interest in marital property merely con�ngent, unliquidated, and inchoate un�l the entry of a divorce decree crea�ng a vested right to receive a specific sum of money or a specific marital asset? 2. Is an individual en�tled to an exemp�on under Utah Code Ann. 78B-5-505(1)(a)(xv) in money or other assets payable to that individual as an alternate payee under a QDRO? Stated more simply, is the Debtor en�tled under Utah law to exempt the Re�rement Y Tenth Circuit Circ. Ct. Cert.? =========================================================== Utah Supreme Court In re Hendry 20170484-SC 2:14-bk-27398-KA Federal Trial Court In re Hendry What is the nature and scope of a party's interest in marital property as of the filing of a divorce complaint -- contrasted with the nature and scope of such interest upon the entry of a divorce decree alloca�ng such marital property? Stated differently, upon the filing for divorce, is a spouse's interest in marital property merely con�ngent, unliquidated, and inchoate un�l the entry of a divorce decree crea�ng a vested right to receive a specific sum of money or a specific marital asset? Dist. Ct. Cert.? Y Tenth Circuit Circ. Ct. Cert.? Y 125 =========================================================== Utah Supreme Court Olseth v. Larson 158 P.3d 532 (Utah 2007) 20051180 Federal Trial Court Olseth v. Salt Lake City Corp. Tenth Circuit 2:02-cv-01122-CW Dist. Ct. Cert.? No Y “Is the statute of limita�ons tolled under Utah Code Ann. § 78–12–35 when a person against whom a claim has accrued has le� the state of Utah and has no agent within the state of Utah upon whom service of process can be made instead, but the person is amenable to service pursuant to Utah's long-arm statute, Utah Code Ann. § 78–27–24?” Circ. Ct. Cert.? Y =========================================================== Utah Supreme Court In re Kunz & In re Rockwell 99 P.3d 793 (Utah 2004) 20030502 Federal Trial Court In re Kunz & In re Rockwell Do funds transferred directly from on exempt account, as described in Utah Code Ann. 78-23-5(1)(a)(x), to another exempt account within one year before a debtor files bankruptcy cons�tute "amounts contributed" within the meaning of Utah Code Ann. 78- 2:02-bk-40422-GEC Dist. Ct. Cert.? Y Tenth Circuit Circ. Ct. Cert.? Y 126 =========================================================== Utah Supreme Court 20170561-SC Federal Trial Court CR England v Swi� Transp. 1. Does the tort of inten�onal interference with contract require proof of “improper means”? 2. If so, what cons�tutes “improper means” in the context of tor�ous interference with 2:14-cv-00781-DB Dist. Ct. Cert.? Y Y Tenth Circuit Circ. Ct. Cert.? =========================================================== Utah Supreme Court McArthur v. State Farm Mut. Ins. Co. No. 20100847 274 P.3d 981 (Utah 2012) Federal Trial Court McArthur v. State Farm Mut. Ins. Co. 2:09-cv-00416-TS Dist. Ct. Cert.? No Y Tenth Circuit Circ. Ct. Cert.? Y A. Whether an exhaus�on clause, which excludes underinsured motorist coverage contained in an automobile insurance policy absent a condi�on precedent, is generally unenforceable in the State of Utah as contrary to the State’s public policy, to wit: THERE IS NO COVERAGE UNTIL: 1. THE LIMITS OF LIABILITY OF ALL BODILY INJURY LIABILITY BONDS AND POLICIES THAT APPLY HAVE BEEN USED UP BY PAYMENT OF JUDGMENTS OR SETTLEMENTS TO OTHER PERSONS; OR 127 2. SUCH LIMITS OF LIABILITY OR REMAINING PART OF THEM HAVE BEEN OFFERED TO THE INSURED. B. Provided that the aforemen�oned exhaus�on clause is not generally unenforceable in the State of Utah as contrary to the State’s public policy, whether the enforceability of such clause is con�ngent upon the insurer establishing actual prejudice to its economic interest. 128 Appendix—Methods of Gathering Utah Cases Related to Certification We attempted to gather every Utah case involving certification and log the cases into a Microsoft Access database. Contact the author to obtain a copy of the database file. Explanation of Case Document Locations: Cases actually certified from one court to another will result in documents in two courts, the certifying court and the Utah Supreme Court. The procedural history of the case will affect the number of relevant case documents and their location. If a case in the federal district court grants certification, there will be a federal district court case and a Utah Supreme Court case. The case may be appealed to the Tenth Circuit and the appeal may or may not involve certification. All appeals were listed. If the appeal involves certification, that was noted. One case originating in district court certified two questions. Some cases have multiple appeals. Some cases in the district court deny certification. They have no corresponding case in the Utah Supreme Court but may have been appealed to the Tenth Circuit. All appeals were listed. If the appeal involves certification, that was noted. Cases certified from the Tenth Circuit always have an origination in the Utah federal District Court and a corresponding case in the Utah Supreme Court. These cases are interesting because they demonstrate a decision by the Utah federal District Court not to certify which is thought to be in error by the Tenth Circuit. That error is not usually called out in the appellate opinion. In some instances, these cases are remanded after the certification and may be appealed a second time. We did/did not find any interlocutory appeals/writs mandating certification. Utah Federal Trial Courts: To gather Utah federal district court cases, we searched the U.S. District Court for the District of Utah through the electronic filing system CM/ECF using the events Order UT Supreme Court [cv, misc] and Order on Motion for Certification of Issue to State Supreme Court [cv, order]. We also searched written opinions for the word “certification” which yielded some cases and many false positives, because many things are certified in the district court. A CM/ECF search excludes many older cases because CM/ECF was not implemented in Utah until May 1 2005. However, some dockets and orders before that date were imported into CM/ECF.508 508 The District of Utah provides electronic access to case information on civil cases filed with the Court since July 1989, and criminal cases filed with the court since November 1992. Exceptions include cases that have been sealed by order of a judge and social security cases. This system permits users to search for a case by entering a party name or case number. Documents began to be scanned to TIF format, and available electronically on a limited basis in November 1998. By the year 2000, most documents were being either scanned to PDF or converted electronically to PDF text format, and available through WebPACER. http://www.utd.uscourts.gov/cmecf-general-information (last 129 We also searched CM/ECF docket text only (not case filed documents) for the phrase “Utah Supreme Court” which also yielded many false positives, but gathered more cases. (This reveals that the correct CM/ECF events are not always used for certification orders.) Because this was not a search for CM/ECF filing events, which only began to be used May 1, 2005, but a search for docket entries, many of which were imported into CM/ECF, this method of search in CM/ECF went back much further in time, finding cases as early as 1989. Similar searches were made in the Utah Bankruptcy Court. However, the method used did not locate cases in which motions to certify were denied. Utah Supreme Court: To locate cases from the Utah Supreme Court, we searched in Westlaw for cases with the Key Number 170B-3105-3108. There are 37 Utah Cases under this Key Number. Tenth Circuit Court of Appeals: To locate cases from the Tenth Circuit, we searched in Westlaw for cases with the Key Number 170B-3105-3108. We culled the cases from Utah from that group. visited June 15, 2017). The District went live on CM/ECF with full electronic filing May 1, 2005. “District of Utah is Live on CM/ECF, May 1, 2005. http://utd-cmecf.blogspot.com/2005/05/ (last visited June 15, 2017). 130

=== Document Retention and Destruction ===

Document Retention and Destruction: Rules of Professional Conduct 1.15(a). Safekeeping Property A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Rules of Professional Conduct 1.16(d). Declining or terminating representation. Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer must provide, upon request, the client's file to the client. The lawyer may reproduce and retain copies of the client file at the lawyer's expense. Comment Upon termination of representation, a lawyer shall provide, upon request, the client’s file to the client notwithstanding any other law, including attorney lien laws. It is impossible to set forth one all encompassing definition of what constitutes the client file. However, the client file generally would include the following: all papers and property the client provides to the lawyer; litigation materials such as pleadings, motions, discovery, and legal memoranda; all correspondence; depositions; expert opinions; business records; exhibits or potential evidence; and witness statements. The client file generally would not include the following: the lawyer's work product such as recorded mental impressions; research notes; legal theories; internal memoranda; and unfiled pleadings. The Utah rule differs from the ABA Model Rule in requiring that papers and property considered to be part of the client’s file be returned to the client notwithstanding any other laws or fees or expenses owing to the lawyer. Compare ABA Model Rules of Professional Conduct 1.16(d): Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law. Best Practices in client relations: Have a written policy. Vary retention based on types of documents and cases. Follow the policy. Give the policy to your client or state it in an agreement. Do not take originals. Take a copy and note on the back that the client retained the original. If originals must be kept, keep them in a vault subject to a log. Tell the client that the client will receive copies as the case proceeds and that additional copies will be provided at the client’s expense. Your documentation should not make you a repository. Records Retention in the Private Legal Environment: Annotated Bibliography and Program Implementation Tools (PDF) http://www.aallnet.org/products/pub_llj_v93n01/2001_01.pdf Four major sections, each with its own introduction: (1) an annotated bibliography focusing on materials published from the early 1990s to 2000; (2) an annotated listing of recent state and local ethics opinions pertaining to records retention; (3) sample records retention policies representing both client and administrative records; and (4) retention program implementation exemplars. Records Management in the Legal Environment Member: $89 Non-Member: $129 Year: 2003 ISBN: 978-1-931786-09-6 Author: Jean Barr, CRM; Beth Chiaiese, CRM; and Lee R. Nemchek, CRM ARMA International Best practices for the unique records management processes and procedures encountered in the private legal environment. Major topic areas include • operational “back office” procedures, such as personnel management, space • • management, and accounting/budgeting practices “front office” processes that directly support the practice of law. These include conflicts of interest (i.e., searching, identifying, analyzing, and resolving conflicts of interest), client/matter intake, docket/calendar, litigation support, and business development the management of records resulting from specialized law practice areas, which – with their unique workflow and procedures – produce records with different recordkeeping requirements The book’s appendices include annotated lists and forms packages; bibliography with full citations and further readings; and an indexed table of authorities, including cases, statutes, regulations, restatements, model codes, and ethics opinions of various issuing bodies. David Nuffer 2014 Send comments, suggestions, corrections to [email protected]

=== Cloud Technology and Lawyers ===

Cloud Technology: Ethical Issues for Lawyers Compiled by Daniel Vincent, 2015 J.D. Candidate, BYU J. Reuben Clark Law School, 2015 M. Acc. Candidate, BYU Marriott School of Management State Ethics Opinions A more thorough summary of the ethics opinions issued from state bar associations below may be found at http://www.americanbar.org/groups/departments_offices/legal_technology_resources/res ources/charts_fyis/cloud-ethics-chart.html All of these opinions permit the use of cloud technology and reflect a “reasonable care” standard. Summary requirements are outlined below (taken from ABA website). Common threads between the states seem to include: (1) Consulting an expert on data security if the lawyer is not an expert; (2) Periodically reviewing security measures and best practices; (3) Thoroughly reviewing a provider’s security measures before contracting with it (due diligence); and (4) Determining the client’s specific security needs and desires. Alabama Opinion 2010-02 (2010) • Know how provider handles storage/security of data. • Reasonably ensure confidentiality agreement is followed. • Stay abreast of best practices regarding data safeguards. Arizona Opinion 09-04 (2009) "Reasonable security precautions," including password protection, encryption, etc. • • Develop or consult someone with competence in online computer security. • Periodically review security measures. California Formal Opinion 2010-179 (2010) • Evaluate the nature of the technology, available security precautions, and limitations on third-party access. • Consult an expert if lawyer's technology expertise is lacking. • Weigh the sensitivity of the data, the impact of disclosure on the client, the urgency of the situation, and the client's instructions. Connecticut Informal Opinion 2013-07 (2013) • Lawyer’s ownership and access to the data must not be hindered. • Security policies and processes should segregate the lawyer's data to prevent unauthorized access to the data, including by the cloud service provider. Florida Opinion 12-3 (2012) • Ensure provider has enforceable obligation to preserve confidentiality and security, and will provide notice if served with process. Investigate provider’s security measures • • Guard against reasonably foreseeable attempts to infiltrate data. Iowa Opinion 11-01 (2011) • Ensure unfettered access to your data when it is needed, including removing it upon termination of the service. • Determine the degree of protection afforded to the data residing within the cloud service. Maine Opinion 207 • Ensure firm technology in general meets professional responsibility constraints. • Review provider’s terms of service and/or service level agreements. • Review provider’s technology, specifically focusing on security and backup. Massachusetts Opinion 12-03 (2012) • Review (and periodically revisit) terms of service, restrictions on access to data, data portability, and vendor's security practices. • Follow clients' express instructions regarding use of cloud technology to store or transmit data. • For particularly sensitive client information, obtain client approval before storing/transmitting via the internet. New Hampshire Opinion #2012-13/4 • Have a basic understanding of technology and stay abreast of changes, including privacy laws and regulations. • Consider obtaining client's informed consent when storing highly confidential information. • Delete data from the cloud and return it to the client at the conclusion of representation or when the file must no longer be preserved. • Make a reasonable effort to ensure cloud providers understand and act in a manner compatible with a lawyer's professional responsibilities. New Jersey Opinion 701 (2006) • Vendor must have an enforceable obligation to preserve confidentiality and security. • Use available technology to guard against foreseeable attempts to infiltrate data. New York Opinion 842 (2010) • Vendor must have an enforceable obligation to preserve confidentiality and security, and should notify lawyer if served with process for client data. • Use available technology to guard against foreseeable attempts to infiltrate data. • Investigate vendor security practices and periodically review to be sure they remain up- to-date. Investigate any potential security breaches or lapses by vendor to ensure client data was not compromised. • Nevada Opinion 33 (2006) • Chose a vendor that can be reasonably relied upon to keep client information confidential. Instruct and require the vendor to keep client information confidential. • North Carolina 2011 Formal Ethics Opinion 6 (2012) • Review terms and policies, and if necessary re-negotiate, to ensure they're consistent with ethical obligations. • Evaluate vendor's security measures and backup strategy. • Ensure data can be retrieved if vendor shuts down or lawyer wishes to cancel service. Ohio Informal Advisory Opinion 2013-03 (2013) • Competently select appropriate vendor. • Preserve confidentiality and safeguard client property. • Provide reasonable supervision of cloud vendor. • Communicate with the client as appropriate. Oregon Formal Opinion 2011-188 (2011) • Ensure service agreement requires vendor to preserve confidentiality and security. • Require notice in the event that lawyer's data is accessed by a non-authorized party. • Ensure adequate backup. • Re-evaluate precautionary steps periodically in light of advances in technology. Pennsylvania Formal Opinion 2011-200 (2011) • Exercise reasonable care to ensure materials stored in the cloud remain confidential. • Employ reasonable safeguards to protect data from breach, data loss, and other risk. • See full opinion for 15 point list of possible safeguards. Vermont Opinion 2010-6 (2010) (scroll down) • Take reasonable precautions to ensure client data is secure and accessible. • Consider whether certain types of data (e.g. wills) must be retained in original paper format. • Discuss appropriateness of cloud storage with client if data is especially sensitive (e.g. trade secrets). Virginia Legal Ethics Opinion 1872 (2013) • Exercise care in selection of the vendor. • Have a reasonable expectation the vendor will keep data confidential and inaccessible. • Instruct the vendor to preserve the confidentiality of information. Washington Advisory Opinion 2215 (2012) • Conduct a due diligence investigation of any potential provider. • Stay abreast of changes in technology. • Review provider’s security procedures periodically. Best Practices Articles Cloud Computing by Judge Herbert B. Dixon Jr. 51 No. 2 Judges J. 36 (2012) This brief article provides a description of cloud computing and lists a few of the more prominent services then available. Navigate the Cloud by James N. Kunick 210 Managing Intell. Prop. 58 (June 2011) While focused on ways that IP lawyers can advise business clients that are considering moving to cloud-based systems, the principles are applicable to attorneys making the same considerations as well. Considerations include: • Having a robust written contract addressing: o Compliance with all relevant data security laws as well as law firm standards o Maintenance protections against loss or destruction of data o Who will bear the costs of remedying a data breach • Monitoring compliance with audits • Maintain insurance in case of data breach • Ensure appropriate rights regarding termination and suspension of service Flying Safely in the Cloud by Brett Burney Law Practice Magazine, Volume 37 Number 2 (March/April 2011) This article discusses the need for “reasonable care” in selecting a cloud provider as well as what parameters constitute “reasonable precautions” as determined by various jurisdictions Cloud Computing/Software as a Service for Lawyers (ABA LRTC) This article provides the basics of cloud computing, geared toward someone who is unfamiliar with the idea and may want to consider using it for her firm. Below are some questions for consideration: • Questions to consider regarding availability/access: Is the SaaS compatible with my preferred platform/device/web browser? o How often do I need to access my legal software outside of the office? o o Do I work in an area that's prone to disaster or other business continuity threats? o Do I have reliable access to the Internet from work? From home? On the road? o Does the provider offer (or would it be willing to negotiate) a Service Level Agreement (SLA) that guarantees a certain level of service (e.g. uptime, accessibility, etc.)? o Are any relevant guarantees or disclaimers of liability included in the provider's Terms of Service (TOS)? • Questions to consider regarding ethics/security: o How does the vendor safeguard the privacy/confidentiality of stored data? o How often is the user's data backed up? Does the vendor backup data in multiple data centers in different geographic locations to safeguard against natural disaster? o What is the history of the vendor? Where do they derive their funding? How stable are they financially? o Can I get my data "off" their servers for my own offline use/backup? If I decide to cancel my subscription to the software, will I get my data? Is data supplied in a non-proprietary format that is compatible with other software? o Does the vendor's Terms of Service or Service Level Agreement address confidentiality and security? If not, would the vendor be willing to sign a confidentiality agreement in keeping with your professional responsibilities? • Cost questions to consider: o What are the monthly costs for the SaaS option, and are discounted rates available for non-lawyer employees like paralegals, legal assistants, and law clerks? o Does the vendor require a contractual agreement to maintain service for a certain amount of time (e.g. 12 months, 24 months)? o How does the cost of the SaaS solution compare over a two or three year period to the cost of a comparable traditional software license? o What's the pricing history of the SaaS solution? How often are monthly rates increased? o Are there any incidental costs for the SaaS solution, like data backup or support? The Ethics of Cloud Computing for Lawyers, Nicole Black, GP Solo E Report Vol. 2, No. 2 Cloud Computing for Lawyers Author(s): Nicole Black Sponsor(s): ABA Law Practice Division Publ. ISBN: 978-1-61632-884-9 Product Code: 5110724 2012, 222 pages, 7x10 $79.95. One more question to ask:

=== Avoiding Pitfalls in Written Advocacy (pdf) ===

Avoiding Pitfalls in Written Advocacy David Nuffer November 2014 11/10/2014 1 Be understood, then be persuasive. Be understood. Be persuasive. The Basics Start to Craft Avoid the Sirens Artistry 11/3/2014 3 11/3/2014 4 Computec disputes facts which are not material. The Basics • Start Early • Spell Check • Grammar Check • Proofread • Read aloud • Read from back • Read in paper form • How many words can be eliminated? The Basics (continued) • Apply the proper standards • Standards of review • Comply with DUCivR 56 • Never assume jurisdiction exists • Every case has a plaintiff and defendant; what are the roles or names in this case? Starting to Craft • Outline • Think about the organization • Reflect the outline in format – headings, previews, summaries • Focus on what matters – remove weak arguments and the irrelevant • Do everything Bryan Garner says • Language use • Inline citations • Speaking footnotes 11/3/2014 5 Garner’s Usage Tip of the Day January 1, 2010 obviously, like other dogmatic words ("clearly," "undeniably," "undoubtedly"), is one that writers tend to rely on when they're dealing with difficult, doubtful propositions. Be wary of it. Garner’s Usage Tip of the Day November 23, 2009 Officialese is the language of officialdom, characterized by bureaucratic turgidity and insubstantial fustian; inflated language that could be readily translated into simpler terms. Officialese is governed by four essential rules. First, use as many words as possible. Second, if a longer word (e.g.,"utilize") and a shorter word (e.g., "use") are both available, choose the longer. Third, use circumlocutions whenever possible. Fourth, use cumbersome connectives when possible ("as to," "with regard to," "in connection with," "in the event of," etc.). 11/3/2014 6 Among the linguistically unsophisticated, puffed‐up language seems more impressive. Thus, police officers never "get out of their cars"; instead, they "exit their vehicles." They never "smell" anything; rather, they "detect it by inhalation." They "proceed" to a "residence" and "observe" the suspect "partaking of food." And among lawyers, rather than "suing," one "institutes legal proceedings against" or "brings an action against." 11/3/2014 7 7A 7B business of the parties, and (d) the place where the relationship, if any, between the parties is centered. Restatement (Second) Conflict of Laws § 145(2) (1971). Here, it is undisputed that the alleged injury occurred in Utah. This is the most significant factor in a choice of law analysis for a products liability action.1 "Next to the place where the injury occurred, the most important contact is the place where the relationship between the parties is centered. That place is ... where the product was purchased."2 Here, Plaintiff does not dispute that the product was used by the Decedent in Utah; thus it is clear that the relationship between the parties was centered in Utah.3 It is also undisputed that the Decedent resided in Utah. Where the allegedly defective Tysabri® was designed is of little importance when the place of injury, the center of the parties' relationship, and the domicile of the plaintiff or decedent are all in the same state. Under such circumstances, courts uniformly apply the law of that state, not the state of manufacture. 4 Accordingly, this Court should conclude that the law of Utah applies, as it is the place of the injury, the center of the relationship of the parties, and the place of residence of the Decedent at the time of his alleged injury. 1 See Kearns v. Amer. Honda Motor Co., 641 F. Supp. 420,423-24 (D. Idaho 1986); Richard O'Brien Cos. v. Challenge-Cook Bros., Inc., 672 F. Supp. 466,469 (D. Colo. 1987). 2 Kearns, 641 F. Supp. at 423-24. 3 Utah. See Allison v. ITE Imperial Corp., 928 F.2d 137, 142 (5th Cir. 1991); Rottman v. Krabloonik, 834 F. Supp. 1269, 1271 (D. Colo. 1993). 4 Richard O'Brien Cos., 672 F. Supp. at 469; White v. Winnebago Indus., 718 F. Supp. 1429, 1433 (N.D. Iowa 1989); Crisman v. Cooper Indus., 748 S.W.2d 273, 278 (Tex. Ct. App. 1988); Kearns, 641 F. Supp at 423-24; Allison v. ITE Imperial Corp., 928 F.2d 137 (5th Cir. 1991). 7C not renders Plaintiffs’ theory less compelling than the opposing, non-fraudulent inference.8 Plaintiffs’ remaining arguments are boilerplate. They suggest “false and misleading SOX certifications . . . [are] indicia of scienter” (Opp. at 10-11), but their cases hold no such thing.9 Indeed, inferring scienter from SOX certifications would “‘eviscerat[e] the pleading requirements for scienter set forth in the PSLRA.’” Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1004 (9th Cir. 2009) (citation omitted).10 Plaintiffs similarly conflate distinct pleading requirements when they argue (Opp. at 8-9) scienter can be inferred from a false statement or omission. See, e.g., Imergent, 2009 WL 3731965, at *8 (“[I]t is well established that GAAP violations, without more, fail to raise an inference of scienter.”).11 Moreover, the undersigned is aware of only a single lawsuit alleging a violation of Item 403(b),12 and where a rule is obscure (as it is here), an inference of scienter is especially inappropriate. See, e.g., In re Hansen Natural Corp. Sec. Litig., 527 F. Supp. 2d 1142, 1157 (C.D. Cal. 2007) (“the Court cannot determine 8 “[A]n inference of scienter must be more than merely plausible or reasonable – it must be cogent and at least as compelling as any opposing inference of nonfraudulent intent.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 314 (2007). 9 In Adams v. Kinder-Morgan, Inc. 340 F.3d 1083, 1105 (10th Cir. 2003), the defendant CFO stated that a plant positively impacted earnings despite being told by an assistant treasurer that it was losing money. In In re SemGroup Energy Partners, L.P. Sec. Litig., 729 F. Supp. 2d 1276, 1300 (N.D. Okla. 2010), the plaintiffs alleged the defendants directed or participated in questionable accounting activity, including paying themselves undisclosed bonuses. And in In re Nature's Sunshine Prods. Sec. Litig., 486 F. Supp. 2d 1301, 1304-05, 1309 (D. Utah 2007), the defendant CEO was found, by a board committee, knowingly to have violated the FCPA. 10 Further, the March 2012 Form 10-K (which contained the certifications) is only alleged to have been false because it incorporated portions of the later-filed April 2012 Proxy. ¶ 57. 11 None of Plaintiffs’ cases (Opp. at 8-9) transmute an omission into scienter. The In re Scholastic Corp. Sec. Litig. complaint alleged “what defendants knew on a daily, weekly and monthly basis . . . while at the same time making public statements” to the contrary. 252 F.3d 63, 76-77 (2d Cir. 2001). The Citiline Holdings, Inc. v. iStar Fin. Inc. complaint alleged that, while the company’s financial performance deteriorated, the defendants “monitored the value of their [loan] portfolio on a nearly real-time basis.” 701 F. Supp. 2d 506, 516 (S.D.N.Y. 2010). And In re Campbell Soup Co. Sec. Litig. suggested Item 303 of Regulation S-K supported a finding of a falsity, not scienter. 145 F. Supp. 2d 574, 591 (D.N.J. 2001). 12 The court in that case found Item 403(b) inapplicable. See City of Omaha v. CBS Corp., No. 08 Civ. 10816(PKC), 2010 WL 1029290 (S.D.N.Y. Mar. 16, 2010); City of Omaha v. CBS Corp., No. 08 Civ. 10816(PKC), 2011 WL 2119734 (S.D.N.Y. May 24, 2011). -5- 8 Avoiding the Sirens Having made the requisite showings, the burden now shifts back to the individual defendants to establish that no disputed issues of material fact remain which would defeat the claim of qualified immunity. 11/3/2014 9 As discussed in Plaintiff’s opposition to motion, Defendant began its attacks against Plaintiff’s counsel by sending him a personal subpoena during the holidays on December 29, 2008 in an attempt, believes, to set up a motion to disqualify Plaintiff’s co‐trial counsel, and in an attempt to ruin his holidays. As further discussed in Plaintiff’s opposition to the motion, Defendant’s counsel engaged in Gestapo tactics in serving Plaintiff’s counsel with the subpoena in his law office without even giving a reasonable opportunity to accept service of the subpoena, or the professional courtesy of a telephone call. Plaintiff asserts that Defendant accuses Plaintiff of making “disingenuous arguments” in response to various points raise in Defendant’s submission. (Application, p. 1.) Defendant’s assertion is more pointed: “Plaintiff disingenuously argues that Defendant has not substantiated its assertion that Plaintiff has failed to produce the ‘order’ source code.” Defendant’s reply brief, (pp. 1‐2) In its brief in opposition Plaintiff implies that if any source code was produced for three Perl files at issue that is compliance with the Court’s September 28, 2009 order. Defendant respectfully submits that is not the case. 11/3/2014 10 Plaintiff’s argument is a bit like suggesting that Rembrandt could not have applied proper methodology in his paintings because he did not make use of a “paint by numbers” The assertion that Dr. P “failed to show” his work blows right by audacious and nearly steamrolls over ridiculous . . . Even if it is necessary to reschedule the trial date, it is difficult to see how this is unfair to the defendant. "Unfairness" is often tossed out as a reason for the court to do, or not do, something. Like the cry of the loon, it is haunting, but often without substance. This paragraph appears in argument without any prior recitation of these facts Second, Defendant’s assumptions are wrong. In particular, Defendant’s Attorney’s assertion that “Defendant was not even at Plaintiff when Plaintiff developed its incremental sector tracking software,” and therefore “does not know, and could not know, anything about Plaintiff’s code for that function or the underlying source code,” is demonstrably incorrect. (8/26/11 Defendant’s Attorney’s Letter to Plaintiff’s Attorney; 9/21/11 Plaintiff’s Attorney’s Letter to Defendant’s Attorney at 2.) Incremental sector tracking was specifically requested by Company X as a deliverable, and the last Computer code drops Defendant made to Company X in 2002‐well before his departure from Plaintiff‐include incremental sector tracking, as evidenced by the emails on the Exhibit Disc. (See, e.g., Defendant’s 0007549, 101520‐21, 101991‐92, 109999‐ 01, 110711‐13, 116084‐85, 158566, 170105, 203584‐88, 204117‐ 18, 205103, 205150‐51, 205154‐55,220109, 223744,227291, 230546, and 232179‐80, collectively attached as Ex. P hereto (without exhibits).) 11/3/2014 11 Despite the Court's ruling that Defendant Name Redacted (“Redacted”) is liable for breach of the parties' Settlement Agreement and Mutual Release signed in 20XX (the “20XX Settlement Agreement” or “Agreement”) and for copyright infringement, and that Plaintiff has presented strong evidence of Defendant's misappropriation of trade secrets, coupled with its decision to permit Plaintiff to conduct additional discovery regarding Defendant's activities while working for Company1, Company2 and/or Company3, particularly as they relate to Plaintiff's intellectual property rights and trade secrets under that Agreement, Defendant has objected to virtually all of Plaintiff's discovery issued pursuant to Magistrate Judge Nuffer's Order entered on June XX, 2011, impermissibly narrowed the scope of the discovery in providing limited substantive responses, failed to perform an adequate search for documents under Federal Rule of Civil Procedure 34, and thereby failed to produce all responsive documents. 11/3/2014 12 11/3/2014 13 Avoiding the Sirens • Convoluted arguments • Characterizations • Cuteness • Long sentences • Long paragraphs • The sound of your own voice • Distractions Artistry • Flow • Is it enjoyable to read? • Does it read as if heard, and not studied? • Eliminate the need to re‐read anything. • Would an educated person understand every word? • Is a legally trained complete stranger to the case compelled by every word? • Let it sit; then come back a day or two later. John Irving on being a writer – and a wrestler "Many of my wrestling friends find it odd that I'm a writer, just as many of my writer friends in the writing world find it odd that I was — for so many years — a wrestler and wrestling coach. But they seem very similar to me. In both cases you have to be devoted to tireless repetition and small details. For many more hours than you will be in competition, you will be with a nameless workout partner — a sparring partner, drilling the same outside single‐legged dive, inside collar tie — hundreds upon thousands of times. Well, how many times as a writer do you — or should you — rewrite the same sentence, the same paragraph, the same chapter? If you're good, you never tire of that." http://www.npr.org/2012/05/12/152361634/in‐one‐person‐a‐tangled‐gender‐bender 11/3/2014 14

=== Making Tablet Friendly e-Filings (pdf) ===

These are suggestions—and should be relatively easy to implement. After learned, they should not add significant time or expense to any project. Start with one, move to another. Tips are listed in the sequence of document preparation and filing. Making Tablet Friendly E-Filings 1. Finished PDF documents filed in CM/ECF should be entirely text-based to facilitate searching, copying, and highlighting. When filings are read on computer or iPad, they must be entirely text-based PDF documents. A text based PDF can be word-searched, highlighted as read, and copied into an order. Computer created documents (such as motions with memoranda) will be text based if output from the computer to PDF format, but all scanned documents should have text recognition through Optical Character Recognition (OCR) before submission to the court. Recognize Text in Adobe Acrobat. 2. Begin with an outline that becomes a Table of Contents. An outline creates organization but it also makes navigation tools available in Microsoft Word while you are drafting, and can automate a table of contents that has hyperlinks to locations in the document. The outline feature is built in to all word processors, and the table of contents will survive the conversion to PDF format. Outline in Word. Table of Contents in Word 2010. 3. Create a List of Exhibits An exhibit list included with the memorandum (as a separate attachment) helps locate exhibits. The importance of exhibits is clarified if the exhibit list includes pages on which references to exhibits are made. 4. Use Photos and Diagrams Graphics clarify the written discussion. This is particularly true if tangible objects are at issue, such as in patent cases. 5. Use Permissible Hyperlinks Hyperlinks may be internal to the document, such as table of contents; to the record, to other documents already filed in the case; and to research resources. See DUCivR 7-5. See Attorney Guide to Hyperlinking at http://federalcourthyperlinking.org. WestInsertLinks, part of West BriefTools or Shepards' Link, part of Shepard's Brief Suite, automate research links. A LinkBuilder Add-in for Microsoft Word is also available to automate creation of links to documents already in the record. It is also possible to create links to exhibits filed simultaneously, but this can be complicated and not worth the effort. 6. Attach deposition excerpts and other exhibits in text-based PDF format If deposition excerpts and other exhibits are in text-based PDF format (see point no. 1) the document is easier to search and annotate and it is easier to copy text. Deposition transcript attachments should be created by output to PDF format from a word processing or text file provided by the reporter. If the deposition excerpts or exhibits are scanned, Optical Character Recognition should be run to recognize text. Recognize Text in Acrobat X. 7. Attach opinions in single column format (text based) West and Lexis allow download of cases in single-column format, which is easier to read on an iPad or computer than the traditional dual column format. Make sure the cases you attach are text based PDF documents, which Lexis and Westlaw also allow you to download – or you may convert to PDF from a word processing version. It should never be necessary to scan an opinion for attachment to a brief. If you use research hyperlinks (see point no. 5 above) no opinion attachments may be needed. 8. Convert the document to PDF in a way that preserves hyperlinks It is a shame to put a table of contents and research links in your Word document and then lose them because you Print to PDF, which may not save links. Save As PDF in Word 2010 and later, or the Acrobat Create PDF Ribbon in Word 2007 and later will preserve links. After you convert to PDF, verify that the document links still work. Preserving Hyperlinks in PDF Conversion. 9. Change the properties of the PDF document so that the Initial View will show Bookmarks and the Page at the same time. Most PDF creation programs have the ability to force the PDF document to open with the Bookmarks Panel showing. In Adobe Acrobat Standard and Pro, this is found on the File menu, Properties item, Initial View tab, Bookmarks Panel and Page. 10. Consider additional manual changes. It is possible and appropriate to add internal links manually, and to add additional bookmarks. If you do not have access to the West and Lexis tools to create links to research links automatically, links may be created manually by using Word’s tools. Create, format or delete a hyperlink in MS Word 2010. Attorney Guide to Hyperlinking. Adding Bookmarks in Adobe Acrobat. 11. Save As Reduced Size PDF As a last step before distribution of any PDF document, reduce its size by using Save As Reduced Size PDF. You may accomplish a 50% or more size reduction. 12. Attach a proposed order in PDF format – and email in word processing format to chambers. After consulting your local rules submit the ways chambers prefers. If no preference is stated, attach the proposed order in to your motion in PDF format. The draft order makes clear what you want. Also email a word processing version of the order to chambers. 13. File attachments individually, with full descriptions When filing in CM/ECF, take advantage of the ability to name your exhibits specifically rather than using generic names. This helps chambers identify and locate your exhibits and provides a cross- check to the index you included in the motion. (See point no. 3 above.) Cover pages for exhibits really are not of much help. Instead, consider a text box on the first page of the exhibit that labels the exhibit with its number and description. Send comments, suggestions, corrections to [email protected] Rev. 070114

=== Suggestions for Accessible Documents ===

Suggestions for Creating a Really Accessible Document These are suggestions—and should be relatively easy to implement. After learned, they should not add significant time or expense to any project. Start with one, move to another. Tips are listed in the sequence of document preparation and filing. 1. Finished PDF documents filed in CM/ECF should be entirely text-based to facilitate searching, copying, and highlighting. Because we read almost all submissions on computer or iPad, we really appreciate it if they are entirely text-based PDF documents. A text based PDF can be word-searched, highlighted as read, and copied into an order. Computer created documents (such as motions with memoranda) will be text based if output from the computer to PDF format, but all scanned documents should have text recognition through Optical Character Recognition (OCR) before submission to the court. Recognize Text in Adobe Acrobat. 2. Begin with an outline that becomes a Table of Contents. An outline creates organization but it also makes navigation tools available in Microsoft Word while you are drafting, and can automate a table of contents that has hyperlinks to locations in the document. The outline feature is built in to all word processors, and the table of contents will survive the conversion to PDF format. Outline in Word. Table of Contents in Word 2010. 3. Create a List of Exhibits An exhibit list included with the memorandum (as a separate attachment) helps locate exhibits. The importance of exhibits is clarified if the exhibit list includes pages on which references to exhibits are made. 4. Use Photos and Diagrams Graphics clarify the written discussion. This is particularly true if tangible objects are at issue, such as in patent cases. 5. Use Permissible Hyperlinks Hyperlinks may be internal to the document, such as table of contents; to the record, to other documents already filed in the case; and to research resources. See DUCivR 7-5. See Attorney Guide to Hyperlinking at http://federalcourthyperlinking.org. WestInsertLinks, part of West BriefTools or Link to Cites in Lexis for Microsoft Office automate research links. A LinkBuilder Add-in for Microsoft Word is also available to automate creation of links to documents already in the record. It is also possible to create links to exhibits filed simultaneously, but this can be complicated and not worth the effort. 6. Attach deposition excerpts and other exhibits in text-based PDF format If deposition excerpts and other exhibits are in text-based PDF format (see point no. 1) the document is easier to search and annotate and it is easier to copy text. Deposition transcript attachments should be created by output to PDF format from a word processing or text file provided by the reporter. Use full page deposition transcripts, not mini four pages-to-a-sheet transcripts. If the deposition excerpts or exhibits are scanned, Optical Character Recognition should be run to recognize text. Recognize Text in Acrobat X. 7. Attach opinions in single column format (text based) West and Lexis allow download of cases in single-column format, which is easier to read on an iPad or computer than the traditional dual column format. Make sure the cases you attach are text based PDF documents, which Lexis and Westlaw also allow you to download – or you may convert to PDF from a word processing version. It should never be necessary to scan an opinion for attachment to a brief. If you use research hyperlinks (see point no. 5 above) no opinion attachments may be needed. 8. Convert the document to PDF in a way that preserves hyperlinks It is a shame to put a table of contents and research links in your Word document and then lose them because you Print to PDF, which may not not save links. Save As PDF in Word 2010 and later, or the Acrobat Create PDF Ribbon in Word 2007 and later will preserve links. After you convert to PDF, verify that the document links still work. Preserving Hyperlinks in PDF Conversion. 9. Change the properties of the PDF document so that the Initial View will show Bookmarks and the Page at the same time. Most PDF creation programs have the ability to force the PDF document to open with the Bookmarks Panel showing. In Adobe Acrobat Standard and Pro, this is found on the File menu, Properties item, Initial View tab, Bookmarks Panel and Page. 10. Consider additional manual changes. It is possible and appropriate to add internal links manually, and to add additional bookmarks. If you do not have access to the West and Lexis tools to create links to research links automatically, links may be created manually by using Word’s tools. Create, format or delete a hyperlink in MS Word 2010. Attorney Guide to Hyperlinking. Adding Bookmarks in Adobe Acrobat. 11. Save As Reduced Size PDF As a last step before distribution of any PDF document, reduce its size by using Save As Reduced Size PDF. You may accomplish a 50% or more size reduction. 12. Attach a proposed order in PDF format – and email in word processing format to chambers. “Proposed orders . . . shall be (i) prepared as word processing documents; (ii) saved in WordPerfect or Word format, and (iii) transmitted to the assigned judge via email. . . . An additional copy . . . shall be saved as a PDF file and filed electronically as an attachment to the motion . . . .” Admin E-Filing Procedures II. G. 1. The draft order makes clear what you want. 13. File attachments individually, with full descriptions When filing in CM/ECF, take advantage of the ability to name your exhibits specifically rather than using generic names. This helps chambers identify and locate your exhibits and provides a cross- check to the index you included in the motion. (See point no. 3 above.) Cover pages for exhibits really are not of much help. Instead, consider a text box on the first page of the exhibit that labels the exhibit with its number and description. Don’t group exhibits in one attachment. Send comments, suggestions, corrections to [email protected] Rev. 032015

=== Best Practices in PDF Reading and Annotation ===

Best Practices in PDF Reading and Annotation Prepare Acrobat: Right click the Quick Tools Bar (or click the Quick Tools icon) to add annotation tools. Add the tools you see on the toolbar at the right – highlight, text box, callout, cross out, line, overstrike. Change Acrobat Preferences (Edit menu) to copy selected text into comment popups. This makes comments easier to find and review. Annotate and Correct: Annotate all PDF case papers you read in electronic form using Acrobat annotation tools. See Adobe’s annotations and drawing markup tools overview. Preferred annotation methods are highlighting, text boxes and graphics such as boxes or lines. Sticky Notes are not preferred. Correct erroneous bookmarks, and add bookmarks for important arguments or other subtopics. Try not to cover the headers or text with text boxes. Be sparing on highlighting, selecting pertinent words or phrases rather than entire paragraphs. This ensures that the tools for finding annotations and the annotation summaries are brief and useful. When comparing multiple documents in a package remember to Open a New Window to see them side by side. This allows review of Reply and Opposition memoranda at the same time. Send corrections and suggestions to [email protected] Rev. 08/26/13

=== (handout pdf 88kb) ===

Using Technology to Convince -- And Not Distract -- a Judge and Jury Utah Federal Bar Salt Lake City April 18, 2013 David Nuffer This outline (with live links) and the accompanying PowerPoint presentation are both found at http://www.utd.uscourts.gov/judges/nuffer_resources.htm#Continuing Goals as an Educator Content, delivered well, which engages Barriers to Engagement Time Pressure, Distractions, Prior experience – or inexperience, Skepticism Opportunities to Persuade Writing, Hearings, Trial Goals of Written Submissions Excellent content, delivery and engagement: • No sense of time pressure – “it’s not difficult” • No distractions • • Credibility, to overcome skepticism Information, to overcome listener’s prior experience – or inexperience Technology in Writing 1. Finished PDF document must be entirely text-based to facilitate searching, copying, highlighting Computer created documents can be output to PDF, but all scanned documents must have text recognition through Optical Character Recognition (OCR). A text based PDF can be word-searched, highlighted as read, and copied into an order. 2. Begin with an outline that becomes a Table of Contents. The outline feature is built in to all word processors, and the table of contents will survive the conversion to PDF format. Outline in MS Word. 3. Create a List of Exhibits An exhibit list included with the memorandum (as a separate attachment) helps locate exhibits. The importance of exhibits is clarified if the exhibit list includes pages on which references to exhibits are made. 1 4. Use Photos and Diagrams Graphics clarify the written discussion. This is particularly true if tangible objects are at issue, such as in patent cases. 5. Use Permissible Hyperlinks Hyperlinks may be internal to the document, such as table of contents; or to the filing, such as to exhibits filed simultaneously; or to the record, to other documents already filed in the case. See DUCivR 7-5. See also http://www.utd.uscourts.gov/judges/nuffer_resources.htm#E-Research. 6. Attach deposition excerpts and other exhibits in text-based PDF format This requires that depositions be output from a word processing or text file provided by the reporter. If the excerpts or exhibits are scanned, Optical Character Recognition must be run to recognize text. Recognize text in Acrobat X. 7. Attach opinions in single column format (text based) West and Lexis allow single-column format downloads of cases, which are much easier to read on an iPad or computer. Make sure the cases you attach are text based PDF documents, which Lexis and Westlaw also allow you to download – or you may convert to PDF from a word processing version. It should never be necessary to scan an opinion for attachment to a brief. Note that if you use research hyperlinks (see no. 5 above) no opinion attachments are needed. 8. Save As Reduced Size PDF As a last step before distribution of any PDF document, reduce its size by using Save As Reduced Size PDF. You may accomplish a 50% or more size reduction. 9. Attach a proposed order in PDF format – and email it in word processing format to chambers. Proposed orders [etc.] shall be (i) prepared as word processing documents; (ii) saved in WordPerfect or Word format, and (iii) transmitted to the assigned judge via email. . . . An additional copy . . . shall be saved as a PDF file and filed electronically as an attachment to the motion . . . Admin E-Filing Procedures II. G. 1. 10. File attachments individually, with full descriptions When filing in CM/ECF, take advantage of the ability to name your exhibits specifically rather than using generic names. 2 Hearing Goals Excellent content, delivery and engagement 1. Make a great transcript Use the ideas in Creating the Best Transcript Possible (from http://www.utd.uscourts.gov/judges/nuffer_resources.htm#Continuing) . 2. Consider Real Time Reporting for a client with a disability or language barrier. 3. Submit summaries to the court in word processing format Patent claim construction charts Discovery dispute summaries Deposition designation form (from http://www.utd.uscourts.gov/judges/nuffer.html) Proposed Jury Voir Dire, Instructions and Verdict (same as above source) Exhibit and Witness Lists )(from http://www.utd.uscourts.gov/documents/formpage.html) 4. Bring tangible objects 5. Use Powerpoint CAREFULLY. I am usually prepared to pose specific questions to counsel at motion hearings, so counsel should not prepare for conventional argument or repeat contents of memoranda. PowerPoint presentations are usually disfavored because they are pre-determined and linear. If a PowerPoint presentation is proposed, please bring a print of the slides for me to review and evaluate before the hearing. 6. Audio Conferencing etiquette • Use a headset! • Avoid a speaker phone but if you must use it, mute when not speaking. • Don’t expect to call in on a cell phone as your reception and habkground noise will interfere with the call. If you must use a cell phone, use a head set and, mute when not speaking. • Give your name when speaking so the court reporter may identify you. • Pause regularly when speaking so that the judge may regain control of the hearing. 7. Video Conferencing is coming The courts will soon have multipoint video conferencing available based on Cisco Jabber Video for TelePresence. A National Video Conference Bridge will allow video calls from any location using H.323 compliant systems such as Polycom and Tandberg, and from PC, Mac, and iOS devices. Get a web cam enabled device and know how to use it. 3 Technology at Trial 1. Prepare exhibits in text-based PDF format and provide them to the court in advance. Remember, if they are scanned, recognize text in them before submission. This will allow the judge and law clerks to search and annotate. 2. Verify available Courtroom Technology Be sure the technology you intend to use is available. (And that you know how to use it!) http://www.utd.uscourts.gov/documents/CourtroomTechnology.html 3. Use a trial presentation assistant Trying to question and simultaneously run presentation equipment will frustrate the judge and jury. 4. Rehearse with a script with exhibit numbers Questioning appears more effortless if the attorney and assistant and witness are prepared to work with exhibits. 5. Consider using Acrobat for exhibit presentation Acrobat has zoom, navigation and annotation tools that allow it to be an effective presenter. 6. Use effective deposition presentation A jury is much more engaged by a video deposition with text subtitles. If you must use a reader, find a professional actor. The reader should not be an afterthought. 4

=== The E-Brief Quiz for Printing ===

The e‐Brief Quiz Choose the best answer David Nuffer October 2011 1. An e‐brief is: a. A PDF document that is e‐filed. b. A carefully prepared PDF document that is e‐ filed. c. A carefully prepared, fully enabled PDF document that is e‐filed. d. The Apple version is called iBrief™. 12/7/2011 1 12/7/2011 2 1. An e‐brief is: a. A PDF document that is e‐filed. b. A carefully prepared PDF document that is e‐ filed. c. A carefully prepared, fully enabled PDF document that is e‐filed. d. The Apple version is called iBrief™. 2. A text based PDF: Has words in it. a. b. Was created by computer output, not involving paper. Is never created by scanning. B and C c. d. Scanned PDF Text Based PDF 12/7/2011 3 12/7/2011 4 Convert a Scanned PDF to a Text Based PDF Now text can be selected, copied and searched 12/7/2011 5 2. A text based PDF: Has words in it. a. b. Was created by computer output, not involving paper. Is never created by scanning. B and C c. d. 3. The e‐brief is made easier to navigate: By providing a paper copy with tabs. By using bookmarks. By using a table of contents. All of the above. a. b. c. d. 12/7/2011 6 12/7/2011 Word Table of Contents will create PDF Bookmarks 7 3. The e‐brief is made easier to navigate: By providing a paper copy with tabs. By using bookmarks. By using a table of contents. All of the above. a. b. c. d. Intermezzo – Exhibits: Name exhibits when uploading. Always use an exhibits list page. Consider a table listing where exhibits are referenced. 12/7/2011 8 4. Hyperlinks in the e‐brief: a. May link to cases and statutes. b. May link to other documents in the case file. c. May link to other locations in the brief. d. May link to other cases. 4. Hyperlinks in the e‐brief: a. May link to cases and statutes. b. May link to other documents in the case file. c. May link to other locations in the brief. d. May link to other cases. 12/7/2011 9 5. To annotate the e‐brief: a. Use a yellow marker on the computer screen. b. Use an iPad or Galaxy Tablet. c. Use a standard computer. d. B and C. 12/7/2011 10 12/7/2011 11 iPad Apps annotate PDFs 5. To annotate the e‐brief: a. Use a yellow marker on the computer screen. b. Use an iPad or Galaxy Tablet. c. Use a standard computer. d. B and C. 6. A text based ebrief: a. Can be keyword searched and allows text to be copied. b. Can be keyword searched but text cannot be copied. c. Has no page limits, since there is no paper. d. Will be used only by the judge, not law clerks. 12/7/2011 12 iPad Apps search PDFs Acrobat Finds Text in PDFs 12/7/2011 13 12/7/2011 Acrobat Search creates a virtual index 14 6. A text based ebrief: a. Can be keyword searched and allows text to be copied. b. Can be keyword searched but text cannot be copied. c. Has no page limits, since there is no paper. d. Will be used only by the judge, not law clerks. 7. A high quality e‐brief: a. Is cost‐justified only in large cases. b. May distract from a winning argument. c. May conceal the fact that your argument is a loser. d. Makes your staff feel valuable. 12/7/2011 15 The e‐Brief Quiz David Nuffer October 2011 12/7/2011 16

=== A Practical Guide to E-Discovery ===

A Practical Guide to Electronic Discovery Southern Utah Bar Association December 2, 2011 Table of Contents Pre-Litigation .................................................................................................................................. 1 Planning in Litigation ..................................................................................................................... 2 Disclosure ....................................................................................................................................... 3 Discovery ........................................................................................................................................ 3 Scope of Discovery .................................................................................................................... 4 Form of Production .................................................................................................................... 5 What is Metadata and Does it Matter? ....................................................................................... 5 Privilege .......................................................................................................................................... 7 Sanctions ......................................................................................................................................... 8 Subpoenas ....................................................................................................................................... 9 Perspective ...................................................................................................................................... 9 Resources ...................................................................................................................................... 10 Addenda: Best Practices in E-Discovery in New York State and Federal Courts Federal Judicial Center Materials on Electronic Discovery David Nuffer United States Magistrate Judge, District of Utah Note: An electronic copy of this outline is at http://www.utd.uscourts.gov/judges/nuffer_resources.htm#Continuing. That version includes working hyperlinks. Please send corrections or suggestions to [email protected]. This page is intentionally blank for two-sided printing. Pre-Litigation Review your client’s retention policy:1 Does it consider these essential factors? Regulatory Compliance Business Goals: Disaster Recovery, Space Economy, Management Information, Information Security, Customer Information Litigation Duties Does it have a robust “Litigation Hold” feature? Ability to suspend and modify retention policy in event of litigation Does the policy include effective procedures? Valid design Dissemination and availability Communication during operations Training Compliance audits and evaluation Revision Are your client’s management and IT teams competent? Capabilities Knowledge Strategies and risks Retention obligations Procedures of electronic discovery Potential grounds for and scope of sanctions Behavior Are you and your consultant(s) competent? Can you speak tech or do you have a staff member/consultant who will assist you? Can your preservation and data analysis consultants speak to lawyers, judges and jurors? Are you paying attention? 1 For a basic introduction, see John P. Hutchins, Esq., Document Retention Basics, 865 PLI/Pat 785, PLI Order No. 8966 June-July, 2006. Planning in Litigation Meet with client IT staff and management Preservation – Litigation Hold Ensure it exists and is adequate, clearly understood, communicated, implemented, and monitored. Understand and inventory systems.2 Prepare for meeting with opposing counsel and potential 30(b)(6) depositions – defensive and offensive. Meet with opposing counsel (Rule 26(f – and IT staff [T]he parties must confer as soon as practicable — and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b). In conferring, the parties must . . . discuss any issues about preserving discoverable information; and develop a proposed discovery plan.3 Discuss deleted data, archival data, inaccessible data, on-going operations. Create a discovery plan A discovery plan must state the parties' views and proposals on . . . (C) any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced . . . (D) any issues about claims of privilege or of protection as trial-preparation materials, including — if the parties agree on a procedure to assert these claims after production — whether to ask the court to include their agreement in an order . . .4 Preservation letter? – a two-edged sword Court conference (Rule 16(b)(2)(B The scheduling order may (5) provide for disclosure or discovery of electronically stored information; (6) include any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after information is produced . . . . 5 2 David K. Isom, Electronic Discovery Source Checklist for Plaintiffs and Defendants, ABA Commercial and Business Litigation Journal 6 (Spring 2004). 3 Fed. R. Civ. P. 26(f). 4 Id. 5 Fed. R. Civ. P. 16(b). Preservation orders and other extraordinary preliminary relief are met with widely varying receptions depending on the judge. Disclosure Discovery [A] party must, without awaiting a discovery request, provide to the other parties . . . a copy — or a description by category and location — of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment.6 Electronic information is now expressly within the discovery rules. Rule 33 – Interrogatories (d) Option to Produce Business Records. If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party's business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by: (1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and (2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries.7 Rule 34 – Production (a) Scope. Any party may serve on any other party a request . . . (1) to produce and permit the party making the request . . . to inspect, copy, test, or sample8 . . . any designated documents or electronically stored information . . . 9 6 Fed. R. Civ. P. 26(a)(1). 7 Fed. R. Civ. P. 33(d). 8 “The addition of testing and sampling to Rule 34(a) with regard to documents and electronically stored information is not meant to create a routine right of direct access to a party’s electronic information system, although such access might be justified in some circumstances. Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.” Committee Note at 73, 2006 Amendment to Fed. R. Civ. P. 34(a). 9 Fed. R. Civ. P. 34(a). Scope of Discovery Rule 26(b)(2)(B) – (two tiers) (B) A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.10 You must still disclose these sources if you may use them. In discovery responses, you must identify the sources. It would be wise to state why they are not reasonably accessible and provide factual support. The decision whether to require a responding party to search for and produce information that is not reasonably accessible depends not only on the burdens and costs of doing so, but also on whether those burdens and costs can be justified in the circumstances of the case. Appropriate considerations may include: (1) the specificity of the discovery request; (2) the quantity of information available from other and more easily accessed sources; (3) the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources; (4) the likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources; (5) predictions as to the importance and usefulness of the further information; (6) the importance of the issues at stake in the litigation; and (7) the parties’ resources.11 Rule 26(b)(2)(C) – Reasonableness limitations that govern all discovery: On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.12 10 Fed. R. Civ. P. 26(b)(2)(B). 11 Committee Note at 49, 2006 Amendment to Fed. R. Civ. P. 26. 12 Fed. R. Civ. P. 26(b)(2)(C). Argue the fact-sensitive elements of your case. Form of Production Rule 34(b) - – Point / Counterpoint The request . . . may specify the form or forms in which electronically stored information is to be produced.13 (D) Responding to a Request for Production of Electronically Stored Information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form — or if no form was specified in the request — the party must state the form or forms it intends to use.14 (E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information: (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (iii) A party need not produce the same electronically stored information in more than one form 15 What is Metadata and Does it Matter? Marjorie A. Shields, Discoverability of Metadata, 2006 A.L.R.6th 6 (2006) 13 Fed. R. Civ. P. 34(b)(2). 14 Id. 15 Id. What form do you want? Native PDF Text PDF Image TIFF Paper Negotiate ! Negotiate! Develop expertise Metadata Need special software? E-Search Bates stamped Identified to original file/author As kept in ordinary course Identified to requests Familiar format Privilege (B) Information Produced. If information is produced in discovery that is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved.16 The volumes of information produced in electronic discovery may make privilege review prior to production difficult. While traditional production would contemplate privilege review by the producing party before production is made, alternative methods include: a. production of massive unreviewed data, after which the responding party reviews for responsiveness, after which the producing party reviews the identified subset for privilege; b. designation of a third party who will review for privilege and responsiveness; and/or; c. agreement on application of search terms to electronic data to determine potential responsiveness to reduce the overall volume of material. When the [privilege] review is of electronically stored information, the risk of waiver, and the time and effort required to avoid it, can increase substantially because of the volume of electronically stored information and the difficulty in ensuring that all information to be produced has in fact been reviewed. . . . Rule 26(b)(5)(B) is added to provide a procedure for a party to assert a claim of privilege or trial-preparation material protection after information is produced in discovery in the action and, if the claim is contested, permit any party that received the information to present the matter to the court for resolution. Rule 26(b)(5)(B) does not address whether the privilege or protection that is asserted after production was waived by the production.17 FRE 50218 (Attorney-Client Privilege and Work Product; Limitations on Waiver) is intended to reduce the risk of forfeiting the attorney-client privilege or work- product protection so that parties need not scrutinize production of documents to the same extent as they now do. Under the new rule, the inadvertent disclosure of privileged or protected information would not effect a waiver if reasonable steps were taken to prevent the disclosure, and retrieval of the 16 Fed. R. Civ. P. 26(b)(5)(B). 17 Comment to 2006 Amendments at 54 to Fed. R. Civ. P. 26(b)(5)(B). 18 Fed. R. Evid. 502. Page 7 information is promptly demanded. Also, the disclosure of privileged or protected information would not waive the privilege or protection accorded other information concerning the same subject matter, unless fairness so requires. Furthermore, a confidentiality order entered by the court would bind all nonparties in any federal or state court. The [proposal includes] a possible provision governing selective waiver, which would prevent a general waiver of the privilege or protection for information disclosed to a law enforcement or regulatory agency in the course of an investigation.19 The court considers the following five factors in its determination of whether an inadvertent disclosure of documents effects a waiver of the attorney-client privilege: 1) the reasonableness of the precautions taken to prevent inadvertent disclosure; 2) the time taken to rectify the error; 3) the scope of discovery; 4) the extent of disclosure; and 5) the overriding issue of fairness.20 Sanctions Fed. R. Civ. P. 37(d) and (b)(2) If a party fails to provide information or identify a witness as required by Rule 26(a) or 26(e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: (A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure; (B) may inform the jury of the party's failure; and (C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).21 The court where the action is pending may, on motion, order sanctions if . . . (ii) a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response. 22 (2) Sanctions by Court in Which Action Is Pending. If a party or [related person fails to obey an order for discovery], the court where the action is pending may issue further just orders. They may include the following: (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; 19 Brochure Summarizing Proposed Amendments to the Federal Rules (August 2006) quoted at ediscoverylaw.com. 20 Wallace v. Beech Aircraft Corp. 179 F.R.D. 313, 314 (D.Kan.,1998) Ken M. Zeidner , Note Inadvertent Disclosure and the Attorney-Client Privilege: Looking to the Work-Product Doctrine for Guidance, 22 Cardozo L. Rev. 1315 ( 2001). 21 Fed. R. Civ. P. 37(c)(1). 22 Fed. R. Civ. P. 37(d)(1). (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party . . . 23 Inherent judicial authority It has long been understood that certain implied powers must necessarily result to our Courts of justice from the nature of their institution, powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others. . . . These powers are governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.24 Statutory authority Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.25 Rule 37(f) “Safe Harbor” (f) Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system. 26 Subpoenas Note that Rule 45 incorporates e-discovery concepts. Perspective Don’t let the electronic discovery or sanctions sideshow obscure the merits. 23 Fed. R. Civ. P. 37(b)(2). 24 Chambers v. NASCO, Inc., 501 U.S. 32, 43 (U.S. 1991). 25 28 U.S.C.A. § 1927 26 Id. Resources Best Practices in E-Discovery in New York State and Federal Courts (July 2011) www.nysba.org/e-discovery/ Federal Judicial Center Materials on Electronic Discovery http://www.fjc.gov/public/home.nsf/pages/196 The Sedona Conference www.sedonaconference.org http://www.thesedonaconference.org/content/miscFiles/publications_html Law.com E-Discovery News http://www.law.com/jsp/lawtechnologynews/e_discovery.jsp Lexis Nexis Applied Discovery Law Library http://www.applieddiscovery.com/ Kroll Case Law Update & E-Discovery News http://www.krollontrack.com/clu/ Electronic Discovery and Evidence Blog by Michael Arkfeld http://arkfeld.blogs.com/ Note: An electronic copy of this outline is at http://www.utd.uscourts.gov/judges/nuffer_resources.htm#Continuing. That version includes working hyperlinks. Please send corrections or suggestions to [email protected]. Guidelines for Best Practices in E-Discovery in New York State and Federal Courts Full text at www.nysba.org/e-discovery/ GUIDELINE NO. 1: The law defining when a pre-litigation duty to preserve ESI arises is not clear. The duty to preserve arises, not only when a client receives notice of litigation or a claim or cause of action, but it may also arise when a client reasonably anticipates litigation or knew or should have known that information may be relevant to a future litigation. GUIDELINE NO. 2: In determining what ESI should be preserved, clients should consider: the facts upon which the triggering event is based and the subject matter of the triggering event; whether the ESI is relevant to that event; the expense and burden incurred in preserving the ESI; and whether the loss of the ESI would be prejudicial to an opposing party. GUIDELINE NO. 3: Legal hold notices will vary based on the facts and circumstances but the case law suggests that, in general, they should be in writing, concise and clear, and should include: a description of the subject matter; the date ranges of the ESI to be preserved; a statement that all ESI, regardless of location or storage medium, should be preserved unless other written instructions are given; instructions on how to preserve the ESI and/or whom to contact regarding how ESI is preserved; and the name of a person to contact, if questions arise. Counsel should monitor compliance with the legal hold at regular intervals. GUIDELINE NO. 4: Counsel should endeavor to make the discovery process more cooperative and collaborative. GUIDELINE NO. 5: Counsel should be familiar with their client’s information technology, sources of ESI, preservation, and scope and form of production, as soon as litigation is anticipated, but in no event later than any “meet and confer” or preliminary conference. GUIDELINE NO. 6: To the extent possible, requests for the production of ESI and subpoenas seeking ESI should, with as much particularity as possible, identify the type of ESI sought, the underlying subject matter of the ESI requested and the relevant time period of the ESI. Objections to requests for ESI should plainly identify the scope and limitations of any responsive production. Boilerplate language which obscures the particular bases for objections and leaves the requesting party with no clear idea of what is or is not being produced should be avoided. If necessary, counsel should meet and confer to resolve any outstanding disputes about the scope or format of production. GUIDELINE NO. 7: Counsel should agree on the form of production of ESI for all parties prior to producing ESI. In cases in which counsel cannot agree, counsel should clearly identify their respective client’s preferred form of production of ESI as early in the case as possible and should consider seeking judicial intervention to order the form of production before producing ESI. In requests for production of documents or subpoenas and objections to requests to produce or subpoenas, the form of production of responsive ESI should be clearly stated. If the parties have previously agreed to the form of production, the agreement and the form should be stated. In any event, counsel should not choose a form of production based on its lack of utility to opposing counsel. GUIDELINE NO. 8: Producing ESI should be conducted in a series of steps, as follows: (1) initial review; (2) search for and collection of ESI; (3) processing of ESI to eliminate duplicates and render it searchable; (4) culling the ESI to reduce volume; (5) review by counsel; and (6) production. GUIDELINE NO. 9: Parties should carefully evaluate how to collect ESI because certain methods of collection may inadvertently alter, damage, or destroy ESI. In considering various methods of collecting ESI, parties should balance the costs of collection with the risk of altering, damaging, or destroying ESI and the effect that may have on the lawsuit. GUIDELINE NO. 10: Parties may identify relevant ESI by using technology tools to conduct searches of their ESI. In most cases, parties may search reasonably accessible sources of ESI, which includes primarily active data, although if certain relevant ESI is likely to be found only in less readily accessible sources or if other special circumstances exist, less readily accessible sources may also need to be searched. The steps taken in conducting the search and the rationale for each step should be documented so that, if necessary, the party may demonstrate the reasonableness of its search techniques. Counsel should consider entering into an agreement with opposing counsel, if appropriate, regarding the scope of the search and the search terms. GUIDELINE NO. 11: Counsel should conduct searches using technology tools to identify ESI that is subject to the attorney-client privilege, the work product immunity and/or material prepared in anticipation of litigation. Counsel should document its privilege searches and verify the accuracy and thoroughness of the searches by checking for privileged ESI at the beginning of the search process and again at the conclusion of the process. To avoid the situation in which an inadvertent production of privileged ESI may possibly be deemed a waiver of the privilege, counsel should consider, as appropriate, entering into a non-waiver agreement and having the court incorporate that agreement into a court order. GUIDELINE NO. 12: Counsel should take reasonable steps to contain the costs of e-discovery. To that end, counsel should be knowledgeable of developments in technology regarding searching and producing ESI and should be knowledgeable of the evolving custom and practice in reviewing ESI. Counsel should evaluate whether such technology and/or such practices should be used in an action, considering the volume of ESI, the form of ESI and other relevant factors. GUIDELINE NO. 13: Parties should discuss the expected costs and potential burdens, if any, presented by e-discovery issues as early in the case as possible. If counsel expects that the client will incur disproportionate, significant costs for e-discovery or that e-discovery will otherwise present a financial burden to the client, counsel should endeavor to enter into an agreement with opposing counsel to allocate the costs of e-discovery or, if necessary, seek a court order as early in the case as possible and before the costs are incurred, allocating the costs of e-discovery and identifying which party pays for what e-discovery costs. GUIDELINE NO. 14: Courts may issue sanctions for spoliation, or the intentional or negligent destruction or failure to preserve relevant ESI. Federal Judicial Center Materials on Electronic Discovery: Civil Litigation This page contains links to articles, PowerPoint slide presentations, and other items of interest on electronic discovery. Unless otherwise noted, these materials were prepared by Federal Judicial Center staff for use in judicial and continuing legal education programs and are not subject to copyright. They may be downloaded and republished without permission. (Go here for Materials on Electronic Discovery: Search and Seizure of Computers and Data in Criminal Cases.) FJC Publications Barbara J. Rothstein, Ronald J. Hedges & Elizabeth C. Wiggins, Managing Discovery of Electronic Information: A Pocket Guide for Judges, 2007 (26 pages) This pocket guide helps federal judges manage the discovery of electronically stored information (ESI). It covers issues unique to the discovery of ESI, including its scope, the allocation of costs, the form of production, the waiver of privilege and work product protection, and the preservation of data and spoliation. Proposed Amendments to the Federal Rules of Civil Procedure On September 20, 2005, the Judicial Conference of the United States approved the following E- Discovery amendments to the Federal Rules of Civil Procedure addressing a number of electronic discovery issues: E-Discovery Amendments and Committee Notes. The amendments were effective December 1, 2006. Workshop and Seminar Materials Surviving E-Discovery, by Judges James C. Francis IV, U.S. Magistrate Judge, Southern District of New York and Sidney I. Schenkier, U.S. Magistrate Judge, Northern District of Illinois, from the 2006 Magistrate Workshop (Powerpoint presentation). Electronic Discovery, presented at the National Workshop for U.S. Magistrate Judges, June 12, 2002: Presentation outline with illustrations of slides; Slides only in PDF format; Slides only in PowerPoint format Annotated Bibliography Kenneth J. Withers, Federal Court Decisions Involving Electronic Discovery, December 1, 2006 – July 31, 2009 (PDF, 96 pp.) FJC Research Molly Treadway Johnson, Kenneth J. Withers & Meghan A. Dunn, A Qualitative Study of Issues Raised by the Discovery of Computer-Based Information in Civil Litigation, September 13, 2002 September 13, 2002 (research report submitted to the Judicial Conference Advisory Committee on Civil Rules for its October 2002 meeting) Selected Outside Resources (copyright restrictions on republication may apply) The Sedona Conference® Cooperation Proclamation: Resources for the Judiciary (August 2011, Public Comment Version) (PDF, 40 pp.) This public comment version of The Sedona Conference's Resources for the Judiciary is also posted at http://www.thesedonaconference.org/content/miscFiles/Judicial_Resources.pdf. This document is a template for a web page that Sedona the Sedona Conference® will build in the fall and is intended to be a resource for federal and State judges on "electronic" discovery and evidence. http://www.fjc.gov/...utoframe?openform&url_l=/public/home.nsf/inavgeneral?openpage&url_r=/public/home.nsf/pages/196[11/21/2011 8:32:38 PM] Federal Judicial Center You may note that there are various places where the Senior Co-Editors (Kenneth J. Withers and Ronald J. Hedges) are looking for sample orders and links to other publications. Thus, the Resources should be considered a continuing work in progress. And comments, links or sample orders would be appreciated and can be sent to [email protected] and [email protected]. Shira A. Scheindlin, FAQ's of E-Discovery - The Ten Most FAQ's in the Post-December 1, 2006 World of E-Discovery, from In Camera, Federal Judges Association Newsletter, November 29, 2006 (posted here with the author’s permission) Kenneth J. Withers, Electronically Stored Information: The December 2006 Amendments to the Federal Rules of Civil Procedure, 4 Nw. J. of Tech. & Intell. Prop. 171 (Spring 2006) American Bar Association Electronic Discovery Task Force, Civil Discovery Standards (August 2004 update) The Sedona Conference®, The Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document Production (2004) Kenneth J. Withers, Computer-Based Discovery in Federal Civil Litigation, 2000 Fed. Cts. L. Rev. 2 State and Local Rules Mississippi Court Order 13 (May 29, 2003) amending Mississippi Rule of Civil Procedure 26 Texas Rule of Civil Procedure 193.3(d) (privilege not waived by production) and Rule 196.4 (electronic or magnetic data) District of Arkansas, Eastern and Western, Local Rule 26.1 District of Delaware, Default Standards for Discovery of Electronic Documents District of Kansas, Guidelines for Discovery of Electronically Stored Information District of New Jersey, Local Rule 26.1 District of Wyoming, Local Rule 26.1 Sample Forms and Orders Some of the following sample forms and orders are in RTF format and can be opened and edited in any standard word-processing format. They have been assembled from a variety of sources, and no endorsement of any particular form or order is implied. If you have a sample form or order you would like to contribute to this collection, please contact Richard Dargan, Sr. Judicial Education Attorney at [email protected] or 202-502-4057. Order Concerning Electronic Discovery, from Prempro Products Liability MDL, 03-CV-1507 (E.D. Ark. Nov. 17, 2003) Order for Preservation of Records, from Baycol Products Litigation, MDL 1431(D. Minn. March 4, 2002) Preservation of Documents, Data, and Tangible Things, from the Manual for Complex Litigation, Fourth Joint Stipulation and Order Regarding Meet and Confer Discussions, contributed by Ken Withers, Federal Judicial Center http://www.fjc.gov/...utoframe?openform&url_l=/public/home.nsf/inavgeneral?openpage&url_r=/public/home.nsf/pages/196[11/21/2011 8:32:38 PM]

=== The Evolution of Discoverable Information ===

The Evolution of Discoverable Information 1000000 10000 10000 1000 100 10 10 1 E World E-Data Disclosure Expert Discovery Computer Paper Discovery Copier 1940 1950 1960 1970 1980 1990 2000 2010

=== Making a Clawback Agreement Effective Against Third Parties ===

Making A Clawback Agreement Effective Against Third Parties Federal Rule of Evidence 502 (amended effective December 2008) FRE Rule 502 permits a clawback agreement to be effective against privilege waiver in other litigation. Context: Clawback agreements permit mass production of data not reviewed for privilege, with the right to “clawback” privileged information, with no waiver of privilege between parties to agreement. Problem: Clawback is effective between parties, but outsider view of privileged information may be a waiver as to other third parties in other litigation. Solution: Rule 502 permits a federal court order to make clawback effective as to all outsiders, so that there is no waiver of privilege. The District of Utah standard Attorney Planning Meeting Report template invites parties to propose a Rule 502 compliant order: STANDARD TEMPLATE: e. The parties have agreed to an order regarding claims of privilege or protection as trial preparation material asserted after production, as follows: The following are actual provisions submitted by counsel: MISSED OPPORTUNITIES: e. The parties have agreed to an order regarding claims of privilege or protection as trial preparation material asserted after production, as follows: Per rules. e. The parties have agreed to an order regarding claims of privilege or protection as trial preparation material asserted after production, as follows: Any privileged documents that are inadvertently produced shall be returned to the producing party. e. The parties have agreed to an order regarding claims of privilege or protection as trial preparation material asserted after production, as follows: A party producing voluminous electronic data need not perform a privilege review on that data until such time as any other party specifically identifies data, among the produced data, which it intends to use. Within 14 days of such an identification the producing party shall assert any applicable privilege. MAKING THE MOST OF RULE 502: e. The parties having agreed to a clawback agreement, and good cause appearing therefore, the Court hereby orders as follows: i. For purposes of this Clawback Agreement, an “Inadvertently Produced Document” is a document produced to a party in this litigation that could have been withheld, in whole or in part, based on a legitimate claim of attorney-client privilege, work-product protection, or other applicable privilege. ii. Inclusion of any Inadvertently Produced Document in a production shall not result in the waiver of any privilege or protection associated with such document, nor result in a subject matter waiver of any kind. A producing party may demand the return of any Inadvertently iii. Produced Document, which demand shall be made to the receiving party’s counsel in writing and shall contain information sufficient to identify the Inadvertently Produced Document. Within five (5) business days of the demand for the Inadvertently Produced Document, the producing party shall provide the receiving party with a privilege log for such document that is consistent with the requirements of the Federal Rules of Civil Procedure, setting forth the basis for the claim of privilege for the Inadvertently Produced Document. In the event that any portion of the Inadvertently Produced Document does not contain privileged information, the producing party shall also provide a redacted copy of the Inadvertently Produced Document that omits the information that the producing party believes is subject to a claim of privilege. Upon receipt of a written demand for return of an Inadvertently iv. Produced Document, the receiving party shall immediately return the Inadvertently Produced Document (and any copies thereof) to the producing party and shall immediately delete all electronic versions of the document. v. The receiving party may object to the producing party’s designation of an Inadvertently Produced Document by providing written notice of such objection within five (5) business days of its receipt of a written demand for the return of an Inadvertently Produced Document. Any such objection shall be resolved by the Court after an in camera review of the Inadvertently Produced Document. Pending resolution of the matter by the Court, the parties shall not use any documents that are claimed to be Inadvertently Produced Documents in this litigation. Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work- product protection. (a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver When the disclosure is made in a Federal proceeding or to a Federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a Federal or State proceeding only if: 1. the waiver is intentional; 2. the disclosed and undisclosed communications or information concern the same subject matter; and 3. they ought in fairness to be considered together. (b) Inadvertent disclosure. When made in a Federal proceeding or to a Federal office or agency, the disclosure does not operate as a waiver in a Federal or State proceeding if: 1. the disclosure is inadvertent; 2. the holder of the privilege or protection took reasonable steps to prevent disclosure; and 3. the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B). (c) Disclosure Made in a State Proceeding When the disclosure is made in a State proceeding and is not the subject of a State- court order concerning waiver, the disclosure does not operate as a waiver in a Federal proceeding if the disclosure: 1. would not be a waiver under this rule if it had been made in a Federal proceeding; or 2. is not a waiver under the law of the State where the disclosure occurred. (d) Controlling effect of court orders. A Federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court--in which event the disclosure is also not a waiver in any other Federal or State proceeding. (e) Controlling Effect of a Party Agreement An agreement on the effect of disclosure in a Federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order. (f) Controlling Effect of This Rule Notwithstanding Rules 101 and 1101, this rule applies to State proceedings and to Federal court-annexed and Federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if State law provides the rule of decision. (g) Definitions In this rule: 1. "attorney-client privilege" means the protection that applicable law provides for confidential attorney-client communications; and 2. "work-product protection" means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial." Explanatory Note on Evidence Rule 502 Prepared by the Judicial Conference Advisory Committee on Evidence Rules (Revised 11/28/2007) This new rule has two major purposes: 1) It resolves some longstanding disputes in the courts about the effect of certain disclosures of communications or information protected by the attorney-client privilege or as work product — specifically those disputes involving inadvertent disclosure and subject matter waiver. 2) It responds to the widespread complaint that litigation costs necessary to protect against waiver of attorney-client privilege or work product have become prohibitive due to the concern that any disclosure (however innocent or minimal) will operate as a subject matter waiver of all protected communications or information. This concern is especially troubling in cases involving electronic discovery. See, e.g., Hopson v. City of Baltimore, 232 F.R.D. 228, 244 (D.Md. 2005) (electronic discovery may encompass “millions of documents” and to insist upon “record-by-record pre-production privilege review, on pain of subject matter waiver, would impose upon parties costs of production that bear no proportionality to what is at stake in the litigation”) . The rule seeks to provide a predictable, uniform set of standards under which parties can determine the consequences of a disclosure of a communication or information covered by the attorney-client privilege or work-product protection. Parties to litigation need to know, for example, that if they exchange privileged information pursuant to a confidentiality order, the court’s order will be enforceable. Moreover, if a federal court’s confidentiality order is not enforceable in a state court then the burdensome costs of privilege review and retention are unlikely to be reduced. The rule makes no attempt to alter federal or state law on whether a communication or information is protected under the attorney-client privilege or work-product immunity as an initial matter. Moreover, while establishing some exceptions to waiver, the rule does not purport to supplant applicable waiver doctrine generally. The rule governs only certain waivers by disclosure. Other common-law waiver doctrines may result in a finding of waiver even where there is no disclosure of privileged information or work product. See, e.g., Nguyen v. Excel Corp., 197 F.3d 200 (5th Cir. 1999) (reliance on an advice of counsel defense waives the privilege with respect to attorney-client communications pertinent to that defense); Ryers v. Burleson, 100 F.R.D. 436 (D.D.C. 1983) (allegation of lawyer malpractice constituted a waiver of confidential communications under the circumstances). The rule is not intended to displace or modify federal common law concerning waiver of privilege or work product where no disclosure has been made. Subdivision (a). The rule provides that a voluntary disclosure in a federal proceeding or to a federal office or agency, if a waiver, generally results in a waiver only of the communication or information disclosed; a subject matter waiver (of either privilege or work product) is reserved for those unusual situations in which fairness requires a further disclosure of related, protected information, in order to prevent a selective and misleading presentation of evidence to the disadvantage of the adversary. See, e.g., In re United Mine Workers of America Employee Benefit Plans Litig., 159 F.R.D. 307, 312 (D.D.C. 1994) (waiver of work product limited to materials actually disclosed, because the party did not deliberately disclose documents in an attempt to gain a tactical advantage). Thus, subject matter waiver is limited to situations in which a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner. It follows that an inadvertent disclosure of protected information can never result in a subject matter waiver. See Rule 502(b). The rule rejects the result in In re Sealed Case, 877 F.2d 976 (D.C.Cir. 1989), which held that inadvertent disclosure of documents during discovery automatically constituted a subject matter waiver. The language concerning subject matter waiver — “ought in fairness” — is taken from Rule 106, because the animating principle is the same. Under both Rules, a party that makes a selective, misleading presentation that is unfair to the adversary opens itself to a more complete and accurate presentation. To assure protection and predictability, the rule provides that if a disclosure is made at the federal level, the federal rule on subject matter waiver governs subsequent state court determinations on the scope of the waiver by that disclosure. Subdivision (b). Courts are in conflict over whether an inadvertent disclosure of a communication or information protected as privileged or work product constitutes a waiver. A few courts find that a disclosure must be intentional to be a waiver. Most courts find a waiver only if the disclosing party acted carelessly in disclosing the communication or information and failed to request its return in a timely manner. And a few courts hold that any inadvertent disclosure of a communication or information protected under the attorney- client privilege or as work product constitutes a waiver without regard to the protections taken to avoid such a disclosure. See generally Hopson v. City of Baltimore, 232 F.R.D. 228 (D.Md. 2005), for a discussion of this case law. The rule opts for the middle ground: inadvertent disclosure of protected communications or information in connection with a federal proceeding or to a federal office or agency does not constitute a waiver if the holder took reasonable steps to prevent disclosure and also promptly took reasonable steps to rectify the error. This position is in accord with the majority view on whether inadvertent disclosure is a waiver. Cases such as Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D. 103, 105 (S.D.N.Y. 1985) and Hartford Fire Ins. Co. v. Garvey, 109 F.R.D. 323, 332 (N.D.Cal. 1985), set out a multifactor test for determining whether inadvertent disclosure is a waiver. The stated factors (none of which is dispositive) are the reasonableness of precautions taken, the time taken to rectify the error, the scope of discovery, the extent of disclosure and the overriding issue of fairness. The rule does not explicitly codify that test, because it is really a set of non-determinative guidelines that vary from case to case. The rule is flexible enough to accommodate any of those listed factors. Other considerations bearing on the reasonableness of a producing party’s efforts include the number of documents to be reviewed and the time constraints for production. Depending on the circumstances, a party that uses advanced analytical software applications and linguistic tools in screening for privilege and work product may be found to have taken “reasonable steps” to prevent inadvertent disclosure. The implementation of an efficient system of records management before litigation may also be relevant. The rule does not require the producing party to engage in a post-production review to determine whether any protected communication or information has been produced by mistake. But the rule does require the producing party to follow up on any obvious indications that a protected communication or information has been produced inadvertently. The rule applies to inadvertent disclosures made to a federal office or agency, including but not limited to an office or agency that is acting in the course of its regulatory, investigative or enforcement authority. The consequences of waiver, and the concomitant costs of pre- production privilege review, can be as great with respect to disclosures to offices and agencies as they are in litigation. Subdivision (c). Difficult questions can arise when 1) a disclosure of a communication or information protected by the attorney-client privilege or as work product is made in a state proceeding, 2) the communication or information is offered in a subsequent federal proceeding on the ground that the disclosure waived the privilege or protection, and 3) the state and federal laws are in conflict on the question of waiver. The Committee determined that the proper solution for the federal court is to apply the law that is most protective of privilege and work product. If the state law is more protective (such as where the state law is that an inadvertent disclosure can never be a waiver), the holder of the privilege or protection may well have relied on that law when making the disclosure in the state proceeding. Moreover, applying a more restrictive federal law of waiver could impair the state objective of preserving the privilege or work-product protection for disclosures made in state proceedings. On the other hand, if the federal law is more protective, applying the state law of waiver to determine admissibility in federal court is likely to undermine the federal objective of limiting the costs of production. The rule does not address the enforceability of a state court confidentiality order in a federal proceeding, as that question is covered both by statutory law and principles of federalism and comity. See 28 U.S.C. § 1738 (providing that state judicial proceedings “shall have the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State . . . from which they are taken”). See also Tucker v. Ohtsu Tire & Rubber Co., 191 F.R.D. 495, 499 (D.Md. 2000) (noting that a federal court considering the enforceability of a state confidentiality order is “constrained by principles of comity, courtesy, and . . . federalism”). Thus, a state court order finding no waiver in connection with a disclosure made in a state court proceeding is enforceable under existing law in subsequent federal proceedings. Subdivision (d). Confidentiality orders are becoming increasingly important in limiting the costs of privilege review and retention, especially in cases involving electronic discovery. But the utility of a confidentiality order in reducing discovery costs is substantially diminished if it provides no protection outside the particular litigation in which the order is entered. Parties are unlikely to be able to reduce the costs of pre-production review for privilege and work product if the consequence of disclosure is that the communications or information could be used by non-parties to the litigation. There is some dispute on whether a confidentiality order entered in one case is enforceable in other proceedings. See generally Hopson v. City of Baltimore, 232 F.R.D. 228 (D.Md. 2005), for a discussion of this case law. The rule provides that when a confidentiality order governing the consequences of disclosure in that case is entered in a federal proceeding, its terms are enforceable against non-parties in any federal or state proceeding. For example, the court order may provide for return of documents without waiver irrespective of the care taken by the disclosing party; the rule contemplates enforcement of “claw-back” and “quick peek” arrangements as a way to avoid the excessive costs of pre-production review for privilege and work product. See Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 290 (S.D.N.Y. 2003) (noting that parties may enter into “so-called ‘claw-back’ agreements that allow the parties to forego privilege review altogether in favor of an agreement to return inadvertently produced privilege documents”). The rule provides a party with a predictable protection from a court order — predictability that is needed to allow the party to plan in advance to limit the prohibitive costs of privilege and work product review and retention. Under the rule, a confidentiality order is enforceable whether or not it memorializes an agreement among the parties to the litigation. Party agreement should not be a condition of enforceability of a federal court’s order. Under subdivision (d), a federal court may order that disclosure of privileged or protected information “in connection with” a federal proceeding does not result in waiver. But subdivision (d) does not allow the federal court to enter an order determining the waiver effects of a separate disclosure of the same information in other proceedings, state or federal. If a disclosure has been made in a state proceeding (and is not the subject of a state-court order on waiver), then subdivision (d) is inapplicable. Subdivision (c) would govern the federal court’s determination whether the state-court disclosure waived the privilege or protection in the federal proceeding. Subdivision (e). Subdivision (e) codifies the well-established proposition that parties can enter an agreement to limit the effect of waiver by disclosure between or among them. Of course such an agreement can bind only the parties to the agreement. The rule makes clear that if parties want protection against non-parties from a finding of waiver by disclosure, the agreement must be made part of a court order. Subdivision (f). The protections against waiver provided by Rule 502 must be applicable when protected communications or information disclosed in federal proceedings are subsequently offered in state proceedings. Otherwise the holders of protected communications and information, and their lawyers, could not rely on the protections provided by the Rule, and the goal of limiting costs in discovery would be substantially undermined. Rule 502(f) is intended to resolve any potential tension between the provisions of Rule 502 that apply to state proceedings and the possible limitations on the applicability of the Federal Rules of Evidence otherwise provided by Rules 101 and 1101. The rule is intended to apply in all federal court proceedings, including court-annexed and court-ordered arbitrations, without regard to any possible limitations of Rules 101 and 1101. This provision is not intended to raise an inference about the applicability of any other rule of evidence in arbitration proceedings more generally. The costs of discovery can be equally high for state and federal causes of action, and the rule seeks to limit those costs in all federal proceedings, regardless of whether the claim arises under state or federal law. Accordingly, the rule applies to state law causes of action brought in federal court. Subdivision (g). The rule’s coverage is limited to attorneyclient privilege and work product. The operation of waiver by disclosure, as applied to other evidentiary privileges, remains a question of federal common law. Nor does the rule purport to apply to the Fifth Amendment privilege against compelled selfincrimination. The definition of work product “materials” is intended to include both tangible and intangible information. See In re Cendant Corp. Sec. Litig., 343 F.3d 658, 662 (3d Cir. 2003) (“work product protection extends to both tangible and intangible work product”).

=== Working Smart in the CM/ECF World ===

Working Smart in the CM/ECF World 3rd Circuit Judicial Conference April 2008 David Nuffer U.S. Magistrate Judge Table of Contents Multiple Monitors or Large Monitors ........................................................................................ 1 Use the Power of Adobe Acrobat................................................................................................. 4 Downloading documents from CM/ECF .................................................................................... 4 Searching PDF Documents ......................................................................................................... 5 Copy and Paste from a PDF document into a Word Processor .................................................. 7 Annotate PDF Documents (in Acrobat Standard or Professional) ............................................. 8 Touch Up Text (in Acrobat Standard or Professional) ............................................................. 10 Know the Types of PDF Documents ........................................................................................ 11 Convert Image PDF to Text PDF (in Acrobat Standard or Professional)................................ 12 Save a PDF document in RTF format....................................................................................... 13 WordPerfect X3 Opens PDF Files............................................................................................ 14 E-Research................................................................................................................................... 15 To copy short segments from Westlaw..................................................................................... 15 Downloading and Annotating Entire Cases.............................................................................. 17 Create Documents in the Best Way........................................................................................... 22 Use Hyperlinks to Cited Authorities......................................................................................... 22 Use Tables of Contents in Long Documents ............................................................................ 23 Make Bookmarks for Exhibits and Show the Bookmarks Panel.............................................. 24 Use Document-To-Document Hyperlinks ................................................................................ 25 Use PDF Conversion to Preserve Links.................................................................................... 26 How it Looks from the Chambers Point of View ..................................................................... 27 Summary NEF .......................................................................................................................... 27 The Motions Report .................................................................................................................. 28 Select All the Right Forms of Relief......................................................................................... 29 Clearly Identify Exhibits........................................................................................................... 30 This document contains colored text and hyperlinks. Download it at http://www.utd.uscourts.gov/judges/nuffer_resources.htm Multiple Monitors or Large Monitors Fundamental to the ability to work effectively in the electronic world is an electronic desktop. In the paper world, we work on a large desk to be able to work with many items at once. In the electronic world, a large virtual desktop enables us to work simultaneously with many electronic sources of information while we do our work, which may include electronic composition, analysis and communication. Research has demonstrated that multiple and large monitors increase productivity and reduce errors significantly in all users, sophisticated or not. For those with less developed technical skills large monitors are more effective than multiple monitors.1 Word Perfect document Adobe Acrobat document (from CM/ECF) Multiple monitors or large monitors allow view of many source documents (Westlaw, Lexis, PACER, CM/ECF, PDF files) while composing other documents (Word or WordPerfect or CM/ECF). Multiple documents from the same application may be viewed side-by-side. Copying and pasting between screens or windows is possible because all monitors are connected to the same computer. (If using multiple monitors, it is best to use identical displays.) 1 Gregg Keizer, “Bigger is Better in Monitors – To a Point,” Computerworld March 10, 2008, reporting research by James A. Anderson, Ph.D., F.I.C.A., at the University of Utah in 2003 and 2007. Papers available from David Nuffer. Page 1 a large display, showing two windows two monitors side by side, rotated Operating systems since Windows 98 permit creation of a large "virtual display" which spans several physical monitors, if the computer has a video display hardware which can drive two monitors. The capability to have two displays is built into most laptop computers (control panel at right). The dual display features are regulated in the Display Properties control panel, Settings Tab. Microsoft help pages describe how to use multiple displays: Turn on dual monitor support How to Enable Multiple Display Support Using Windows 98 HOW TO: Set Up and Troubleshoot Multiple Monitors in Windows 2000 (This article includes information on installing multiple display adapters.) HOW TO: Configure and Use Multiple Monitors in Windows XP In many desktop computers, it is possible to use two standard display adapters to drive dual monitors to create a large integrated desktop. Hardware Requirements for Multiple Display Support in Windows 98 Hardware Requirements for Multiple-Display Support in Windows XP Many manufacturers supply single slot display adapters with two heads (cable connections) which support two monitors on each card. More than one can be used in one computer to drive more than two displays. NVIDIA ATI (use keyword "dual display" to search products) Matrox Many display adapters are able to use special software which permits rotation of displays. A rotated flat panel allows the user to "page through" documents and see an entire page at a time on the virtual desktop. The user's experience with electronic documents then resembles use of paper on a physical desktop. NVIDIA software ATI software Dell Laptops with the ATI Mobility Radeon X300 video card have the ability to rotate an external monitor or, if you have a docking station, two monitors may be rotated. Instructions This page can be found at http://www.utd.uscourts.gov/documents/Dual_monitors.html Use the Power of Adobe Acrobat Downloading documents from CM/ECF VIEW ALL creates a single comprehensive PDF document. DOWNLOAD ALL creates a Zip Folder. Name convention: [Docket No.] [Description] [(Related Motion Dkt. No.)] 101 Memorandum in Support (100) Example: Searching PDF Documents Acrobat has two powerful search tools. Video Demonstrations: Find and Search in Acrobat. FIND takes you to each successive instance of a word. SEARCH shows a listing of all instances of a word in the document. Copy and Paste from a PDF document into a Word Processor Information from a PDF document may be used in other documents in several ways. If the PDF document is text based you may copy and paste, using the Text Select tool. The text may be pasted into any word processor or email program. Annotate PDF Documents (in Acrobat Standard or Professional) Acrobat Standard and Pro have tools to permit Highlighting, Underlining, and Strikethrough. PDF documents can be marked up as easily as paper documents. Video Demonstration: Highlighting, Underlining, and Strikethrough This lower screen shot shows color, which is user selected. While reviewing documents, text boxes can hold margin notes. Video Demonstration: Text Box Annotation in Acrobat This is a text box Touch Up Text (in Acrobat Standard or Professional) Remember the advantage of PDF documents? – that they cannot be changed – not true! The Touch Up Text Tool lets you edit a PDF directly. Great for changing a date, case number or a word or two. Before: After: Know the Types of PDF Documents The court cares what kind of PDF document you file. Video Demonstration: Types of PDF Documents Scanned PDF – large file, not searchable, no copying, no links, fuzzy Text PDF – small file, searchable, copying, links, clear Convert Image PDF to Text PDF (in Acrobat Standard or Professional) You are working with a PDF and find it is a scanned or image PDF. You need the text. But the Text Select Tool does nothing except draw a box. Use the Optical Character Recognition tool in Acrobat Standard or Professional to get the text. The text can then be copied and pasted – and searched. Save a PDF document in RTF format You may save a PDF document in RTF (Rich Text Format) format resulting in a complete data file with all text in the document, though formatting may not be preserved. This file format can be opened by most word processors. Even if you don’t have Acrobat Standard or Professional, you can save from Acrobat Reader in text format. WordPerfect X3 Opens PDF Files The latest version of WordPerfect will open PDF files. This is another way to get the text out of a PDF document. Formatting will not be perfect, but the text will be there. E-Research To copy short segments from Westlaw Video Demonstrations: Copying and pasting from Lexis Copying and pasting from Westlaw Find the text and select it: Then click TOOLS in the lower right corner and select Copy With Reference: A frame will pop up with the text and reference, and instructions: Click COPY Page 15 and then Paste Special – Unformatted Text to place the text and reference into your word processing document. There will be a little reformatting to do but the essential information is in place. Pasted data Downloading and Annotating Entire Cases Why print from Westlaw or Lexis when storing your cases as e-research lets you copy and paste from those cases directly into your document? And you can even highlight and annotate these cases just like paper print outs. Video Demonstrations: E-Research in Lexis E-Research in Westlaw Find the case/statute/article you want in Westlaw.com Let your cursor pass over the Select Download from the dropdown menu. button in the upper right corner. In the dialog that appears, click on Current Destination Properties. (Setting Properties only has to be done once for the rest of your research career.) In the dialog that appears, select 1. 2. 3. The name of your word processor (Word Perfect if you work for the courts and MS Word if you work anywhere else in the entire world) Single Column (important for readability on the screen) Save these selections as my default destinations (These three steps are set as your future preferences – you won’t have to change them again.) Click Save Deselect “Include a Summary Page” Click “Send Request” You will see a “processing” notice: Then in the File Download box, click SAVE Navigate to the folder where you want to save the document: Name the document something sensible! The Westlaw proposed name is NOT helpful. After the document SAVES Click OPEN If you see a summary page one – you don’t need it – select and delete all the data on that page. When the actual document is on the first page, CONTROL S to SAVE again. Now, as you work through the document (notice how nice it is to read in one column format) you can highlight as you go, and this is in your permanent record. In Word Perfect, the Highlight command is ALT –T ALT-H ALT-O Or you can click the HIGHLIGHT tool on the toolbar. In Word, choose VIEW TOOLBARS REVIEWING TOOLBAR and use the highlighter tool: Create Documents in the Best Way Use Hyperlinks to Cited Authorities Include hyperlinks to authorities cited in your memoranda by using WestCiteLink or LexLink, part of LexisNexis Citation Tools 2003. See a sample document with hyperlinks. Another sample. Another sample with a table of contents. Sample document with Lexis links. Click on a link in the sample documents or on blue text below in this sample to see how hyperlinks make it easy to find cases, statutes and rules. The tool to create research hyperlinks for Microsoft Word or WordPerfect is free. The person viewing the document incurs Westlaw or Lexis charges. The court has Westlaw and Lexis access. An April 2006 survey of judges' chambers indicates both are used, but Westlaw use is predominant. Watch a video presentation about hyperlinks to cited authorities. (requires Flash player). Use Tables of Contents in Long Documents The links in this Microsoft Word table of contents can be preserved in Adobe Acrobat. The cursor changes to a hand to show that this is a hyperlink. Make Bookmarks for Exhibits and Show the Bookmarks Panel This PDF document was created using an outline, so there are bookmarks embedded in the PDF – and bookmarks have been created for Exhibits – and the document properties were set so the bookmarks panel shows when it is opened. Use Document­To­Document Hyperlinks CM/ECF versions 3.1 and later enable document-to-document hyperlinks. That is, any document in a CM/ECF record can contain a hyperlink to any other document in the CM/ECF record in any court. Documents filed may contain hyperlinks to other documents filed simultaneously, so a memorandum may contain links to a concurrently filed declaration or a previously filed exhibit. The following document excerpt contains research hyperlinks and a link to document 40 in the same case file. More information on cross-document hyperlinks, including a video demonstration and written procedure outline is available at http://www.utd.uscourts.gov/cmecf/ecfpage.html. Use PDF Conversion to Preserve Links When you have prepared a document with hyperlinks to research services or with a Table of Contents, make sure the document is converted to PDF format in a way that preserves the hyperlinks. Even if hyperlinks are present in a word processing document, they may not converted into PDF format when the document is prepared for filing. This may result from using a PDF converter that cannot convert hyperlinks or from improper settings on a PDF converter. The PDF document created improperly may contains blue text and underlines that signal links, but lack operative links. In Microsoft Word, the Adobe PDF printer will not convert hyperlinks. Instead, use the special Adobe PDF menu or toolbar buttons to convert Word documents to PDF with hyperlinks. In WordPerfect, the Publish to PDF settings must be set to convert hyperlinks and bookmarks. How it Looks from the Chambers Point of View Summary NEF Many chambers receive a summary Notice of Electronic Filing. It is generated in the early morning hours and includes a summary notice of all filings from the prior day. Implications: Chambers may not know about a filing until the next morning. Chambers may not know more than you include in your docket text. Only the types of relief you request will show on the docket text and title. The Motions Report The motions report is a key action tool for chambers. All documents related to a motion show on the report, with docket text and hyperlinks. Implications: If you don’t file a document as a motion (i.e., as a request or stipulation), neither it nor any related documents will show on a motion report. If you don’t link a document to a motion, the document you file will not show on a motion report. If you don’t select multiple forms of relief when filing, the court may not be aware of your requested relief. There is also a barrier to granting relief because CM/ECF shows no motion for that specific relief. Select All the Right Forms of Relief Unsure what event to use? Try the search button on the blue bar. It will bring up all events containing the word that you enter. For example, click Search, and enter “dismiss”, and the search will return all events that contain the word “dismiss.” The search results are all hyperlinks to start the event filing sequence: Alternatively, go to the Motions page and type in the word you want to find. Select ALL forms of relief requested in your motion. Page 29 hibits Clearly Identify Exhibits When including attachments, When including attachments, Only use the CATEGORY if it is truly appropriate Use DESCRIPTION - descriptions may go up to 255 characters! Good DESCRIPTIONS make documents accessible Page 30

=== E-Ethics ===

E – Ethics: Ethical Issues for Lawyers in the Electronic Age April 2008 Table of Contents Scope of Responsibility .................................................................................................................. 1 Specific Obligations........................................................................................................................ 1 Entrustment ................................................................................................................................ 1 Privilege & Confidentiality ........................................................................................................ 1 Competence................................................................................................................................ 2 Rights of Others ......................................................................................................................... 2 E-Activities with Ethical Implications............................................................................................ 2 Email .......................................................................................................................................... 2 Email between attorneys and clients....................................................................................... 2 Email in the office................................................................................................................... 4 Circulating documents outside the firm ..................................................................................... 4 When you receive electronic documents with metadata ............................................................ 5 Privilege review in e-discovery.................................................................................................. 5 E-filing in federal court.............................................................................................................. 6 Privacy policy ......................................................................................................................... 6 Redaction ................................................................................................................................ 6 Managing a litigation hold ......................................................................................................... 7 General Technology Issues with Ethical Implications.................................................................... 8 Employee practices .................................................................................................................... 8 Mobile devices ........................................................................................................................... 8 Office hardware.......................................................................................................................... 8 Outside services ......................................................................................................................... 9 Law firm web site....................................................................................................................... 9 Office network ........................................................................................................................... 9 David Nuffer United States Magistrate Judge, District of Utah Note: An electronic copy of this outline is at http://www.utd.uscourts.gov/judges/nuffer_resources.htm#Continuing. That version includes working hyperlinks. Send any corrections or suggestions to [email protected]. This page is intentionally blank for two-sided printing. 2 Scope of Responsibility1 Rule 5.1 Responsibilities Of Partners, Managers, And Supervisory Lawyers (a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct. (b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.2 Rule 5.3 Responsibilities Regarding Nonlawyer Assistants With respect to a nonlawyer employed or retained by or associated with a lawyer: (a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer; (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer . . . .3 Specific Obligations Entrustment Rule 1.15 Safekeeping Property (a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained in the state where the lawyer's office is situated, or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of [five years] after termination of the representation.4 Privilege & Confidentiality Rule 1.6 Confidentiality Of Information (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).5 1 The ethical rules cited are from the ABA Model Rules of Professional Conduct. 2 Model Rules of Professional Conduct Rule 5.19(a) and (b). 3 Model Rules of Professional Conduct Rule 5.3(a) and (b). 4 Model Rules of Professional Conduct Rule 1.15. 5 Model Rules of Professional Conduct Rule 1.6. A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer's supervision.6 Competence Rule 1.1 Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.7 This provision was specifically applied to technology education in a Florida ethics opinion: “The foregoing obligations [regarding metadata] may necessitate a lawyer’s continuing training and education in the use of technology . . . .”8 Rights of Others Rule 4.4 Respect For Rights Of Third Persons (b) A lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.9 Consider Statutory Obligations A business in this State [Nevada] shall not transfer any personal information of a customer through an electronic transmission other than a facsimile to a person outside of the secure system of the business unless the business uses encryption to ensure the security of electronic transmission.10 E-Activities with Ethical Implications Email Email between attorneys and clients A client’s use of an employer’s computer or email system may waive privilege. Under ECPA, the business and consent exceptions may entitle the employer to review all communications on the company system and uses of employer-owned computers or resources (e.g., thumbdrives). Communication in this insecure environment may constitute waiver of privilege. “[A] prudent attorney should consider implementing some precautionary measures to protect his client from losing the privilege and confidentiality of e-mail correspondence that the client may read or send 6 Comment 16 to Model Rules of Professional Conduct Rule 1.6. 7 Model Rules of Professional Conduct Rule 1.1. 8 Professional Ethics of the Florida Bar Ethics Opinion 06-2 (September 15, 2006). 9 Model Rules of Professional Conduct Rule 4.4. 10 N.R.S. 597.970 (effective October 1, 2008). Page 2 in the workplace and to protect himself in any subsequent malpractice suit in which his correspondence with his client has lost its privilege due to workplace monitoring.”11 Similarly, a client may waive privilege by forwarding or sending a copy of an email containing privileged information to someone outside the privilege. An email Martha Stewart sent to counsel contained attorney-client communication – but when she forwarded a copy to her daughter, she waived that privilege.12 A client may forward an email containing an opinion or assessment to a third party, creating the possibility of that person’s reliance on the attorney’s email and an impression of an attorney-client relationship. The attorney should adequately archive email concerning the client to preserve a record of actions taken, communications and advice given, and of decisions made. Unencrypted email should not be used for sensitive communications. A lawyer may transmit information relating to the representation of a client by unencrypted e-mail sent over the Internet without violating the Model Rules of Professional Conduct (1998) because the mode of transmission affords a reasonable expectation of privacy from a technological and legal standpoint. The same privacy accorded U.S. and commercial mail, land-line telephonic transmissions, and facsimiles applies to Internet e-mail. A lawyer should consult with the client and follow her instructions, however, as to the mode of transmitting highly sensitive information relating to the client's representation.13 When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions.14 Consider a warning/disclaimer on your emails15 11 Dion Messer, To: [email protected]: Privilege at Risk?, 23 J. Marshall J. Computer & Info. L. 75, 99 (2004). 12 U.S. v. Stewart, 287 F. Supp. 2d 461, 464 (S.D.N.Y. 2003). The court did find work product protection existed and was not waived. 13 ABA Summary of Formal Opinion 99-413 (March 10, 1999). Full opinion at http://www.abanet.org/cpr/pubs/fo99-413.html. See Helen W. Gunnarson, Should Lawyers Use Email to Communicate with Clients, 92 Ill. B.J. 572 (2004) and Kurt Metzmeier, How to Avoid Losing your License on the Information Superhighway: Ethical Issues Raised by the Use of the Internet in The Practice of Law, 62 Ky. Bar Assn. Bench & Bar 14 (1998) (also found at http://www.legalethics.com/articles.law?auth=metzmeier.txt) for a history of development of ethics opinions on this topic. For a brief look at some international implications, see Lance Johnson, E-Mail Communication for Client Matters -- A Multinational Survey, (June 4, 2000). 14 Comment 17 to Model Rules of Professional Conduct Rule 1.6. 15 David F. Gallagher, When E-Mail Messages Come With a Tail of Legalese, New York Times March 17, 2000; Ronald F. Pol, Email Disclaimers: Fictional Wizardry, 24 No. 9 ACC Docket (October 2006). Email in the office Consider restrictions on forwarding internal email outside the office. Baker & McKenzie suffered the indignity of public disclosure of an exchange of emails between a senior associate and a secretary over his request that she pay a $10 cleaning bill because she spilled ketchup on him at lunch.16 Lotus Notes lets you set security restrictions on copying, printing and forwarding email. Circulating documents outside the firm Exchanging documents in electronic format with clients, or opposing counsel or providing them to the court may reveal more than you want. Concealed data – metadata – may be contained in your electronic document. The most critical metadata could be revision history which will show all revisions and by whom they were made. Microsoft Word stores the following metadata: • Author name • Author initials • Author company or organization name • Author’s computer name • The name of the network server or hard disk where the document is saved • Other file properties and summary information • Non-visible portions of embedded OLE objects • The names of previous document authors • Document revisions and attributions • Document versions • Template and style information • Hidden text or cells • Personalized views • Comments Microsoft resource: Control metadata in your legal documents Corel resource: How can I remove metadata from WordPerfect documents? Background: http://www.hricik.com/eethics/Metadata1103.doc 16 http://www.snopes.com/embarrass/email/ketchup.asp. New York: Lawyers have a duty under DR 4-101 to use reasonable care when transmitting documents by e-mail to prevent the disclosure of metadata containing client confidences or secrets.17 Florida: A lawyer who is sending an electronic document should take care to ensure the confidentiality of all information contained in the document, including metadata.18 Maryland: An attorney has a duty to remove metadata from electronic discovery before sending it.19 When you receive electronic documents with metadata ABA: The Model Rules of Professional Conduct do not contain any specific prohibition against a lawyer’s reviewing and using embedded information in electronic documents, whether received from opposing counsel, an adverse party, or an agent of an adverse party.20 New York: A lawyer may not make use of computer software applications to surreptitiously "get behind" visible documents or to trace e-mail.21 Florida: A lawyer receiving an electronic document should not try to obtain information from metadata that the lawyer knows or should know is not intended for the receiving lawyer. A lawyer who inadvertently receives information via metadata in an electronic document should notify the sender of the information's receipt. The opinion is not intended to address metadata in the context of discovery documents.22 Maryland: Maryland does not have new Rule 4.4(b) and therefore a Maryland attorney receiving metadata in a state court matter, in the absence of an agreement to the contrary, need not notify the sending attorney. Federal Rule of Civil Procedure 26(b)(5) creates a different result in federal court proceedings.23 Privilege review in e-discovery It is increasingly common to deliver large quantities of electronic information in response to a discovery request, without filtering it for responsiveness or privilege, under an agreement that there is no privilege waiver. How can this be reconciled with the lawyer’s duties o o to preserve confidences? to act with diligence? There is a substantial risk of waiver of the privilege as to third parties who are not bound by the agreement.24 17 New York State Bar Association Ethics Opinion 782 (December 8, 2004). 18 Professional Ethics of the Florida Bar Ethics Opinion 06-2 (September 15, 2006). 19 Maryland State Bar Association Committee on Ethics Ethics Docket no. 2007-09. 20 ABA Formal Ethics Opinion 06-442 (August 6, 2006). 21 New York State Bar Association Ethics Opinion 749 (December 14, 2001). 22 Professional Ethics of the Florida Bar Ethics Opinion 06-2 (September 15, 2006). 23 Maryland State Bar Association Committee on Ethics Ethics Docket no. 2007-09. 24 Laura Catherine Daniel, The Dubious Origins and Dangers of Clawback and Quick-Peek Agreements: An Argument Against Their Codification in the Federal Rules of Civil Procedure, 47 Wm. & Mary L. Rev. 663 (2005); Koch Materials Co. v. Shore Slurry Seal, Inc., 208 F.R.D. 109, 118 (D.N.J. 2002) “Courts generally frown upon "blanket" disclosure provisions as contrary to relevant jurisprudence. In particular, the court observes that such blanket provisions, essentially immunizing attorneys from negligent handling of documents, could lead to sloppy E-filing in federal court Privacy policy The federal courts’ privacy policy will be stated in new Rule 5.2 of the Federal Rules of Civil Procedure.25 The rule became effective December 1, 2007. Rule 5.2. Privacy Protection For Filings Made with the Court (a) Redacted Filings. Unless the court orders otherwise, in an electronic or paper filing with the court that contains an individual’s social-security number, taxpayer-identification number, or birth date, the name of an individual known to be a minor, or a financial-account number, a party or nonparty making the filing may include only: (1) the last four digits of the social-security number and taxpayer- identification number; (2) the year of the individual’s birth; (3) the minor’s initials; and (4) the last four digits of the financial-account number. The policy is most often violated in exhibits and attachments, but quite often counsel seem entirely unaware and unable to comply. What obligations will accrue to counsel who fail to protect client identifying information – leading to identity theft? What liabilities will accrue to opposing counsel who fails to protect identifying information? At least one court has indicated contempt sanctions would be available against counsel who fail to redact.26 In response to the order to show cause, counsel stated “the undersigned has instituted procedures in his office whereby both he and his staff are to thoroughly review each and every exhibit, line by line, to further prevent a reoccurrence of the violation.”27 Redaction Since all documents filed in CM/ECF (the federal court filing system) must be in PDF format, it is essential to understand redaction of PDF documents. Placing graphics over text is not effective redaction in Acrobat. Acrobat Standard and Professional 8 include redaction tools. attorney review and improper disclosure which could jeopardize clients' cases.” See also Colin P. Marks, Corporate Investigations, Attorney-Client Privilege, and Selective Waiver: Is a Half-Privilege Worth Having at All?, 30 Seattle U. L. Rev. 155 (2006). 25 Fed. R. Civ. 5.2. A similar rule is in effect for criminal cases. Fed. R. Crim. P. 49.1. 26 Luster v. City of Lebanon, No. 04-663-MJR, 2007 WL 61859 (S. D. Ill. January 8, 2007). 27 Response to Order to Show Cause at 3, docket no. 173, filed January 22, 2007, Luster v. City of Lebanon, No. 04- 663-MJR, S. D. Ill. This document appears redacted: But the text behind the graphics is entirely available for copying, searching, etc. 4.) In negotiations with Google, this request was later narrowed to a "multi-stage random" sampling of one million URLs in Google's indexed database. As represented to the Court at oral argument, the Government now seeks only 50,000 URLs from Google's search index. Second, the government also initially sought "[a]ll queries that have been entered on your company's search engine between June 1, 2005 and July 31, 2005 inclusive." (Subpoena at 4.) Following further negotiations with Google, the Government narrowed this request to all queries that have been entered on the Google search engine during a one-week period. During the course of the present Miscellaneous Action, the Government further restricted the scope of its request, and now represents that it only requires 5,000 entries from Google's query log in order to meet its discovery needs. Managing a litigation hold In re Prudential Ins. Co. Sales Practices Litig., 169 F.R.D. 598 (D.N.J. 1997). While there is no proof that Prudential, through its employees, engaged in conduct intended to thwart discovery through the purposeful destruction of documents, its haphazard and uncoordinated approach to document retention indisputably denies its party opponents potential evidence to establish facts in dispute. Because the destroyed records in Cambridge are permanently lost, the Court will draw the inference that the destroyed materials are relevant and if available would lead to the proof of a claim. . . . When the September 15, 1995 Court Order to preserve documents was entered, it became the obligation of senior management to initiate a comprehensive document preservation plan and to distribute it to all employees. . . . The Court finds that the document destruction, particularly in the Cambridge, Massachusetts office, caused harm to party opponents. Over 9,000 files were cleansed. . . . Within ten (10) days after the issuance of this Opinion, Prudential shall pay to the Clerk of the United States District Court for the District of New Jersey, the sum of One Million Dollars ($1,000,000). General Technology Issues with Ethical Implications Employee practices o Screen employees before hiring – check references o Train all employees on confidentiality, proper email use, and security for network, mobile devices and storage o Make all employees aware of court privacy policy, redaction issues, and metadata o Evaluate each employee periodically for compliance with procedures and understanding o Have written agreements with non-lawyers to bind them to confidentiality obligations o Establish no expectation of privacy in portable data devices, email, computer and network storage and internet use28 o Place policy and technical limits on user installed software and violation of copyright and licenses o Make sure that passwords are protected; terminated on change of employment o Password lists must be secure Standard password advice: (cid:131) Require a password for any computer or network access; (cid:131) People who share jobs do not share passwords; (cid:131) Require that passwords be used to be difficult to decipher. Passwords should be at least seven characters long; should contain letters and numbers or characters (@, *, and so on); should never contain a person’s name; and should never be written down near the computer; (cid:131) Prohibit use of guest (“Temp1”) or default passwords or logons; (cid:131) Require passwords to be updated or changed every four to six months; and (cid:131) Have a central secure location for the firm to record all passwords in use.29 Mobile devices Laptops require a sign-on to access any data or programs and are equipped with updated security tools (consider biometric) Any remote wireless access is to a trusted service, not to a free host Any VPN software is accompanied by firewall Thumbdrives require a password and encrypt data Password protection on PDAs and phones with contact / calendar information Scheduled inventory day when all equipment must be in the office Office hardware Limit the number of recordable CD and DVD drives Dispose of hardware responsibly 28 The Electronic Communications Privacy Act of 1986 “prohibits the intentional or willful interception, accession, disclosure, or use of one's electronic communication” but is subject to business provider and consent exceptions. Sarah DiLuzio, Comment, Workplace E-Mail: It’s Not as Private as You Might Think, 25 Del. J. Corp. L. 741, 745 (2000). 29 David Kricik, Protecting Portable Confidences, E-Ethics Vol. 1, No. VII (March 2002). Outside services If you use an outside technical consultant or service, obligate them to confidentiality. “A lawyer who gives a computer maintenance company access to information in client files must make reasonable efforts to ensure that the company has in place, or will establish, reasonable procedures to protect the confidentiality of client information. Should a significant breach of confidentiality occur, the lawyer may be obligated to disclose it to the client.”30 This may apply to off-site backup, transcription and document preparation services,31 data entry services, network administrators, copy services, and forensic consultants. Law firm web site Be sure you are licensed in any state in which you may attempt to collect fees. 32 Unsolicited email from prospective clients may create an attorney-client relationship or provide confidential information that disqualifies the firm from adverse representation.33 Consider web site disclaimers that state, essentially, that any information sent by e-mail before the firm agrees to represent the transmitting party will not be held to be confidential by the firm.34 Office network An office network holding sensitive personal information should comply with industry standards.35 Take special precautions with a wireless network.36 Assign responsibility to monitor network threats37 and keep current in the industr y: Sniffer – traffic interceptor that can capture email, web site visits and sniffer may also be used for legitimate passwords used. The network monitoring. Spoofer – imposter email server that copies all email intended for a Keylog legitimate server. ger – hidden software or hardware that records every keystroke data input, including logins, a computer, and thus captures all passwords, and message traffic. on 30 Summary of ABA Formal Opinion 95-398 Access of Nonlawyers to a Lawyer's Data Base (October 27, 1995). 31 Opinion No. 194, The Professional Ethics Commission of the Board Of Overseers Of The [Maine] Bar (December 11, 2007). 32 Birbrower, Montalbano, Condon & Frank v. Superior Court, 949 P.2d 1 (Cal. 1998). 33 Douglas K. Schnell, Don’t Just Hit Send: Unsolicited E-Mail and the Attorney-Client Relationship, 17 Harv. J. L & Tech 533 (2004). 34 David Hricik, Whoops! I did it Again! What Britney Spears Can Teach Us About the Ethical Issues Arising From the Intentional Transmission of Confidences From Prospective Clients to Firms, E- Ethics Vol. III, No. I, (2004) and David Hricik, To Whom It May Concern: Using Disclaimers to Avoid Disqualification by Receipt of Unsolicited E- Mail from Prospective Clients, 16 Professional Lawyer 1 (2005). 35 Protecting Personal Information: A Guide for Business, available at http://www.ftc.gov/infosecurity. 36 http://www.practicallynetworked.com/support/wireless_secure.htm ; http://www.pcmag.com/article2/0,4149,844020,00.asp; http://compnetworking.about.com/od/wirelesssecurity/tp/wifisecurity.htm 37 See wikipedia for basic information on any of these threats. Screen grabber – takes periodic shots of whatever is on the computer screen. Data miner – software that gathers and amalgamates data from the internet and informatio n services. Virus and worm – self replicating attack software wit h or without human intervention. Intrusions – i Zombie nvasion of network for any purpose. – takes possession of all or pa programs. (Recently used to host child pornography sites and run related rt of a server to run illicit e-commerce.) C apture computer resource such as a web cam or microphone for spy purposes. or ing to the 2005 CSI/FBI Computer Security Survey,38 we have a long way Acc d to go: (cid:131) Average annual expenditure per employee for computer security is $240 – 750. Legal industry average is $40. (cid:131) The legal ind ustry self reports the least satisfaction (2.5 out of 7) with the amount spent on Security Awareness training. High tech report satisfaction. s 4.5 (cid:131) Over 50% of those responding to the survey had an incident of unauthorized use in l ast 12 months. (cid:131) Only 20% of computer crime is reported to law enforcement. Only 16% is reported to counsel. (cid:131) The range of attacks is broad – almost 100% of web sites are attacked. 38 http://www.gocsi.com/forms/fbi/csi_fbi_survey.jhtml. Note: An electronic copy of this outline is at Hhttp://www.utd.uscourts.gov/judges/nuffer_resources.htm#ContinuingH. That version includes working hyperlinks. Send any corrections or suggestions to [email protected]. Page 11

=== E-Ethics ===

E – Ethics: Ethical Issues for Lawyers in the Electronic Age December 20, 2007 Table of Contents Scope of Responsibility .................................................................................................................. 1 Specific Obligations........................................................................................................................ 1 Entrustment ................................................................................................................................ 1 Privilege & Confidentiality........................................................................................................ 1 Competence................................................................................................................................ 2 Rights of Others ......................................................................................................................... 2 E-Activities with Ethical Implications............................................................................................ 2 Email .......................................................................................................................................... 2 Email between attorneys and clients....................................................................................... 2 Email in the office................................................................................................................... 4 Circulating documents outside the firm ..................................................................................... 4 When you receive electronic documents with metadata ............................................................ 5 Privilege review in e-discovery.................................................................................................. 5 E-filing in federal court.............................................................................................................. 6 Privacy policy ......................................................................................................................... 6 Redaction ................................................................................................................................ 6 Managing a litigation hold ......................................................................................................... 7 General Technology Issues with Ethical Implications.................................................................... 8 Employee practices .................................................................................................................... 8 Mobile devices ........................................................................................................................... 8 Office hardware.......................................................................................................................... 8 Outside services ......................................................................................................................... 9 Law firm web site....................................................................................................................... 9 Office network ........................................................................................................................... 9 David Nuffer United States Magistrate Judge, District of Utah Note: An electronic copy of this outline is at http://www.utd.uscourts.gov/judges/nuffer_resources.htm#Continuing. That version includes working hyperlinks. Send any corrections or suggestions to [email protected]. This page is intentionally blank for two-sided printing. 2 Scope of Responsibility1 Rule 5.1 Responsibilities Of Partners, Managers, And Supervisory Lawyers (a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct. (b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.2 Rule 5.3 Responsibilities Regarding Nonlawyer Assistants With respect to a nonlawyer employed or retained by or associated with a lawyer: (a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer; (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer . . . .3 Specific Obligations Entrustment Rule 1.15 Safekeeping Property (a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained in the state where the lawyer's office is situated, or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of [five years] after termination of the representation.4 Privilege & Confidentiality Rule 1.6 Confidentiality Of Information (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).5 1 The ethical rules cited are from the ABA Model Rules of Professional Conduct. 2 Model Rules of Professional Conduct Rule 5.19(a) and (b). 3 Model Rules of Professional Conduct Rule 5.3(a) and (b). 4 Model Rules of Professional Conduct Rule 1.15. 5 Model Rules of Professional Conduct Rule 1.6. A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer's supervision.6 Competence Rule 1.1 Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.7 This provision was specifically applied to technology education in a Florida ethics opinion: “The foregoing obligations [regarding metadata] may necessitate a lawyer’s continuing training and education in the use of technology . . . .”8 Rights of Others Rule 4.4 Respect For Rights Of Third Persons (b) A lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.9 Consider Statutory Obligations A business in this State [Nevada] shall not transfer any personal information of a customer through an electronic transmission other than a facsimile to a person outside of the secure system of the business unless the business uses encryption to ensure the security of electronic transmission.10 E-Activities with Ethical Implications Email Email between attorneys and clients A client’s use of an employer’s computer or email system may waive privilege. Under ECPA, the business and consent exceptions may entitle the employer to review all communications on the company system and uses of employer-owned computers or resources (e.g., thumbdrives). Communication in this insecure environment may constitute waiver of privilege. “[A] prudent attorney should consider implementing some precautionary measures to protect his client from losing the privilege and confidentiality of e-mail correspondence that the client may read or send 6 Comment 16 to Model Rules of Professional Conduct Rule 1.6. 7 Model Rules of Professional Conduct Rule 1.1. 8 Professional Ethics of the Florida Bar Ethics Opinion 06-2 (September 15, 2006). 9 Model Rules of Professional Conduct Rule 4.4. 10 N.R.S. 597.970 (effective October 1, 2008). Page 2 in the workplace and to protect himself in any subsequent malpractice suit in which his correspondence with his client has lost its privilege due to workplace monitoring.”11 Similarly, a client may waive privilege by forwarding or sending a copy of an email containing privileged information to someone outside the privilege. An email Martha Stewart sent to counsel contained attorney-client communication – but when she forwarded a copy to her daughter, she waived that privilege.12 A client may forward an email containing an opinion or assessment to a third party, creating the possibility of that person’s reliance on the attorney’s email and an impression of an attorney-client relationship. The attorney should adequately archive email concerning the client to preserve a record of actions taken, communications and advice given, and of decisions made. Unencrypted email should not be used for sensitive communications. A lawyer may transmit information relating to the representation of a client by unencrypted e-mail sent over the Internet without violating the Model Rules of Professional Conduct (1998) because the mode of transmission affords a reasonable expectation of privacy from a technological and legal standpoint. The same privacy accorded U.S. and commercial mail, land-line telephonic transmissions, and facsimiles applies to Internet e-mail. A lawyer should consult with the client and follow her instructions, however, as to the mode of transmitting highly sensitive information relating to the client's representation.13 When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions.14 Consider a warning/disclaimer on your emails15 11 Dion Messer, To: [email protected]: Privilege at Risk?, 23 J. Marshall J. Computer & Info. L. 75, 99 (2004). 12 U.S. v. Stewart, 287 F. Supp. 2d 461, 464 (S.D.N.Y. 2003). The court did find work product protection existed and was not waived. 13 ABA Summary of Formal Opinion 99-413 (March 10, 1999). Full opinion at http://www.abanet.org/cpr/pubs/fo99-413.html. See Helen W. Gunnarson, Should Lawyers Use Email to Communicate with Clients, 92 Ill. B.J. 572 (2004) and Kurt Metzmeier, How to Avoid Losing your License on the Information Superhighway: Ethical Issues Raised by the Use of the Internet in The Practice of Law, 62 Ky. Bar Assn. Bench & Bar 14 (1998) (also found at http://www.legalethics.com/articles.law?auth=metzmeier.txt) for a history of development of ethics opinions on this topic. For a brief look at some international implications, see Lance Johnson, E-Mail Communication for Client Matters -- A Multinational Survey, (June 4, 2000). 14 Comment 17 to Model Rules of Professional Conduct Rule 1.6. 15 David F. Gallagher, When E-Mail Messages Come With a Tail of Legalese, New York Times March 17, 2000; Ronald F. Pol, Email Disclaimers: Fictional Wizardry, 24 No. 9 ACC Docket (October 2006). Email in the office Consider restrictions on forwarding internal email outside the office. Baker & McKenzie suffered the indignity of public disclosure of an exchange of emails between a senior associate and a secretary over his request that she pay a $10 cleaning bill because she spilled ketchup on him at lunch.16 Lotus Notes lets you set security restrictions on copying, printing and forwarding email. Circulating documents outside the firm Exchanging documents in electronic format with clients, or opposing counsel or providing them to the court may reveal more than you want. Concealed data – metadata – may be contained in your electronic document. The most critical metadata could be revision history which will show all revisions and by whom they were made. Microsoft Word stores the following metadata: • Author name • Author initials • Author company or organization name • Author’s computer name • The name of the network server or hard disk where the document is saved • Other file properties and summary information • Non-visible portions of embedded OLE objects • The names of previous document authors • Document revisions and attributions • Document versions • Template and style information • Hidden text or cells • Personalized views • Comments Microsoft resource: Control metadata in your legal documents Corel resource: How can I remove metadata from WordPerfect documents? Background: http://www.hricik.com/eethics/Metadata1103.doc 16 http://www.snopes.com/embarrass/email/ketchup.asp. New York: Lawyers have a duty under DR 4-101 to use reasonable care when transmitting documents by e-mail to prevent the disclosure of metadata containing client confidences or secrets.17 Florida: A lawyer who is sending an electronic document should take care to ensure the confidentiality of all information contained in the document, including metadata.18 Maryland: An attorney has a duty to remove metadata from electronic discovery before sending it.19 When you receive electronic documents with metadata ABA: The Model Rules of Professional Conduct do not contain any specific prohibition against a lawyer’s reviewing and using embedded information in electronic documents, whether received from opposing counsel, an adverse party, or an agent of an adverse party.20 New York: A lawyer may not make use of computer software applications to surreptitiously "get behind" visible documents or to trace e-mail.21 Florida: A lawyer receiving an electronic document should not try to obtain information from metadata that the lawyer knows or should know is not intended for the receiving lawyer. A lawyer who inadvertently receives information via metadata in an electronic document should notify the sender of the information's receipt. The opinion is not intended to address metadata in the context of discovery documents.22 Maryland: Maryland does not have new Rule 4.4(b) and therefore a Maryland attorney receiving metadata in a state court matter, in the absence of an agreement to the contrary, need not notify the sending attorney. Federal Rule of Civil Procedure 26(b)(5) creates a different result in federal court proceedings.23 Privilege review in e-discovery It is increasingly common to deliver large quantities of electronic information in response to a discovery request, without filtering it for responsiveness or privilege, under an agreement that there is no privilege waiver. How can this be reconciled with the lawyer’s duties o o to preserve confidences? to act with diligence? There is a substantial risk of waiver of the privilege as to third parties who are not bound by the agreement.24 17 New York State Bar Association Ethics Opinion 782 (December 8, 2004). 18 Professional Ethics of the Florida Bar Ethics Opinion 06-2 (September 15, 2006). 19 Maryland State Bar Association Committee on Ethics Ethics Docket no. 2007-09. 20 ABA Formal Ethics Opinion 06-442 (August 6, 2006). 21 New York State Bar Association Ethics Opinion 749 (December 14, 2001). 22 Professional Ethics of the Florida Bar Ethics Opinion 06-2 (September 15, 2006). 23 Maryland State Bar Association Committee on Ethics Ethics Docket no. 2007-09. 24 Laura Catherine Daniel, The Dubious Origins and Dangers of Clawback and Quick-Peek Agreements: An Argument Against Their Codification in the Federal Rules of Civil Procedure, 47 Wm. & Mary L. Rev. 663 (2005); Koch Materials Co. v. Shore Slurry Seal, Inc., 208 F.R.D. 109, 118 (D.N.J. 2002) “Courts generally frown upon "blanket" disclosure provisions as contrary to relevant jurisprudence. In particular, the court observes that such blanket provisions, essentially immunizing attorneys from negligent handling of documents, could lead to sloppy E-filing in federal court Privacy policy The federal courts’ privacy policy will be stated in a new Rule 5.2 of the Federal Rules of Civil Procedure.25 The policy is in effect now; the rule will be effective December 1, 2007. Rule 5.2. Privacy Protection For Filings Made with the Court (a) Redacted Filings. Unless the court orders otherwise, in an electronic or paper filing with the court that contains an individual’s social-security number, taxpayer-identification number, or birth date, the name of an individual known to be a minor, or a financial-account number, a party or nonparty making the filing may include only: (1) the last four digits of the social-security number and taxpayer- identification number; (2) the year of the individual’s birth; (3) the minor’s initials; and (4) the last four digits of the financial-account number. The policy is most often violated in exhibits and attachments, but quite often counsel seem entirely unaware and unable to comply. What obligations will accrue to counsel who fail to protect client identifying information – leading to identity theft? What liabilities will accrue to opposing counsel who fails to protect identifying information? At least one court has indicated contempt sanctions would be available against counsel who fail to redact.26 In response to the order to show cause, counsel stated “the undersigned has instituted procedures in his office whereby both he and his staff are to thoroughly review each and every exhibit, line by line, to further prevent a reoccurrence of the violation.”27 Redaction Since all documents filed in CM/ECF (the federal court filing system) must be in PDF format, it is essential to understand redaction of PDF documents. Placing graphics over text is not effective redaction in Acrobat. Acrobat Standard and Professional 8 include redaction tools. attorney review and improper disclosure which could jeopardize clients' cases.” See also Colin P. Marks, Corporate Investigations, Attorney-Client Privilege, and Selective Waiver: Is a Half-Privilege Worth Having at All?, 30 Seattle U. L. Rev. 155 (2006). 25 Proposed Fed. R. Civ. 5.2 as contained in the Advisory Committee Report. A similar rule is proposed for criminal cases. Proposed Fed. R. Crim. P. 49.1. 26 Luster v. City of Lebanon, No. 04-663-MJR, 2007 WL 61859 (S. D. Ill. January 8, 2007). 27 Response to Order to Show Cause at 3, docket no. 173, filed January 22, 2007, Luster v. City of Lebanon, No. 04- 663-MJR, S. D. Ill. This document appears redacted: But the text behind the graphics is entirely available for copying, searching, etc. 4.) In negotiations with Google, this request was later narrowed to a "multi-stage random" sampling of one million URLs in Google's indexed database. As represented to the Court at oral argument, the Government now seeks only 50,000 URLs from Google's search index. Second, the government also initially sought "[a]ll queries that have been entered on your company's search engine between June 1, 2005 and July 31, 2005 inclusive." (Subpoena at 4.) Following further negotiations with Google, the Government narrowed this request to all queries that have been entered on the Google search engine during a one-week period. During the course of the present Miscellaneous Action, the Government further restricted the scope of its request, and now represents that it only requires 5,000 entries from Google's query log in order to meet its discovery needs. Managing a litigation hold In re Prudential Ins. Co. Sales Practices Litig., (D.N.J. 1997). While there is no proof that Prudential, through its employees, engaged in conduct intended to thwart discovery through the purposeful destruction of documents, its haphazard and uncoordinated approach to document retention indisputably denies its party opponents potential evidence to establish facts in dispute. Because the destroyed records in Cambridge are permanently lost, the Court will draw the inference that the destroyed materials are relevant and if available would lead to the proof of a claim. . . . When the September 15, 1995 Court Order to preserve documents was entered, it became the obligation of senior management to initiate a comprehensive document preservation plan and to distribute it to all employees. . . . The Court finds that the document destruction, particularly in the Cambridge, Massachusetts office, caused harm to party opponents. Over 9,000 files were cleansed. . . . Within ten (10) days after the issuance of this Opinion, Prudential shall pay to the Clerk of the United States District Court for the District of New Jersey, the sum of One Million Dollars ($1,000,000). General Technology Issues with Ethical Implications Employee practices o Screen employees before hiring – check references o Train all employees on confidentiality, proper email use, and security for network, mobile devices and storage o Make all employees aware of court privacy policy, redaction issues, and metadata o Evaluate each employee periodically for compliance with procedures and understanding o Have written agreements with non-lawyers to bind them to confidentiality obligations o Establish no expectation of privacy in portable data devices, email, computer and network storage and internet use28 o Place policy and technical limits on user installed software and violation of copyright and licenses o Make sure that passwords are protected; terminated on change of employment o Password lists must be secure Standard password advice: (cid:131) Require a password for any computer or network access; (cid:131) People who share jobs do not share passwords; (cid:131) Require that passwords be used to be difficult to decipher. Passwords should be at least seven characters long; should contain letters and numbers or characters (@, *, and so on); should never contain a person’s name; and should never be written down near the computer; (cid:131) Prohibit use of guest (“Temp1”) or default passwords or logons; (cid:131) Require passwords to be updated or changed every four to six months; and (cid:131) Have a central secure location for the firm to record all passwords in use.29 Mobile devices Laptops require a sign-on to access any data or programs and are equipped with updated security tools (consider biometric) Any remote wireless access is to a trusted service, not to a free host Any VPN software is accompanied by firewall Thumbdrives require a password and encrypt data Password protection on PDAs and phones with contact / calendar information Scheduled inventory day when all equipment must be in the office Office hardware Limit the number of recordable CD and DVD drives Dispose of hardware responsibly 28 The Electronic Communications Privacy Act of 1986 “prohibits the intentional or willful interception, accession, disclosure, or use of one's electronic communication” but is subject to business provider and consent exceptions. Sarah DiLuzio, Comment, Workplace E-Mail: It’s Not as Private as You Might Think, 25 Del. J. Corp. L. 741, 745 (2000). 29 David Kricik, Protecting Portable Confidences, E-Ethics Vol. 1, No. VII (March 2002). Outside services If you use an outside technical consultant or service, obligate them to confidentiality. “A lawyer who gives a computer maintenance company access to information in client files must make reasonable efforts to ensure that the company has in place, or will establish, reasonable procedures to protect the confidentiality of client information. Should a significant breach of confidentiality occur, the lawyer may be obligated to disclose it to the client.”30 This may apply to off-site backup, data entry services, network administrators, copy services, and forensic consultants. Law firm web site Be sure you are licensed in any state in which you may attempt to collect fees. 31 Unsolicited email from prospective clients may create an attorney-client relationship or provide confidential information that disqualifies the firm from adverse representation.32 Consider web site disclaimers that state, essentially, that any information sent by e-mail before the firm agrees to represent the transmitting party will not be held to be confidential by the firm.33 Office network An office network holding sensitive personal information should comply with industry standards.34 Take special precautions with a wireless network.35 Assign responsibility to monitor network threats36 and keep current in the industr y: Sniffer – traffic interceptor that can capture email, web site visits and sniffer may also be used for legitimate passwords used. The network monitoring. Spoofer – imposter email server that copies all email intended for a Keylog legitimate server. ger – hidden software or hardware that records every keystroke data input, including logins, a computer, and thus captures all passwords, and message traffic. on Screen grabber – takes periodic shots of whatever is on the computer screen. 30 Summary of ABA Formal Opinion 95-398 Access of Nonlawyers to a Lawyer's Data Base (October 27, 1995). 31 Birbrower, Montalbano, Condon & Frank v. Superior Court, 949 P.2d 1 (Cal. 1998). 32 Douglas K. Schnell, Don’t Just Hit Send: Unsolicited E-Mail and the Attorney-Client Relationship, 17 Harv. J. L & Tech 533 (2004). 33 David Hricik, Whoops! I did it Again! What Britney Spears Can Teach Us About the Ethical Issues Arising From the Intentional Transmission of Confidences From Prospective Clients to Firms, E- Ethics Vol. III, No. I, (2004) and David Hricik, To Whom It May Concern: Using Disclaimers to Avoid Disqualification by Receipt of Unsolicited E- Mail from Prospective Clients, 16 Professional Lawyer 1 (2005). 34 Protecting Personal Information: A Guide for Business, available at http://www.ftc.gov/infosecurity. 35 http://www.practicallynetworked.com/support/wireless_secure.htm ; http://www.pcmag.com/article2/0,4149,844020,00.asp; http://compnetworking.about.com/od/wirelesssecurity/tp/wifisecurity.htm 36 See wikipedia for basic information on any of these threats. Data miner – software that gathers and amalgamates data from the internet and informatio n services. Virus and worm – self replicating attack software wit h or without human intervention. Intrusions – i Zombie nvasion of network for any purpose. – takes possession of all or pa programs. (Recently used to host child pornography sites and run related rt of a server to run illicit e-commerce.) C apture computer resource such as a web cam or microphone for spy purposes. or ing to the 2005 CSI/FBI Computer Security Survey,37 we have a long way Acc d to go: (cid:131) Average annual expenditure per employee for computer security is $240 – 750. Legal industry average is $40. (cid:131) The legal ind ustry self reports the least satisfaction (2.5 out of 7) with the amount spent on Security Awareness training. High tech report satisfaction. s 4.5 (cid:131) Over 50% of those responding to the survey had an incident of unauthorized use in l ast 12 months. (cid:131) Only 20% of computer crime is reported to law enforcement. Only 16% is reported to counsel. (cid:131) The range of attacks is broad – almost 100% of web sites are attacked. Note: An electronic copy of this outline is at http://www.utd.uscourts.gov/judges/nuffer_resources.htm#Continuing That version includes working hyperlinks. Send any corrections or suggestions to [email protected]. . 37 http://www.gocsi.com/forms/fbi/csi_fbi_survey.jhtml. Page 10

=== E-Ethics ===

E – Ethics: Ethical Issues for Lawyers in the Electronic Age Arkansas State Bar Annual Meeting June 8, 2007 Table of Contents Scope of Responsibility .................................................................................................................. 1 Specific Obligations........................................................................................................................ 1 Entrustment ................................................................................................................................ 1 Privilege & Confidentiality........................................................................................................ 1 Competence................................................................................................................................ 2 Rights of Others ......................................................................................................................... 2 E-Activities with Ethical Implications............................................................................................ 2 Email .......................................................................................................................................... 2 Email between attorneys and clients....................................................................................... 2 Email in the office................................................................................................................... 4 Circulating documents outside the firm ..................................................................................... 4 When you receive electronic documents with metadata ............................................................ 5 Privilege review in e-discovery.................................................................................................. 5 E-filing in federal court.............................................................................................................. 6 Privacy policy ......................................................................................................................... 6 Redaction ................................................................................................................................ 6 Managing a litigation hold ......................................................................................................... 7 General Technology Issues with Ethical Implications.................................................................... 8 Employee practices .................................................................................................................... 8 Mobile devices ........................................................................................................................... 8 Office hardware.......................................................................................................................... 8 Outside services ......................................................................................................................... 9 Law firm web site....................................................................................................................... 9 Office network ........................................................................................................................... 9 David Nuffer United States Magistrate Judge, District of Utah Note: An electronic copy of this outline is at http://www.utd.uscourts.gov/judges/nuffer_resources.htm#Continuing. That version includes working hyperlinks. This page is intentionally blank 2 Scope of Responsibility1 Rule 5.1 Responsibilities Of Partners, Managers, And Supervisory Lawyers (a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct. (b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.2 Rule 5.3 Responsibilities Regarding Nonlawyer Assistants With respect to a nonlawyer employed or retained by or associated with a lawyer: (a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer; (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer . . . .3 Specific Obligations Entrustment Rule 1.15 Safekeeping Property (a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained in the state where the lawyer's office is situated, or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of [five years] after termination of the representation.4 Privilege & Confidentiality Rule 1.6 Confidentiality Of Information (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).5 1 The ethical rules cited are from the ABA Model Rules of Professional Conduct. 2 Model Rules of Professional Conduct Rule 5.19a) and (b). Compare Arkansas Rules of Professional Conduct 5.1. 3 Model Rules of Professional Conduct Rule 5.3(a) and (b). Compare Arkansas Rules of Professional Conduct 5.3. 4 Model Rules of Professional Conduct Rule 1.15. Compare Arkansas Rules of Professional Conduct 1.15(a)(1). 5 Model Rules of Professional Conduct Rule 1.6. Compare Arkansas Rules of Professional Conduct 1.6(a) A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer's supervision.6 Competence Rule 1.1 Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.7 This provision was specifically applied to technology education in a Florida ethics opinion: “The foregoing obligations [regarding metadata] may necessitate a lawyer’s continuing training and education in the use of technology . . . .”8 Rights of Others Rule 4.4 Respect For Rights Of Third Persons (b) A lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.9 E-Activities with Ethical Implications Email Email between attorneys and clients A client’s use of an employer’s computer or email system may waive privilege. Under ECPA, the business and consent exceptions may entitle the employer to review all communications on the company system and uses of employer-owned computers or resources (e.g., thumbdrives). Communication in this insecure environment may constitute waiver of privilege. “[A] prudent attorney should consider implementing some precautionary measures to protect his client from losing the privilege and confidentiality of e-mail correspondence that the client may read or send in the workplace and to protect himself in any subsequent malpractice suit in which his correspondence with his client has lost its privilege due to workplace monitoring.”10 6 Comment 16 to Model Rules of Professional Conduct Rule 1.6. 7 Model Rules of Professional Conduct Rule 1.1. This provision was specifically applied to technology education in Professional Ethics of the Florida Bar Ethics Opinion 06-2 (September 15, 2006): “The foregoing obligations [regarding metadata] may necessitate a lawyer’s continuing training and education in the use of technology . . . .” Compare Arkansas Rules of Professional Conduct 1.1. 8 Professional Ethics of the Florida Bar Ethics Opinion 06-2 (September 15, 2006). 9 Model Rules of Professional Conduct Rule 4.4. Compare Arkansas Rules of Professional Conduct 4.4. 10 Dion Messer, To: [email protected]: Privilege at Risk?, 23 J. Marshall J. Computer & Info. L. 75, 99 (2004). Similarly, a client may waive privilege by forwarding or sending a copy of an email containing privileged information to someone outside the privilege and may thereby waive it. An email Martha Stewart sent to counsel contained attorney-client communication – but when she forwarded a copy to her daughter, she waived that privilege.11 A client may forward an email containing an opinion or assessment to a third party, creating the possibility of that person’s reliance on the attorney’s email and an impression of an attorney-client relationship. The attorney should adequately archive email concerning the client to preserve a record of actions taken, communications and advice given, and of decisions made. Unencrypted email should not be used for sensitive communications. A lawyer may transmit information relating to the representation of a client by unencrypted e-mail sent over the Internet without violating the Model Rules of Professional Conduct (1998) because the mode of transmission affords a reasonable expectation of privacy from a technological and legal standpoint. The same privacy accorded U.S. and commercial mail, land-line telephonic transmissions, and facsimiles applies to Internet e-mail. A lawyer should consult with the client and follow her instructions, however, as to the mode of transmitting highly sensitive information relating to the client's representation.12 When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions.13 Consider a warning/disclaimer on your emails14 11 U.S. v. Stewart, 287 F. Supp. 2d 461, 464 (S.D.N.Y. 2003). The court did find work product protection existed and was not waived. 12 ABA Summary of Formal Opinion 99-413 (March 10, 1999). Full opinion at http://www.abanet.org/cpr/pubs/fo99-413.html. See Helen W. Gunnarson, Should Lawyers Use Email to Communicate with Clients, 92 Ill. B.J. 572 (2004) and Kurt Metzmeier, How to Avoid Losing your License on the Information Superhighway: Ethical Issues Raised by the Use of the Internet in The Practice of Law, 62 Ky. Bar Assn. Bench & Bar 14 (1998) (also found at http://www.legalethics.com/articles.law?auth=metzmeier.txt) for a history of development of ethics opinions on this topic. For a brief look at some international implications, see Lance Johnson, E-Mail Communication For Client Matters -- A Multinational Survey, (June 4, 2000). 13 Comment 17 to Model Rules of Professional Conduct Rule 1.6. 14 David F. Gallagher, When E-Mail Messages Come With a Tail of Legalese, New York Times March 17, 2000; Ronald F. Pol, Email Disclaimers: Fictional Wizardry, 24 No. 9 ACC Docket (October 2006). Email in the office Consider restrictions on forwarding internal email outside the office. Baker & McKenzie suffered the indignity of public exchange of emails between a senior associate and a secretary over his request that she pay a $10 cleaning bill because she spilled ketchup on him at lunch.15 For example, Lotus Notes lets you set security restrictions on copying, printing and forwarding email. Circulating documents outside the firm Exchanging documents in electronic format with clients, or opposing counsel or providing them to the court may reveal more than you want. Concealed data – metadata – may be contained in your electronic document. The most critical metadata could be revision history which will show all revisions and by whom they were made. Microsoft Word stores the following metadata: • Author name • Author initials • Author company or organization name • Author’s computer name • The name of the network server or hard disk where the document is saved • Other file properties and summary information • Non-visible portions of embedded OLE objects • The names of previous document authors • Document revisions and attributions • Document versions • Template and style information • Hidden text or cells • Personalized views • Comments Microsoft resource: Control metadata in your legal documents Corel resource: How can I remove metadata from WordPerfect documents? Background: http://www.hricik.com/eethics/Metadata1103.doc 15 http://www.snopes.com/embarrass/email/ketchup.asp. New York: Lawyers have a duty under DR 4-101 to use reasonable care when transmitting documents by e-mail to prevent the disclosure of metadata containing client confidences or secrets.16 Florida: A lawyer who is sending an electronic document should take care to ensure the confidentiality of all information contained in the document, including metadata.17 Maryland: An attorney has a duty to remove metadata from electronic discovery before sending it.18 When you receive electronic documents with metadata ABA: The Model Rules of Professional Conduct do not contain any specific prohibition against a lawyer’s reviewing and using embedded information in electronic documents, whether received from opposing counsel, an adverse party, or an agent of an adverse party.19 New York: A lawyer may not make use of computer software applications to surreptitiously "get behind" visible documents or to trace e-mail.20 Florida: A lawyer receiving an electronic document should not try to obtain information from metadata that the lawyer knows or should know is not intended for the receiving lawyer. A lawyer who inadvertently receives information via metadata in an electronic document should notify the sender of the information's receipt. The opinion is not intended to address metadata in the context of discovery documents.21 Maryland: Maryland does not have new Rule 4.4(b) and therefore a Maryland attorney receiving metadata in a state court matter, in the absence of an agreement to the contrary, need not notify the sending attorney. Federal Rule of Civil Procedure 26(b)(5) creates a different result in federal court proceedings.22 Privilege review in e-discovery It is increasingly common to deliver large quantities of electronic information in response to a discovery request, without filtering it for responsiveness or privilege, under an agreement that there is no privilege waiver. How can this be reconciled with the lawyer’s duties o o to preserve confidences? to act with diligence? There is a substantial risk of waiver of the privilege as to third parties who are not bound by the agreement.23 16 New York State Bar Association Ethics Opinion 782 (December 8, 2004). 17 Professional Ethics of the Florida Bar Ethics Opinion 06-2 (September 15, 2006). 18 Maryland State Bar Association Committee on Ethics Ethics Docket no. 2007-09. 19 ABA Formal Ethics Opinion 06-442 (August 6, 2006). 20 New York State Bar Association Ethics Opinion 749 (December 14, 2001). 21 Professional Ethics of the Florida Bar Ethics Opinion 06-2 (September 15, 2006). 22 Maryland State Bar Association Committee on Ethics Ethics Docket no. 2007-09. 23 Laura Catherine Daniel, The Dubious Origins and Dangers of Clawback and Quick-Peek Agreements: An Argument Against Their Codification in the Federal Rules of Civil Procedure, 47 Wm. & Mary L. Rev. 663 (2005); Koch Materials Co. v. Shore Slurry Seal, Inc., 208 F.R.D. 109, 118 (D.N.J. 2002) “Courts generally frown upon "blanket" disclosure provisions as contrary to relevant jurisprudence. In particular, the court observes that such blanket provisions, essentially immunizing attorneys from negligent handling of documents, could lead to sloppy E-filing in federal court Privacy policy The federal courts’ privacy policy will be stated in a new Rule 5.2 of the Federal Rules of Civil Procedure.24 The policy is in effect now; the rule will be effective December 1, 2007. Rule 5.2. Privacy Protection For Filings Made with the Court (a) Redacted Filings. Unless the court orders otherwise, in an electronic or paper filing with the court that contains an individual’s social-security number, taxpayer-identification number, or birth date, the name of an individual known to be a minor, or a financial-account number, a party or nonparty making the filing may include only: (1) the last four digits of the social-security number and taxpayer- identification number; (2) the year of the individual’s birth; (3) the minor’s initials; and (4) the last four digits of the financial-account number. The policy is most often violated in exhibits and attachments, but quite often counsel seem entirely unaware and unable to comply. What obligations will accrue to counsel who fail to protect client identifying information – leading to identity theft? What liabilities will accrue to opposing counsel who fails to protect identifying information? At least one court has indicated contempt sanctions would be available against counsel who fail to redact.25 In response to the order to show case, counsel stated “the undersigned has instituted procedures in his office whereby both he and his staff are to thoroughly review each and every exhibit, line by line, to further prevent a reoccurrence of the violation.”26 Redaction Since all documents filed in CM/ECF, the federal court filing system, must be in PDF format, it is essential to understand redaction of PDF documents. Placing graphics over text is not effective redaction in Acrobat. Acrobat Standard and Professional 8 include redaction tools. attorney review and improper disclosure which could jeopardize clients' cases.” See also Colin P. Marks, Corporate Investigations, Attorney-Client Privilege, and Selective Waiver: Is a Half-Privilege Worth Having at All?, 30 Seattle U. L. Rev. 155 (2006). 24 Proposed Fed. R. Civ. 5.2 as contained in the Advisory Committee Report. A similar rule is proposed for criminal cases. Proposed Fed. R. Crim. P. 49.1. 25 Charles A. Luster v. City of Lebanon, et al., No. 04-663-MJR, 2007 WL 61859 (S. D. Ill. January 8, 2007). 26 Response to Order to Show Cause at 3, docket no. 173, filed January 22, 2007, Charles A. Luster v. City of Lebanon, et al., No. 04-663-MJR, S. D. Ill. This document appears redacted: But the text behind the graphics is entirely available for copying, searching, etc. 4.) In negotiations with Google, this request was later narrowed to a "multi-stage random" sampling of one million URLs in Google's indexed database. As represented to the Court at oral argument, the Government now seeks only 50,000 URLs from Google's search index. Second, the government also initially sought "[a]ll queries that have been entered on your company's search engine between June 1, 2005 and July 31, 2005 inclusive." (Subpoena at 4.) Following further negotiations with Google, the Government narrowed this request to all queries that have been entered on the Google search engine during a one-week period. During the course of the present Miscellaneous Action, the Government further restricted the scope of its request, and now represents that it only requires 5,000 entries from Google's query log in order to meet its discovery needs. Managing a litigation hold In re Prudential Ins. Co. Sales Practices Litig., (D.N.J. 1997). While there is no proof that Prudential, through its employees, engaged in conduct intended to thwart discovery through the purposeful destruction of documents, its haphazard and uncoordinated approach to document retention indisputably denies its party opponents potential evidence to establish facts in dispute. Because the destroyed records in Cambridge are permanently lost, the Court will draw the inference that the destroyed materials are relevant and if available would lead to the proof of a claim. . . . When the September 15, 1995 Court Order to preserve documents was entered, it became the obligation of senior management to initiate a comprehensive document preservation plan and to distribute it to all employees. . . . The Court finds that the document destruction, particularly in the Cambridge, Massachusetts office, caused harm to party opponents. Over 9,000 files were cleansed. . . . Within ten (10) days after the issuance of this Opinion, Prudential shall pay to the Clerk of the United States District Court for the District of New Jersey, the sum of One Million Dollars ($1,000,000). General Technology Issues with Ethical Implications Employee practices o Screen employees before hiring – check references o Train all employees on confidentiality, proper email use, and security for network, mobile devices and storage o Make all employees aware of court privacy policy, redaction issues, and metadata o Evaluate each employee periodically for compliance with procedures and understanding o Have written agreements with non-lawyers to bind them to confidentiality obligations o Establish no expectation of privacy in portable data devices, email, computer and network storage and internet use27 o Place policy and technical limits on user installed software and violation of copyright and licenses o Make sure that passwords are protected; terminated on change of employment o Password lists must be secure Standard password advice: (cid:131) Require a password for any computer or network access; (cid:131) People who share jobs do not share passwords; (cid:131) Require that passwords be used to be difficult to decipher. Passwords should be at least seven characters long; should contain letters and numbers or characters (@, *, and so on); should never contain a person’s name; and should never be written down near the computer; (cid:131) Prohibit use of guest (“Temp1”) or default passwords or logons; (cid:131) Require passwords to be updated or changed every four to six months; and (cid:131) Have a central secure location for the firm to record all passwords in use.28 Mobile devices Laptops require a sign-on to access any data or programs and are equipped with updated security tools (consider biometric) Any remote wireless access is to a trusted service, not to a free host Any VPN software is accompanied by firewall Thumbdrives require a password and encrypt data Password protection on PDAs and phones with contact / calendar information Scheduled inventory day when all equipment must be in the office Office hardware Limit the number of recordable CD and DVD drives 27 The Electronic Communications Privacy Act of 1986 “prohibits the intentional or willful interception, accession, disclosure, or use of one's electronic communication” but is subject to business provider and consent exceptions. Sarah DiLuzio, Comment, Workplace E-Mail: It’s Not as Private as You Might Think, 25 Del. J. Corp. L. 741, 745 (2000). 28 David Kricik, Protecting Portable Confidences, E-Ethics Vol. 1, No. VII (March 2002). Outside services If you use an outside technical consultant or service, obligate them to confidentiality. “A lawyer who gives a computer maintenance company access to information in client files must make reasonable efforts to ensure that the company has in place, or will establish, reasonable procedures to protect the confidentiality of client information. Should a significant breach of confidentiality occur, the lawyer may be obligated to disclose it to the client.”29 This may apply to off-site backup, data entry services, network administrators, copy services, and forensic consultants. Law firm web site Be sure you are licensed in any state in which you may attempt to collect fees. 30 Unsolicited email from prospective clients may create an attorney-client relationship or provide confidential information that disqualifies the firm from adverse representation.31 Consider web site disclaimers that state, essentially, that any information sent by e-mail before the firm agrees to represent the transmitting party will not be held to be confidential by the firm.32 Office network Take special precautions with a wireless network.33 Assign responsibility to monitor network threats34 and keep current in the industr y: Sniffer – traffic interceptor that can capture email, website visits and sniffer may also be used for legitimate passwords used. The network monitoring. Spoofer – imposter email server that copies all email intended for a Keylog legitimate server. ger – hidden software or hardware that records every keystroke a computer, and thus captures all data input, including logins, passwords, and message traffic on Screen grabber – takes periodic shots of whatever is on the computer scree Data m s and amalgamates data from the internet Virus a lf replicating attack software with or without human iner – software that gather and information services nd worm – se intervention Intrusions – invasion of network for any purpose. 29 Summary of ABA Formal Opinion 95-398 Access of Nonlawyers to a Lawyer's Data Base (October 27, 1995). 30 . Birbrower, Montalbano, Condon & Frank v. Superior Court, 17 Cal.4th 119, 949 P.2d 1 (1998). 31 Douglas K. Schnell, Don’t Just Hit Send: Unsolicited E-Mail and the Attorney-Client Relationship, 17 Harv. J. L & Tech 533 (2004). 32 David Hricik, Whoops! I did it Again! What Britney Spears Can Teach Us About the Ethical Issues Arising From the Intentional Transmission of Confidences From Prospective Clients to Firms, E- Ethics Vol. III, No. I, (2004) and David Hricik, To Whom It May Concern: Using Disclaimers to Avoid Disqualification by Receipt of Unsolicited E- Mail from Prospective Clients, 16 Professional Lawyer 1 (2005). 33 http://www.practicallynetworked.com/support/wireless_secure.htm ; http://www.pcmag.com/article2/0,4149,844020,00.asp; http://compnetworking.about.com/od/wirelesssecurity/tp/wifisecurity.htm 34 See wikipedia for basic information on any of these threats. Zombie – takes possession of all or part of a server to run illicit programs. (Recently used to host child pornography sites and run related e-commerce.) Capture computer resource such as a web cam or microphone for spy purposes According to the 2005 CSI/FBI Computer Security Survey,35 we have a long way to go: (cid:131) Average annual expenditure per employee for computer security is $240 – 750. Legal industry average is $40. (cid:131) Over 50% of those responding to the survey had an incident of unauthorized use in last 12 months. (cid:131) The legal industry self reports the least satisfaction (2.5 out of 7) with the amount spent on Security Awareness training.. High tech reports 4.5 satisfaction. (cid:131) Only 20% of computer crime is reported to law enforcement. Only 16% is reported to counsel. (cid:131) The range of attacks is broad – almost 100% of web sites are attacked. Note: An electronic copy of this outline is at http://www.utd.uscourts.gov/judges/nuffer_resources.htm#Continuing. That version includes working hyperlinks. 35 http://www.gocsi.com/forms/fbi/csi_fbi_survey.jhtml. Page 10

=== Lay Participation in Criminal Justice ===

Lay Participation in Criminal Justicea David Nufferb I will discuss the concept of lay – that is, non-professional – participation in criminal court procedure. First, I will review various means of lay participation in world criminal justice systems and summarize variant features of these many systems. Second, I will discuss analysis and benefits of lay participation in the criminal process as drawn from current academic literature. Finally, I conclude with my assessment that the benefits of lay participation in the criminal process are so significant that citizens should seek the opportunity to participate and that no government should forgo the benefits of lay participation. Introduction I speak to you in my context as an American judge, formerly an American prosecutor and defense lawyer before becoming a judge. Thousands of criminal jury trials are held in the United States every year, but those cases which go to trial are themselves only a small fraction of all criminal cases. Most criminal cases are resolved by plea negotiations because the parties and lawyers know the likely result from a jury trial on the facts of their case. Predictability makes most cases susceptible of evaluation and negotiated plea. But in all criminal cases, the right to a jury trial has a determinative impact on the outcome, even if no trial is held. The likely outcome of such a trial is the lodestar by which all decisions are made to take a case to trial or negotiate a plea. It is only when the outcome is reasonably in doubt that the prosecution and defense cannot make a decision as to the outcome that trial is held. Significant safeguards ensure that no defendant is disadvantaged in a negotiated plea. These safeguards include the public nature of all the proceedings and documents and the unfettered access of citizens and the press to the process; the defendant’s complete access to the information developed by the prosecution and investigators; the right of the defendant to the assistance of counsel (including capable counsel appointed at government expense if the defendant is too poor to retain an attorney); a lengthy plea agreement document; a searching colloquy between the judge and defendant in the presence of counsel to ensure that the agreement and its consequences are understood, that there is a factual basis for the plea, and that the defendant is competent and acting freely; and readily available direct appellate and collateral review to give careful scrutiny to the process. Those safeguards are essential to the perspective from which I speak. Models There are many models for lay participation in the criminal process. Two are in use in the United States – the use of a grand jury to make charging decisions – and the use of the trial a Emily Stubbs, articles editor of the BYU Law Review, contributed substantial research assistance in preparation of this article. b United States Magistrate Judge, District of Utah. 1 jury to decide guilt. But other nations have many other ways for citizens to participate in criminal justice. Grand Jury A grand jury is “[a] body of (often 23) people who are chosen to sit permanently for at least a month—and sometimes a year—and who, in ex parte proceedings, decide whether to issue indictments. If the grand jury decides that evidence is strong enough to hold a suspect for trial, it returns a bill of indictment (a true bill) charging the suspect with a specific crime.”1 The grand jury serves two functions: “One is a screening function; the grand jury evaluates evidence supporting possible charges and returns an indictment only in those cases in which the evidence amounts to at least probable cause. The other is an investigatorial function; the grand jury sometimes develops information that is of value in determining whether grounds for a charge exist and—perhaps incidentally—in proving that charge at the defendant's later criminal trial.”2 The Japanese have bodies with a similar function in their criminal system called Prosecution Review Commissions. These commissions have eleven lay participants that review the prosecutor’s decision to prosecute or not.3 The Prosecution Review Commission’s decision is not, however, binding and cannot initiate charges, but may only review them.4 Private Prosecution Model All citizens in Spain, whether or not they are the victim of the crime, may initiate a prosecution against another person.5 The option of private prosecution arose in Spain because of a corrupted and understaffed public prosecution system. Private prosecution is allowed for all major and minor crimes except for those under the jurisdiction of the military or those involving minors. Some criticisms of the system are that defendants may have to face two prosecutions instead of one – the private and public – and that the system is vulnerable to manipulation for political and financial purposes. Mixed Tribunals Mixed adjudicating tribunals are very popular in Europe and differ from the jury system in that the lay participants collaborate with professional judges to reach a verdict, rather than just getting instructions from the professional judge and making an independent decision. In Germany, the classic Schöffen Court has a panel of one professional judge and two lay 1 Black’s Law Dictionary (8th ed. 2004) (citations omitted). 2 FRANK W. MILLER ET AL., CASES AND MATERIALS ON CRIMINAL JUSTICE ADMINISTRATION 546 (3d ed. 1986). 3 Kent Anderson & Mark Nolan, Lay Participation in the Japanese Justice System: A Few Preliminary Thoughts Regarding the Lay Assesor System (Saiban-in Seido) from Domestic Historical and International Psychological Perspectives, 37 VAND. J. TRANSNAT’L L. 935, 965 (2004). 4 Joseph J. Kodner, Re-Introducing Lay Participation to Japanese Criminal Cases: An Awkward Yet Necessary Step, 2 WASH. U. GLOBAL STUD. L. REV. 231, 236 (2003). 5 Julio Perez Gil, Private Interests Seeking Punishment: Prosecution Brought by Private Individuals and Groups in Spain, 25 LAW & POLICY 151(2003). 2 assessors.6 The French collaborative court model, cour d’ assises, is a variation During deliberation, the three professional judges collaborate with the nine jurés, but then the jury votes secretly.7 Several European countries have adopted some variation or combination of the French and/or German systems.8 Mixed tribunals are also seen outside of Europe in such countries as China.9 Most countries that use mixed adjudicating tribunals attempt to give the lay judges the same rights and access to information as professional judges.10 In almost all countries with a mixed tribunal, no matter how much the system attempts to equalize the lay and professional judges, there are reports that professional judges exert too much influence.11 Pure Lay Judge Model A pure lay judge system has been instituted in a handful of countries to try minor cases.12 In the United States, these are often justice courts or magistrate courts. These lay judges may sit by themselves, or with clerks of the court who may provide guidance.13 When assisted, the lay judges usually have broader jurisdiction, but when sitting independently, their jurisdiction is usually limited.14 Other Non Law Trained Judges There are other systems which use non-law trained judges. One of these is the expert assessor system in which two or three specialists in certain fields work collaboratively with professional judges in complex criminal cases.15 These lay participants have special training outside of the field of law, and participate to help professional judges understand a complex issue more fully. Countries including Croatia, France, Germany, Iceland, the Netherlands, and Norway have some variation of this system in place.16 Other Non Adjudication Systems Using Lay Persons There are many new developments using lay participants. Many of these arise out of the movements for therapeutic or restorative justice, and some are modeled on traditional dispute resolution systems prevalent in the culture. These systems may express some dissatisfaction with the social utility of adjudication in terms of legal rights, as they often require holistic 6 John D. Jackson & Nikolay P. Kovalev, Lay Adjudication and Human Rights in Europe, 13 COLUM. J. EUR. L. 83, 97 (2006). 7 Id. at 97–98. 8 Sanja Kutnjak Ivkovic, An Inside View: Professional Judges’ and Lay Judges’ Support for Mixed Tribunals, 25 LAW & POLICY 93, 94 (2003); Jackson & Kovalev, supra note 6, at 98; Stephan Machura, Fairness, Justice, and Legitimacy: Experiences of People’s Judges in South Russia, 25 LAW & POLICY 123 (2003). 9 Liling Yue, The Lay Assessor System in China, 72 INT. R. OF PENAL LAW 51 (2001). 10 Jackson & Kovalev, supra note 6, at 109. 11 John D. Jackson, Making Juries Accountable, 50 AM. J. COMP. L. 477, 515 (2002); Yue, supra note 9, at 55–56. 12 Jackson & Kovalev supra note 6, at 99. 13 Id. 14 Id.. 15 Id. at 98–99. 16 Id.; Marijke Malsch, Lay Participation in the Netherlands Criminal Law System, 1–2, paper presented at the International Society for the Reform of Criminal Law, The Hague (2003). 3 consideration of non-legal concerns such as victim restitution, offender rehabilitation, relationship restructuring, and the interests of the community at large. Youth Offender Panels are the new primary sentencing method for 10-17 year olds pleading guilty and convicted for the first time in England and Wales. These panels consist of at least two community volunteers and a professional member. 17 The United States uses similar resolution methods in juvenile settings, but beyond sentencing these juvenile resolution models may replace admission of guilt with broader expressions of remorse and inter-personal reconciliation. The Netherlands uses an Echt-Recht conference to involve defendants, victims, and their relatives to come up with the appropriate compensation.18 Everyone participates on a voluntary basis. The program is only available to a defendant who admits the alleged wrong.19 All participants have the opportunity to discuss their feelings about what happened and why and to come up with solutions to restore the relationships that were damaged and make restitution.20 “It appears that 95% of participants in these conferences is satisfied with the procedures and the outcomes.”21 New Zealand also has something similar called Family Group Conferencing.22 All these methods of resolution involve lay persons and give them a voice in an outcome that would otherwise be determined by a law trained judge. These methods echo the rising popularity of arbitration by persons trained in the subject matter such as banking or construction, and mediation conducted by neutrals of all backgrounds. The Adjudicating Jury Adjudicating juries are “alive and mostly well in Australia, Canada, England and Wales, Northern Ireland, the Republic of Ireland, New Zealand, Scotland, the United States and at least 46 other countries and dependencies around the globe.”23 Of course, these jury systems vary, from system to system in many ways. Generally, a jury is “[a] group of persons selected according to law and given the power to decide questions of fact and return a verdict in the case submitted to them.”24 In the common law jury system, jurors serve an independent role as fact-finders: they observe the proceedings take place before them; receive directions from a professional judge; secretly deliberate without input from the professional judge; and present a verdict based on their finding of fact. The professional judge decides any legal issues.25 17 Adam Crawford, Involving Lay People in Criminal Justice, 3 CRIMINOLOGY AND PUBLIC POLICY 101 (2004). 18 Malsch supra note 16, at 5. 19 Id. 20 Id. 21 Id. at 6. 22 Id. 23 NEIL VIDMAR, WORLD JURY SYSTEMS 3 (2000). 24 Black’s Law Dictionary (8th ed. 2004). 25 Jackson & Kovalev, supra note 6, at 95–96. 4 In the civil law jury systems, specifically in continental Europe, judges have a more active role in the process generally and this extends to jury trials.26 “Legislation has in many cases given judges the right to ask juries to reconsider their verdicts and sometimes to send a case for trial before a different jury when they disagreed with the juries' verdict, especially where the jury is disposed to convict the accused.”27 Juries may include anywhere from six to fifteen lay jurors. Which criminal cases will be heard by a jury varies from country to country and is usually defined by the seriousness of the crime. Jurors are often selected randomly from the general population, but there are a few exceptions to that. Whether preemptory challenges against the selection of particular jurors are allowed varies by country, as well as by whom they can be made, i.e. the prosecution, the defense, or the professional judges. In Canada, the impartiality of the jurors is determined by two lay person triers.28 Traditionally a verdict in the common law system must be unanimous, but the continental European system never required unanimity.29 Many common law systems have now abandoned the unanimity requirement as well.30 Variable Factors These different models show us the variable factors that can be used in a lay participation system, which can be suited to the culture of the country and the needs of the times. “[P]olitical culture and tradition are important influences on the jury.”31 There are many factors which may be evaluated in light of political and cultural traditions. • Will lay participants be involved in the prosecution decision, and if so, as a reviewing or initiating and investigating body? • Will lay participants be involved in the determination of guilt, sentence or both? 32 • What type and seriousness of crimes will be heard by jury?33 • Will the jurors be observers or active participants by questioning and directing the order of proof?34 • What will be the size of the jury?35 26 Jackson, supra note 11, at 518. 27 Id. 28 VIDMAR, supra note 23, at 215. 29 Jackson, supra note 11, at 518. 30 Id. 31 VIDMAR, supra note 23, at 13. 32 Id. at 31. 33 See e.g., id. at 7. 34 Id. at 17. 35 Id. at 26, 30. 5 • Will a decision be rendered by a unanimous jury or by a majority – and if so, what degree of majority?36 • What rules will be used to ensure the jury will be representative?37 • Is the jury subject to challenges for cause; what causes will justify striking a juror; who may make such challenges; and how will challenges be decided?38 • Are challenges without cause (peremptory challenges) permitted and by whom, and will there be limitations on the use of these discretionary challenges to prevent racial or gender bias?39 • Will “standby” privileges be permitted allowing a party to defer a prospective juror to later consideration?40 • What protections will be afforded the jury from media intrusion and reporting, during trial and in post trial inquiries of the jury?41 • From which geographical area will a jury be drawn and what grounds will justify a change of venue?42 • Will stays of proceedings be permitted to allow public sentiment to moderate before trial is conducted?43 • What level of information will the parties have about prospective jurors and how much access will be permitted jury consultants?44 • What is the balance of supervision by the court versus independence of the jury?45 This last factor may be the most significant in a civil law tradition. In civil law settings, most testimony is taken in narrative form, rather than by direct and cross examination; the court controls the order of presentation; rules of evidence are not in place; and trial proceedings may be subject to de novo style review rather than deferential review on the record. Implementation of lay participation in a civil law system must consider these traditions. To some extent, this tradition of judicial control is reflected in almost all common law countries which use an adjudicating jury because they require the judge to summarize and 36 VIDMAR, supra note 23, at 26, 31. 37 Id. at 28. 38 Id. at 32. 39 Id.at 34. 40 Id.at 36. 41 Id. 42 Id.at 40. 43 Id. 44 Id.at 41. 45 Id. 6 comment on the evidence. The only countries without this requirement are Scotland, which permits it, and state courts in the United States which generally do not permit it. Other mechanisms for judicial control, affecting the balance of power with the jury, include having the form of the verdict require more information than a binary declaration of guilt or innocence; the power of the judge to grant a directed verdict, a motion for new trial or dismiss the case; the judge’s power to control evidence admission and expert testimony; and appellate review of jury verdicts. General Recommendations for Lay Adjudicating Juries After comparative review of these many systems of lay participation, the commentators suggest that general recommendations can be made: • The jury should be directed on the law in open court, but should adjudicate privately. This ensures the independence of their decision. • Where lay judges and professionals participate jointly, they should have access to the same information and the same voting rights and opportunities to ask questions. • Jurors should be chosen randomly from a wide community. • “[W]ell-resourced public education programs on the rights and duties of lay adjudicators” empower jurors and the jury system.46 • Lay adjudicators should not be “tainted by prejudicial or untested information in the [prosection] dossier;” that is, evidentiary constraints are necessary to protect the jurors’ decision making resources. • “A number of jurisdictions have resorted to strategies such as the use of special juries, challenges, venue change in the case of particularly sensitive trials, and judicial instruction and control over the admissibility of particularly prejudicial information.”47 • “A number of jurisdictions have been considering whether to abolish the unanimity rule in order to override the views of ‘rogue’ jurors and prevent hung juries.”48 This also reduces concerns about individual juror bias. Certainly, any system can benefit from refinement and adjustment as times and needs change. But to some extent, the reviews and recommendations reflect an excessive focus on theoretical perfection of a justice system model. They are so focused on internal examination of the jury system that the essential merits of the system may be overlooked. While a system of 46 Jackson & Kovalev, supra note 6, at 123 47 Jackson, supra note 11, at 480. 48 Id. at 481. 7 professional administrators may be theoretically subject to less uncertainty than a system with lay participation, a system of professionals lacks the substantial benefits of lay participation. And any system, including the system of professional adjudicators, is subject to its own frailties. Benefits of Lay Participation Many sense that lay participation is fundamental to democracy. “Citizen participation reportedly promotes the democratic quality of justice, incorporating public ideas about justice and fairness into trial court decisions.”49 Lay participants essentially humanize the system by virtue of their presence. One of the most often cited reasons for lay participation is to “give citizens a meaningful role in the administration of justice”50 In Japan, the Reform council sought to improve the sense of relationship between citizens and the judicial system. Foremost, [Japan’s] Reform Council wants citizens to participate in criminal proceedings in a ‘meaningful’ and ‘autonomous’ manner. . . . Similarly, the Reform Council believes that greater transparency within the judiciary will create the connection between the citizens of Japan and the legal process that is presently lacking.51 There are two threads to this perceived need for connection between system and citizens. The first thread is citizen education. “First is the idea that if citizens are called for duty, they will learn about and become interested in the judicial system. In turn, with a more educated and involved public, the norms and operations of the judicial system will be brought to the attention of the citizens.” 52 Another benefit from the interface between citizens and system is that the legal system “will be viewed as responsive to and reflective of the needs of general society.” 53 Because lay participants are intimately involved in large numbers, the legal system is benefited by hearing from participants who are not victims or offenders. This citizen-to-system flow of information is perceived to have potential breadth beyond the judiciary. Japan implemented its system in hopes that it would be “a political forum to voice consent or dissent with those norms devised in other political forums such as Parliament.”54 Surveys have shown that “lay participation will expand citizens' understanding of [their] legal system and give ordinary people a feeling of inclusion and confidence in the judicial system.” “[L]ay participants themselves may learn firsthand about the fairness of the courts by observing their own and their fellow citizens' treatment by professional members of mixed tribunals.” In fact, one study found that “citizens who served as jurors seem to have a more positive opinion about the criminal justice system and the courts than citizens who came in contact with the criminal justice system in other ways, such as involvement as a party or a witness.”55 49 Valerie P. Hans, Introduction: Lay Participation in Legal Decision Making, 25 LAW & POLICY 83, 83 (Apr. 2003). 50 Jackson & Kovalev, supra note 6, at 83, 84. 51 Kodner, supra note 4, at 240-41. 52 Anderson & Nolan, supra note 3, at 943. 53 Id. 54 Id. 55 Ivkovic, supra note 8, at 100 (citing Diamond, Shari S. (1993) What Jurors Think: Expectations and Reactions of 8 One writer argues “the most cogent reason for lay participation in judicial matters is the belief that it will produce better justice.” There are two intertwined threads to this argument. First is the notion that laypeople have a wide range of practical experiences and background and, therefore, are best placed to understand and appreciate a defendant's criminality and the appropriate response. The second thread is that professional judges are less capable decision makers in certain situations because they hold narrower life experiences, are disconnected from popular society, over-represent certain segments of society, and either have or develop an institutional bias in favor of the prosecution or the state.56 This objective that “the sound social common sense of the public [be] reflected more directly in trial decisions”57 is amplified by the participation of many lay adjudicators, rather than limited numbers. They “open up decision-making to a greater variety of perspectives and community voices, and . . . may be better able to satisfy the public that there has not been a risk of objective bias.”58 This perception of “better justice” from lay adjudicators is reflected in public opinion polls. Approximately three out of four respondents . . . considered the jury to be a fairer decision maker than a professional judge. The respondents also regarded the jury as not only more fair, but also more accurate, less biased, and more representative of minorities than the professional judge. Overall, the respondents showed an overwhelming support for the jury system: 97% of the respondents viewed the jury system as "somewhat" or "very" important as a national institution. Similarly, eight out of ten respondents evaluated the right to a jury trial as “extremely important,” and the remaining respondents rated this right as “important.” 59 Benefits from Disadvantages Some of the apparent disadvantages of the lay participation models are required for the system to be most beneficial and are outweighed by those benefits. For example, the random nature of assignment is inconvenient to participants, and introduces unpredictability for the judge, lawyers and defendant. But that random selection truly demonstrates the democratic nature of the process. Random selection signifies that virtually every citizen is deemed qualified, and obligated to serve. Citizens Who Serve as Jurors, IN VERDICT: ASSESSING THE CIVIL JURY SYSTEM (ed. R. E. Litan. Washington, D.C.: The Brookings Institution). 56 Anderson & Nolan, supra note 3, at 941–42. 57 Kodner, supra note 4, at 240-41. 58 Jackson & Kovalev, supra note 6, at 92. 59 Ivkovic, supra note 8, at 98. 9 Another apparently disadvantageous feature is the involuntary nature of the service. But this again prevents improper self de-selection from service, ensuring the representative composition and impartiality of the decision makers. The use of lay participants means that they cannot be required to serve for long terms and do not develop expertise, but this prevents undue accumulation of power. This entrustment of power to a changing group of citizens is a continual reminder of the source of governmental power and responsibility. The use of lay adjudicators requires that a trial start, continue uninterrupted and finish in a single stream of consecutive days. This is less convenient than a segmented proceeding conducted by the judge, because a jury trial requires counsel, witnesses, the judge and jurors be present at one time. But this seemingly challenging scheduling issue has benefits. The trial start date is a deadline that motivates agreements in cases where the outcome can be predicted. The unitary nature of trial ensures that evidence is prepared and developed before the trial starts, protecting the defendant from recurrent government attempts to patch up its case. The unitary nature of trial presented to lay adjudicators ensures that the evidence is a relatively cohesive unit, presented in a manner that is comprehensible to the average citizen. This enables all citizens to understand—and review if desired—the events of a trial because they are in the record in a comprehensive comprehensible package. Who is benefited when lay participants are involved in criminal processes? • The defendant – ensuring he is adjudicated by peers, not by an impersonal state. • The criminal justice system – ensuring that it is ultimately accountable to the public. • The public – because the jury is a filter through which the ultimate decision must pass – and thus a check on power entrusted to investigators, prosecutors, and judges. • The government – developing citizen involvement and support and protecting the government from unpopular decisions. • The judge – protecting her from unpopular decisions. • The jurors – letting them participate in the criminal process. Lay participation is not ineffective even when rarely exercised. Less than one per cent of those accused in Scotland are tried before a jury. Of all trials in Scotland, juries heard nearly 8%. In the United States, between 2 and 10% of criminal cases are tried to a jury. That is however, the majority of cases which go to trial. It is the right to the jury trial that is valuable. The right creates the benefit. The knowledge that a jury will decide a case motivates prosecutors to bring charges that can be sustained by common sense, and motivates defendants to make plea arrangements, thus limiting the number of trials which must be held. Lay participation in the criminal process is an important demonstration of citizen authority over the ultimate power of the state. On that principle alone, lay participation is justified—and in government’s own self interest. Government can enrich allegiance and support by facilitating lay participation in the criminal process. Citizenship is improved by the investment and sense of ownership that is obtained by lay participants. 10 Just like every other ownership that enriches life—education, family, club memberships, proficiency in the sports or in the arts—lay participation in criminal process requires inconvenient responsibility and will generate complaints and criticisms. But just as we would not forsake these other life activities, we know that lay participation in the criminal process has net benefits. The opportunity and responsibility for lay participation in the criminal process will enrich the lives of citizens and the position of the state. Every citizen has the right to seek office in the legislative or executive branches of government, even running for the highest offices. Lay participation in the judicial branch is even more accessible, because no special qualifications are needed and the opportunities come to everyone, without the need to campaign or participate in elections. The opportunity of lay participation puts citizens in control of the most fundamental decisions affecting individual freedom, and is a powerful expression of the rights and responsibilities of citizenship. A study of the experience of lay assessors in South Russia concluded that the assessors’ experience made them critical of shortcomings in the legal system. “When asked about reform measures, they mentioned that the personnel of the courts should be better qualified, that the courts should receive a higher budget, and that there was a need for better equipment.” But they also felt that the judges and processes were fair and that they were treated fairly. The experiences of citizen participants can invest them in the judicial system even when they see its shortcomings, so long as they are treated fairly. This study concluded, as do I: “If democracy needs to have roots in a society and is more than a technique to confirm political elites, it calls for public participation in the administration . . . of law.”60 60 Machura, supra note 8, at 146. 11

=== 15 Tips in 15 Minutes ===

David Nuffer U.S. Magistrate Judge Salt Lake City, Utah November 3, 2006 15 Tips in 15 Minutes (1) Get a large virtual desktop with multiple monitors or a large monitor (2) Fill your memoranda and briefs with links to cited authorities E Research (3) Copying short segments (4) Downloading and annotating entire cases Acrobat Tips (5) Download PDF files from CM/ECF (6) Search PDF documents (7) Copy and paste from PDF documents to word processors (8) * Annotate with Highlighter, Underline and Strikethrough tools (9) * Make text box annotations (10)* Save a PDF in RTF format to open in a word processor (11)* Touch Up Text in a PDF file (12) Know the types of PDF files (13)* Convert an Image PDF file to a Text PDF file * = Requires Adobe Acrobat Standard or Professional or equivalent. (14) Preserve links in the PDF conversion process (15) Use WordPerfect X3 to open PDF files 1 4 5 7 12 13 15 16 17 18 19 20 21 22 23 Blue text in this document is a hyperlink. Download it at http://www.utd.uscourts.gov/judges/nuffer_resources.htm Multiple Monitors or Large Monitors Fundamental to the ability to work effectively in the electronic world is an electronic desktop. In the paper world, we work on a large desk to be able to work with many items at once. In the electronic world, a large virtual desktop enables us to work simultaneously with many electronic sources of information while we do our work, which may include electronic composition, analysis and communication. Word Perfect document Adobe Acrobat document (from CM/ECF) Multiple monitors or large monitors allow view of many source documents (Westlaw, Lexis, PACER, CM/ECF, PDF files) while composing other documents (Word or WordPerfect or CM/ECF). Multiple documents from the same application may be viewed side-by-side. Copying and pasting between screens or windows is possible because all monitors are connected to the same computer. (If using multiple monitors, it is best to use identical displays.) Page 1 a large display, showing two windows two monitors side by side, rotated Operating systems since Windows 98 permit creation of a large "virtual display" which spans several physical monitors, if the computer has a video display hardware which can drive two monitors. The capability to have two displays is built into most laptop computers (control panel at right). The dual display features are regulated in the Display Properties control panel, Settings Tab. Microsoft help pages describe how to use multiple displays: Turn_on dual monitor support How to Enable Multiple Display Support Using Windows 98 HOW TO: Set Up and Troubleshoot Multiple Monitors in Windows 2000 (This article includes information on installing multiple display adapters.) HOW TO: Configure and Use Multiple Monitors in Windows XP In many desktop computers, it is possible to use two standard display adapters to drive dual monitors to create a large integrated desktop. Hardware Requirements for Multiple Display Support in Windows 98 Hardware Requirements for Multiple-Display Support in Windows XP Many manufacturers supply single slot display adapters with two heads (cable connections) which support two monitors on each card. More than one can be used in one computer to drive more than two displays. NVIDIA ATI (use keyword "dual display" to search products) Matrox Many display adapters are able to use special software which permits rotation of displays. A rotated flat panel allows the user to "page through" documents and see an entire page at a time on the virtual desktop. The user's experience with electronic documents then resembles use of paper on a physical desktop. NVIDIA software ATI software Dell Laptops with the ATI Mobility Radeon X300 video card have the ability to rotate an external monitor or, if you have a docking station, two monitors may be rotated. Instructions http://www.utd.uscourts.gov/documents/Dual_monitors.html Hyperlinks to Cited Authorities Include hyperlinks to authorities cited in your memoranda by using WestCiteLink or LexLink, part of LexisNexis Citation Tools 2003. See a sample document with hyperlinks. Another sample. Another sample with a table of contents. Sample document with Lexis links. Click on a link in the sample documents or on blue text below in this sample to see how hyperlinks make it easy to find cases, statutes and rules. The tool to create research hyperlinks for Microsoft Word or WordPerfect is free. The person viewing the document incurs Westlaw or Lexis charges. The court has Westlaw and Lexis access. An April 2006 survey of judges' chambers indicates both are used, but Westlaw use is predominant. Watch a video presentation about hyperlinks to cited authorities. (requires Flash player). E-Research To copy short segments from Westlaw Video Demonstrations: Copying and pasting from Lexis Copying and pasting from Westlaw Find the text and select it: Then click TOOLS in the lower right corner and select Copy With Reference: A frame will pop up with the text and reference, and instructions: Click COPY Page 5 and then Paste Special – Unformatted Text to place the text and reference into your word processing document. There will be a little reformatting to do but the essential information is in place. Pasted data Downloading and Annotating Entire Cases Why print from Westlaw or Lexis when storing your cases as e-research lets you copy and paste from those cases directly into your document? And you can even highlight and annotate these cases just like paper print outs. Video Demonstrations: E-Research in Lexis E-Research in Westlaw Find the case/statute/article you want in Westlaw.com Let your cursor pass over the Select Download from the dropdown menu. button in the upper right corner. In the dialog that appears, click on Current Destination Properties. (Setting Properties only has to be done once for the rest of your research career.) In the dialog that appears, select 1. 2. 3. The name of your word processor (Word Perfect if you work for the courts and MS Word if you work anywhere else in the entire world) Single Column (important for readability on the screen) Save these selections as my default destinations (These three steps are set as your future preferences – you won’t have to change them again.) Click Save Deselect “Include a Summary Page” Click “Send Request” You will see a “processing” notice: Then in the File Download box, click SAVE Navigate to the folder where you want to save the document: Name the document something sensible! The Westlaw proposed name is NOT helpful. After the document SAVES Click OPEN If you see a summary page one – you don’t need it – select and delete all the data on that page. When the actual document is on the first page, CONTROL S to SAVE again. Now, as you work through the document (notice how nice it is to read in one column format) you can highlight as you go, and this is in your permanent record. In Word Perfect, the Highlight command is ALT –T ALT-H ALT-O Or you can click the HIGHLIGHT tool on the toolbar. In Word, choose VIEW TOOLBARS REVIEWING TOOLBAR and use the highlighter tool: Downloading documents from CM/ECF Right click the mouse on the document number Name convention: [Docket No.] [Description] [(Related Motion Dkt. No.)] 101 Memorandum in Support (100) Example: Searching PDF Documents Acrobat has two powerful search tools. Video Demonstrations: Find and Search in Acrobat. FIND takes you to each successive instance of a word. SEARCH shows a listing of all instances of a word in the document. Copy and Paste from a PDF document into a word processor Information from a PDF document may be used in other documents in several ways. If the PDF document is text based you may copy and paste, using the Text Select tool. The text may be pasted into any word processor or email program. Annotate PDF Documents Acrobat Standard and Pro have tools to permit Highlighting, Underlining, and Strikethrough. PDF documents can be marked up as easily as paper documents. Video Demonstration: Highlighting, Underlining, and Strikethrough This lower screen shot shows color, which is user selected. While reviewing documents, text boxes can hold margin notes. Video Demonstration: Text Box Annotation in Acrobat This is a text box Save a PDF document in RTF format You may save a PDF document in RTF (Rich Text Format) format resulting in a complete data file with all text in the document, though formatting may not be preserved. This file format can be opened by most word processors. Even if you don’t have Acrobat Standard or Professional, you can save from Acrobat Reader in text format. Touch Up Text Remember the advantage of PDF documents? – that they cannot be changed – not true! The Touch Up Text Tool lets you edit a PDF directly. Great for changing a date, case number or a word or two. Before: After: Know the Types of PDF Documents The court cares what kind of PDF document you file. Video Demonstration: Types of PDF Documents Scanned PDF – large file, not searchable, no copying, no links, fuzzy Text PDF – small file, searchable, copying, links, clear Convert Image PDF to Text PDF You are working with a PDF and find it is a scanned or image PDF. You need the text. But the Text Select Tool does nothing except draw a box. Use the Optical Character Recognition tool in Acrobat Standard or Professional to get the text. The text can then be copied and pasted – and searched. Use PDF Conversion to Preserve Links When you have prepared a document with hyperlinks to research services or with a Table of Contents, make sure the document is converted to PDF format in a way that preserves the hyperlinks. The hyperlinks are present in the word processing document, but not converted into PDF format when the document is prepared for filing. This may result from using a PDF converter that cannot convert hyperlinks or from improper settings on a PDF converter. The filed document contains blue text and underlines that signal links, but there are no operative links. In Microsoft Word, the PDF printer will not convert hyperlinks. Instead, use the special Adobe PDF menu or toolbar buttons to convert Word documents to PDF with hyperlinks. In WordPerfect, the Publish to PDF settings must be set to convert hyperlinks and bookmarks. WordPerfect X3 Opens PDF Files The latest version of WordPerfect will open PDF files. This is another way to get the text out of a PDF document. Formatting will not be perfect, but the text will be there. Page 23 3

=== How E-filers Can Make Chambers Happy ===

Ronald N. Boyce Federal Court Litigation Practice Seminar Salt Lake City, Utah October 27, 2006 David Nuffer U.S. Magistrate Judge How E Filers Can Make Chambers Happy A Look at the Chambers Work E-environment Multiple Monitors Summary NEF Motions Report Download PDF files Annotation, Searching, Copy and Paste Links to case law What Attorneys Can Do to Make Chambers Work Easier Link! – and use PDF conversion that preserves links - - - - to motions to cases, statutes and rules include a Table of Contents to filed documents (in the future) Always File a Text PDF! A Text PDF is smaller, searchable, copyable, and supports links. A Scanned (Image PDF) is large and lifeless. Seek Relief! Pick all the right forms of relief. Ask for expedited relief. Identify Exhibits! Submit proposed orders in word processing format! Questions and Answers 1 4 5 6 7 11 12 13 14 16 17 Blue text in this document is a hyperlink. Download it at http://www.utd.uscourts.gov/judges/nuffer_resources.htm A Look at the Chambers Work E-environment Multiple Monitors or Large Monitors Fundamental to the ability to work effectively in the electronic world is an electronic desktop. In the paper world, we work on a large desk to be able to work with many items at once. In the electronic world, a large virtual desktop enables us to work simultaneously with many electronic sources of information while we do our work, which may include electronic composition, analysis and communication. Word Perfect document Adobe Acrobat document (from CM/ECF) Multiple monitors or large monitors allow view of many source documents (Westlaw, Lexis, PACER, CM/ECF, PDF files) while composing other documents (Word or WordPerfect or CM/ECF). Multiple documents from the same application may be viewed side-by-side. Copying and pasting between screens or windows is possible because all monitors are connected to the same computer. (If using multiple monitors, it is best to use identical displays.) Page 1 a large display, showing two windows two monitors side by side, rotated Operating systems since Windows 98 permit creation of a large "virtual display" which spans several physical monitors, if the computer has a video display hardware which can drive two monitors. The capability to have two displays is built into most laptop computers (control panel at right). The dual display features are regulated in the Display Properties control panel, Settings Tab. Microsoft help pages describe how to use multiple displays: Turn_on dual monitor support How to Enable Multiple Display Support Using Windows 98 HOW TO: Set Up and Troubleshoot Multiple Monitors in Windows 2000 (This article includes information on installing multiple display adapters.) HOW TO: Configure and Use Multiple Monitors in Windows XP In many desktop computers, it is possible to use two standard display adapters to drive dual monitors to create a large integrated desktop. Hardware Requirements for Multiple Display Support in Windows 98 Hardware Requirements for Multiple-Display Support in Windows XP Many manufacturers supply single slot display adapters with two heads (cable connections) which support two monitors on each card. More than one can be used in one computer to drive more than two displays. NVIDIA ATI (use keyword "dual display" to search products) Matrox Many display adapters are able to use special software which permits rotation of displays. A rotated flat panel allows the user to "page through" documents and see an entire page at a time on the virtual desktop. The user's experience with electronic documents then resembles use of paper on a physical desktop. NVIDIA software ATI software Dell Laptops with the ATI Mobility Radeon X300 video card have the ability to rotate an external monitor or, if you have a docking station, two monitors may be rotated. Instructions http://www.utd.uscourts.gov/documents/Dual_monitors.html Summary NEF Many chambers receive a summary Notice of Electronic Filing. It is generated in the early morning hours and includes a summary notice of all filings from the prior day. Implications: Chambers may not know about a filing until the next morning. Chambers may not know more than you include in your docket text. Only the types of relief you request will show on the docket text and title. The Motions Report The motions report is a key action tool for chambers. All documents related to a motion show on the report, with docket text and hyperlinks. Implications: If you don’t file a document as a motion, neither it nor related documents will show on a motion report. If you don’t link a document to a motion, the document will not show on a motion report. If you don’t select multiple forms of relief when filing, the court may not be aware of your requested relief and there is a barrier to granting relief because there is no motion to grant or deny for that specific relief. Downloading documents from CM/ECF Right click the mouse on the document number Name convention: [Docket No.] [Description] [(Related Motion Dkt. No.)] 101 Memorandum in Support (100) Example: Annotating PDF Documents Acrobat Standard and Pro have tools to permit Highlighting, Underlining, and Strikethrough. PDF documents can be marked up as easily as paper documents. This lower screen shot shows color, which is user selected. While reviewing documents, text boxes can hold margin notes. This is a text box Searching PDF Documents Acrobat has two powerful search tools. FIND takes you to each successive instance of a word. SEARCH shows a listing of all instances of a word in the document. Hyperlinks Include hyperlinks to authorities cited in your memoranda by using WestCiteLink or LexLink, part of LexisNexis Citation Tools 2003. See a sample document with hyperlinks. Another sample. Another sample with a table of contents. Sample document with Lexis links. Click on a link in the sample documents or on blue text below in this sample to see how hyperlinks make it easy to find cases, statutes and rules. The tool to create research hyperlinks for Microsoft Word or WordPerfect is free. The person viewing the document incurs Westlaw or Lexis charges. The court has Westlaw and Lexis access. An April 2006 survey of judges' chambers indicates both are used, but Westlaw use is predominant. Watch a video presentation about hyperlinks to cited authorities. (requires Flash player). What Attorneys Can Do to Make Chambers Work Easier Link! – and use PDF conversion that preserves links - - to cases, statutes and rules – use research hyperlinks to motions – when filing link your document to any related motions Select every motion to which your new document relates. Links show in the docket – and ensure the document is on the motion report - - in your Table of Contents – use a table of contents and make it link to filed documents (in the future) – future CM/ECF versions will let you link to docketed documents Always File a Text PDF! Video on PDF Types A Text PDF is smaller, searchable, copyable, and supports links. A Scanned (Image PDF) is large and lifeless. Use PDF Conversion to Preserve Links When you have prepared a document with hyperlinks to research services or with a Table of Contents, make sure the document is converted to PDF format in a way that preserves the hyperlinks. The hyperlinks are present in the word processing document, but not converted into PDF format when the document is prepared for filing. This may result from using a PDF converter that cannot convert hyperlinks or from improper settings on a PDF converter. The filed document contains blue text and underlines that signal links, but there are no operative links. In Microsoft Word, the PDF printer will not convert hyperlinks. Instead, use the special Adobe PDF menu or toolbar buttons to convert Word documents to PDF with hyperlinks. In WordPerfect, the Publish to PDF settings must be set to convert hyperlinks and bookmarks. Seek Relief! Pick all the right forms of relief. Find the right form(s) of relief by using the Attorney Menu Items Report: Select the Civil events or Criminal events report. Use the FIND command to find the event you want. The menu headings are in blue. Select multiple forms of relief by CONTROL-CLICKing. If you want it, be sure to ask for expedited relief. This selection makes sure a motion shows up on the motions reports and that the “expedited” concern shows on the Summary NEF. When including attachments, Identify Exhibits! Only use the CATEGORY if it is truly appropriate Use DESCRIPTION - descriptions may go up to 255 characters! Good DESCRIPTIONS make documents accessible Submit proposed orders in word processing format! (cid:133) Submit the proposed order via email in word processing format. Not PDF format. (cid:133) Send the proposed order to the correct judge. Read the Administrative Procedures. (cid:133) Put at least the case number and case name in the e-mail subject line. (cid:133) Attach the proposed order to the motion in PDF format. Administrative Procedures II. G. Page 17

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Practice Hints for Motions to Compel When starting discovery: • Make the requests clear and narrow • Start early enough to allow time to resolve motion to compel before discovery deadline • Avoid the dialectic dilemma - you think you know what you want and what the opponent has, you ask for a broad range, the opposition understands the request as overbroad and perhaps cannot read what you really want in what you asked When responding to discovery: • Identify documents that are responsive • Make an adequate privilege review and log When negotiating extensions for discovery answers: • • Stipulate to extend time for answers not for objections Stipulate to shorten times for briefing any necessary motions Make the ‘meet and confer’ meaningful: • Get out of the “blame-shifting” mentality of litigation • Meet in person - meet at the net, don’t lob grenades from backcourt • Allow enough time to really discuss and resolve the problem 1 • Collaborate on the appendix for the motion - this process may resolve disputes • Can you stipulate as to the issue? Motion, Memorandum, Declaration, Appendix • Draft assuming you will not argue the motion - don’t expect to be clear later • Clearly state the relief desired Be realistic - dismissal/judgment is unlikely unless conduct is egregious • Don’t neglect to propose a narrowed request • Get courtesy copies to the judge - even if e-filing • • • Notify chambers if briefing is extended by agreement • If the motion is resolved, withdraw it of record If you need to expedite, ask opposing counsel and if counsel does not agree, ask the court Prepare an appendix and submit it in WordPerfect format Arguments not to make: • They did it first • They did it worse • Its bad – because they want it Expenses - Attorney’s Fees • Based on contemporaneously created time records, with detail • • Only include expenses incurred in the motion, not in discovery Justify rates in market 1 DUCivR 37-1(b). The Spectrum of Motions to Compel Worst Cases Most Cases Minor Cases Utter Failure Partial Response Failure to sign Inadequate privilege log Failure to specify documents Disputes about time frame and detail Dissatisfaction with answer Requests construed to create dispute/burden David Nuffer July 2005

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Provisions of Federal and Local District of Utah Rules Regarding Motions to Compel Meet and Confer Requirement The motion [to compel disclosure] must include a certification that the movant has in good faith conferred or attempted to confer with the party not making the disclosure in an effort to secure the disclosure without court action. Fed. R. Civ. P. 37(a)(2)(A). The motion [to compel answer to deposition question, designate 30(b)(6) witness, to compel answer to an interrogatory, after failure to respond that inspection will be permitted or failure to permit the inspection] must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action. Fed. R. Civ. P. 37(a)(2)(B). Informal Conference to Settle Discovery Disputes. Unless otherwise ordered, the court will not entertain any discovery motion, except those motions brought by a person appearing pro se and those brought under Fed. R. Civ. P. 26(c) by a person who is not a party, unless counsel for the moving party files with the court, at the time of filing the motion, a statement showing that the attorney making the motion has made a reasonable effort to reach agreement with opposing attorneys on the matters set forth in the motion. Such statement must recite, in addition, the date, time, and place of such consultation and the names of all participating parties or attorneys. DUCivR 37-1 (a). Appendix for Motion to Compel M otions to Compel Discovery. Motions to compel discovery under Fed. R. Civ. P. 37(a) must be accompanied by a copy of the discovery request, the response to the request to which objection is made, and a succinct statement, separately for each objection, summarizing why the response received was inadequate. DUCivR 37-1(b). Waiver of Defenses to Motion to Compel and of Objections to Discovery The failure to act [failure to appear for deposition, answer interrogatories, or respond to a request for inspection] may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has a pending motion for a protective order as provided by Rule 26(c). Fed. R. Civ. P. 37(d). Sanctions - if no order in place Failure to disclose or supplement discovery - evidence barred (1) A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions. Fed. R. Civ. P. 37(c)(1). Failure to admit - expenses of proof [T]he court [may enter] an order requiring the other party to pay the reasonable expenses incurred in making that proof [required by a party’s wrongful failure to admit], including reasonable attorney's fees. The court shall make the order unless it finds that (A) the request was held objectionable pursuant to Rule 36(a), or (B) the admission sought was of no substantial importance, or (C) the party failing to admit had reasonable ground to believe that the party might prevail on the matter, or (D) there was other good reason for the failure to admit. Fed. R. Civ. P. 37(c)(2). -1- Failure to appear for deposition, answer interrogatories, or respond to a request for inspection If a party or [related person fails to appear for deposition, answer interrogatories, or respond to a request for inspection] . . . the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under subparagraphs (A), (B), and (C) of subdivision (b)(2) of this rule. Fed. R. Civ. P. 37(d). Sanctions - disobedience of court order Failure to be sworn or answer deposition question after court direction. If a deponent fails to be sworn or to answer a question after being directed to do so by the court in the district in which the deposition is being taken, the failure may be considered a contempt of that court. Fed. R. Civ. P. 37(c)(1). Failure to Obey Other Discovery Order (2) Sanctions by Court in W hich Action Is Pending. If a party or [related person fails to obey an order for discovery], the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: (A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence; (C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; (D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination; (E) Where a party has failed to comply with an order under Rule 35(a) requiring that party to produce another for examination, such orders as are listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows that that party is unable to produce such person for examination. Unsuccessful attempt for Protective Order If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or other person provide or permit discovery. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. Expenses and Attorney’s Fees M otion for order compelling disclosure or discovery (A) If the motion [for an order compelling disclosure or discovery] is granted or if the disclosure or requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney's fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust. (B) If the motion is denied, the court may enter any protective order authorized under Rule 26(c) and shall, after affording an opportunity to be heard, require the moving party or the attorney filing the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. (C) If the motion is granted in part and denied in part, the court may enter any protective order authorized under Rule 26(c) and may, after affording an opportunity to be heard, apportion the reasonable expenses -2- incurred in relation to the motion among the parties and persons in a just manner. Fed. R. Civ. P. 37(a)(4). Unsuccessful attempt for Protective Order If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or other person provide or permit discovery. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. Fed. R. Civ. P. 26(c). Failure to disclose or supplement In addition to or in lieu of this sanction [for failure to disclose or supplement], the court, on motion and after affording an opportunity to be heard, may [require] payment of reasonable expenses, including attorney's fees, caused by the failure. Fed. R. Civ. P. 37(c)(1). Failure to admit [T]he court [may enter] an order requiring the other party to pay the reasonable expenses incurred in making that proof [required by a party’s wrongful failure to admit], including reasonable attorney's fees. The court shall make the order unless it finds that (A) the request was held objectionable pursuant to Rule 36(a), or (B) the admission sought was of no substantial importance, or (C) the party failing to admit had reasonable ground to believe that the party might prevail on the matter, or (D) there was other good reason for the failure to admit. Fed. R. Civ. P. 37(c)(2). 1 Failure to appear for deposition, answer interrogatories, or respond to a request for inspection If a party or [related person fails to appear for deposition, answer interrogatories, or respond to a request for inspection ] . . . the court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(d). Failure to obey order [In the event of failure to obey an order] the court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(b)(2). Non Parties Prior Statements Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. For purposes of this paragraph, a statement previously made is (A) a written statement signed or otherwise adopted or approved by the person making it, or (B) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded. Fed. R. Civ. P. 26(b)(3). Subpoenas Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued. An adequate cause for failure to obey exists when 1 Failure to permit inspection not included. -3- a subpoena purports to require a non-party to attend or produce at a place not within the limits provided by clause (ii) of subparagraph (c)(3)(A). Fed. R. Civ. P. 45(e). Frequently Cited Case Law in Motions to Compel W hat does “substantially justified” mean? Authoritative commentators suggest a fairly low threshold for showing “substantial” justification. “Making a motion, or opposing a motion, is ‘substantially justified’ if the motion raised an issue about which reasonable people could genuinely differ . . .” However, the Tenth Circuit has made a somewhat less generous analysis: 2 W e are of the view, therefore, that as between the two commonly used connotations of the word “substantially,” the one most naturally conveyed by the phrase before us here is not “justified to a high degree,” but rather “justified in substance or in the main”– that is, justified to a degree that could satisfy a reasonable person. 3 It is not enough to subjectively believe that a position is justified. The sanctions rule calls for an objective analysis, made in the context of the suit. W hen will ultimate sanctions be imposed? Guidelines for imposition of the extreme sanction of dismissal (against a violating plaintiff) or judgment (against a violating defendant) which apply generally to discovery sanctions also apply to spoliation sanctions. Before choosing dismissal as a just sanction, a court should ordinarily consider a number of factors, including: (1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; (3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance; and (5) the efficacy of lesser sanctions.4 Dismissal and entry of judgment are remedies of last resort because “a court should impose the least onerous sanction that will remedy the prejudice and, where applicable, punish the past wrongdoing and deter future wrongdoing.” 5 David Nuffer July 2005 1994). 2 3 8A Charles Alan W right & Arthur R. Miller Federal Practice & Procedure Civ.2d § 2288 (2 ed. nd Hutchinson v. Pfeil, No. 98-5043, 1999 W L 1015557, at *3 (10th Cir. Nov. 9, 1999)(unpublished decision). Interestingly, Hutchinson and many other cases cite to “[t]he controlling definition of ‘substantially justified’ [] set forth in Pierce v. Underwood” [487 U.S. 552, 564-65 (1988)] when Pierce considered a different legal issue entirely, only analogizing to what Justice Scalia termed to be the prevalent view under Fed. R. Civ. P. 37(a)(4)(A). 4 5 Ehrenhaus v Reynolds, 965 F.2d 916, 921 (10 Cir. 1992)(citations and quotation marks omitted). th Jordan F. Miller Corp. v. Mid-Continent Aircraft Serv., Inc., No. 97-5089, 1998 W L 68879, at *6 (10th Cir. Feb. 20, 1998)(unpublished decision). -4-

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Proposed Rules and New Practice Standards for Electronic Discovery David Nuffer Ronald N. Boyce Federal Bar Association Seminar October 22, 2004 Salt Lake City, Utah Presentation Outline ................................................................................................ 2-3 Table of Contents Proposed Amendments to Federal Rules of Civil Procedure Rule 16 ......... Pretrial Conferences; Scheduling; Management........................................................ 4 Rule 26 ......... General Provisions Governing Discovery; Duty of Disclosure................................. 6 Rule 33 ......... Interrogatories to Parties .......................................................................................... 13 Rule 34 ......... Production of Documents, Electronically Stored Information, and Things and Entry Upon Land for Inspection and Other Purposes.............................................. 14 Rule 37 ........ Failure to Make Disclosure or Cooperate in Discovery; Sanctions......................... 18 Rule 45 ........ Subpoena.................................................................................................................. 20 Form 35......... .................................................................................................................................. 30 August 2004 Amendments to ABA Civil Discovery Standards 10................... The Preservation of Documents............................................................................... 32 29................... Electronic Information ............................................................................................. 32 30................... Using Technology to Facilitate Discovery .............................................................. 36 31................... Discovery Conferences ............................................................................................ 36 32................... Attorney-Client Privilege and Attorney Work Product ........................................... 38 33................... Technological Advances.......................................................................................... 39 Proposed Rules and New Practice Standards for Electronic Discovery David Nuffer Presentation Outline The new definition of “document” Rule 33(d) “business records, including electronically stored information” Rule 34 Production of Documents, Electronically Stored Information, and Things and Entry Upon Land for Inspection and Other Purposes Testing and Sampling Rule 34(a) ABA Standard 31(b) – subsets, keywords, neutral Planning for Electronic Discovery Rule 16(b)(5) – “disclosure and discovery of electronically stored information” Rule 16(b)(6) – “agreement for protection against waiving privilege” Form 35 Rule 26(f) – “discuss any issues relating to preserving discoverable information” ABA Standard 29(a) – types and platforms ABA Standard 31 – discovery conference checklist Form of Production Rule 34 (b) Request: “The request may specify the form in which electronically stored information is to be produced.” Response: “including an objection to the requested form for producing electronically stored information” Default: “If a request for electronically stored information does not specify the form of production, a responding party must produce the information in a form in which it is ordinarily maintained, or in an electronically searchable form. The party need only produce such information in one form.” Note existing Rule 34(a) “translated, if necessary, by the respondent through detection devices into reasonably usable form” ABA Standard 29(b) – specifying format, providing metadata and software ABA Standard 30 – using technology to facilitate discovery Two Tiers of Electronic Discovery Rule 26(b)(1) “Parties may obtain discovery . . . relevant to the claim or defense of any party” “for good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.” Proposed Rule 26(b)(2) “need not provide discovery of electronically stored information that the party identifies as not reasonably accessible” “good cause shown” “terms and conditions” Privilege waiver Rule 26(b)(5)(A) how to claim privilege Rule 26(b)(5)(B) “without intending to waive notify return or destroy Inadvertent waiver Claw back - Produce and then review ABA Standard 32 – Privilege protection • Neutral • Non waiver agreement • Review procedure Rule 45 incorporates some of these concepts for third parties. ABA Standard 10 The Preservation of Documents Rule 37 Failure to Make Disclosure or Cooperate in Discovery; Sanctions Limitation on sanctions for failing to provide electronically stored information routine operation caused destruction or loss of data Proposal: Protection if “reasonable steps” taken Alternative: Protection unless “party intentionally or recklessly failed to preserve” Note: No safe harbor if a preservation order is in place ABA Standard 29(b)(iii) Permitting Discovery/Cost Allocation See also Zubulake v. UBS Warburg LLC, 216 F.R.D. 280 (S.D.N.Y. 2003) http://www.nysd.uscourts.gov/rulings/02cv1243_05803.pdf Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003) http://www.nysd.uscourts.gov/rulings/02cv01243_072403.pdf

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A Practical Introduction to Electronic Discovery aka e-data discovery; digital discovery; computer discovery How to discover what you cannot see Hazards of electronic discovery.....................................................................................................................................1 Invisible data can be seen ..............................................................................................................................................2 How do we find e-data?.................................................................................................................................................5 The duty to preserve invisible data ................................................................................................................................6 Should e-discovery be permitted?..................................................................................................................................8 How to acquire and deliver e-data .................................................................................................................................9 A party’s business technology policy does not establish a litigation standard ............................................................10 . . . as to data retention and preservation: ................................................................................................................10 . . . as to data retrieval:.............................................................................................................................................11 Who bears the cost of e-data discovery? .....................................................................................................................13 Practice tips .................................................................................................................................................................14 Utah e-data cases .........................................................................................................................................................15 Resources.....................................................................................................................................................................15 David Nuffer U.S. Magistrate Judge Utah State Bar March 2004 St. George, Utah Hazards of electronic discovery Danis v. USN Communications, 2000 WL 1694325 (N. D. Ill.). An exhaustive opinion scorches counsel for both parties engaged in a major discovery dispute: Sorting out what happened here has been a challenging task not only due the complexity of some of the issues presented, but -- regrettably -- due to assertions of counsel that often have confused [rather] than clarified the issues. On a number of occasions, plaintiffs have asserted that certain documents were not produced, when in fact it later turned out that the documents long ago had been produced. Conversely, defendants have on occasion informed the Court that they have produced certain documents, when in fact it turned out that they had not. Moreover, throughout these proceedings, the submissions by the lawyers too often have offered overblown rhetoric rather than accurate information and careful reasoning. In the Court's judgment, there are several reasons why-- despite the high level of experience and quality of the attorneys - - this has occurred. [***] As a result, both sides were the losers. They lavished huge sums of time and money on an issue that did not remotely justify the expenditure, and which would have been more profitably spent focusing on the merits of this case. [***] 5. The Court recommends that no attorneys' fees and costs be assessed in connection with the prosecution or defense of this motion. Plaintiffs claim that their fees and costs on the sanctions issue total $757,559.61, and (not to be outdone) the individual defendants assess their fees and costs at $767,202.42. Viewed separately, not to mention collectively, these statements of fees and costs are nothing short of shocking: they are wholly disproportionate to what the evidence has disclosed. Because the conduct of each side has contributed to an excessive expenditure of fees and costs, the Court considers the fees and costs incurred to be a self-inflicted wound by each side, and that neither side should be forced to pay the costs and fees of the other side. Gates Rubber v. Bando Chemical Industries, 167 F.R.D. 90 (D. Colo. 1996). A bitter trade secret case morphed into a data discovery disaster: The sanctions hearing itself consumed a total of six weeks of evidence and testimony, and the hearing was conducted in several sections over a period of a year. I viewed countless hours of segments of video deposition testimony, covering approximately 20 witnesses; I listened to testimony from 20 witnesses who were called to court to testify live; and I received thousands of pages of pleadings, exhibits, documents and deposition excerpts. These materials were presented to me in 3-ring binder notebooks, and by the conclusion of the sanctions hearing I had received 50 of them. As of the time of the writing of this order, there are over 1,500 docket entries in the clerk's office, the vast majority of the entries relating to the sanctions proceedings. [***] The lawyers for Gates have delayed this case for the better part of three and one-half years over an exaggerated concern with minutiae. They had little idea what they were looking for during the site inspection. They copied very little of the type of materials which they now complain were destroyed by the defendants. They admit that they have not examined any of the large quantity of boxes of documents which they did copy and preserve. In fact, the lawyers for Gates have argued vociferously that they have not yet even started discovery on the merits of this controversy. Harm from the alleged destruction of documents must be measured in light of what is produced, as well as what is not produced. Capellupo v. FMC Corp., 126 F.R.D. at 553. Gates has no idea what has been produced. GTFM v. Wal-Mart Stores, 2000 WL 335558 (S.D. N.Y.). Defendant’s counsel provided inaccurate information to the plaintiffs about computer records early in discovery, and discoverable computer records were later destroyed. Therefore, defendant is ordered to pay all plaintiffs' expenses and legal fees unnecessarily expended due to defendant's failure to make an accurate disclosure of its computer capabilities in December 1998. Plaintiffs Page 1 shall, within thirty days of the entry of this Opinion and Order, make application for such expenses and legal fees, with defendant to file any opposition to such fee application within fifteen days thereafter. In re the Prudential Insurance Company Of America Sales Practices Litigation, , 36 Fed.R.Serv.3d 767 (D. N.J. 1997). Prudential failed to coordinate an existing document destruction policy with a court order to preserve documents. While there is no proof that Prudential, through its employees, engaged in conduct intended to thwart discovery through the purposeful destruction of documents, its haphazard and uncoordinated approach to document retention indisputably denies its party opponents potential evidence to establish facts in dispute. Because the destroyed records in Cambridge are permanently lost, the Court will draw the inference that the destroyed materials are relevant and if available would lead to the proof of a claim. [***] When the September 15, 1995 Court Order to preserve documents was entered, it became the obligation of senior management to initiate a comprehensive document preservation plan and to distribute it to all employees. [***] The Court finds that the document destruction, particularly in the Cambridge, Massachusetts office, caused harm to party opponents. Over 9,000 files were cleansed. [***] Within ten (10) days after the issuance of this Opinion, Prudential shall pay to the Clerk of the United States District Court for the District of New Jersey, the sum of One Million Dollars ($1,000,000). 169 F.R.D. at 615-617 Invisible data can be seen Paper is visible, tangible, tactile. We can see what is in it and when we copy it, we get it all. Humans need to use a viewer to see electronic data . When we say ‘we saw the video’ we don’t mean we looked at the tape cartridge. We mean we put it in a VCR, connected to a TV. We cannot tell if a CD is ‘a good CD’ until we put it in a CD player. And we cannot tell what is on a computer disk without a computer and software to view the disk contents. Viewer Examples: A web page may look like this on a screen in a “web browser” viewer, but if we look at the HTML code that makes up the page, we see something entirely different, including things we do not see when looking at the page in a browser. The bits and bytes of an image file appear differently in a text viewer than an image viewer. This is the image: When the file is opened in a text editor, this is what is shown: If the right viewer is used, invisible data that you normally do not see can be seen. Meta data is data about the data being used. Meta data is stored with the data we usually see – but is usually invisible. For example, all word processors store many details about the documents they create. We can see some of it if we call it up. Most programs also create entirely separate files from the files we think we work with. These “temp files” are created without our knowledge or intervention, and may remain on a computer for long periods of time. They are often working files for the program. Some give the program a chance to recover data in the event of a crash. Web browsing creates files that may include every component of every page viewed and a separate list of those pages; and browsing may create a file to send to the web site every time the site is visited – to authenticate the visitor to the site. Some of these files may be stored on the computer and on the web site. Other types of data files that a computer may create invisibly include: Version files – other versions of a document. Tracking files – data paths showing the entire history of edits made to a document. “Shared”files – files sent via e mail or disk to others exist in two or more places. Local copy of server stored documents, or server stored copies of local data – a computer system may safeguard data by storing multiple copies, using one as the “preferred” file and the other as a backup. Or one file may be a “working” file, while another is permanent. Deleted files – files which are “deleted” by a computer user may be in the Recycle Bin and -- even if emptied from the trash or deleted -- are usually still present on disk. Deleting a file only removes the address. Only when another piece of data lands on that spot on the hard disk is the original file replaced with other data. Swap files – Windows often uses part of the hard disk space as temporary memory, storing and tracking everything done on the computer. Backup files – files may be stored periodically for emergency recovery. Archive files – files may be stored permanently as a record of a point in time. Putting it into perspective: What we see on our screen is the tip of the data iceberg. Each viewer is optimized for the purposes of the moment, and does not necessarily reveal all data that is present. Software reveals, conceals, organizes and locates electronic data for its own purposes. Different software may reveal, conceal, organize and locate the same data for other purposes. In its natural state, electronic data is chaotic and unintelligible. Software makes it usable. Storing and deleting data: While paper records are often destroyed or discarded, electronic data is more often inadvertently retained than intentionally discarded, because the cost of storage is so small. It is hard to sort, filter and evaluate old data. Usually, it just goes out of date or out of mind, but remains alive. Electronic data may be inadvertently erased as a computer is used. The operations of a computer will modify invisible data, particularly deleted data. Each time a file is accessed and stored, it may erase its own prior version. Ken Withers -- “Nature abhors a vacuum, so your computer hard drive fills itself with data. You may not know it is there, but it is.” Ken Withers -- “Just like the yellowed newspapers used for packing in an old box, stray data may be more interesting than the object meant to be stored.” How do we find e-data? Ask these questions: What are the business processes? Which are conducted with electronic assistance? What records might exist? How does the business use– create – retrieve data? E Mail Word processing Spreadsheet Calendar Database Contacts Transactional/Workflow software What e data is created? Intentionally? Inadvertently? Collaterally? How does the business purposely and inadvertently retain data? What sorts of media are in use? Tape CD (compact disc) DVD (digital vídeo disc) Hard disk (in almost all computers) Floppy disks Zip disks (removable large capacity disks) Memory Sticks (removable memory chips) What data types are available? Current use - versions Archival use – permanent file (evidence at a point in time) Backup use – emergency restore What is the geographic location of data? Workstation Server Replica Servers Co workstation Home computer Laptops PDA Phones Internet sites The duty to preserve invisible data New York National Organization for Women v. Cuomo, 1998 WL 395320 (S.D. N.Y.). Counsel has a duty to advise the client to take reasonable steps to preserve records subject to discovery. Service of a complaint puts the receiving party on notice that it is required to preserve evidence that may be relevant to the claims asserted. See Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 73 (S.D.N.Y. 1991); Computer Associates International, Inc. v. American Fundware, Inc., 133 F.R.D. 166, 169 (D. Colo.1990). Danis v. USN Communications, 2000 WL 1694325 (N. D. Ill.). The failure to take reasonable steps to preserve data at the outset of discovery resulted in a personal fine levied against the defendant's CEO. [F]undamental to the duty of production of information is the threshold duty to preserve documents and other information that may be relevant in a case. [***] . . . when a charge is made that relevant information has been destroyed, and especially when a charge is made of intentional destruction, it is a charge that strikes at the core of our civil litigation system. The motion presently before this Court presents just such a charge. [***] Immediately upon the filing of the Glotzer lawsuit, USN was required to preserve for possible production in the lawsuit documents (whether in hard copy or electronic form) that might be discoverable. That duty flowed both from the Private Securities Litigation Reform Act of 1995 [citation omitted] and from a common law duty not to spoil documents that might be discoverable in the litigation. [citation omitted] [***] The duty to preserve documents in the face of pending litigation is not a passive obligation. Rather, it must be discharged actively: [i]t was incumbent on senior management to advise its employees of the pending litigation ..., to provide them with a copy of the Court's order, and to acquaint its Page 6 employees with the potential sanctions ... that could issue for noncompliance with [the] Court's Order. When senior management fails to establish and distribute a comprehensive document retention policy, it cannot shield itself from responsibility because of field office actions. The obligation to preserve documents that are potentially discoverable materials is an affirmative one that rests squarely on the shoulders of senior corporate officers. [citations omitted] [***] The scope of the duty to preserve is a broad one, commensurate with the breadth of discovery permissible under Fed.R.Civ.P. 26. [***] Moreover, the case law establishes that a discovery request is not necessary to trigger this duty. "A party clearly is on notice of [t]he relevance of evidence once it receives a discovery request. However, the complaint itself may also alert a party that certain information is relevant and likely to be sought in discovery." [citations omitted] In re Bristol-Myers Squibb Securities Litigation, 205 F.R.D. 437, 444, 51 Fed.R.Serv.3d 1212 (D. N.J. 2002). [C]ounsel should take advantage of the required Rule 26(f) meeting to discuss issues associated with electronic discovery. As the eve of electronic case filing (ECF) is upon us, in this and most other Districts, the production of electronic information should be at the forefront of any discussion of issues involving discovery and trial, including the fair and economical allocation of costs. Of course, in some instances, paper, rather than electronic, production may still be the preferable method of discovery. ABA Civil Discovery Standards 10 & 29 (1999) Note these standards are under revision, with addition of many electronic discovery related standards. http://www.abanet.org/litigation/taskforces/electronic/amendments.doc IV. DOCUMENT PRODUCTION 10. The Preservation of Documents. When a lawyer who has been retained to handle a matter learns that litigation is probable or has been commenced, the lawyer should inform the client of its duty to preserve potentially relevant documents and of the possible consequences of failing to do so. VIII. TECHNOLOGY 29. Preserving and Producing Electronic Information. a. Duty to Preserve Electronic Information. i. A party's duty to take reasonable steps to preserve potentially relevant documents, described in Standard 10 above, also applies to information contained or stored in an electronic medium or format, including a computer word-processing document, storage medium, spreadsheet, database and electronic mail. ii. Unless otherwise stated in a request, a request for "documents" should be construed as also asking for information contained or stored in an electronic medium or format. iii. Unless the requesting party can demonstrate a substantial need for it, a party does not ordinarily have a duty to take steps to try to restore electronic information that has been deleted or discarded in the regular course of business but may not have been completely erased from computer memory. Page 7 2001 Records Management Survey: Businesses which have records management programs: 56% do not include electronic records in their program. 70% actually follow the records retention schedule. (30% do not.) 67% have a formal procedure to “hold” records needed for a special purpose, like litigation. 41% include electronic records in their hold procedure. Records Managers: 94% believe the outcome of future litigation will be affected by the way they manage electronic records. 28% are confident they can defend their electronic records management in court. To fulfill the duty to preserve: Understand Formulate Write Communicate Delegate to competent people Follow up Should e-discovery be permitted? Rule 34, F.R.Civ.P. Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor's behalf, to inspect and copy, any designated documents (including writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form) . . . F.R.Civ.P. 34(a) advisory committee's notes, 1970. The inclusive description of "documents" is revised to accord with changing technology. It makes clear that Rule 34 applies to electronic data compilations from which information can be obtained only with the use of detection devices, and that when the data can as a practical matter be made usable by the discovering party only through respondent's devices, respondent may be required to use his devices to translate the data into usable form. In many instances, this means that respondent will have to supply a print-out of computer data. The burden thus placed on respondent will vary from case to case, and the courts have ample power under Rule 26(c) to protect respondent against undue burden or expense, either by restricting discovery or requiring that the discovering party pay costs. Similarly, if the discovering party needs to check the electronic source itself, the court may protect respondent with respect to preservation of his records, confidentiality of nondiscoverable matters, and costs. Anti-Monopoly v. Hasbro, 1995 WL 649934 (S.D. N.Y.). It is black letter law that computerized data is discoverable. Thus, the rule is clear: production of information in "hard copy" documentary form does not preclude a party from receiving that same information in computerized/electronic form. Simon Property Group, L.P. v. mySimon, Inc.,194 F.R.D. 639, 47 Fed.R.Serv.3d 247 (S.D. Ind. 2000) [C]omputer records, including records that have been "deleted," are documents discoverable under Fed.R.Civ.P. 34. Considerations vary with every case: Interference with business operations Invasion of privacy Software license issues Cost Complexity Diversion from main issues in case Likelihood of usefulness Availability in other forms Protection of privilege Work product Discretion of trial court How to acquire and deliver e-data Four major issues: Preserve – how do you preserve electronic data? (In your hands or the hands of an opponent.) Select – how is the data responsive to the request selected and by whom? Privilege – how can a meaningful opportunity be given to preserve privilege – and knowledge of privileged communication and how can inadvertent waiver be prevented? Transfer – how will the data be delivered to the requesting party? Recommended procedures: “Image” – use specialized software and hardware to make an “image” or “mirror” copy of the data source. Use a qualified expert. Gates Rubber v. Bando Chemical Industries, 167 F.R.D. 90 (D. Colo. 1996). When allowed direct access to the respondent's computer system for the purposes of discovery, the requesting party's computer discovery “expert” destroyed 7-8% of discoverable records and compromised the evidentiary integrity of the rest. Simon Property Group, L.P. v. mySimon, Inc., 194 F.R.D. 639, 47 Fed.R.Serv.3d 247 (S.D. Ind. 2000) On June 7, 2000, the court . . . outlined a protocol for allowing [discovery of "deleted" files and documents in computer memories.] In general, the plan is to have plaintiff select and pay an expert in recovery of such information, and to have that expert serve as an officer of the court and turn over the recovered information to defendant's counsel for appropriate review to supplement defendant's discovery responses. [***] In essence, plaintiff shall select and pay an expert who will inspect the computers in question to create a "mirror image" or "snapshot" of the hard drives. Cf. Gates Rubber Co. v. Bando Chemical Industries, Ltd., 167 F.R.D. 90, 111-13 (D.Colo.1996) (describing problems that arose when one party's effort to preserve and recover files resulted in overwriting of 7 to 8 percent of hard drive contents). Defendant shall have a chance to object to the selection of the expert. The court will appoint the expert to carry out the inspection and copying as an officer of the court. The expert shall then use his or her expertise to recover from the "mirror image" of the hard drive of each computer, and to provide in a reasonably convenient form to defendant's counsel, all available word- processing documents, electronic mail messages, powerpoint or similar presentations, spreadsheets, and similar files. The court intends that files making up operating systems and higher level programs in the computer not be duplicated, and that the copying be limited to the types of files reasonably likely to contain Page 9 material potentially relevant to this case. Cf. Adobe Systems, Inc. v. South Sun Products, Inc., 187 F.R.D. 636, 642-43 (S.D.Cal.1999) (noting that Microsoft Office 97 occupies more than 200 megabytes on hard drive of a personal computer). To the extent possible, the expert shall also provide to defendant's counsel: (a) the available information showing when any recovered "deleted" file was deleted, and (b) the available information about the deletion and contents of any deleted file that cannot be recovered. After receiving these records from the expert, defendant's counsel shall then have to review these records for privilege and responsiveness to plaintiff's discovery requests, and shall then supplement defendant's responses to discovery requests, as appropriate. The expert shall sign the protective order in the case and shall retain until the end of this litigation the "mirror image" copies of the hard drives and a copy of all files provided to defendant's counsel. At the end of this litigation, the expert shall then destroy the records and confirm such destruction to the satisfaction of defendant. The expert shall not disclose the contents of any files or documents to plaintiff or its counsel or other persons. Because the expert will serve as an officer of the court, disclosure of a communication to the expert shall not be deemed a waiver of the attorney- client privilege or any other privilege. Murphy Oil, Inc., v. Fluor Daniel, Inc., 2002 WL 246439, 52 Fed.R.Serv.3d 168 (E.D. La. 2002). After ordering the requesting party to pay the cost of restoring and printing e mail backup tapes, the Court concluded that since these backup tapes were retained in contravention of a disposal/recycling policy, they were not needed by the producing party – and could just be delivered to the requesting party. A privilege review protocol was established in alternative forms, depending on whether privilege review occurred after selection of responsive e mails by requesting party or after the producing party selected responsive e mails. The court ordered that if the requesting party culled e mails before the producing party made its privilege review, the requesting party’s review of the emails would not waive the privilege – but obviously, counsel for the requesting party still knows what the e mails said! First Technology Safety Systems, Inc., v. Depinet, 11 F.3d 641, 62 USLW 2390, 1994 Copr.L.Dec. P 27,187, 27 Fed.R.Serv.3d 947, 29 U.S.P.Q.2d 1269 (6th Cir. 1993). Ex parte order to enter and seize computer data reversed. The material seized -- and copies -- were ordered returned. Ex parte action requires a “showing that the adverse party has a history of disposing of evidence or violating court orders or that persons similar to the adverse party have such a history.” A party’s business technology policy does not establish a litigation standard Some assume that a business records retention policy will protect the business and counsel from preservation of electronic data, and that the responding party’s lack of a “business purpose” for a mode of requested production of electronic data will automatically shift the cost of production of electronic data to the requesting party. This is not necessarily true. Businesses should formulate policies and information systems with a view to possible accountability, and may not restrict their considerations to maximum business efficiency. . . . as to data retention and preservation: Reimgold v. Wet 'N Wild Nevada Inc., 944 P.2d 800 (Nev. 1997) A jury verdict for the defendant was reversed for failure to instruct on adverse inference from failure to produce first aid records to show notice of prior accidents. Defendant’s policy to destroy records at end of each season prior to running of statute of limitations; "following the company's normal records retention policy" may be willful suppression. [A] document retention/destruction policy that results in the systematic destruction of probable evidence will not provide protection from spoliation charges. Computer Assoc. Intn'l. v American Fundware Inc., 133 F.R.D. 166 (D. Colo. 1990). Defendant’s common practice was to only retain current source code and it continued destruction even after a discovery request. Default judgment was entered against defendant in this copyright case. Lewy v. Remington Arms, 836 F. 2d 1104 (8th Cir. 1988). This pre-computer case held routine records management procedures should be designed to preserve records which the defendant may reasonably anticipate will be subject to discovery. This instruction was requested by the Lewys because Remington was unable to produce several documents that were destroyed pursuant to Remington's "record retention policy." Remington argues that destroying records pursuant to routine procedures does not provide an inference adverse to the party that destroyed the documents. Smith v. Uniroyal, Inc., 420 F.2d 438, 442-43 (7th Cir. 1970). [***] First, the court should determine whether Remington's record retention policy is reasonable considering the facts and circumstances surrounding the relevant documents. For example, the court should determine whether a three year retention policy is reasonable given the particular document. A three year retention policy may be sufficient for documents such as appointment books or telephone messages, but inadequate for documents such as customer complaints. Second, in making this determination the court may also consider whether lawsuits concerning the complaint or related complaints have been filed, the frequency of such complaints, and the magnitude of the complaints. Finally, the court should determine whether the document retention policy was instituted in bad faith. Gumbs v. International Harvester, Inc., 718 F.2d 88, 96 (3rd Cir. 1983) ("no unfavorable inference arises when the circumstances indicate that the document or article in question has been lost or accidentally destroyed, or where the failure to produce it is otherwise properly accounted for."); Boyd v. Ozark Air Lines, Inc., 568 F.2d 50, 53 (8th Cir. 1977) ("We recognize, however, that the destruction of business records may be sufficient to raise an unfavorable inference."). In cases where a document retention policy is instituted in order to limit damaging evidence available to potential plaintiffs, it may be proper to give an instruction similar to the one requested by the Lewys. Similarly, even if the court finds the policy to be reasonable given the nature of the documents subject to the policy, the court may find that under the particular circumstances certain documents should have been retained notwithstanding the policy. For example, if the corporation knew or should have known that the documents would become material at some point in the future then such documents should have been preserved. Thus, a corporation cannot blindly destroy documents and expect to be shielded by a seemingly innocuous document retention policy. Gumbs, 718 F.2d at 96 ("Such a presumption or inference arises, however, only when the spoilation or destruction [of evidence] was intentional, and indicates fraud and a desire to suppress the truth, and it does not arise where the destruction was a matter of routine with no fraudulent intent." (quoting 29 Am.Jur.2d Evidence ß 177 (1967 . . . . as to data retrieval: In re Brand Name Prescription Drugs Litigation, 1995 WL 360526 (N.D. Ill. 1995). When a defendant chooses a computer-based business system, the cost of retrieving information is an ordinary and foreseeable risk. Citing Daewoo Electronics Co. v. United States, 650 F. Supp. 1003, 1006 (Ct. Int'l Trade 1986), the court stated: It would be a dangerous development in the law if new techniques for easing the use of information became a hindrance to discovery or disclosure in litigation. The use of excessive technical distinctions is inconsistent with the guiding principle that information which is stored, used, or transmitted in new forms should be available through discovery with the same openness as traditional forms. [* * *] The normal and reasonable translation of electronic data into a form usable by the discovering party should be the ordinary and foreseeable burden of a respondent in the absence of a showing of extraordinary hardship. Linnen v. A.H. Robins, 1999 WL 462015 (Mass. Sup. Ct.). Counsel failed to adequately investigate the client's computer records and holdings, and thereby failed to preserve relevant computer records. In the face of repeated representations before the court that no relevant records existed, a spoliation inference would be a reasonable sanction. The Linnen court also held that the responding party would bear the cost of restoring backup tapes to its computer system to facilitate discovery: While the court certainly recognizes the significant cost associated with restoring and producing responsive communications from these tapes, it agrees with the District Court for the Northern District of Illinois In re: Brand Name Prescription Drugs Antitrust Litigation that this is one of the risks taken on by companies which have made the decision to avail themselves of the computer technology now available to the business world. 1995 WL 360526 (N.D.Ill.). To permit a corporation such as Wyeth to reap the business benefits of such technology and simultaneously use that technology as a shield in litigation would lead to incongruous and unfair results. Toledo Fair Housing Center v. Nationwide Insurance Company, 703 N.E.2d 340, 94 Ohio Misc.2d 17 (Ohio Ct. Common Pleas 1996) With regard to the discoverability of the computerized data, I find that the information sought in request numbers 25, 26, 29, and 30 is highly relevant to the plaintiffs' case and is, therefore, discoverable. Nationwide shall bear the cost of retrieving this information and making it available to the plaintiffs in a format readable by a layperson. Nationwide strenuously argues that the cost of producing the requested discovery is overly burdensome, and the record confirms that the cost is potentially great. However, inconvenience and expense, by themselves, do not justify denying discovery. See Isaac v. Shell Oil Co. (E.D.Mich.1979), 83 F.R.D. 428, 431 (discovery denied). Furthermore, a party cannot avoid discovery when its own recordkeeping system makes discovery burdensome. If a party chooses to store information in a manner that tends to conceal rather than reveal, that party bears the burden of putting the information in a format useable by others. See id.; Kozlowski v. Sears, Roebuck & Co. (D.Mass.1976), 73 F.R.D. 73, 76. See, also, Dunn v. Midwestern Indemn. (S.D.Ohio 1980), 88 F.R.D. 191, 198 (applying Kozlowski to computer-generated discovery in an insurance redlining case). Kozlowski v. Sears, Roebuck, 73 F.R.D. 73 (D. Mass. 1976). In the instant case, the requested documents are clearly within the scope of Rule 26(b), Fed. R. Civ. P., the plaintiff has a demonstrable need for the documents, the defendant undisputedly has possession of them, and the plaintiff has no other access to them. Thus, the defendant has a duty pursuant to Rule 34, Fed. R. Civ. P., to produce its records of similar suits. The defendant seeks to absolve itself of this responsibility by alleging the herculean effort which would be necessary to locate the documents. The defendant may not excuse itself from compliance with Rule 34, Fed. R. Civ. P., by utilizing a system of record-keeping which conceals rather than discloses relevant records, or makes it unduly difficult to identify or locate them, thus rendering the production of the documents an excessively burdensome and costly expedition. To allow a defendant whose business generates massive records to frustrate discovery by creating an inadequate filing system, and then claiming undue burden, would defeat the purposes of the discovery rules. See Hickman v. Taylor, 329 U.S. 495, 500, 67 S.Ct. 385, 91 L.Ed. 451 (1947); Holtzoff, Instruments of Discovery Under Federal Rules of Civil Procedure, 41 Mich.L.Rev. 205, 224 (1942). [***] Finally, the defendant makes a confusing offer to finance the transportation to Chicago, Illinois (where the records are kept), by the plaintiff's attorney so that he may either attempt to locate the desired documents among the defendant's massive files, or else verify for himself the impossibility of such a task. The defendant has in essence told the plaintiff that, if he wishes, he may hunt through all its documents and find the information for himself. "This amounts to nothing more than a gigantic 'do it yourself' kit." See Harlem River Consumers Cooperative, Inc. v. Associated Grocers of Harlem, Inc., 64 F.R.D. 459 (S.D.N.Y. 1974), quoting Life Music, Inc. v. Broadcast Music, Inc., 41 F.R.D. 16 (S.D.N.Y. 1966). This Court will not shift the financial burden of discovery onto the discovering party, in this case an indigent plaintiff, where the Page 12 costliness of the discovery procedure involved is entirely a product of the defendant's self- serving indexing scheme over which the plaintiff has no control. See also Rhone-Poulenc Rorer, Inc. v. The Home Indemnity et. al. 1991 WL 111040, 1991 WL 111040 (E.D.Pa. 1991) Who bears the cost of e-data discovery? Rule 26(c), F.R.Civ.P. [T]he court in which the action is pending . . . may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003) http://www.nysd.uscourts.gov/rulings/02cv01243_072403.pdf The court shifted one-fourth of estimated $166,000 cost of restoring and searching 77 backup tapes to the plaintiff, a female former employee. She had requested archived e-mails off from backup tapes. The suit against her former employer alleged gender discrimination. When a discovery request seeks accessible data--for example, active on-line or near-line data--it is typically inappropriate to consider cost-shifting. Although the presumption is that the responding party must bear the expense of complying with discovery requests, requests that run afoul of the Rule 26(b)(2) proportionality test may subject the requesting party to protective orders under Rule 26(c), "including orders conditioning discovery on the requesting party's payment of the costs of discovery. The responding party has the burden of proof on a motion for cost-shifting. To determine whether shifting costs of discovery to requesting party is appropriate for discovery of inaccessible data, court should consider, weighted more-or-less in following order: (1) extent to which request is specifically tailored to discover relevant information, (2) availability of information from other sources, (3) total cost of production, compared to amount in controversy, (4) total cost of production, compared to resources available to each party, (5) relative ability of each party to control costs and its incentive to do so, (6) importance of issues at stake in litigation, and (7) relative benefits to parties of obtaining information. The first two factors together comprise the "marginal utility test" The second group of factors (3, 4 and 5) addresses cost issues: 'How expensive will this production be?' and, 'Who can handle that expense?' A list of factors is not merely a matter of counting and adding; it is only a guide. The precise allocation is a matter of judgment and fairness rather than a mathematical consequence of the seven factors discussed above. As a general rule, where cost- shifting is appropriate, only the costs of restoration and searching should be shifted. The responding party should always bear the cost of reviewing and producing electronic data once it has been converted to an accessible form. In order to obtain a factual basis to support the cost-shifting analysis, the judge ordered Defendant UBS to restore and produce e-mails from five of ninety-four backup tapes. Plaintiff Zubulake was permitted to select the five tapes to be restored. The total number of unique e-mails restored was 6,203. A search for e-mails containing (in either the e-mail's text or its header information, such as the "subject" line) the terms "Laura", "Zubulake", or "LZ" yielded 1075 emails. Approximately 600 were responsive to Zubulake's document request and were produced. Thus, the total cost of restoration and search was $11,524.63. In addition, UBS incurred $4,633 in attorney time for the document review and $2,845.80 in paralegal time. In addition, $432.60 in photocopying costs were paid by Plaintiff. The total cost of restoration and production from the five backup tapes was thus $19,003.43. Extrapolated to the entire set of tapes, the total cost figure includes $165,954.67 to restore and search the tapes and $107,694.72 in attorney and paralegal review costs. See also Zubulake v. UBS Warburg LLC, 216 F.R.D. 280 (S.D.N.Y. 2003) http://www.nysd.uscourts.gov/rulings/02cv1243_051803.pdf Rowe Entertainment, Inc. v. The William Morris Agency, Inc., 2002 WL 63190 (S.D.N.Y. Jan. 16, 2002), (Plaintiff’s Motion to Reverse Magistrate Judge denied at 2002 WL 975713 (S.D.N.Y.), 2002-1 Trade Cases P 73,677). [C]ourts have adopted a balancing approach taking into consideration such factors as: (1) the specificity of the discovery requests; (2) the likelihood of discovering critical information; (3) the availability of such information from other sources; (4) the purposes for which the responding party maintains the requested data; (5) the relative benefit to the parties of obtaining the information; (6) the total cost associated with production; (7) the relative ability of each party to control costs and its incentive to do so; and (8) the resources available to each party. Each of these factors is relevant in determining whether discovery costs should be shifted in this case. Murphy Oil, Inc., v. Fluor Daniel, Inc., 2002 WL 246439, 52 Fed.R.Serv.3d 168 (E.D. La. 2002). Restoring backup tapes of e mail to the system for printing would cost $6.2 million – by producing party’s estimate – and requesting party failed to offer contrary proof. Using Rowe criteria, the court shifted the cost to requesting party. But with a deft twist, the Court concluded that these backup tapes were actually retained in contravention of a disposal/recycling policy and were not really needed by the producing party – and could just be delivered to the requesting party. A privilege review protocol for e-mail was established in alternative forms, depending on whether privilege review occurred before selection by requesting party or after. In re Bristol-Myers Squibb Securities Litigation, 205 F.R.D. 437, 51 Fed.R.Serv.3d 1212 (D. N.J. 2002). Plaintiffs requested paper copies after defendants’ Rule 26(a)(1) disclosures failed to reveal the existence of existing electronic versions of some of the documents. As to documents in electronic form at the time of the 26(a)(1) disclosures, plaintiffs were excused from paying copying or printing costs, and defendants were ordered to deliver CDs of those items for the nominal cost of copying a CD. After the 26(a)(1) disclosures, defendants scanned other documents into electronic form. Defendants were not required at the time of the 26(a)(1) disclosures to declare their intention to later scan these other documents, but since paper copies were produced for plaintiffs by printing rather than copying, plaintiffs were only required to pay the 8¢ per page printing cost, not the 10¢ per page copying cost. Since defendants made the decision to incur the scanning expense, independent of the request for production from plaintiffs, plaintiffs were entitled to copies of the CDs of these items also, for the nominal cost of copying. Practice tips Alert your client to preservation duties. Alert opposing counsel to preservation duties. Engage an expert. Meet and confer regarding electronic discovery. Include electronic discovery considerations in the discovery plan. Obtain a preservation order (by stipulation). Meet with your client’s MIS director. Take a 30(b)(6) deposition of your opponent’s MIS director. Ask every witness about electronic data. Keep the chain of custody clean. Maintain perspective. Utah e-data cases Bills v. Kennecott, 108 F.R.D. 459, 40 Fair Empl.Prac.Cas. (BNA) 1182, 42 Empl. Prac. Dec. P 36,732 (D. Utah 1985) (Greene) "Computers have become so commonplace that most court battles now involve discovery of some type of computer-stored information.” Defendant employer’s motion that plaintiffs pay $5,411.25 cost of printing e mail was denied, considering that the amount of money involved was not excessive or inordinate; the relative expense and burden in obtaining the data would have been substantially greater for plaintiffs as compared with defendant; the amount of money required to obtain the data as set forth by defendant would have been a substantial burden to plaintiffs; and the defendant was benefited to some degree by producing the data. Judge Greene acknowledges that cost-shifting to the requesting party has occurred in paper discovery by forcing the requesting party to make its own copies of produced material, but declined to cost-shift in this case. Procter & Gamble v. Haugen, 179 F.R.D. 622, 1998-2 Trade Cases P 72,283 (D. Utah 1998) (Kimball) While “the duty to preserve evidence exists independently of court order, a court order would have delineated the scope of P & G's duties, provided clear evidence that P & G was on notice of the relevance of the e-mail communications, and furnished a standard by which this court could judge the adequacy of P & G's production efforts.” Therefore, P&G’s destruction of e mails it felt irrelevant after keyword searching was not penalized. But P&G’s had destroyed e mails of five employees P&G had previously identified as pertinent. This justified a $10,000 sanction. The opinion also refines a court-approved list of keywords to be searched in Amway’s electronic databases. U.S. v. Tucker, 150 F.Supp.2d 1263 (D. Utah 2001), aff’d 305 F.3d 1193 (10th Cir. 2002). (Campbell). An image copy of defendant’s hard drive revealed that he had visited child pornography web sites. As he viewed photos, the computer temporarily stored them in cache files. He purposely deleted these files, but intentionally stored some. “Possession” supported the conviction. If you are aware of other Utah U.S. District Court decisions on e-data, please notify me at [email protected] Resources http://www.kenwithers.com/ Ken has it all. http://www.fjc.gov/newweb/jnetweb.nsf/pages/196 Federal Judicial Center materials. http://californiadiscovery.findlaw.com/electronic_data_discovery.htm California Commissioner Richard Best’s exhaustive site on Electronic Discovery, part of his larger Discovery web site. Not especially pretty but if there is a case on point you will find it cited here. http://cyber.law.harvard.edu/digitaldiscovery/ “A project to explore, develop, and educate on discovery in the digital sphere.” Many electronic discovery service providers have resources on their web sites: http://www.krollontrack.com/LawLibrary/ Articles; case law digest; offers a free e mail news letter. http://www.forensics.com/html/resource_center.html Articles, case law and forms. http://www.applieddiscovery.com/lawLibrary/default.asp http://www.legaltechnologygroup.com/WhitePapers.htm http://www.corefacts.net/electronicdiscovery/electronicdiscovery_main.htm http://forensic.to/links/pages/Forensic_Sciences/Field_of_expertise/Computer_Investigation/ Highly technical site exhaustively indexing resources on computer investigation. Rev. 3/1/04 Page 15

=== Multiple Monitor / Large Monitor Computer Systems ===

Multiple Monitors or Large Monitors Fundamental to the ability to work effectively in the electronic world is an electronic desktop. In the paper world, we work on a large desk to be able to work with many items at once. In the electronic world, a large virtual desktop enables us to work simultaneously with many electronic sources of information while we do our work, which may include electronic composition, analysis and communication. Research has demonstrated that multiple and large monitors increase productivity and reduce errors significantly in all users, sophisticated or not. For those with less developed technical skills large monitors are more effective than multiple monitors. (Gregg Keizer, Bigger is Better in Monitors To a Point, Computerworld March 10, 2008, reporting research by James A. Anderson, Ph.D., F.I.C.A., at the University of Utah in 2003 and 2007. Papers available by email request from Magistrate Judge David Nuffer. Word Perfect document Adobe Acrobat document (from CM/ECF) Multiple monitors or large monitors allow view of many source documents (Westlaw, Lexis, PACER, CM/ECF, PDF files) while composing other documents (Word or WordPerfect or CM/ECF). Multiple documents from the same application may be viewed side-by-side. Copying and pasting between screens or windows is possible because all monitors are connected to the same computer. (If using multiple monitors, it is best to use identical displays.) A large display, showing two windows Two LCD displays, rotated in portrait mode Operating systems since Windows 98 permit creation of a large "virtual display" which spans several physical monitors, if the computer has a video display hardware which can drive two monitors. The capability to have two displays is built into most laptop computers (control panel at right). The dual display features are regulated in the Display Properties control panel, Settings Tab. Microsoft help pages describe how to use multiple displays: How to Enable Multiple Display Support Using Windows 98 HOW TO: Set Up and Troubleshoot Multiple Monitors in Windows 2000 (This article includes information on installing multiple display adapters.) HOW TO: Configure and Use Multiple Monitors in Windows XP Multiple monitors are not enabled on a computer that you upgrade from Windows XP to Windows Vista In many desktop computers, it is possible to use two standard display adapters to drive dual monitors to create a large integrated desktop. Hardware Requirements for Multiple Display Support in Windows 98 Hardware Requirements for Multiple Display Support in Windows XP Many manufacturers supply single slot display adapters with two heads (cable connections) which support two monitors on each card. More than one can be used in one computer to drive more than two displays. NVIDIA ATI Matrox Many display adapters are able to use special software which permits rotation of displays. A rotated flat panel allows the user to "page through" documents and see an entire page at a time on the virtual desktop. The user's experience with electronic documents then resembles use of paper on a physical desktop. NVIDIA software ATI software Matrox Software Most laptop video cards have the ability to rotate an external monitor connected to the laptop, and some allow the use of two monitors, if you have a docking station. Check your display properties, advanced settings, or a special control panel. Get more ideas in the gallery at http://multiplemonitors.org/ Rev. 011609

=== Useful Computer Skills in the CM/ECF Environment ===

Useful Computer Skills for the CM/ECF Environment The skills summarized in the following pages assume a basic knowledge of Windows, Lotus Notes, WordPerfect and CM/ECF. These ideas have been contributed by many generous people. While the document is designed for court users and standard court software, the concepts are also useful in law office settings to achieve a paperless (or "less paper") environment. If you know of other skills beyond the basics that may be useful in the CM/ECF environment, or if you find needed corrections, please e-mail [email protected]. This document has hyperlinks, and is meant to be used in electronic form. An electronic form of this document is available at http://www.utd.uscourts.gov/judges/nuffer_resources.htm. Table of Contents Before Starting .............................................................................................................................. 1 System Requirements.................................................................................................................. 1 Basic Skills.................................................................................................................................. 1 Multiple Monitors or Large Monitors......................................................................................... 2 Windows......................................................................................................................................... 4 Windows Settings ....................................................................................................................... 4 Windows Explorer Techniques................................................................................................... 5 Details View and Sorting ........................................................................................................ 5 Renaming, Copying, Cutting and Pasting............................................................................... 6 Universal Windows Skills........................................................................................................... 7 Right Click .............................................................................................................................. 7 Open in New Window ............................................................................................................ 7 Paste Special ........................................................................................................................... 7 Make sending email enclosures easier........................................................................................ 8 Warning about Temp Files.......................................................................................................... 9 Hints for working with Lotus Notes .......................................................................................... 10 Open more than one window .................................................................................................... 10 Find ........................................................................................................................................... 10 Search This View...................................................................................................................... 10 Index the database..................................................................................................................... 11 More Search This View options ............................................................................................... 11 All Documents View................................................................................................................. 12 Select multiple documents ........................................................................................................ 12 Sort by any column ................................................................................................................... 12 Create folders ............................................................................................................................ 13 Create an archive....................................................................................................................... 13 Working with enclosures in Notes............................................................................................ 14 Copy and paste...................................................................................................................... 14 Save All................................................................................................................................. 14 Edit a Notes attachment ........................................................................................................ 14 Interoperability between Calendar and Mail............................................................................. 15 Adobe Acrobat ............................................................................................................................ 17 Acrobat Preferences .................................................................................................................. 17 Acrobat Tips.............................................................................................................................. 18 Full Screen View................................................................................................................... 18 Definitions............................................................................................................................. 18 Find/Search ........................................................................................................................... 18 Getting PDF information into other documents........................................................................ 19 Copy and paste...................................................................................................................... 19 Save to Word or RTF format ................................................................................................ 19 Snapshot tool......................................................................................................................... 20 Recognize Text Using OCR.................................................................................................. 20 Annotating and Highlighting .................................................................................................... 21 Highlighting .......................................................................................................................... 21 Strikethrough and underline.................................................................................................. 21 Text box ................................................................................................................................ 21 Shape..................................................................................................................................... 22 Note comments ..................................................................................................................... 22 Moving Pages............................................................................................................................ 23 Creating Hyperlinks and Bookmarks in PDF Documents ........................................................ 24 Westlaw Hints.............................................................................................................................. 26 To copy text from Westlaw into WordPerfect.......................................................................... 26 E-Research in Westlaw ............................................................................................................. 28 Creating Hyperlinks in Opinions .............................................................................................. 33 CM/ECF....................................................................................................................................... 36 Leveraging the power of CM/ECF with Multiple Windows .................................................... 36 Jazzing Up CM/ECF Docket Text ............................................................................................ 38 Finding Email Addresses .......................................................................................................... 41 Revised March 17, 2006 Before Starting System Requirements To easily use the techniques described in these materials you should have: Personal computer with at least 512 mb RAM Large monitor or multiple monitors (or superhuman patience and tenacity) Word processing program Lotus Notes email or other email program Adobe Acrobat Standard or Pro or equivalent Basic Skills The skills explained in these materials all assume you can already: (cid:137) access the Internet using an Internet Browser such as Internet Explorer or Netscape Navigator. (cid:137) do all of the following when using an Internet Browser: • Use the Forward and Backward buttons • Set up bookmarks (like the court’s website) • Click on check boxes using a mouse [or trackball or touchpad] • Type in text boxes • Download files • Print documents • Set my home page address • Use hyperlinks (cid:137) access the court’s website at http://www.utd.uscourts.gov. (cid:137) use a windows-based word processing software package like Corel WordPerfect or Microsoft Word to create documents like motions, proposed orders, and/or other case correspondence. (cid:137) use Adobe Acrobat Reader software to view and scroll through documents downloaded over the Internet as PDF (Portable Document Format) files. (cid:137) create, scan and print a document into a PDF format. This requires software beyond Adobe Acrobat Reader. (cid:137) save a document that you created by naming it and saving it as a file in a computer drive folder or directory, and later find the file to reopen the document. (cid:137) use the e-mail system in your office; attach a document to an e-mail message; open a document that has been e-mailed as an attachment; and save the attached document in a specific location. This list of Basic Skills is adapted from http://www.utd.uscourts.gov/cmecf/documents/skillschecklist.pdf Multiple Monitors or Large Monitors Fundamental to the ability to work effectively in the electronic world is an electronic desktop. In the paper world, we work on a large desk to be able to work with many items at once. In the electronic world, a large virtual desktop enables us to work simultaneously with many electronic sources of information while we do our work, which may include electronic composition, analysis and communication. Multiple monitors or large monitors allow view of many source documents (Westlaw, Lexis, PACER, CM/ECF, PDF files) while composing other documents (Word or WordPerfect or CM/ECF). Multiple documents from the same application may be viewed side-by-side. Copying and pasting between screens or windows is possible because all monitors are connected to the same computer. The photo at right shows two rotated flat panel displays. If using multiple monitors, it is best to use identical displays. Operating systems since Windows 98 permit creation of a large "virtual display" which spans several physical monitors, if the computer has a video display hardware which can drive two monitors. This dual display capability is built into most laptop computers. (control panel at right) The dual display features are regulated in the Display Properties control panel, Settings Tab. Microsoft help pages: Turn_on dual monitor support How to Enable Multiple Display Support Using Windows 98 HOW TO: Set Up and Troubleshoot Multiple Monitors in Windows 2000 (This article includes information on installing multiple display adapters.) HOW TO: Configure and Use Multiple Monitors in Windows XP In many desktop computers, it is possible to use two standard display adapters to drive dual monitors to create a large integrated desktop. Hardware Requirements for Multiple Display Support in Windows 98 Hardware Requirements for Multiple-Display Support in Windows XP Many manufacturers supply single slot display adapters with two heads (cable connections) which support two monitors on each card. NVIDIA ATI (use keyword "dual display" to search products) Matrox Many display adapters are able to use special software which permits rotation of displays. A rotated flat panel allows the user to "page through" documents and see an entire page at a time on the virtual desktop. The user's experience with electronic documents then resembles use of paper on a physical desktop. NVIDIA software ATI software WordPerfect document Adobe Acrobat document Windows Windows Settings Set your computer to show file extensions and to show full paths in the title and address bars. This is very helpful when finding documents. Access this menu from any Windows Explorer window, and pick TOOLS -- FOLDER OPTIONS. Apply these choices to ALL folders. The full path for a file shows precisely where it is located. File extensions are the three characters after the “.” in a file name. If this extension is visible, it is a lot easier to know the difference between a PDF (Acrobat) document and a WPD (WordPerfect) document. Windows Explorer Techniques Details View and Sorting More file information is available in the Details view in Windows Explorer (and any Open or Save dialog box). In Details view, you may sort by any of the columns, enabling you to put the oldest or newest documents at the top of the list or sort by file name. Click at the top of a column to sort by that column. This view is sorted by Modified date. The Details view is available in any Open or Save dialog: You may need to enlarge the box by tugging at the lower right corner. Renaming, Copying, Cutting and Pasting By right clicking on a file in the Open or Save box, you can rename it, copy or cut it, and navigate to another location to Save it. (The file must not be open or in use.) Universal Windows Skills In almost all Windows based programs, there are some universal skills that make work easier. Right Click Right clicking usually reveals a menu. The menu varies from program to program and depends on what you click and what you are doing at the time. Most commonly used commands for that situation are on the menu that appears. Right click menu in Acrobat Standard Right click menu in WordPerfect Open in New Window Almost any time you are working in a program with hyperlinks, you can choose to open the link in a new window. Right clicking reveals the menu option. This gives you two windows in the same program. See how this works in CM/ECF. Paste Special Sometimes when copying text from one program to paste into another, the receiving program misinterprets the copied material. Strange characters or formatting may appear. Instead of paste use paste special and choose to paste “unformatted text.” The pasted material will not carry unwanted formatting to its new location. Make sending email enclosures easier, go to Internet Explorer, Tools, Internet Options: Click the Programs tab. Make sure Lotus Notes is selected as your Mail Program (assuming Notes is what you use for email). Now, in Word Perfect and Acrobat Standard or Pro (but not in Acrobat Reader), when you select FILE, SEND TO, Mail Recipient, the current document will be an email attachment to a new email. The email opens for you to complete and send with the enclosure attached. Warning about Temp Files When working in Notes or CM/ECF, you may be working in a file that is not really saved anywhere you can find it again. Windows creates temporary files to work with documents it assumes you only want to view. For example, if you OPEN a WordPerfect attachment in Notes, make edits and Save it in WordPerfect, you will lose your edits, because you were working on a temp file. (Hints for Working With Lotus Notes suggests SAVING that attachment if you intend to work on it, or using the Notes EDIT feature.) Similarly, if you are viewing a PDF document by clicking on a CM/ECF link, and then using Acrobat to make annotations or highlight the document, those edits will not be saved in the court file version of the document and will not be saved on your computer in a location that you can find. So, you must SAVE A COPY or SAVE AS before doing work with a PDF document from CM/ECF. Hints for working with Lotus Notes To open more than one window open, right click the icon and select open a new window. This lets you see your calendar and inbox at the same time. Notes has a great find feature (control – F): But Search This View is even more powerful: When you Search This View, the text of each message in the view is searched. You may need to index the database if the button at the far right does not say “indexed.” To create an index, select FILE DATABASE PROPERTIES and on the magnifying glass tab, Create index. When using the Search This View command, if you click the MORE down arrow, you get more Search This View options, allowing you to search by date, author, and on multiple words. The All Documents View will let you see and search ALL DOCUMENTS! You may select multiple documents at one time by pressing the spacebar when the document is selected, and then using the mouse or arrow keys to move on to other documents. They need not be contiguous. Note that in any view, you may sort by any column that has an arrow or caret (Who, Date, Size in the above example). When multiple documents are selected, you may select from the ACTION menu to do something to all the documents. Be careful! The command at the right will FORWARD all selected documents. Create folders to hold your messages: You may create folders inside of folders. If you create an archive, you can keep these folders on your own computer and not exceed your mailbox quota. In Lotus Notes Help, see Archiving mail messages to free up space. You can set up archiving to be “automatic” which scares me, or just set up the archive, use Search this View and multiple selection (with the space bar) to cut and paste items into the archive. Working with enclosures in Notes: You can copy and paste an enclosure from one Notes document to another: Right click the enclosure to bring up the menu Use traditional copy and paste to move the enclosure. Note the other options on the menu – SAVE ALL is useful to put multiple enclosures into a single location. Note also that the menu has an EDIT option. If you double click an enclosure, you also get some options, though fewer than with a right click. aving If you want to edit a Notes attachment without saving it somewhere, and then h to go through the trouble of attaching it again, click EDIT. The changes you make will be saved in the Notes attachment. (So, this procedure is NOT GOOD if you want to save both the unedited version and the edited version.) This is helpful if you are circulating a document for quick review and only need to save the final version. When you finish editing the Notes attachment (in WordPerfect, for example), SAVE it, and then return to your Notes message. New buttons on the email message now require you to Save and File or Save and Close the Notes message. Save and Close the message, and then you can forward, reply etc. Interoperability between Calendar and Mail Notes will let you email a calendar entry and copy an email message into a calendar entry. If you want to tell someone else about a calendar entry, open it and FORWARD it. If you receive a meeting invitation that contains information about the meeting, Copy Into New Calendar Entry: The entire mail message, including attachments, will copy to the calendar entry. This is useful for agendas and travel itineraries. Remember, you can also copy and paste a Notes attachment into a calendar entry. Or you can include any document as an attachment for a calendar entry, just as if you were attaching a document to an email message. Adobe Acrobat These tips pertain to Acrobat Standard or Pro, though some will work with Acrobat Reader. If you want to create or manipulate PDF documents, you need more than Acrobat Reader. Acrobat Preferences Adobe Acrobat, used to view PDF files, allows a user to customize preferences to operate better under CM ECF. The locations of these preferences options may appear in different places in different versions of Acrobat. It is convenient to have PDF documents appear in a separate Acrobat window rather than inside the web browser. To make Acrobat open a new window and NOT open inside the web browser, make this selection so that you will NOT “Display PDF in Browser:” If the computer monitor is large enough to make a full-page document readable, it is convenient to set Adobe Acrobat preferences to open a full page of a document in a window, so that the “Page Down” and “Page Up” keys will allow you to page through a document. To set Adobe Acrobat preferences to open a full page of a document in a window, make this selection: Acrobat Tips Full Screen View To make a document appear full screen in Acrobat and Acrobat Reader, press Control L. Control L will revert to normal mode. Definitions Two definitions of the basic types of PDF documents are important to understand this section. A PDF file may be either: • A “text” PDF created by selecting a “PDF creating” printer after you create your word processing document, or by using the WordPerfect “Publish to PDF” command or the Adobe PDF button in Microsoft Word. This method of creating a PDF results in a file that you can search for text, and from which you may copy and paste text. The PDF document may also be “SAVEd AS” in Microsoft Word format or RTF format. This will extract most of the text from the file (though formatting may be a little funky). Because of these features, this sort of PDF document is often called a “text” PDF. OR • An “image” PDF made by scanning a document, with a scanner or a photocopier with “scan to PDF” ability. But if a PDF file is created by this method – scanning – then the file cannot be searched, copied from or SAVEd AS to Word or RTF format. This sort of PDF document is often called an “image” PDF. Find/Search To search an Acrobat text based document, press Control – F or, on the Edit menu, select Search. The results list has a hyperlink to each location of the search text. This won’t work with scanned documents (image PDF). Getting PDF information into other documents: Information from a PDF document may be used in other documents in several ways. If the PDF document is text based you may copy and paste, using the Text Select tool. You may also Save to Word or RTF format, resulting in a complete data file with all text in the document, though formatting may not be preserved. If you are working with an image based PDF, created from a scan, or containing images you need to work with, use the snapshot tool to capture an image of a portion of a PDF document. This image may be pasted into another document, such as a Notes message. You may also use OCR (Optical Character Recognition) software included with Acrobat Standard and Pro. Be sure you are working with a scanned PDF document by attempting to select text with the SELECT tool. Then, with the document open, on the Document Menu, pick Recognize Text Using OCR (called Paper Capture in some Acrobat versions): In the dialog that appears select as much of the document as you want to work with in text. In this case I only wanted the current page: Now, the text selection tool will work in the document, for as much of it as you “recognized.” If you OCR the entire document, you can search it all. You may also SAVE AS an RTF file or Microsoft Word document. Be careful to proofread any text extracted in this manner. Annotating and Highlighting PDF documents may be annotated and highlighted. Select the Highlighting tool on the Toolbar if it is showing or on the Tools, Commenting, Highlighting menu. Select text and it will be highlighted. Note that there are also strikethrough and underline tools. To insert text, you may use a text box: You may cover things up with a white rectangle shape, with or without a border. Note this is not an effective method of redaction. Acrobat also permits you to place Note comments on the document. The Note shows if you place your cursor over the Note icon: or if you click on the Note icon, the text of the Note is revealed: Moving Pages To move pages in a PDF document, you may: Click the Pages tab and drag the pages around. You may even drag pages between documents. Or you may use the Document, Pages, commands: Creating Hyperlinks and Bookmarks in PDF Documents The easiest way to create hyperlinks in a PDF document is to create the document with hyperlinks in a word processor and let the PDF conversion convert hyperlinks and bookmarks. You must have first created hyperlinks and bookmarks in the word processing document. These may include tables of contents, indexes, or Westlaw hyperlinks. In WordPerfect, select Publish to PDF, and make sure the option is selected to Include Hyperlinks and Generate Bookmarks. In Microsoft Word, you must use Adobe PDF Maker installed with Acrobat Standard or Pro Make sure conversion settings are set to Add links and bookmarks Then create the PDF document with the PDF Maker menu icon: Westlaw Hints To copy text from Westlaw into WordPerfect, find the text and select it: Then click TOOLS in the lower right corner and select Copy With Reference: A frame will pop up with the text and reference, and instructions: Click COPY Page 26 and then Paste Special – Unformatted Text to place the text and reference into your word processing document. There will be a little reformatting to do but the essential information is in place. Pasted data E-Research in Westlaw Why print from Westlaw when storing your cases as e-research lets you copy and paste from those cases directly into your document? And you can even highlight and annotate these Westlaw cases just like paper print outs. Find the case/statute/article you want in Westlaw.com Let your cursor pass over the Select Download from the dropdown menu. button in the upper right corner. In the dialog that appears, click on Current Destination Properties. (Setting Properties only has to be done once for the rest of your research career.) In the dialog that appears, select 1. 2. 3. The name of your word processor (Word Perfect if you work for the courts and MS Word if you work anywhere else in the entire world) Single Column (important for readability on the screen) Save these selections as my default destinations (These three steps are set as your future preferences – you won’t have to change them again.) Click Save Deselect “Include a Summary Page” Click “Send Request” You will see a “processing” notice: Then in the File Download box, click SAVE Navigate to the folder where you want to save the document: Name the document something sensible! The Westlaw proposed name is NOT helpful. After the document SAVES Click OPEN If you see a summary page one – you don’t need it – select and delete all the data on that page. When the actual document is on the first page, CONTROL S to SAVE again. Now, as you work through the document (notice how nice it is to read in one column format) you can highlight as you go, and this is in your permanent record. In Word Perfect, the Highlight command is ALT –T ALT-H ALT-O Or you can click the HIGHLIGHT tool on the toolbar. In Word, choose VIEW TOOLBARS REVIEWING TOOLBAR and use the highlighter tool: Creating Hyperlinks in Opinions Westlaw and Lexis have automated tools to create hyperlinks to research sources in your WordPerfect, Word or Web Page documents. WestCiteLink Lexlink These work very well. It is also possible to create hyperlinks manually. This process will be demonstrated for Westlaw hyperlinks in WordPerfect. Find the reference which you want to turn into a hyperlink. Select the cite and COPY. Open Westlaw. Paste the reference into the FIND box. Click GO When the case comes up, press the Result List tab. There should be 1 case shown. (If there is more than one case, the balance of this process won’t work.) RIGHT CLICK the blue case name in the result list entry, and select COPY SHORTCUT Return to your word processing document and select the entire reference. Select TOOLS, HYPERLINK: PASTE into the box that appears: Click OK. The reference will change appearance (depending on the style of hyperlink in your document) and if you place your cursor over the reference, the link will appear. Clicking on the link will open Westlaw and ask for your password. CM/ECF Leveraging the power of CM/ECF with Multiple Windows Looking at a motions report in CM/ECF (and almost every other screen) we see a docket hyperlink. RIGHT CLICK that hyperlink and select OPEN IN NEW WINDOW Now we can see two CM/ECF screens at the same time. (Note that only one screen has the blue bar.) In this view we can scan the docket (on the right) and verify that all documents related to the motion are showing on the motion report (on the left). It is also possible to RIGHT CLICK the blue bar and OPEN IN NEW WINDOW. Here I clicked CIVIL, and selected OPEN IN NEW WINDOW. This allows docketing while looking at the docket or a motions report. Jazzing Up CM/ECF Docket Text It is possible to use HTML code to dress up CM/ECF docket entries. This has been done by default in one standard entry in our system, the Notice of Hearing. The text enhancement helps the notice stand out. A CM/ECF user may create special formatting in any docket entry with the use of HTML (HyperText Markup Language) code. The HTML code must be manually entered. Compare these two docket entries. The first includes several HTML coding features that were inserted by the docketer: Line breaks Bold type Italics Hyperlink HTML coding is not too hard, but should be practiced in the TEST or TRAIN database. <br> creates a line break. All other HTML code requires a beginning code and ending code. <b> </b> bold <i> </i> italic <u> </u> underline Here is an example of HTML coding entered in the next to the last screen in CM. Note the beginning and ending codes. In the final CM docketing screen, the effect of the HTML coding shows in part. Bold does not show (because everything in this screen is bolc) , but italic, underline, and breaks do show. The full effect of the HTML code shows in the NEF and docket entry: Notice that a carriage return entered in CM docketing does not even create a space. So, don’t use carriage returns in CM docketing. Finding Email Addresses: CM/ECF can help you find email addresses in Utilities, Mailing, Mailing Info for a Case. Note that you may copy and paste all email addresses for counsel from the lower part of this screen:1 You may also find email addresses at http://www.utahbar.org/forms/members_directory_search.html and http://www.lawyers.com/find_a_lawyer/name_search/ 1 Feature custom to District of Utah. Posted on Ed’s Place. Page 41

=== How to create Cross-Document Hyperlinks ===

Users should not copy hyperlinks from NEFs. The document hyperlinks in NEFs contain special information that allows them to provide one "free look" to qualified recipients of the NEF. Instead of copying hyperlinks in NEFs, users should run a report in CM/ECF, such as the Docket Report, and copy the document number hyperlink from the report. See below for more information on this process. A.2.2.1.1 Using WordPerfect to Create Hyperlinks to Existing CM/ECF Documents 1. Access CM/ECF and run the docket report for the case that contains the document you want to link to. 2. Locate the document among the docket entries. 3. Copy the URL of the document to the clipboard. To do this, hover over the document link and click the right mouse button. Select Copy Shortcut (Internet Explorer/Netscape) or Copy Link Location (Firefox) from the selection list. (Note: The document link displays after the filed date and is represented by a number with an underscore, e.g. 2). 4. In WordPerfect, open the document you want to add the hyperlink to. In the document, highlight the citation text for which you wish to create the hyperlink. 5. Click Tools on the toolbar and select Hyperlink from the dropdown selection list. Release Notes | District CM/ECF Release 3.1 | 6. The Hyperlink Properties window opens. Paste the URL into the Document/Macro field (by clicking the right mouse button and selecting Paste or by using the Ctrl + V command). (See the screen below.) You can append to the URL a citation to a specific page number within the document, if necessary. this, enter ?page=<page number> at To do for example, https://usdc.uscourts.gov/doc1/00103032?incHeader=y?page=23. Click the OK button and the dialog box will close. The hyperlink text now is underlined indicating a hyperlink has been created. the end of the URL, 7. Save the word processing document. 8. To convert the WordPerfect document to PDF format, click File on the toolbar, select Publish to and then PDF... from the dropdown selection list or Publish to PDF (the selection depends of the version of WordPerfect you are using). Navigate, if necessary, and store the PDF document in a local directory. Do not print a WordPerfect document to Adobe PDF Writer. You must use Publish to PDF if the document contains a hyperlink. Printing to PDF is permitted if the document does not contain hyperlinks. Release Notes | District CM/ECF Release 3.1 9. Docket an event in CM/ECF and add the PDF to the docket entry as usual. A.2.2.1.2 Using Microsoft Word to Create Hyperlinks to Existing CM/ECF Documents 1. Access CM/ECF and run the docket report for the case that contains the document you want to link to. 2. Locate the document among the docket entries. 3. Copy the URL of the document to the clipboard. To do this, hover over the document link and click the right mouse button. Select Copy Shortcut (Internet Explorer/Netscape) or Copy Link Location (Firefox) from the selection list. (Note: The document link displays after the filed date and is represented by a number with an underscore, e.g. 2). 4. In Microsoft Word, open the document you want to add the hyperlink to. In the document, highlight the citation text for which you wish to create the hyperlink. 5. Click Insert on the toolbar and select Hyperlink from the dropdown selection list. Release Notes | District CM/ECF Release 3.1 6. The Insert Hyperlink window opens. Paste the URL into the Address field (by clicking the right mouse button and selecting Paste, or by using the Ctrl + V command). The URL of the CM/ECF document is pasted (displays) in the address field. You can append to the URL a citation to a specific page number within the document, if desired. To do this, enter ?page=<page number> at the end of the URL, for example, https://ap10-dev-dcn.td.ocads.ao.dcn/doc1/00103032?incHeader=y?page=23. the OK button and the dialog box will close. The hyperlink text now is underlined indicating a hyperlink has been created. Click 7. Save and close the word processing document. 8. To convert the Word document to PDF format, the Adobe Acrobat application must be used. There are a number of ways to convert a Word document; the following illustrates conversion from within Adobe Acrobat. (Note: If the document is open when the next step is executed an error message is returned. The Word file must be closed before converting it to PDF.) 9. Open the Adobe Acrobat application. Click on File in the toolbar and select Create PDF and then From File... . Release Notes | District CM/ECF Release 3.1 10. A navigation window opens. Navigate, if necessary, to the directory/folder where the Word document is stored. Select the document and click the Open button. 11. A series of windows open as the document is converted. When the conversion is completed, the document is displayed in an Adobe Acrobat window. (Note: The hyperlink is converted automatically.) 12. Close the Adobe file. Respond Yes to the save changes message and store the PDF document in the appropriate directory/file. 13. Docket an event in CM/ECF and upload the PDF file to the docket entry as usual. A.2.2.2 Creating Hyperlinks between Documents Filed in the Same Event It is possible to link two or more documents to be filed in the same event (e.g., create a hyperlink in the main document to an attachment) even when those documents were not filed previously in CM/ECF. To link documents being filed in the same docket event, follow the instructions in Section A2.2.2.1 (for Corel Word Perfect) or Section A2.2.2.2 (for Microsoft Word). A2.2.2.1 Using WordPerfect to Create Hyperlinks between Documents Filed in the Same Event 1. Create the secondary WordPerfect document(s) (i.e., the attachment) to which the main document will be linked. Publish the secondary document(s) to PDF. See Step 8 in Section A2.2.1.1 above. 2. Create/open the main document (i.e., the document that will have the hyperlink to the secondary document). 3. Select the text in the main document that will be displayed as the hyperlink. Click Tools on the toolbar and select Hyperlink from the dropdown selection list. The Hyperlink Properties box is displayed. Release Notes | District CM/ECF Release 3.1 Folder Icon 4. Click the Folder icon next to the Document/Macro field. 5. Navigate to the folder in which the secondary document you wish to link to is located (i.e., the local path name). Highlight the file and click the Select button. (Note: The file selected as the link must be in .pdf format.) 6. You can append to the file name a citation to a specific page number within the document, if desired. To do this, enter ?page=<page number>, e.g., Exhibit 2.pdf?page=23. 7. Click OK in the Hyperlink Properties box. The hyperlink text will be underlined. 8. Save the main WordPerfect document. Publish the document to PDF. (See Step 8 in Section A2.2.1.1 above.) 9. Docket an event in CM/ECF and upload the main document and attachments as usual. Release Notes | District CM/ECF Release 3.1 A.2.2.2.2 Using Microsoft Word to Create Hyperlinks between Documents Filed in the Same Event 1. Create the secondary Word document(s) (i.e., the attachment) to which the main document will be linked. Publish the secondary document(s) to PDF. See Steps 8-12 in Section A2.2.1.2 above. 2. Create/open the main document (i.e., the document that will have the hyperlink to the secondary document). 3. Select the text in the main document that will be displayed as the hyperlink. Click Insert on the toolbar and select Hyperlink from the dropdown selection list. 4. Navigate to the folder in which the secondary document you wish to link to is located. Highlight the file and click the OK button. (Note: The file selected as the link must be in PDF format.) 5. The name of the selected file displays in the Address field. You can append to the file name a citation to a specific page number within the document, if desired. To do this, enter ?page=<page number>, e.g., Exhibit 2.pdf?page=23. 6. Click the OK button and the dialog box will close. The hyperlink text will be underlined. 7. Save the Word document. Publish the document to PDF using Adobe Acrobat. 8. Docket an event in CM/ECF and upload the main document and attachments as usual. A2.2.3 Accessing Documents via Hyperlinks in Other Documents Accessing documents via a cross-document hyperlink works the same as when documents are accessed via a document number hyperlink in a report or query. If the user clicks on a hyperlink to a CM/ECF document but has not logged in to a CM/ECF server, a PACER login screen is presented before the document can be displayed. Once the user has logged in to a CM/ECF server as a PACER user, this login ID will provide access to documents on other CM/ECF servers for the duration of the browser session or until the user logs out of the CM/ECF application. The billing receipt and confirmation will be displayed to users logged in with a PACER account before the document can be displayed. Release Notes | District CM/ECF Release 3.1 If a document is restricted for any reason, the user must log in to the server on which the document resides with an attorney login ID and have the appropriate access rights to the document. If a hyperlink to a restricted document is created in a document stored on another server, the hyperlink will not access the document from the other server. If the user does not have access rights to a document, or a document cannot be found, an applicable message will be displayed. Release Notes | District CM/ECF Release 3.1

=== sample document with hyperlinks ===

STEPHEN J. SORENSON, Acting United States Attorney (#3049) JARED C. BENNETT, Assistant United States Attorney (#9097) 185 South State Street, #400 Salt Lake City, Utah 84111 Telephone: (801) 524-5682 Attorneys for the United States of America IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION UNITED STATES OF AMERICA, Petitioner, Case No. 2:05CV1060 TS : : v. : REPORT AND RECOMMENDATION DOUGLAS R. MADSEN, : District Judge Ted Stewart Magistrate Judge David O. Nuffer Respondent. The United States of America filed a petition to enforce its May 19, 2005 IRS Summons ("the Summons") pursuant to 26 U.S.C. §§ 7402(b) and 7604(a). Judge Stewart issued an Order to Show Cause on January 25, 2006, which referred this matter to the undersigned under 28 U.S.C. § 636(b)(3). United States v. Jones, 581 F.2d 816, 817 (10th Cir. 1978) (referring IRS summons enforcement to magistrate judge under 28 U.S.C. § 636(b)(3 . In the Order to Show Cause ("OTSC"), Respondent was directed to file a written response supported by sworn affidavits to the United States' Petition to Enforce the Summons ("the Petition") within ten days of the OTSC being served upon him. The OTSC informed Respondent that only those issues raised in the written response and supported by sworn affidavits would be considered by the Court and that all allegations in the Petition not contested by the written response and sworn statements would be deemed admitted. See United States v. Balanced Fin. Mgmt., Inc., 769 F.2d 1440, 1444 (10th Cir. 1985). The OTSC also directed the undersigned to convene a hearing on February 27, 2006 at 11:15 a.m. to hear any arguments that would assist the undersigned in determining whether Respondent has shown cause. Respondent failed to appear at the hearing because he was serving an ecclesiastical mission in Maine. Consequently, the undersigned ordered that the parties have a telephone conference on April 10, 2006 at 10:00 a.m. to determine Respondent's willingness to comply with the Summons. The teleconference hearing was held on the record on April 10, 2006, and based on the arguments and representations presented in the Petition and at the above-mentioned teleconference, the undersigned reports the following: 1. Respondent failed to file any written response supported by sworn statements providing reasons why he should not be compelled to comply with the Summons. 2. Respondent agreed to provide to the IRS the information required by the Summons on or before July 6, 2006 and agreed to meet with the IRS sometime during the week of June 26, 2006 to ensure that he could comply with the July 6, 2006 deadline. Consequently, the undersigned recommends that: 1. The District Court find that Respondent has failed to show cause why he should not be compelled to comply with the Summons; and 2. The District Court order Respondent to provide the information required by the Summons on or before July 6, 2006 to the IRS, which is located at 50 South 200 East, Salt Lake City, Utah 84111. 3. The District Court order Respondent to meet with the IRS on June 28, at 10:00 a.m. at the IRS offices located at the above-mentioned address. Within 10 days after being served with a copy of this Report and Recommendation, a party may serve and file specific, written objections. A party may respond to another party's objections -2- within 10 days after being served with a copy thereof. Pursuant to 28 U.S.C. § 636(b)(1)(C), the District Judge to whom this case is assigned shall make a de novo determination upon the record of any portion of the undersigned's disposition to which specific written objection has been made. The District Judge may accept, reject, or modify the recommended decision, receive further evidence, or re-commit the matter to the magistrate judge with instructions. DATED this 10 day of April 2006. th BY THE COURT: ____________________________________ DAVID NUFFER, Magistrate Judge United States District Court -3- CERTIFICATE OF SERVICE I HEREBY CERTIFY that I am an employee of the United States Attorney’s Office for the District of Utah, and that a copy of the foregoing Report and Recommendation and Order Vacating May 1, 2006 Video Conference Hearing were mailed, postage prepaid, this 10th day of April, 2006 to the following: Douglas R. Madsen 246 High Street, #202 Belfast, ME 04915 -4-

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH PHILLIP M. ADAMS, an individual and PHILLIP M. ADAMS & ASSOCIATES, L.L.C., a Utah Limited Liability Company, Plaintiffs, v. MEMORANDUM DECISION AND ORDER DENYING MOTION TO COMPEL DR. ADAMS’ EXPERT REPORT AND DEPOSITION Case No. 2:02 CV 106 TS GATEWAY, INC., a Delaware Corporation, District Judge Ted Stewart Defendant. Magistrate Judge David Nuffer Gateway has moved1 to compel Plaintiffs to provide Dr. Adams’ expert report and deposition or to exclude him from testifying as an expert. It really is beyond dispute that Dr. Adams has extraordinary knowledge about the technical subject matter of his patents, and he has been formally designated as an expert in this litigation.2 The question is whether he is bound by the requirement of Fed. R. Civ. P. 26(a)(2)(B) to provide an expert report. His deposition has been taken over a six day period,3 and trial is set for April 3, 2006.4 This order determines that he need not provide an expert report. Discussion There are three tiers of obligations regarding experts: disclosure of identity; disclosure by report; and discovery. The last tier – discovery – has different treatment for two types of experts. 1 Motion to Compel Dr. Adams’ Expert Report and Deposition or, Alternatively, to Exclude Dr. Adams’ Expert Testimony, docket no. 439, filed January 5, 2005. 2 Rule 26(a)(2) Notice that Phillip M. Adams Will Testify as an Expert, Exhibit A to Memorandum of Law in Support of Motion to Compel Dr. Adams’ Expert Report and Deposition or, Alternatively, to Exclude Dr. Adams’ Expert Testimony (Supporting Memorandum), docket no. 440, filed January 5, 2005. 3 Plaintiffs’ Opposition to Gateway’s Motion to Compel Dr. Adams’ Expert Report and Deposition or, Alternatively, to Exclude Dr. Adams’ Expert Testimony at 2, docket no. 461, filed February 3, 2006. 4 Amended Scheduling Order, docket no. 333, filed March 22, 2005 and Supplemental Scheduling Order, docket no. 394, filed July 6, 2005. • Disclosure of identity is required for all persons who will testify under Fed. R. Evid. 702, 703 or 705.5 • Disclosure of opinion and supporting information by report is required for “a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony.”6 • Discovery is permitted by deposition of “any person who has been identified as an expert whose opinions may be presented at trial.”7 • Discovery by any means is prohibited for “an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial” unless certain exigencies exist.8 It is clear in this case that Dr. Adams’ identity is required to be disclosed, since he will testify as an expert at trial. It is also clear that he is subject to deposition and not insulated from other forms of discovery. The dispute is about provision of a report. History of Expert Discovery and Report Requirement Under the 1970 amendments to the rules, a party could submit an interrogatory to another party “to require one who intends to use [an expert who is to testify at the trial] to state the substance of the testimony that the expert is expected to give.”9 But this provision did not distribute much knowledge. “The information disclosed under the [1970] rule in answering interrogatories about the ‘substance’ of expert testimony was frequently so sketchy and vague that it rarely dispensed with the need to depose the expert and often was even of little help in 5 Fed. R. Civ. P. 26(a)(2)(A). 6 Fed. R. Civ. P. 26(a)(2)(B). 7 Fed. R. Civ. P. 26(b)(4)(A). 8 Fed. R. Civ. P. 26(b)(4)(B). 9 Notes of Advisory Committee on 1970 Amendments to Rules. 2 preparing for a deposition of the witness.”10 The 1970 rules did not specifically provide for deposition of experts, but that was “the actual practice followed in most courts,”11 expressly authorized in the rules in 1993. Thus, the provisions about reports of experts and depositions of experts evolved differently. Depositions were permitted by practice under the 1970 Rule, before reports were required by the 1993 Rule. The only addition in the 1993 Amendments for depositions was to provide that the expert’s fees for deposition would be borne by the deposing party. The 1993 Amendments added the requirement of reports for those “retained or specially employed to provide expert testimony in the case.”12 The 1993 amendments added a general requirement that a party taking an expert witness’s deposition would pay “the expert a reasonable fee for time spent in responding to discovery.”13 This expense is only a concern as to experts specially employed or retained, since persons “generally employed” are not charging their employer an additional fee for the work as an expert witness. Presumably, the traditional tools of deposition and interrogatory available for expert witnesses who are “generally employed” don’t incur any extraordinary out of pocket costs for the employer-party. The 1993 Notes hint at the interplay between reports and expenses, suggesting cost avoidance is a reason reports are required when expert expenses are in play. In discussing the allocation of “the expense of such depositions” to the party taking the deposition, the 1993 Notes suggest that a report could “eliminate the need for some such depositions or at least reduce the length of the depositions.”14 Thus, the Note states the “requirement under subdivision (a)(2)(B) of a complete and detailed report of the expected testimony” applies only to “certain forensic 10 Notes of Advisory Committee on 1993 Amendments to Rules. 11 Id. 12 Fed. R. Civ. P. 26(a)(2)(B). 13 Fed. R. Civ. P. 26(b)(4)(C) 14 Notes of Advisory Committee on 1993 Amendments to Rules. 3 experts;”15 which I understand to mean those expert witnesses for whom expenses might be chargeable – those “retained or specially employed” – and those “whose duties as an employee of the party regularly involve giving expert testimony.” As to that last category, since the expert employee is regularly involved in litigation, it is fair to impose the burden of the report because that expert witness, like one specially employed or retained, is in the business of regularly testifying and can become familiar with the routine of report preparation. The plain language of the rule facilitates a party’s use of an employee for expert witness testimony without the burden of a formal report. Such a report might be a heavy burden for a technician or manager familiar with a sophisticated process or practice, but unaccustomed to the burden of communication. For such a witness, even the experience of testimony and deposition would be out of the norm. A report might be beyond the employee’s ability. But for an employee who is essentially an “in-house” expert witness, the burden of a report is not great and prevents use of employment status to protect those who are truly “professional” witnesses. Gateway suggests Dr. Adams is not an employee-expert and falls into the category of expert whose duties “regularly involve giving expert testimony” because: • he filed an affidavit stating that he has “acted as an expert in computer litigation in my over 28 years experience in the computer industry;”16 • he signed an agreement with Hewlett-Packard agreeing to testify “at the request of HP or its legal counsel, in any FDC-related litigation including the Alvis Litigation;”17 and • he provided a short affidavit in that litigation.18 15 Id. 16 Declaration of Plaintiff Phillip M. Adams re Source Code at 2, filed February 16, 2006, as Sealed Exhibit, docket no. 470, to Gateway’s Supporting Memorandum. 17 Consulting Agreement attached to Master Agreement with Hewlett-Packard Company, Exhibit F to Gateway’s Supporting Memorandum. See also Supporting Memorandum at 8. 18 Declaration of Phillip Adams, Exhibit F to Gateway’s Memorandum. See also Supporting Memorandum at 8. 4 These facts fall far short of saying Adams’ duties as an employee of the party regularly involve giving expert testimony. His affidavit that he has acted as an expert over the last 28 years might refer to consulting as a non-testifying expert in which case he would have never given a report or deposition.19 Indeed, the fact that Gateway has presented no evidence that Adams has testified as an expert witness over those 28 years supports this interpretation. The HP agreement is only an agreement to testify, not qualifying as experience history. The only evidence Gateway offers of Adam’s testimony as an expert is the page and a half affidavit. Adams is not the regularly testifying expert witness employee targeted by the Rule. This reading of the rule as exempting employee experts who do not regularly testify from the report requirement is consistent with Navajo Nation v. Norris20 in which three Tribal Council members were designated to “testify regarding tribal customs and traditions.”21 Since “the duties of these Tribal Council members do not involve regularly giving expert testimony in court”22 they were not required to give reports. The court considered and rejected the argument that the result was “inconsistent with the purpose of FRCP 26(a)(2)(B) which is to promote full disclosure of expert information and reduce unfair surprise due to late or incomplete disclosures.”23 As the district judge overruled the magistrate judge who had accepted that argument, the district judge stated “the Magistrate Judge simply rewrote the rule to say that employee experts must provide the report required by FRCP 26(a)(2)(B).”24 It would be nice for opposing parties if the policy of full disclosure by report were absolute, but that is not what the Rule says. 19 Fed. R. Civ. P. 26(b)(4)(B). 20 189 F.RD. 610 (E.D. Wash. 1999). 21 189 F.R.D. at 611. 22 Id. 23 Id. 24 Id. at 612. 5 Gateway has assembled several trial level cases where the court has simply been unable to live with the language of the Rule. Generally, these cases reject the language of the Rule because “the reading proposed . . . would create a distinction seemingly at odds with the evident purpose of promoting full pre trial disclosure of expert information.”25 These cases just refuse to recognize “a category of expert trial witness for whom no written disclosure is required” because they say that result is “not justified by any articulable policy.”26 But policy should only be used to construe a rule, not to contravene its language. The only appellate case in Gateway’s memoranda analyzes the rule in light of an example given in the Advisory Committee Notes. The opinion based its analysis on a “treating physician, the example offered by the Advisory Committee of an employee exempt from the written report requirement.”27 Such a treating physician, as a factual observer, can testify as an expert without a report. The opinion therefore held that only percipient experts are excluded from a report requirement, ignoring the language in the Rule. All of these cases have unnecessarily stretched to find a reason that the Rule requires a report for an employee expert witness who is not specially employed and does not regularly testify, when the Rule clearly says otherwise. This straining is unnecessary in light of the 1993 Notes’ suggestion that “[b]y local rule, order, or written stipulation, the requirement of a written report may be waived for particular experts or imposed upon additional persons who will provide opinions under Rule 702.”28 In the cases Gateway cites, the policy concerns that lead to overriding the Rule could have been expressed in terms of the discretionary needs of the particular case for an expert report. 25 Day v. Consol. Rail Corp., No. 95 CIV. 968 (PKL), 1996 WL 257654, at *2 (S.D.N.Y. May 15, 1996). See also KW Plastics v. U.S. Can Co., 199 F.R.D. 687, 689 (M. D. Ala. 2000); Minn. Mining & Mfg. Co., 177 F.R.D. 459, 460 (D. Minn. 1998); McCulloch v. Hartford Life & Acc. Ins. Co., 223 F.R.D. 26, 28 (D. Conn. 2004). 26 Id. 27 Prieto v. Malgor, 361 F.3d 1313, 1319 (11th Cir. 2004). 28 Notes of Advisory Committee on 1993 Amendments to Rules, quoted in Navajo Nation, 189 F.R.D. at 612-13. 6 Because Dr. Adams has been extensively deposed, because trial is coming soon, and because Dr. Adams’ duties as an employee do not require him to regularly testify as an expert witness, a report will not be required. IT IS HEREBY ORDERED that Gateway’s motion to compel Dr. Adams’ Expert ORDER Report29 is DENIED. Dated this 10th day of March, 2006. BY THE COURT s/David Nuffer David Nuffer United States Magistrate Judge 29 Motion to Compel Dr. Adams Expert Report and Deposition or, Alternatively, to Exclude Dr. Adams’ Expert Testimony, docket no. 439, filed January 5, 2005. 7

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH RANDY L. MOON, Plaintiff, v. JO ANNE B. BARNHART, Commissioner of Social Security, Defendant. MEMORANDUM DECISION AND ORDER Case No. 2:04 CV 1149 DN Magistrate Judge David Nuffer This case was referred to the Magistrate Judge, with the consent of the parties, to conduct all proceedings pursuant to 28 U.S.C. § 636(c). Plaintiff Randy L. Moon, seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the decision of the Commissioner of Social Security denying his claim for Supplemental Security Income (SSI) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. Plaintiff claims that he is disabled under 12.05 C or D of the Listing of Impairments. This order, however, affirms the decision of the Commissioner. Table of Contents Procedural History .......................................................................................................................... 1 Mr. Moon’s Background................................................................................................................. 1 Early Evaluation History................................................................................................................. 2 Medical History .............................................................................................................................. 5 Last Evaluation – Dr. Gummow ..................................................................................................... 8 Hearing Testimony........................................................................................................................ 13 Framework for Analysis ............................................................................................................... 17 Plaintiff’s Arguments.................................................................................................................. 20 Deficiency in Findings.............................................................................................................. 20 Legal Error ................................................................................................................................ 21 Listing 12.05 C.......................................................................................................................... 22 Dr. Gummow’s Report.............................................................................................................. 23 Listing 12.05 D ......................................................................................................................... 25 Summary of Step 3 Analysis..................................................................................................... 26 Conclusion ................................................................................................................................... 28 Procedural History Plaintiff Randy L. Moon filed an initial application for Supplemental Security Income benefits under Title XVI of the Social Security Act alleging disability since July 2001.1 Mr. Moon was denied at the initial level on December 13, 2001, and at reconsideration on April 18, 2002.2 Mr. Moon filed a "good cause for late filing" hearing request through his Department of Workforce Services Employment Counselor, which was accepted by an Administrative Law Judge ("ALJ") on November 6, 2002.3 Mr. Moon appeared at a hearing held on October 20, 2003 and received an unfavorable decision from ALJ Henrie on December 5, 2003.4 A timely request for review by the Appeals Council was filed December 15, 2003.5 The final administrative action by the Commissioner of Social Security denying Mr. Moon's request for review was issued by the Appeals Council on October 29, 2004.6 Mr. Moon’s Background Mr. Moon was thirty-five years old at the time of the hearing. He was born in Burley, Idaho on September 2, 1968. He is a Native American and a member of the Goshute tribe. He has lived his life primarily in the towns of Wendover and Grantsville, near the Goshute reservation in Tooele County, Utah. Mr. Moon has a limited education. He was placed in special education classes throughout his school years, and completed only the ninth grade at Dugway High School.7 He has not earned a GED.8 Mr. Moon has engaged in part-time employment, working through temp agencies at construction sites and as a dishwasher.9 He has 1 R. 70-73. 2 R. 35, 42. 3 R. 31, 34. 4 R. 12. 5 R. 10. 6 R. 4-7. 7 R. 109, 139. 8 R. 262. 9 R. 104, 112-14. 1 never engaged in work at a level defined under federal law as Substantial Gainful Activity10 ("SGA"). Early Evaluation History Mr. Moon’s evaluation history begins before his filing date. His caseworker at the Utah Department of Workforce Services took him to Valley Mental Health, after many unproductive attempts to get Mr. Moon employed.11 On June 27, 2001, Liz McGil, Ph.D., the Program Manager at Valley Mental Health, administered a Wechsler Adult Intelligence Scale-Third Edition to Plaintiff. Dr. McGil noted that Plaintiff seemed cooperative and appeared to put forth his best effort. Plaintiff demonstrated a verbal IQ of 67, a performance IQ of 80, and a full-scale IQ of 81, indicating borderline intellectual functioning with a learning disability. Dr. McGil noted Plaintiff had a flat affect, but Plaintiff denied depression and Dr. McGil saw no need for treatment or intervention. Dr. McGil considered Plaintiff’s “major problem” in a workplace would be his slowness in comprehending and executing tasks.12 After this claim was filed, on March 22, 2002, Jonathan J. Ririe, Ph.D., performed a psychological evaluation of Plaintiff for the State Disability Determination Services (DDS).13 Plaintiff reported his father dropped him off for the evaluation and that he planned to take a bus home. He also reported his social worker directed him to apply for social security because he had not worked in a couple of years. Plaintiff reported that he last worked as an assembler three or four years prior to the evaluation, but survived by finding places to work here and there and was “paid under the table.”14 10 20 C.F.R. § 220.29. 11 R. 294-295. 12 R. 131. 13 R. 132. 14 R. 133. 2 Plaintiff stated he needed no medication and took no medication for diabetes or any other impairment, even though he had trouble sleeping due to leg pain and trouble walking due to leg discomfort, and felt run down and tired.15 Plaintiff reported he raised his two children himself and typically woke up his children and got them ready for school; cleaned around the house; washed, folded, and put away clothes; and watched television.16 He attended to his hygiene daily, prepared meals, and shopped independently. He also went to movies, to video arcades with his children, and to eat at cafes, and enjoyed swimming, fishing, bike riding, and playing basketball.17 Dr. Ririe noted that Plaintiff had borderline intellectual functioning and a learning disorder, finding a Full Scale IQ of 71, using a mental status exam, but found no obvious physical (no disturbance of gait, balance, or posture) or mental impairments (alert, oriented, socially appropriate, normal conversation and concentration).18 He noted that Plaintiff managed his finances independently with no significant difficulty.19 On March 23, 2002, Blair McGirk, M.D., performed a physical consultative examination of Plaintiff for the DDS.20 Plaintiff complained of diabetes, painful bones and vision problems. “He has not seen a doctor in years.”21 Plaintiff reported he could stand 15 to 20 minutes and walk as long as he wanted, and walked or took a bus everywhere.22 Plaintiff lived with his mother and two minor children (aged 10 and 11) and they shared cooking and cleaning chores. He reported no difficulty with doing cooking and chores.23 He reported he took no medication, except for an occasional Tylenol for headaches. Dr. McGirk found Plaintiff was “in no acute distress,” alert, oriented, friendly, cheerful, and cooperative; had appropriate speech and affect, 15 Id. 16 R. 134, 135. 17 R. 135. 18 R. 136. 19 R. 137. 20 R. 138. 21 Id. 22 R. 138-39. 23 R. 139. 3 and normal abilities to see, hear and speak; and sat comfortably.24 Plaintiff had normal range of spine and joint motion; normal strength, including grip strength; good bilateral dexterity; intact reflexes; normal sensation; and no symptoms with straight-leg-raising.25 Dr. McGirk found that Plaintiff’s shins were tender to palpation, but he could walk, heel-toe walk, walk on his toes and heels, hop, squat, and bend and touch his toes without difficulty. Dr. McGirk detected no diabetic retinopathy or neuropathy.26 On April 14, 2002, Rebecca Dalisay, M.D., a DDS physician, reviewed the medical evidence and completed a Psychiatric Review Technique form.27 Dr. Dalisay concluded Plaintiff had a learning disorder and borderline intellectual functioning, with a Full Scale IQ of 71. She found mild restrictions in activities of daily living and social functioning, and moderate difficulties in maintaining concentration, persistence or pace. Dr. Dalisay also completed a Residual Functional Capacity Form28 finding Plaintiff had: no significant limitations understanding and remembering short and simple instructions and with social interaction; in adaptation, except for moderate limitations responding to changes in a work setting; and with sustained concentration and persistence for short and simple instructions. moderate limitations maintaining attention and concentration for extended periods, performing activities within a schedule, maintaining regular attendance, 24 Id. 25 R. 140. 26 Id. 27 R. 155-68. 28 R. 173-75. 4 being punctual within customary tolerances, completing a normal workday and workweek without interruptions from psychologically based symptoms; and performing at a consistent pace without an unreasonable number and length of rest periods. Medical History Plaintiff’s history of medical treatment begins post-filing. He told one examiner that his family did not have regular medical care,29 and his Department of Workforce Services caseworker testified she was the one to initiate his medical care.30 In August 2002, Plaintiff sought treatment at Grantsville Medical Center, reporting he had “twisted [his] back two weeks previously”.31 Plaintiff was tender over the spinous process in the lower thoracic and upper lumbar areas. He was advised to see a back specialist and given a prescription for Lortab. His glucose level was 235 and his liver enzymes were elevated.32 He was given a prescription for Glucophage and advised to follow up.33 In September 2002, during a follow-up visit, Plaintiff reported he had not worked in years due to back pain with pain and numbness radiating to the lower extremities.34 “[H]e has a lot of low back pain and pain radiating to his lower extremities. He reports that the pain and numbness become much worse with any lifting." Benjamin J. Krogh, D.O., found Plaintiff was in no acute distress. He gave continued prescriptions for Glucophage and Lortab.35 He also completed a “disability form.” 29 R. 222. 30 R. 298-99. 31 R. 213. 32 R. 218. It is not clear if any of the Plaintiff’s glucose tests were “fasting,” but all the results reported in the record are far above expected ranges. http://www.labtestsonline.org/understanding/analytes/glucose/test.html (last visited March 29, 2006). 33 R. 213, 218. 34 R. 209. 35 R. 209, 211. 5 In October 2002, Plaintiff presented to Dr. Krogh for a recheck.36 Plaintiff reported thirst, blurred vision, increased urination, and difficulty sleeping.37 Dr. Krogh noted increased paraspinal tissue tension and tenderness in the lumbar and thoracic areas, “some mild tenderness” over the sacroiliac joints, and “some decreased sensation to touch” over the left lower extremity.38 Dr. Krogh noted, “He reports problems with blurry vision, increased thirst. and increased urination. He complains of difficulty sleeping at night.”39 Plaintiff had normal strength and negative straight-leg-raising. Dr. Krogh prescribed Glucophage and reminded Plaintiff to take it every day. He also prescribed Ambien and instructed Plaintiff on strategies to improve his sleep. He prescribed Lortab and referred Plaintiff to an orthopedic specialist.40 In December 2002, B. Reynolds, M.D., of Grantsville Medical Center, saw Plaintiff for insomnia, bone and muscle pain in the thoracic, lumbar, and sacral areas, and the lower extremities.41 Dr. Reynolds reports Mr. Moon “[i]s having muscle and bone pain in lower legs and thoracic vertebrae, and lumbar/sacral. Makes him cry at night. When straightening up from bending the pain in his back takes his breath away.”42 Plaintiff’s glucose level was 397.43 His liver enzymes and hemoglobin were also elevated. Dr. Reynolds noted low back muscle spasms and poorly controlled diabetes.44 Dr. Reynolds advised Plaintiff to increase Glucophage to “maximum therapy” and work hard on controlling the diabetes.45 Dr. Reynolds also prescribed Lortab.46 36 R. 204. 37 Id. 38 Id. 39 Id. 40 R. 200-03. 41 R. 199. 42 Id. 43 R. 216. 44 R. 199. 45 R. 199, 216. 46 R. 195-97. 6 In March 2003, Plaintiff presented to Dr. Reynolds for a recheck of his diabetes and back.47 He had a normal musculoskeletal system. Plaintiff’s glucose level was 475.48 Dr. Reynolds advised Plaintiff to undergo diabetes education and prescribed new medication. In May 2003, Dr. Krogh saw Plaintiff for sinusitis.49 Plaintiff reported Ambien worked well for insomnia, new medication controlled the diabetes better, and his vision had improved. Dr. Krogh reports, “He continues to have the pain in his legs from the diabetic neuropathy. He continues to have some blurry vision, but reports that the vision is better.”50 Diagnoses were given as “Sinusitis, diabetic neuropathy, Type II diabetes, insomnia.”51 Dr. Krogh noted Plaintiff was alert, oriented, and in no acute distress. Later in the month, Dr. Krogh again noted Plaintiff was alert, oriented, and in no acute distress, but had “some decreased sensation” over his toes and the balls of his feet.52 He diagnosed diabetic neuropathy and prescribed Lortab for neuropathic pain. In July 2003, Plaintiff presented to Dr. Krogh for medication refills.53 Plaintiff reported that the medications worked "reasonably well" and adequately relieved his symptoms. Dr. Krogh found Plaintiff was alert, oriented, and in no acute distress. Dr. Krogh reports, He also complains that for the past 4 days he has had a headache. He has had some blurry vision, photophobia and nausea. He also complains of some numbness in his face and occasional numbness in his arms and legs. He reports that he usually just has the numbness in just 1 arm, but it alternates between arms. He has had migraines in the past.54 Upon physical exam, Dr. Krogh notes: 47 R. 193. 48 R. 214. 49 R. 184. 50 Id. 51 Id. 52 R. 182. 53 R. 178. 54 Id. 7 EYES: Pupils are mid dilated and only minimally reactive. . . . NEUROLGICAL: There was little reactivity of the pupils as previously mentioned. When the patient was asked to smile he was noted to have a slight facial droop on the left. When lightly touched on his cheeks with a finger he was able to sense this, but reported that the sensation was somewhat decreased. . . . Deep tendon reflexes were +114 and equal bilaterally of the upper and lower extremities.55 Diagnosis was, "Facial numbness, facial droop, allergies, insomnia, back pain, Type II diabetes."56 But he had intact grip strength and upper and lower extremity strength, sensation, and reflexes. A brain CT scan revealed “mild mucosal thickening in a few of the left ethmoid air cells,” but was otherwise normal.57 Last Evaluation – Dr. Gummow Shortly before the October 2003 hearing, on September 6, 2003, Mr. Moon underwent a comprehensive neuropsychological evaluation58 arranged for and paid by the Utah State Department of Workforce Services. The evaluation was conducted by Linda J. Gummow, Ph.D., who has extensive experience and training in neuroscience.59 This is the most comprehensive evaluation Mr. Moon has undergone. The following twelve tests were administered: Benton Visual Retention Test-Revised (Form C Administration A); California Verbal Learning Test-2 (Short Form); Cornplex Figure Test (Myers and Myers); Finger Tapping Test; Grip Strength; Grooved Pegboard Test; Memory Assessment Scale (immediate and delayed prose recall); 55 Id. 56 Id. 57 R. 186. 58 R. 220. 59 Dr. Gummow’s Curriculum Vitae is found at R. 122- 128. 8 Peabody Picture Vocabulary Test: (Arithmetic. Reading Recognition, Comprehension, Spelling); Peabody Picture Vocabulary Test; Symptom Checklist-90-Revised; Test of Nonverbal Intelligence-3; Wechsler Adult Intelligence Scale-I11 (Digit Symbol, Symbol Search); and Wide Range Achievement Test-3 (Arithmetic).60 Plaintiff reported he had always been the primary care-giver for his children and continued to raise them after his wife's death.61 Plaintiff also reported that the only problem he ever had with working was in finding transportation. He spoke only English. He reported “feelings of depression,” being “very down sometimes,” and being unable to sleep due to anxiety.62 He stated both his parents had diabetes, but that his family did not seek medical care, so his own diabetes went untreated for a long time.63 He reported back, leg and arm pain; blurred vision; dizziness; headaches; memory lapses; and sleep issues. Plaintiff told Dr. Gummow that he drove, cared for his personal needs, made his bed, vacuumed, walked for ten to twenty minutes at a time, did some yard work, and raked leaves.64 He also reported he could not identify monetary figures, perform simple math, shop without help, carry heavy grocery bags (more than ten pounds), cook without help, do laundry, clean without help, or push a lawn mower (due to arm and hand pain). 60 Id. 61 R. 221. 62 R. 222. 63 R. 223. 64 R. 224. 9 Dr. Gummow administered the Test of Nonverbal Intelligence-3 explaining this is a “culture fair” test of intelligence that can be given to individuals of various ethnic backgrounds. Mr. Moon's IQ was scored at 64. Dr. Gummow comments that his “true IQ is expected to lie in the range of 60 to 68.”65 Dr. Gummow's academic testing placed Mr. Moon at the second and third grade levels (using standardized testing with the Peabody Individual Achievement Test (PIAT) and the Wide Range Achievement Test-3 (WRAT). Dr. Gummow opines that Mr. Moon is “unable to track routine financial transactions in either an employment or personal situation,” stating that, “Although he believes that he can determine if he is receiving correct change, it is unlikely that he can do so reliably.”66 He was unable to read time on a clock face, tell the number of days in a week, or answer simple questions regarding money and change. Dr. Gummow reports, “Mr. Moon is unable to read a restaurant menu, read many common signs, or read any form of contract. . . . His learning difficulties are a reflection of global low cognitive functioning.”67 Mr. Moon's processing speed, coding skills and visual search skills were tested through the Digit Symbol and Symbol Search subtests. Dr. Gummow opines the results of these tests indicate that “Mr. Moon cannot process information at the level required by competitive employment.”68 Mr. Moon's memory skills were evaluated with the Benton Visual Retention Test, California Verbal Learning Test-2, and the Memory Assessment Scale. Mr. Moon tested at the 1st percentile for number correct, the 5th percentile for number of errors, the 9th percentile for 65 R. 225. 66 R. 226. 67 R. 227. 68 Id. 10 initial recall, dropping to the 5th percentile after a delay. He scored at the 3.6th percentile on a list learning task. Dr. Gummow opined that Mr. Moon's visuopractic skills, scoring at the 8th percentile, was “a relative strength” and was consistent with “his ability to drive under limited conditions.”69 Dr. Gummow assesses Mr. Moon to be “significantly impaired” in his “ability to use his right dominant hand and left nondominant hand on both strength and dexterity measures.” 70 Dr. Gummow used Finger Tapping, Grip Strength, and Grooved Pegboard Tests. Mr. Moon tested at .1 for the right hand and 1.7 for the left hand. She reports, “his left nondominant hand use, while relatively uncoordinated and weak when compared to the general population, was significantly better than his dominant right hand use.”71 Mr. Moon's “receptive vocabulary” was assessed with the “Peabody Picture Vocabulary Test,” where his score was 53 or less than the 1st percentile.72 Dr. Gummow opines that a “standard personality test” could not be administered to Mr. Moon because of his cultural background and limited language skills. She read to him the SCL- 90-R symptom checklist, explaining symptoms as necessary. Dr. Gummow reports the “Global Severity Index” was at the 99th percentile and states that individuals with this profile have significant psychiatric issues impacting their care. Dr. Gummow opines, “These individuals are highly sensitive to emotional strains and stresses. It is difficult for them to deal with criticism.”73 69 Id. 70 R. 228. 71 Id. 72 R. 227. 73 R. 228. 11 Dr. Gummow diagnoses Mr. Moon with a “Pervasive Developmental Disorder to indicate that Mr. Moon has significant cognitive and functional deficits of long standing, but the etiology of these deficits is unclear.”74 Dr. Gummow also reports Mr. Moon's physical condition was poor. He had significant pain in his upper extremities, and he complained of visual problems. The examiner could not determine if the extremity pain was second to peripheral neuropathy. This condition can be quite debilitating and it is more likely to be associated with diabetes that goes untreated for some time. This was clearly the case here. Mr. Moon was literally wasting away until he finally sought medical care. . . . He is easily overwhelmed. He is afraid and his situation is unstable. He is totally dependent on others. . . . Depression is common among patients with diabetes. . . . It is unclear whether the depression is a direct result of the impact of diabetes on the central nervous system, whether it is a reflection of the impact of the disease on the individual's life or whether both factors are important. . . . If Social Security benefits are awarded. Mr. Moon should have a payee to make sure that he is not exploited.75 Dr. Gummow provides “Psychiatric Impairment Ratings” for Mr. Moon. She rates Mr. Moon with “marked impairment in activities of daily living.”76 The doctor includes a summary of her testing and clinical observations in support of her rating: He needs assistance with shopping, meal planning, and meal preparation. . . . He cannot take public transportation without assistance and support. He cannot make sure his bills are paid, read significant correspondence, or manage a checking account. He cannot keep a schedule without assistance. He cannot do heavy activities such as carrying.77 74 R. 229. 75 R. 229. 76 R. 230 (emphasis added). 77 Id. 12 Dr. Gummow rates Mr. Moon as having a “marked impairment in adaptation,” opining that his cognitive impairments impact his ability to adjust to changing circumstances. “He is slow to learn and he has very limited visual and verbal memory skills.”78 Dr. Gummow rates Mr. Moon with an “extreme impairment” in concentration persistence or pace. She explains that although he seemed able to maintain concentration and that she was “impressed by his persistence,” Mr. Moon's “work speed fell far below the level needed for competitive employment in all areas.” 79 The doctor admitted “no problems with concentration were apparent in this examination,” but cautioned that “individuals with diabetes do experience fluctuations in mood and application during the day. This is particularly true when diabetes is poorly controlled.”80 Hearing Testimony Plaintiff reported he last had trouble with his vision one week prior to the hearing.81 He reported he took medication for diabetes and allergies and experienced no side effects.82 When asked at the hearing how often his leg pain bothered him, Mr. Moon answered, “Almost every day.” He clarified that his legs were not bothering him as he sat at the hearing: “It's only when I really walk around and sit around and especially at night it hurts . . . .” Regarding his arm pain, “They’re not too good. They cramp up any time they want. . . . Both [arms]. . . almost all the 78 Id. (emphasis added). 79 R. 230 (emphasis added). 80 Id. 81 R. 275-76 82 R. 279. 13 time. . . . Nothing you can do about it, just cramps, cramps up when I -just like a little cold hits it . . . .”83 He said the previous morning, he arose at between five and six a.m., relaxed and watched movies on his VCR all day because of leg pain.84 He said he sleeps maybe about five hours, four hours . . . . I'm tired, but I just can't -- where you just can't close your eyes and - because of the . . . pain is shooting into your legs, your arms and your back . . . . I can't lay a certain ways on my back, can't lay flat. I’ll lay sideways . . . then my legs will start hurting because they get cold and then when the cold hits your legs . . . like somebody was pouring ice water on there . . . but the rest of the leg would be hot and I - or cramp up.85 Mr. Moon stated that the lack of sleep made him “kind of burned out in the day,”86 though he was wide awake in the mornings.87 Plaintiff testified that he had a driver's license, drove 40 minutes to his employment counselor's office the morning of the hearing, and drove off and on, but had problems seeing the road and getting lost or drowsy and always wore sunglasses.88 Plaintiff testified he lived with his father and mother, and his children.89 He said he and his children took care of themselves, and he was capable of preparing meals, driving, doing laundry with instruction and physical assistance, and shopping.90 Mr. Moon testified that he has “about two good days” a week where he could go outside and rake leaves for “maybe about an hour, but I try to get it done fast before my legs and stuff start cramping up.”91 83 R. 283. 84 R. 280-81. 85 R. 291. 86 R. 292. 87 R. 291. 88 R. 252, 255-56, 284, 287, 292-93. 89 R. 253-54. 90 R. 254, 284, 287-89. 91 R. 289-290. 14 Plaintiff demonstrated the ability to see, hear, speak, read simple words, and perform addition, subtraction, division, and multiplication.92 He said he could use a TV Guide and count and make sure he received proper change.93 Plaintiff testified he could not work because he worked too slowly, could not complete paperwork, and could not handle changing work environments or lifting due to almost constant cramping and numbness in his hands, arms, and legs, and to low back numbness.94 He said he slept only four or five hours per night due to discomfort.95 He said he could lift about 5 or 10 pounds, stand about 30 minutes, sit about 30 minutes, and use his hands for fingering, grasping, and handling.96 Plaintiff testified he raised his children to he independent and to cook for themselves, and had no problems with raising them.97 Joann Wetzel, Plaintiff’s employment counselor, testified about her efforts over several years to find work for Plaintiff and shepherd him through the process of applying for Social Security benefits and getting medical treatment.98 She said she drove him to the hearing because she wanted to make sure he attended.99 Dina J. Galli testified at the administrative hearing as a vocational expert.100 The ALJ asked Ms. Galli to consider a hypothetical person of Plaintiff’s age, education, and work experience, who had the following residual functional capacity: 92 R. 257-59. 93 R. 263. 94 R. 269-72, 283, 290, 293. 95 R. 291. 96 R. 272-73, 286, 287. 97 R. 274. 98 R. 294-300. 99 R. 300. 100 R. 302-07-testimony; R. 64-resume. 15 no repetitive lifting of more than 5 to 10 pounds at a time; lifting or carrying items weighing 3 to 5 pounds on an occasional basis; no standing or walking more than 30 to 60 minutes at a time or more than 2 to 3 hours in an 8-hour workday; no sitting more than 30 to 45 minutes at a time or more than 5 to 6 hours in an 8- hour workday; no repetitive stooping, bending, or squatting; no kneeling, crawling, crouching, or stair climbing; no working in other than a clean climate controlled environment; no working around dangerous unprotected heights, machinery, or chemicals; no work at more than low-stress levels, meaning a low production rate, only occasional interaction with the general public, and minimal work-setting changes (meaning the same work over and over, day in and day out); no work at more than low-concentration levels, precluding mental computation tasks, sustained spontaneous speaking, sustained writing and reading, but still having alertness and attentiveness; no work at more than low-memory levels, meaning able to understand, remember, and carry out simple one and two-step instructions with General Educational Development (GED) reasoning level of one to three, GED math level of one to two, and GED language level of one to three; the option to use memory aids and a calculator for difficult calculations; only minimal changes in work instructions from week to week; and no work requiring fine vision and which would not allow him to speak up or ask others to speak up.101 Ms. Galli responded that such an individual could perform unskilled work as a final assembler (US. Dep't of Labor, Dictionary ofOccupationa1 Titles (4th ed. 1991) (DOT) # 713.687-018) (20,000 jobs nationally); dowel inspector (DOT # 669.687-014) (15,000 jobs nationally); 101 R. 22, R. 302-03. 16 paramutual ticket checker (DOT # 237.367-046) (32,000 jobs nationally); nut sorter (DOT #521.687-086) (30,000 jobs nationally); and cutter and paster (DOT #249.387-014) (30,000 jobs nationally).102 She reduced the numbers of these jobs by 25% with the added limitations of a need to use sunglasses to reduce eye strain and a need to make postural changes every 15 to 20 minutes.103 Ms. Galli further indicated that if the Plaintiff had significant problems cognitively, was unable to handle the repetitive tasks over the long term, made mistakes, lost concentration and focus so that his production was reduced 25% below average, he could not be employed.104 Further, if he were absent due to significant pain in the extremities and limbs only three or four days a month, he would not be employed.105 Finally, if he had an extreme limitation in concentration, persistence or pace, he could not be employed.106 Framework for Analysis Under the Social Security Act, “disability” is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.”107 The Act further provides that an individual shall be determined to be disabled “only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, 102 R. 304-06. 103 R. 306. 104 R. 306-07. 105 R. 307. 106 Id. 107 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). 17 considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.”108 A person seeking Social Security benefits bears the burden of proving that because of his disability, he is unable to perform his prior work activity.109 Once the claimant establishes that he has such a disability, the burden shifts to the Commissioner to prove that the claimant retains the ability to do other work and that jobs which he can perform exist in the national economy.110 The Commissioner's decision must be supported by substantial evidence.111 Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”112 Evidence is not substantial if it is overwhelmed by other evidence or if it constitutes mere conclusion.113 The Commissioner's findings of fact, if supported by substantial evidence, are conclusive upon judicial review.114 In reviewing the Commissioner's decision, the court may not reweigh the evidence or substitute its judgment for that of the agency.115 However, the court should 108 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 109 Miller v. Chater, 99 F.3d 972, 975 (10th Cir. 1996); Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993); Andrade v. Secretary of HHS, 985 F.2d 1045, 1050 (10th Cir. 1993). 110 Saleem v. Chater, 86 F.3d 176, 178 (10th Cir. 1996); Miller, 99 F.3d at 975; Nielson, 992 F.2d at 1120. 111 Daniels v. Apfel, 154 F.3d 1129, 1132 (10th Cir. 1998); Hinkle v. Apfel, 132 F.3d 1349, 1351 (10th Cir. 1997); Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997). 112 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938 ; Hinkle, 132 F.3d at 1351; Brown v. Callahan, 120 F.3d 1133, 1135 (10th Cir. 1997). 113 Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992); Emory v. Sullivan, 936 F.2d 1092, 1093 (10th Cir. 1991). 114 42 U.S.C. §§ 405(g), 1383(c)(3); Perales, 402 U.S. at 390. 115 Hinkle, 132 F.3d at 1351; Decker v. Chater, 86 F.3d 953, 954 (10th Cir. 1996); Marshall v. Chater, 75 F.3d 1421, 1425 (10th Cir. 1996); Kelley v. Chater, 62 F.3d 335, 337 (10th Cir. 1995). 18 carefully examine the record and review it in its entirety.116 Failure of the Commissioner to apply the correct legal standard is grounds for reversal.117 The Commissioner has established the following five-step process for determining whether a person is disabled: (1) (2) (3) (4) (5) A person who is working is not disabled.118 A person who does not have an impairment or combination of impairments severe enough to limit his ability to do basic work activities is not disabled.119 A person whose impairment meets or equals one of the impairments listed in the “Listing of Impairments”120 is conclusively presumed to be disabled.121 A person who is able to perform work he has done in the past is not disabled.122 A person whose impairment precludes performance of past work is disabled unless the Secretary demonstrates that the person can perform other work available in the national economy. Factors to be considered are age, education, past work experience, and residual functional capacity.123 The ALJ followed the five-step sequential evaluation process to determine that Plaintiff was not disabled. At the first step, the ALJ found that Plaintiff had not engaged in substantial gainful activity since July 1, 2001.124 At the second step, the ALJ found that Plaintiff had the following "severe" impairments: learning disability, borderline IQ, and diabetes.125 At step three, the ALJ found that Plaintiff’s severe impairments did not meet or equal any of the 116 Musgrave, 966 F.2d at 1374; Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). 117 Daniels, 154 F.3d at 1132; Hinkle, 132 F.3d at 1351; Hawkins, 113 F.3d at 1164; Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996). 118 20 C.F.R. § 416.920(b). 119 20 C.F.R. § 416.920(c). 120 20 C.F.R. pt. 404, subpt. P, app. 1. 121 20 C.F.R. § 416.920(d). 122 20 C.F.R. § 416.920(e). 123 20 C.F.R. § 416.920(f), Gossett v. Bowen, 862 F.2d 802, 805 (10th Cir. 1988). 124 R. 16, 24 (Finding 1). 125 R. 16, 24 (Finding 2). 19 Listings.126 While he found Plaintiff “suffers from a learning disorder,”127 the ALJ found that Plaintiff did not suffer from any marked limitation in activities of daily living; maintaining social contact; or concentration, persistence or pace and that the claimant never exhibited an episode of decompensation of extended duration.128 At the fourth step of the evaluation, the ALJ assessed Plaintiff’s residual functional capacity and found he could perform a range of unskilled, sedentary work.129 At the fifth step the ALJ determined that work existed in the national economy at the unskilled, sedentary level, which plaintiff could perform. Plaintiff’s Arguments Plaintiff alleges that the ALJ should have found Plaintiff disabled at Step 3, under Listings 12.05 C or D. Deficiency in Findings Plaintiff claims that the ALJ violated the rule of Clifton v. Chater130 requiring that specific findings accompany any Step 3 conclusions because “the ALJ does not set forth any underlying evidence, but only recites bare conclusions that Mr. Moon does not meet or equal any of the relevant Listings.131 But the section of the adverse decision on Step Three clearly points the reader to the factual analysis in Step Four. “Support for these conclusions [on Step 3] is noted hereafter in the description of medical evidence and the discussion of the testimony which reflects the nature and severity of the claimant's impairment and resulting 126 R. 17, 24 (Finding 4). 127 R. 17. 128 Id. 129 R. 22, 24 (Finding 6). 130 79 F.3d 1007, 1009 (10th Cir. 1996). See also Smith v. Barnhart, No. 04-7027, 2006 WL 467958, *4 (10th Cir. February 28, 2006)(unpublished decision) in which “the ALJ failed to mention what specific listing(s) the ALJ considered and failed to discuss why Mr. Smith did not meet any listing(s).” 131 Reply Brief at 1-2, filed August 10, 2005, as docket no. 15. 20 limitations.132 In that later discussion, the ALJ reviews the hearing testimony and the medical history, discussing in detail all the facts the ALJ relied on in finding the residual functional capacity (RFC) that was applied, while considering the functional limitations criteria under the Listings. This is consistent with the regulations which note the interrelationship between the functional limitations and RFC.133 As noted below, the ALJ carefully discusses his findings and their departure from Dr. Gummow’s conclusions. It is true that the ALJ did not discuss the specific criteria applicable to Listings 12.05 C and D, and under those criteria did not discuss the evidence supporting his conclusions, but the decision does contain factual analysis reflecting the basis for his decision on Step 3. It would have been better to include the discussion in the Step 3 conclusions, but there is sufficient detail and relation to support the conclusions. “An ALJ’s findings at other steps of the sequential process may provide a proper basis for upholding a step three conclusion . . . .”134 Legal Error Plaintiff points out that as to Listing 12.05, the ALJ was in error in requiring that “the claimant establish at least two of the . . . (functional limitation) requirements.”135 There are four alternative ways to satisfy Listing 12.05, and only one of them requires that any “B” criteria describing functional limitations be satisfied.136 This error is without consequence in 132 R.17. 133 “An assessment of your RFC complements the functional evaluation necessary for paragraphs B and C of the listings.” 20 CFR § 404, subpt. P, app. 1, 12.00 Mental Disorders, A. 134 Fischer-Ross v. Barnhart, 431 F3d. 729, 733 (10th Cir. 2005). 135 Plaintiff’s Memorandum . . . at 11, filed May 31, 2005, as docket no. 9. See R. 17. 136 “Paragraph D contains the same functional criteria that are required under paragraph B of the other mental disorders listings.” 20 C.F.R. pt. 404, subpt. P, app. 1, 12.00 Mental Disorders, A. 21 the outcome, however, because all the listing possibilities for mental retardation under 12.05 require “deficits in adaptive functioning.” 137 Listing 12.05 C Plaintiff claims that he should have been found to satisfy Listing 12.05 C, which requires “significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22;”138 and “valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function.”139 Plaintiff had three reported IQ tests: verbal IQ of 67, a performance IQ of 80, and a full-scale IQ of 81 (June 27, 2001, Dr. McGil, R. 131): full-scale IQ of 71 (March 22, 2002, Jonathan J. Ririe, . Ph.D., Tr. 136) (also relied on in an April 14, 2002, review by Rebecca Dalisay, M.D. R. 155-168 : and full scale IQ of 64: (September 6, 2003, Linda J. Gummow. Ph.D., R. 225). Plaintiff claims the ALJ should have used the lowest IQ score, generated by Dr. Gummow, citing this authority: 137 20 C.F.R. pt. 404, subpt. P, app. 1, 12.05 Mental Retardation. “If your impairment satisfies the diagnostic description in the introductory paragraph and any one of the four sets of criteria, we will find that your impairment meets the listing.” 20 C.F.R. pt. 404, subpt. P, app. 1, 12.00 Mental Disorders, A. After amendments to the regulations effective during the pendency of this case, “it is now clear that the capsule definition [“significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period”] imposes additional elements to the claimant's burden under Listing 12.05(C) and (D). Barnes v. Barnhart, No. 02-5153, 116 Fed.Appx. 934, 939 (10th Cir. November 26, 2004). 138 20 C.F.R. pt. 404, subpt. P, app. 1, 12.05 Mental Retardation. “If your impairment satisfies the diagnostic description in the introductory paragraph and any one of the four sets of criteria, we will find that your impairment meets the listing.” 20 C.F.R. pt. 404, subpt. P, app. 1, 12.00 Mental Disorders, A. 139 Id., 12.05 C (emphasis added). 22 In cases where more than one IQ is customarily derived from the test administered, e.g., where verbal, performance, and full scale IQs are provided in the Wechsler series, we use the lowest of these in conjunction with 12.05.140 However, this authority deals with a test such as that administered by Dr. McGil which had multiple components. The regulation does not require that the lowest test score from separate tests be used; only that the lowest score be used from a single test yielding multiple scores. The importance of selection of the lowest IQ test is diminished because regulations state that IQ tests “are only part of the overall assessment” and require the narrative report that accompanies the test results to “comment on . . . the developmental history and the degree of functional limitation.”141 Under 12.05 C, functional limitations of the “B” Criteria are not pertinent, but the listing still requires “significantly subaverage general intellectual functioning with deficits in adaptive functioning.”142 In his findings on RFC, the ALJ specifically discussed Plaintiff’s functional limitations. As will be discussed, the ALJ’s conclusions on the absence of functional limitations caused him to find Dr. Gummow’s report less persuasive. Dr. Gummow’s Report Plaintiff feels, however, that Dr. Gummow’s report should be preferred over the other reports. The first reason Plaintiff says Dr. Gummow should be preferred is because Dr. Gummow’s credentials are better than those of the other doctors. “Because Dr. Gummow is an experienced specialist in the field of neuroscience and has provided the only comprehensive 140 Id., 12.00D.6.c. 141 Id., 12.00D.6.a. 142 20 C.F.R. pt. 404, subpt. P, app. 1, 12.05 Mental Retardation. “If your impairment satisfies the diagnostic description in the introductory paragraph and any one of the four sets of criteria, we will find that your impairment meets the listing.” 20 C.F.R. pt. 404, subpt. P, app. 1, 12.00 Mental Disorders, A. 23 neuropsychological evaluation of Mr. Moon, the ALJ and Commissioner err in devaluing her opinion.”143 Plaintiff asserts that a regulation requires this result. “We generally give more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist.”144 However, in this case, the ALJ deliberately departed from the general rule after careful explanation of each point of disagreement, illustrating the way the ALJ methodically weighed the evidence: [Dr. Gummow] reported the claimant was able to understand task instructions and that his ability to concentrate was adequate which is inconsistent with her conclusion that the claimant has marked impairment in adaptation and extreme impairment in concentration, persistence and pace. . . . Dr. Ririe reported the claimant's comprehension appeared to be within normal limits. Dr. Gummow indicated his activities of daily living were markedly impaired which is inconsistent with the claimant's report to her that he can drive, shop, tend to his personal needs do some cooking, cleaning and yard work, and care for his young children. Dr. Gummow further indicated the claimant had a moderate impairment in social skills, however, the claimant has reported he had no problems getting along with others and Dr. Ririe reported the claimant had no difficulty interacting with him. Dr. Gummow's opinion does not clinically correlate with level of functioning described in the other evidence of record, statements/testimony of the claimant and observations of the ALJ during the hearing. Accordingly, her opinion is rendered less persuasive.145 Since the ALJ’s decision clearly states the reasons for departing from Dr. Gummow’s conclusions, the decision should not be disturbed by a re-weighing of the evidence. The ALJ’s decision does not show, as Plaintiff asserts, that the ALJ failed in his duty to resolve conflicts in the evidence or that he used evidence selectively to bolster his opinion.146 143 Reply at 4. 144 20 C.F.R. § 416.927(d)(5) cited in Plaintiff’s Memorandum at 15. 145 R. 21 (emphasis added). 146 Plaintiff’s Memorandum at 17 (citing Casias v. Secretary of Health & Human Services, 933 F.2d 799 (10th Cir. 1991) and Richardson v. Perales, 402 U.S. 389, 399.(1971 . 24 Plaintiff also believes Dr. Gummow should be preferred “[b]ecause Mr. Moon has undergone only one comprehensive neuropsychological evaluation.”147 Dr. Gummow’s testing was more complete than any other testing. Plaintiff is asking the court to consider that Dr. Gummow is a specialist, administered more tests than other examiners, and examined Plaintiff more recently than any other examiner, and then overturn the ALJ’s reliance on other examiners. This is an enticing invitation, given the contrast between Dr. Gummow’s in person, extensive examination, and Dr. Ririe’s PRT and RFC evaluations made on the basis of paper submissions. But the clear explanations by the ALJ protect his decision from second-guessing by the court. Listing 12.05 D The required deference to the ALJ’s fact weighing is also determinative of Plaintiff’s claim that he is disabled under 12.05 D. That listing requires that a claimant meet two of the four functional limitations of the “B” criteria to be considered disabled. D. A valid verbal, performance, or full scale IQ of 60 through 70, resulting in at least two of the following: 1. Marked restriction of activities of daily living; or 2. Marked difficulties in maintaining social functioning; or 3. Marked difficulties in maintaining concentration, persistence, or pace; or 4. Repeated episodes of decompensation, each of extended duration.148 While Dr Gummow found that Plaintiff has a marked impairment in activities of daily living and in adaptation and an extreme impairment in concentration, persistence or pace, Rebecca Dalisay, M.D. found only mild or moderate restrictions.149 147 Plaintiff’s Memorandum at 15. 148 20 C.F.R. pt. 404, subpt. P, app. 1, 12.05 D. 25 Summary of Step 3 Analysis Plaintiff claims “[i]t is improper for the ALJ to substitute his own opinion for that of a competent and experienced neuropsychologist after extensive standardized testing and clinical observation.”150 But the ALJ did not substitute his own opinion; he used his observations in the hearing to determine which medical opinions were most persuasive. The ALJ carefully noted that “no treating or examining physician has indicated the claimant is precluded from all types of work activity and the claimant reported he only filed for disability because his social worker told him to.”151 It was also significant to the ALJ that “Dr. Gummow even indicated some form of manual labor was . . . open to the claimant.”152 While the section of the decision discussing Step 3 does not include specific findings but only references the factual discussion in another portion of the decision, it is clear the ALJ did not agree that the Plaintiff met any of the criteria under 12.05 C: “significantly subaverage general intellectual functioning with deficits in adaptive functioning;”153 “valid verbal, performance, or full scale IQ of 60 through 70;” 154 and physical or other mental impairment imposing an additional and significant work- related limitation of function.”155 149 Psychiatric Review Technique form R. 155-168. See also Dr. Dalisay’s Residual Functional Capacity Form R. 173-175. 150 Id. at 16. 151 R. 21-22. 152 R. 22. 153 20 C.F.R. pt. 404, subpt. P, app. 1, 12.05 Mental Retardation. “If your impairment satisfies the diagnostic description in the introductory paragraph and any one of the four sets of criteria, we will find that your impairment meets the listing.” 20 C.F.R. pt. 404, subpt. P, app. 1, 12.00 Mental Disorders, A. 154 Id., 12.05 C (emphasis added). 155 Id. 26 Further, the ALJ expressly found that the functional limitations of the “B” criteria, required for Listing 12.05 D were not met. “Had we been the fact finder, we may well have reached a different conclusion concerning the weight to be given,”156 but there is substantial evidence to support the conclusions reached. The record contains “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”157 The evidence relied on by the ALJ is not overwhelmed by other evidence and the ALJ was not merely stating conclusions.158 Plaintiff even asks that the ALJ’s questions and answers be re-evaluated because the ALJ failed to see that Mr. Moon was merely mimicking the questions, not actually responding to them. Mr. Moon's testimony also makes obvious the easy suggestibility to which he is vulnerable- at times displaying a rote repetition of the ALJ's suggested testimony to him, with the ALJ later reiterating his own words in his Decision, rather than those of Mr. Moon's. For example, the ALJ suggested to Mr. Moon that he was a “safe driver”; Mr. Moon nods along with the suggestion, agreeing that he was “safe,” and adding with his difficult semi-slurred speech that he “wore his seatbelts and everything.” The ALJ later finds in his decision, “He said he is a safe driver . . . .”159 Plaintiff says “Mr. Moon's own difficult testimony, his slow and halting speech, and his obvious problems arriving at suitable words and concepts, belies the ALJ's portrayal of Mr. Moon in his 156 White v. Barnhart, 287 F.3d 903, 909 (10th Cir. 2001). 157 Richardson v. Perales, 402 U.S. at 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938 ; Hinkle, 132 F.3d at 1351; Brown v. Callahan, 120 F.3d 1133, 1135 (10th Cir. 1997). 158 Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992); Emory v. Sullivan, 936 F.2d 1092, 1093 (10th Cir. 1991). 159 Plaintiff’s Memorandum at 16-17. 27 decision.”160 Again, this is a point of disagreement or difference of interpretation, and does not demonstrate an absence of evidence for the ALJ’s conclusion. Conclusion Plaintiff’s claim is similar to that made by Timothy Hinkle. The Tenth Circuit161 stated that Mr. Hinkle (who indisputably had an IQ of 68) had a significant impairment sufficient to pass Step Two. But Mr. Hinkle’s back problems – which restricted heavy lifting and gave him “a poor tolerance for bending and lifting”162 were not a severe impairment under 12.05 C. Therefore, he was found not disabled under that listing. It may be that another conclusion could have been reached on this evidence, and that even more substantial evidence would exist to support that decision than the decision of the ALJ. But a court “may not reverse the Commissioner's decision merely because substantial evidence supports a contrary outcome.”163 Substantial evidence exists to support the decision made and it will not be disturbed. The decision of the Commissioner is AFFIRMED. Dated this 29th day of March, 2006. BY THE COURT ___________________________ David Nuffer United States Magistrate Judge 160 Plaintiff’s Memorandum at 16. 161 Hinkle v. Apfel, 132 F.3d 1349 (10th Cir. 1997). 162 Id. at 1353. 163 Warburton v. Apfel,188 F.3d 1047, 1050 (8th Cir. 1999). 28

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Case 2:14-cv-00826-DN Document 17 Filed 03/10/15 Page 1 of 21 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION DIESEL POWER SOURCE, L.L.C., and BRET PARK, an individual, v. Plaintiff, MEMORANDUM DECISION AND ORDER DENYING DEFENDANTS’ MOTION TO DISMISS CRAZY CARL’S TURBOS INC., CARL TETREAULT, Case No. 2:14-cv-00826-DN District Judge David Nuffer Defendant. Defendants Crazy Carl’s Turbos Inc. (“CCT”) and Carl Douglass (“Mr. Douglass”)1 (collectively “Tennessee Defendants”) filed this motion to dismiss plaintiffs’ complaint (the “Motion”).2 Tennessee Defendants argue that Plaintiffs’ claims should be dismissed for insufficient process, lack of personal jurisdiction, and improper venue.3 Plaintiffs, Diesel Power Source, L.L.C. (“DPS”) and Bret Park (“Mr. Park”) (collectively “Utah Plaintiffs”) oppose the Motion.4 As discussed below, process was proper; Utah has specific personal jurisdiction over the Tennessee Defendants and Utah is a proper venue. Therefore, the Motion is DENIED. 1 There is a discrepancy regarding the last name of Carl Douglass. The Utah Plaintiffs use the last name “Tetreault” throughout most of their Memorandum in Opposition to Defendants’ Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(2)-(3) (“Opposition Memorandum”), docket no. 12, filed December 23, 2014. Defendants, however, state the last name is “Douglass” even though it appears as “Douglas” in the Motion’s title and elsewhere. Defendants Crazy Carl’s Turbos and Carl Douglas’s Motion to Dismiss Complaint Pursuant to 12(b)(2), 12(b)(3) at 2, n.2 (“Motion”), docket no. 11, filed December 1, 2014 (the spelling most frequently used in the Motion is “Douglass”). Therefore, though a few business documents, online profiles, and purchase invoices show Carl’s last name to be Tetreault (Motion, Exhibits B, C, I, J, K, docket no. 12-1, filed December 23, 2014), this Memorandum Decision and Order will refer to him as “Mr. Douglass.” 2 Motion at 1. 3 Id. at 3. 4 See Opposition Memorandum at 1. Case 2:14-cv-00826-DN Document 17 Filed 03/10/15 Page 2 of 21 FACTUAL BACKGROUND ......................................................................................................... 2 DISCUSSION ................................................................................................................................. 4 THE UTAH PLAINTIFFS’ SERVICE OF PROCESS WAS PROPER ............................ 5 UTAH HAS PERSONAL JURISDICTION OVER THE TENNESSEE DEFENDANTS 7 General Jurisdiction is Not Present ......................................................................... 8 Specific Jurisdiction is Present ............................................................................... 9 VENUE IS PROPER IN UTAH ....................................................................................... 18 CONCLUSION ............................................................................................................................. 21 ORDER ......................................................................................................................................... 21 FACTUAL BACKGROUND Mr. Park owns and operates Diesel Power Source, L.L.C. in Utah.5 Mr. Douglass owns and operates a competing business, called Crazy Carl’s Turbos, in Tennessee.6 Both DPS and CCT make and sell diesel products and services.7 This dispute arises out of defamatory comments and photographs that Mr. Douglass allegedly posted on the Internet about DPS’s products and services.8 The messages and photographs that Mr. Douglass allegedly posted state that DPS’s products are of low quality, deficient, do not perform well, and have an insufficient warranty.9 Mr. Douglass allegedly posted these comments and photographs on various blogs, forums, message boards, and personal messages,10 after purchasing products from DPS.11 According to Mr. Douglass’s affidavit, submitted with the Tennessee Defendants’ Motion, Mr. Douglass has never personally conducted business, contracted to supply services, or 5 Complaint, ¶¶ 1-2, docket no. 4-1, filed November 12, 2014. 6 Id. at ¶¶ 3-4. 7 Id.at ¶ 18. 8 Id. at ¶¶ 29, 46, 48, 50-53, 64, 73, 89, 97, 104. 9 Id. at ¶¶ 29, 46, 48, 50-53, 55, 64, 73, 89, 97, 104. 10 Id.at ¶¶ 29, 46, 48, 50-53, 64, 73, 89, 97, 104. 11 Opposition Memorandum at 13-14. 2 Case 2:14-cv-00826-DN Document 17 Filed 03/10/15 Page 3 of 21 caused any injury within the state of Utah.12 Additionally, Mr. Douglass asserts he has not “personally or outside the scope as an agent for Crazy Carl’s Turbos, Inc., ever hired other persons or agents to solicit, market, target, email, call, text, instant message, fax or otherwise make contact with residents, individual or commercial, of the State of Utah.”13 Mr. Douglass further asserts that any contact he may have had with Utah residents “has been at [the Utah residents’] instigation and effort to reach [Mr. Douglass] in Tennessee or as an agent for Crazy Carl’s Turbos, Inc.,” as he has not directed contact to Utah.14 Mr. Douglass also states that “[n]either [he] nor Crazy Carl’s Turbos Inc. have posted any comments on any forums, websites, or message boards hosted or maintained in Utah.”15 Finally, Mr. Douglass submits that he and CCT would face financial ruin if forced to defend a lawsuit in Utah.16 In contrast, Utah Plaintiffs allege that the Tennessee Defendants solicit business from all regions including Utah,17 advertise free shipping to the lower 48 states, and enable purchasers to select Utah from a toggle menu for shipping purposes.18 Additionally, Mr. Park alleges that Tennessee Defendants transacted business in Utah on multiple occasions,19 including making three separate purchases from DPS,20 which DPS shipped directly to Mr. Douglass’s address in 12 Affidavit of Carl Douglass, ¶¶ 3-5, docket no. 11-1, filed December 1, 2014. 13 Id. at ¶ 11. 14 Id. at ¶ 16. 15 Id.at ¶ 15. 16 Id. at ¶ 17. 17 Complaint at ¶ 11. 18 Opposition Memorandum at ¶¶ 30-40. 19 Complaint at ¶ 12. 20 Affidavit of Bret Park, ¶ ¶18-20, docket no. 13, filed on December 23, 2014; Opposition Memorandum at ¶¶ 24, 26, 28. 3 Case 2:14-cv-00826-DN Document 17 Filed 03/10/15 Page 4 of 21 Tennessee.21According to Mr. Park, these purchases resulted in the Tennessee Defendants’ defamatory comments.22 Mr. Park asserts that numerous potential Utah customers have called DPS to inquire about Mr. Douglass’ allegations,23 have questioned the quality of DPS’s product and warranty,24 and have returned DPS products for a refund without opening the package because of Mr. Douglass’s statements.25 Mr. Park submits that Mr. Douglass’s actions have caused severe injury to both Mr. Park and DPS.26 DISCUSSION When a motion to dismiss is raised by a defendant early on in the proceedings, courts are to “tak[e] as true all well-pled (that is, plausible, non-conclusory, and non-speculative) facts alleged in plaintiff[’s] complaint,”27 making all reasonable inferences in the plaintiff’s favor.28 Ultimately, “[t]he plaintiff bears the burden of establishing personal jurisdiction, but . . . early on in litigation . . . that burden can be met by a prima facie showing.”29 Moreover, while “well- pleaded jurisdictional allegations are not accepted as true once they are controverted by affidavit,” all factual disputes should be resolved in favor of the plaintiff.30 21 Affidavit of Bret Park at ¶ 19; Opposition Memorandum at ¶¶ 25, 27, 29. 22 Opposition Memorandum at 13-14. 23 Affidavit of Bret Park at ¶ 13. 24 Id. at ¶ 14. 25 Id. at ¶ 15. 26 Id.at ¶ 24. 27 Shrader v. Biddinger, 633 F.3d 1235, 1239 (10th Cir. 2011) (second alteration in original). 28 Weise v. Casper, 507 F.3d 1260, 1271 (10th Cir. 2007) (citations omitted). 29 Shrader, 633 F.3d at 1239. 30 Id. at 1248. 4 Case 2:14-cv-00826-DN Document 17 Filed 03/10/15 Page 5 of 21 Here, the Utah Plaintiffs made a prima facie jurisdictional showing by stating their version of the facts in their Complaint.31 The Tennessee Defendants then refuted those facts in their Motion and Mr. Douglass’s Affidavit.32 In response to the Tennessee Defendants’ Motion, the Utah Plaintiffs reasserted their version of the facts in their Opposition Memorandum33 and Mr. Park’s accompanying Affidavit.34 Therefore, all inferences will be drawn, and factual disputes will be resolved, in favor of the Utah Plaintiffs. Each of the Tennessee Defendants’ arguments will be addressed beginning with insufficient process. Personal jurisdiction will then be addressed, followed by venue. For the reasons set forth in more detail below, the Utah Plaintiffs’ process and service of process is proper, Utah has personal jurisdiction over all parties in this case, and venue is proper in Utah. THE UTAH PLAINTIFFS’ PROCESS AND SERVICE OF PROCESS WAS PROPER Tennessee Defendants briefly argue on page three of their Motion that the Utah Plaintiffs’ process was deficient.35 Because the Utah Plaintiffs initially filed this action in a Utah state court the Utah Rules of Civil Procedure govern the content and service of the summons. The Federal Rules of Civil Procedure make insufficient process a valid basis for dismissing a complaint, and govern this motion.36 Rule 4 of Utah’s Rules of Civil Procedure, establishing the required content of the summons, states: The summons shall contain the name of the court, the address of the court, the names of the parties to the action, and the county in which it is brought. It shall be 31 Complaint at ¶¶ 11-13, 29-34. 32 Motion at 3-5; see generally Affidavit of Carl Douglass. 33 Opposition Memorandum at 2-7. 34 See generally Affidavit of Bret Park. 35 Motion at 3. 36 Fed. R. Civ. P. 12(b)(4). 5 Case 2:14-cv-00826-DN Document 17 Filed 03/10/15 Page 6 of 21 directed to the defendant, state the name, address and telephone number of the plaintiff's attorney, if any, and otherwise the plaintiff's address and telephone number. It shall state the time within which the defendant is required to answer the complaint in writing, and shall notify the defendant that in case of failure to do so, judgment by default will be rendered against the defendant. It shall state either that the complaint is on file with the court or that the complaint will be filed with the court within ten days of service.37 Regarding the method of service, Utah R. Civ. P. 4(d) provides: Unless waived in writing, service of the summons and complaint shall be by one of the following methods: (d)(1) … in any state or judicial district of the United States by the sheriff or constable or by the deputy of either, by a United States Marshal or by the marshal's deputy, or by any other person 18 years of age or older at the time of service and not a party to the action or a party's attorney. (d)(1)(A) Upon any individual … by delivering a copy of the summons and the complaint to the individual personally … (d)(1)(E) Upon any corporation not herein otherwise provided for, upon a partnership or upon an unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and the complaint to an officer, a managing or general agent, or other agent authorized by appointment or by law to receive service of process.38 The Tennessee Defendants provide no support for the allegation that they did not receive process or that the process was insufficient.39 The Utah Plaintiffs, however, have shown that on October 18, 2014, Constable Larry Crabtree served Carl Douglass, personally, and Diana Douglass, as an agent of CCT, with copies of the Summons and Complaint.40 Complying with Rule 4, the Summons included the name and address of the court, the names of the parties, the name and address of DPS’s attorney, the time in which CCT was to respond, and the penalty for failing to respond.41 The Summons and Complaint were served in Clarkrange, Tennessee,42 as 37 Utah R. Civ. P. 4(c)(1). 38 Id. at 4(d); 4(d)(1); 4(d)(1)(A); and 4(d)(1)(E). 39 See Motion at 2-3 (stating constable did not “serve a Summons” and that Plaintiffs’ lawsuit should be dismissed for “insufficiency of process”). 40 Proof of Service at 2, docket no. 4-4, filed November 12, 2014. 41 Exhibits A & B to Proof of Service. 42 Proof of Service at 2. 6 Case 2:14-cv-00826-DN Document 17 Filed 03/10/15 Page 7 of 21 permitted by Utah’s rules.43 Therefore, the Utah Plaintiffs followed Utah’s rules in form of the summons and in service of process.44 The Tennessee Defendants’ insufficient process argument fails. UTAH HAS PERSONAL JURISDICTION OVER THE TENNESSEE DEFENDANTS The Tennessee Defendants’ primary argument supporting their Motion is that Utah has no personal jurisdiction over them.45 In determining personal jurisdiction in diversity cases, Federal Rule of Civil Procedure 4(k)(1)(A) requires federal district courts to “apply the law of the state in which the district court sits.”46 Accordingly, Utah law determines personal jurisdiction. Personal jurisdiction over a defendant can be either general or specific.47 General jurisdiction gives a court authority over a defendant “without regard to the subject of the claim asserted” as long as the defendant has engaged in “substantial and continuous local activity in the forum state.”48 In contrast, specific jurisdiction is limited to the “claims arising out of the particular activities of the defendant in the forum state.”49 In the Motion, the Tennessee Defendants discuss CCT and Mr. Douglass collectively, not as a separate individual and entity.50 Only in their Reply Brief do the Tennessee Defendants raise 43 Utah R. Civ. P. 4(d)(1). 44 Summons, docket no. 4-4, filed November 12, 2014; Certificate of Service, docket no. 4-3, filed November 12, 2014; Proof of Service. 45 Motion at 5-6. 46 Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008). 47 Arguello v. Industrial Woodworking Mach. Co., 838 P.2d 1120, 1122 (Utah 1992). 48 Pohl, Inc. of America v. Webelhuth, 201 P.3d 944, 949 (Utah 2008) (internal quotation marks and citation omitted). 49 Id. 50 Complaint at 1. 7 Case 2:14-cv-00826-DN Document 17 Filed 03/10/15 Page 8 of 21 the corporate veil as a basis for dismissing Mr. Douglass.51 Courts are not obligated to parcel out individual defendants in a personal jurisdiction analysis when the moving party does not separate them in the Motion.52 Therefore, CCT and Mr. Douglass are analyzed together. General Jurisdiction is Not Present The Tennessee Defendants’ argue that Utah does not have general jurisdiction over them because neither CCT nor Mr. Douglass conducts “substantial and continuous local activity” within the state.53 Indeed, Mr. Douglass’s affidavit states that he has never personally conducted business transactions or contracted to supply services in Utah.54 Mr. Douglass likewise denies in his affidavit that CCT has ever “directed electronic, paper, or any other medium of advertisement . . . to Utah;” “hired other persons or agents to solicit, market, target, email, call, text, instant message, fax, or otherwise make contact with residents, individual or commercial, of the State of Utah;” or opened any “offices or locations in Utah.”55 Although some of these facts are controverted by Mr. Park’s affidavit,56 and factual disputes are to be interpreted liberally in favor of the Plaintiffs,57 Plaintiffs do not argue that Utah has general personal jurisdiction over either CCT or Mr. Douglass. Even when construing the facts in the light most favorable to the Utah Plaintiffs, the Tennessee Defendants’ collective contacts with Utah are limited to a few purchases, one phone 51 Defendants Crazy Carl’s Turbos and Carl Douglas’ Reply to Plaintiffs’ Response to Motion to Dismiss at 1, docket no. 14, filed January 7, 2015. 52 Forte Supply, LLC v. Mojo Frozen Yogurt, LLC, 2013 U.S. Dist. LEXIS 140688, at *6, 2013 WL 5477165, at *2 (D. Colo.) (citing Grynberg v. Ivanhoe Energy, Inc., 490 Fed. Appx. 86, 2012 WL 2855777, at *4 (10th Cir. July 12, 2012). 53 Motion at 6. 54 Affidavit of Carl Douglass at ¶¶ 3-4. 55 Affidavit of Carl Douglass at ¶¶ 10-13. 56 Affidavit of Bret Park at ¶¶ 18-23. 57 Shrader, 633 F.3d at 1239. 8 Case 2:14-cv-00826-DN Document 17 Filed 03/10/15 Page 9 of 21 call, and a few other unspecified interactions with Utah residents.58 These types of contacts do not rise to the level required for general jurisdiction. Therefore, general personal jurisdiction over the Tennessee Defendants does not exist. Specific Jurisdiction is Present The Tennessee Defendants also argue that Utah does not have specific jurisdiction over them. A court cannot exercise specific jurisdiction over a defendant unless Utah’s long-arm statute covers the defendant’s behavior; the plaintiff’s injury arises out of defendant’s behavior; and exercising specific jurisdiction would satisfy the defendant’s right to due process.59 “[T]o ensure maximum protection to citizens of this state, [Utah’s long-arm statute] should be applied so as to assert jurisdiction over nonresident defendants to the fullest extent permitted by the due process clause of the Fourteenth Amendment to the United States Constitution.”60 Since the due process analysis controls the outcome of the specific jurisdiction determination,61 only the due process requirement will be addressed. To satisfy due process, a plaintiff must show that the defendant has “[1] minimum contacts with the forum state, such that having to defend a lawsuit there [2] would not ‘offend traditional notions of fair play and substantial justice.’”62 (1) The Tennessee Defendants Have “Minimum Contacts” with Utah “Minimum contacts” requires the plaintiff to show “that the out-of-state defendant . . . purposefully directed its activities at residents of the forum state,” and “that the plaintiff’s 58 Affidavit of Bret Park at ¶¶ 18-23. 59 See Fenn v. Mleads Enterprises, Inc., 137 P.3d 706, 710 (Utah 2006). 60 Utah Code Ann. § 78B-3-201(3) (West 2014). 61 State ex rel. W.A., 63 P.3d 607, 612 (Utah 2002). 62 Dudnikov, 514 F.3d at 1070 (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945 . 9 Case 2:14-cv-00826-DN Document 17 Filed 03/10/15 Page 10 of 21 injuries . . . ‘arise out of’ defendant’s forum-related activities.”63 The Utah Plaintiffs argue that the Tennessee Defendants established minimum contacts with Utah three different ways: (a) making defendants’ website available for Utah customers;64 (b) posting comments on message boards about a Utah business;65 and (c) conducting business activity in Utah.66 Each of these bases is discussed in turn to determine whether the Tennessee Defendants “purposefully directed its activities at residents of [Utah]” and that the alleged injuries “arise out of” those activities. a) CCT’s Website Does Not Establish “Minimum Contacts” The Utah Plaintiffs argue that CCT’s website satisfies the minimum contacts requirement.67 This is incorrect. Even assuming that the Tennessee Defendants’ website was “purposefully directed” at Utah (which has not been established, but for purposes of argument it will be assumed), the Utah Plaintiffs fail to allege how their claims against the Tennessee Defendants “arise out of” CCT’s interactive website. The Utah Plaintiffs’ claims in the Complaint rely on allegations of Mr. Douglass’s defamatory comments, not CCT’s website, which is set up to sell CCT’s products. The difference is significant. In Dudnikov v. Chalk & Vermilion Fine Arts, Inc.,68 the Tenth Circuit articulated two tests to measure whether a plaintiff’s claims “arise out of” a defendant’s behavior.69 Under the “but for” test, “any event in the causal chain leading to the plaintiff's injury is sufficiently related 63 Shrader, 633 F.3d at 1239 (internal citations omitted). 64 Opposition Memorandum at 9-11. 65 Id. at 11-12. 66 Id. at 12-13. 67 Opposition Memorandum at 9-11. 68 514 F.3d 1063 (10th Cir. 2008). As recently as 2013, the Tenth Circuit had not made an election between the tests. We have so far refused to choose one test over the other . . .” Newsome v. Gallacher, 722 F.3d 1257, 1270 (10th Cir. 2013) 69 Id. at 1079. 10 Case 2:14-cv-00826-DN Document 17 Filed 03/10/15 Page 11 of 21 to the claim to support the exercise of specific jurisdiction.”70 The second test, or “proximate cause” test, is more restrictive and “calls for courts to ‘examine[s] whether any of the defendant's contacts with the forum are relevant to the merits of the plaintiff's claim.’”71 The facts in Dudnikov did not require the Tenth Circuit to endorse one test over the other. Instead, the court determined that the defendants’ behavior in that case satisfied the “arising out of” requirement under both tests.72 Here, CCT’s website fails to satisfy either test. Under the “but for” test, the Tennessee Defendants’ website was not an “event in the causal chain leading to” Mr. Park’s or DPS’s alleged injuries. Likewise, under the more restrictive “proximate cause” test, the website, even with its various purchasing options and interactive design, in not relevant to Mr. Park’s or DPS’s alleged injuries. The Utah Plaintiffs’ arguments that this court may exercise personal jurisdiction over the Tennessee Defendants based on contacts created by a website unrelated to the alleged injuries conflate general and specific personal jurisdiction. The limited contacts the Defendants’ website creates with Utah may be sufficient to give Utah specific jurisdiction over defendants in an injury arising from that website, but not for unrelated injuries. For the above reasons, CCT’s website does not meet the “arise out of” element of “minimum contacts.” As a result, CCT’s website does not satisfy the “minimum contacts” requirement of due process. b) The Defamatory Comments Alone Do Not Satisfy “Minimum Contacts” Second, the Utah Plaintiffs allege that the Tennessee Defendants’ comments and postings satisfy the “minimum contacts” requirement based on the “effects test” established in Calder v. 70 Id. at 1078. 71 Id. (citations omitted). 72 Id. at 1079. 11 Case 2:14-cv-00826-DN Document 17 Filed 03/10/15 Page 12 of 21 Jones.73 Purposeful direction exists when “the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.”74 This requirement protects defendants from “being haled into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts.”75 While the “effects test” is the proper test for this case, the Utah Plaintiffs’ conclusion that “minimum contacts” is established solely from postings on a message board is incorrect. In Calder v. Jones,76 the United States Supreme Court determined that California properly exercised specific jurisdiction over Florida defendants who purposefully directed a slanderous magazine article about a California actress into California. Establishing the “effects test” as a means to determine purposeful direction, the Supreme Court reasoned that personal jurisdiction was proper because (1) the defendants’ “intentional, and allegedly tortious, actions were expressly aimed at California;” (2) “they knew [their article] would have a potentially devastating impact upon [the actress];” and (3) “they knew that the brunt of that injury would be felt by [the actress] in the State in which she lives and works.”77 The court concluded that, based on these elements, the defendants could “reasonably anticipate being haled into [a California] court” to answer for the truth of their article.78 Thus their behavior satisfied the purposeful direction requirement. 73 Opposition Memorandum at 11-12 (citing Calder v. Jones, 465 U.S. 783 (1984 . 74 Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985) (citations omitted). 75 Id. at 475 76 465 U.S. 783 (1984). 77 Id. at 789-90. 78 Id. 12 Case 2:14-cv-00826-DN Document 17 Filed 03/10/15 Page 13 of 21 In the 2011 case of Shrader v. Biddinger,79 the Tenth Circuit applied the “effects test” to circumstances analogous to those here, and found that the defendant did not have minimum contacts.80 In Shrader, an allegedly defamatory email was sent to an Oklahoma author, and subsequently posted to an online forum.81 There, the Tenth Circuit stated, “it is necessary to adapt the analysis of personal jurisdiction to [Internet activity] by placing emphasis on the internet user or site intentionally directing his/her/its activity or operation at the forum state rather than just having the activity or operation accessible there.”82 The Shrader court reasoned: If we were to conclude as a general principle that a person’s act of placing information on the Internet subjects that person to personal jurisdiction in each State in which the information is accessed, then the defense of personal jurisdiction, in the sense that a State has geographically limited judicial power, would no longer exist.83 The Tenth Circuit further declared that “posting allegedly defamatory comments or information on an internet site does not, without more, subject the poster to personal jurisdiction wherever the posting could be read (and the subject of the posting may reside).”84 There must also be “indications that a defendant deliberately directed its message at an audience in the forum state and intended harm to the plaintiff occurring primarily or particularly in the forum state.”85 Ultimately, the Shrader court found no purposeful direction because neither sending the email to the Oklahoma author in the forum state nor posting that email on public message boards rose to the necessary targeting to meet the “effects test.”86 79 633 F.3d 1235. 80 See id. at 1248. 81 Id. at 1238. 82 Id. at 1240. 83 Id. (quoting ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 712 (4th Cir.2002 . 84 Shrader, 633 F.3d at 1240 85 Id. at 1241 (emphasis added). 86 Id. 13 Case 2:14-cv-00826-DN Document 17 Filed 03/10/15 Page 14 of 21 Mr. Douglass’s act of posting negative comments about DPS on the online message boards is very similar to the actions of the defendants in Shrader.87 Just as one of the defendants in Shrader posted comments about the author to an online forum, with neither the comments nor the forum having any connection to Oklahoma,88 neither Mr. Douglass’s comments nor the message board on which they were posted, without more, have a sufficient connection to Utah. The Shrader court specifically stated that “merely posting information on the internet does not, in itself, subject the poster to personal jurisdiction wherever that information may be accessed.”89 Moreover, contrary to the Utah Plaintiffs’ argument, the Tennessee Defendants’ actions here are different from the defendants’ behavior in Calder. In Calder, the defendants’ wrote an article about a California actress, whose fame was centered in California, in a publication that was most widely circulated in California, with most of the damage likely to occur in California.90 Here, though the allegedly defamatory comments were about a Utah business, they were posted to an online forum with no specific connection to Utah, to a non-specific audience located throughout the world. Shrader established that “defamatory postings may give rise to personal jurisdiction if they are directed specifically at a forum state audience or otherwise make the forum state the focal point of the message.”91 Here, as noted above, the Tennessee Defendants’ defamatory comments were addressed to a general internet audience, not one based in Utah. Accordingly, Mr. Douglass’s postings, by themselves, do not pass the “effects test,” and cannot satisfy the 87 Id. at 1238. 88 Id. at 1241. 89 Id. at 1244. 90 Calder, 465 U.S. at 788-89. 91 Shrader, 633 F.3d at 1243. 14 Case 2:14-cv-00826-DN Document 17 Filed 03/10/15 Page 15 of 21 “purposeful direction” element.92 As Mr. Douglass’s postings alone do not satisfy the purposeful direction element, it is unnecessary to discuss whether the Utah Plaintiffs’ alleged injuries “arose out of” those comments. Without purposeful direction, the forum comments and postings alone do not establish “minimum contacts” with Utah. c) Tennessee Defendants’ Business Activities with Utah Establish Minimum Contacts Finally, the Utah Plaintiffs argue that “Defendant’s actions through purchasing Plaintiff’s products . . . has [sic] established sufficient minimum contacts to allow this Court to exercise personal jurisdiction over the Defendant.”93 In this argument the Utah Plaintiffs are correct. The Tennessee Defendants’ purchases of DPS’s products satisfy the “minimum contacts” requirement because the Tennessee Plaintiffs voluntarily reached out to DPS, a Utah company, to enter into business transactions, and those transactions were at least one reason for the alleged defamatory comments that gave rise to the Utah Plaintiffs’ alleged injuries in this action. First, the Tennessee Defendants purposefully directed business activity at Utah by purchasing DPS products. The Utah Plaintiffs allege facts showing this element in both their Opposition Memorandum and their Complaint.94 For example, i, the Utah Plaintiffs allege that Mr. Douglass purchased products from the Utah Plaintiffs on April 26, July 9, and July 23 of 2012.95 Likewise, in their Complaint, the Utah Plaintiffs allege that the Tennessee Defendants “purchased from Plaintiff and knew that Plaintiff’s products are much more reliable than [Mr. 92 However, when combined with the fact that business transactions were purposefully directed at Utah, the defamatory statements based on those transactions satisfy “minimum contacts” here. See Section (1)(c) herein. 93 Opposition Memorandum at 12-13. 94 Opposition Memorandum at ¶¶ 24-29; Exhibits I, J, and K of Opposition Memorandum, docket no. 12-1, filed December 23, 2014; Complaint at ¶¶ 52, 54. 95 Opposition Memorandum at ¶¶ 24-29; Exhibits I, J, and K of Opposition Memorandum. 15 Case 2:14-cv-00826-DN Document 17 Filed 03/10/15 Page 16 of 21 Douglass] portrays.”96 Taking the Utah Plaintiffs’ allegations as true, and drawing reasonable inferences in their favor, the purchase of products was an intentional step by the Tennessee Defendants to transact business with the Utah Plaintiffs in Utah. These business transactions satisfy the purposeful direction element. Second, the Utah Plaintiffs’ alleged injuries also arise out of the Tennessee Defendants’ purchases of DPS products. Under the “but for” test, the Tennessee Defendants’ activity need only occur somewhere in the causal chain that leads to the Utah Plaintiffs’ alleged injuries.97 According to the Utah Plaintiffs, the Tennessee Defendants’ purchases resulted in their defamatory comments, which caused the Utah Plaintiffs’ alleged injuries.98 The Complaint alleges that “[the Tennessee Defendants] posted pictures of turbo kits manufactured by [Utah Plaintiffs].”99 Likewise, the Utah Plaintiffs state that “[b]y purchasing the product, [the Tennessee Defendants] were able to misrepresent Plaintiff’s [sic] products and claim to have first hand experience on the shortcomings of Plaintiff’s [sic] products and warranty.”100 Tennessee Defendants’ purchases also satisfy the more restrictive “proximate cause” test, which requires the contacts to be “relevant to the merits of the plaintiff’s claim,”101 because the purchases are just one step removed from the Utah Plaintiffs’ injuries and are directly connected to the allegedly defamatory comments and postings. Thus, the Tennessee Defendants’ purchases of DPS products satisfy the “arising out of” element of minimum contacts. 96 Complaint at ¶¶ 52, 54. 97 Dudnikov, 514 F.3d at 1078. 98 Complaint at ¶¶ 46-47. 99 Id. 100 Opposition Memorandum at 13-14. 101 Dudnikov, 514 F.3d at 1078. 16 Case 2:14-cv-00826-DN Document 17 Filed 03/10/15 Page 17 of 21 Accepting the Utah Plaintiffs’ allegations as true, and construing the factual disputes in the light most favorable to them, the Tennessee Defendants behavior satisfies the minimum contacts requirement because they purposefully directed business activity towards Utah by purchasing DPS products, and the Utah Plaintiffs’ alleged injuries arose out of comments and postings caused by those purchases. (2) Exercising Jurisdiction over the Tennessee Defendants Does Not Offend Traditional Notions of Fair Play and Substantial Justice Having determined that the Tennessee Defendants’ business transactions with the Utah Plaintiffs established minimum contacts, it is necessary to address whether exercising specific jurisdiction over the Tennessee Defendants would otherwise offend traditional notions of fair play and substantial justice. For the reasons set forth below, it would not. In conducting this analysis, courts traditionally consider (1) the burden on the defendant, (2) the forum state’s interests in resolving the dispute, (3) the plaintiff’s interest in receiving convenient and effectual relief, (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several states [or foreign nations] in furthering fundamental social policies.102 Moreover, when defendants purposefully direct activities towards a forum state, they “must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.”103 Due to the distance between Tennessee and Utah, one of the parties here will unavoidably bear a burden in litigating this dispute. Additionally, taking the Utah Plaintiffs’ allegations as true, the Tennessee Defendants provided Utah with an interest in resolving this dispute by directing their business activity toward Utah and making defamatory comments about a Utah 102 Id. at 1080 (internal citations omitted). 103 Burger King Corp., 471 U.S. at 477. 17 Case 2:14-cv-00826-DN Document 17 Filed 03/10/15 Page 18 of 21 business. It is in the Utah Plaintiffs’ best interest to require the Tennessee Defendants to come to Utah “to answer for the truth of the statements made.”104 This is not just a situation of posting comments on a neutral message board. Rather, the sequence of events, as alleged in the Utah plaintiffs’ Complaint and Opposition Memorandum, shows a calculated plan intended to damage a Utah business. Moreover, the Tennessee Defendants fail to identify any additional considerations that would “render jurisdiction unreasonable.”105 Thus, traditional notions of fair play and substantial justice are not offended. Due process is satisfied here because the Tennessee Defendants established minimum contacts with Utah and jurisdiction does not otherwise offend traditional notions of fair play and substantial justice. VENUE IS PROPER IN UTAH The Tennessee Defendants’ final point in their Motion to Dismiss for Lack of Jurisdiction is improper venue.106 However, they provide no argument. Their references to venue are limited to a few places in their introduction107 and once in their conclusion.108 The Tennessee Defendants appear to consider “personal jurisdiction” and “venue” as synonyms, based on their omission of a separate “venue” discussion. The Utah Plaintiffs do no better, mentioning venue only in their concluding paragraph.109 While closely related, personal jurisdiction and venue are two distinct concepts. It is true that a 104 Calder, 465 U.S. at 790. 105 Motion at 7-8. 106 Id. at 1. 107 Id. at 1-3. 108 Id. at 13. 109 Opposition Memorandum at 14. 18 Case 2:14-cv-00826-DN Document 17 Filed 03/10/15 Page 19 of 21 court must have personal jurisdiction if it is to be a proper venue, but occasionally a court may have personal jurisdiction and still be an improper venue.110 In federal courts: A civil action may be brought in – (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.111 For venue to be proper, it must fit within one of these three scenarios. A venue does not have to be the “best” venue to be a “proper” venue.112 Moreover, “Congress does not in general intend to create venue gaps, which take away with one hand what Congress has given by way of jurisdictional grant with the other. Thus, in construing venue statutes it is reasonable to prefer the construction that avoids leaving such a gap.”113 Subsection (2) provides that venue is proper in the judicial district where “a substantial part of the events or omissions giving rise to the claim occurred.”114 But where do actions actually “occur” when they are executed on the Internet? This question was answered by the District of Colorado, in Forte Supply, LLC v. Mojo Frozen Yogurt, LLC.115 There, a Colorado seller of yogurt machines sued a New Jersey store, as 110 28 U.S.C. § 1391(b) (2015). 111 Id. 112 KEBD Enterprises, LLC v. Hider, 2009 U.S. Dist. LEXIS 49163, at *7, 2009 WL 1504748, at *2, *6 (citing Bates v. C&S Adjusters, Inc., 980 F.2d 865, 866-67 (2nd Cir. 1992 . 113 Monument Builders of Greater Kansas City, Inc. v. American Cemetary Ass’n, 891 F.2d 1473 (10th Cir. 1989) (quoting Brunette Mach. Works, Ltd. v. Kockum Indus., Inc., 406 U.S. 706, 710, n. 8, (1972) (additional citations omitted). 114 28 U.S.C. § 1391(b)(2). 115 Forte Supply, LLC, 2013 U.S. Dist. LEXIS 140688. 19 Case 2:14-cv-00826-DN Document 17 Filed 03/10/15 Page 20 of 21 well as its owner, after the New Jersey store made defamatory comments about the Colorado seller’s machines.116 The New Jersey store had purchased four machines from the Colorado seller and, after being disappointed with the machines’ quality, posted negative comments on the “Yelp” and the “BBB” websites, among other places.117 The New Jersey store owner was physically in New Jersey, and not in Colorado, when it engaged in its allegedly defamatory conduct, so the store owner argued that a substantial number of the events giving rise to the action occurred in New Jersey, making Colorado an improper venue.118 The District of Colorado disagreed, reasoning that where the machines malfunctioned does not serve as a basis for Plaintiffs’ claims. Instead . . . it is Defendants’ alleged intentional actions in reaching into Colorado . . . which serve as the bases for Plaintiffs’ claims. . . . [T]he fact that Defendants’ alleged acts physically occurred in New Jersey does not, in the context of this case, support a finding that such actions are not significantly connected to Colorado.119 The District of Colorado’s reasoning in Forte Supply is persuasive, and it is adopted in this case. Even though some of the Tennessee Defendants’ actions may have physically occurred in Tennessee, a substantial part of the events occurred in Utah, where the Tennessee Defendants intentionally reached to purchase Plaintiffs’ products and then posted allegedly defamatory remarks about those products in an effort to do harm to the Utah business, knowing its location in Utah. Under Forte Supply, acts that are physically performed on the Internet can “occur” in the forum state in order to establish proper venue. Therefore, venue is proper in Utah. 116 Id. at *3-4. 117 Id. 118 Id. at *20 119 Id. at *20-21. 20 Case 2:14-cv-00826-DN Document 17 Filed 03/10/15 Page 21 of 21 CONCLUSION The Utah Plaintiffs properly served process on the Tennessee Defendants, Utah has specific personal jurisdiction over the Tennessee Defendants, and Utah is a proper venue for this dispute. Therefore, IT IS HEREBY ORDERED that Defendants’ Motion120 is DENIED. ORDER Dated March 10, 2015. BY THE COURT: ____________________________ David Nuffer United States District Judge 120 Defendants Crazy Carl’s Turbos and Carl Douglas’ Motion to Dismiss Complaint Pursuant to 12(b)(2), 12(b)(3), docket no. 11, filed December 1, 2014. 21

=== Privacy Policy ===

Judicial Conference Policy on Privacy and Public Access to Electronic Case Files March 2008 Amendments to the Appellate, Bankruptcy, Civil, and Criminal Rules to implement the requirements of the E-Government Act of 2002 took effect on December 1, 2007. The new rules codify, to a large extent, the 2001 Judicial Conference privacy policy, as revised in 2003, requiring redaction of personal identifier information from filings.1 The personal identifiers to be redacted are Social Security numbers, names of minor children, financial account numbers, dates of birth, and, in criminal cases, home addresses.2 Because of the enactment of the rules, the previous policy is no longer operative except for two portions of the earlier privacy policy that remain in force, separate from the new rules. They are listed below. I. Documents in criminal case files for which public access should not be provided The following documents in a criminal case shall not be included in the public case file and should not be made available to the public at the courthouse or via remote electronic access: C C C C C C C C unexecuted summonses or warrants of any kind (e.g., search warrants, arrest warrants); pretrial bail or presentence investigation reports; statements of reasons in the judgment of conviction; juvenile records; documents containing identifying information about jurors or potential jurors; financial affidavits filed in seeking representation pursuant to the Criminal Justice Act; ex parte requests for authorization of investigative, expert or other services pursuant to the Criminal Justice Act; and sealed documents (e.g., motions for downward departure for substantial assistance, plea agreements indicating cooperation or victim statements). II. The redaction of electronic transcripts of court proceedings Courts making electronic documents remotely available to the public shall make electronic transcripts of proceedings remotely available to the public if such transcripts are prepared. Prior to being made electronically available from a remote location, however, the transcripts must conform to Fed. R. Civ. P. 5.2(a), Fed. R. Crim. P. 49.1(a), or Fed. R. Bankr. P. 9037(a). 1 JCUS-SEP/OCT 01, pp. 48-50 and JCUS-SEP 03, pp. 15-16. 2 Fed. R. App. P. 25(a), Fed. R. Bankr. P. 9037, Fed. R. Civ. P. 5.2, and Fed. R. Crim. P. 49.1. 1 Once a prepared transcript is delivered to the clerk’s office pursuant to 28 U.S.C. § 753, the attorneys in the case are (or, where there is a self-represented party, the party is) responsible for reviewing it for the personal data identifiers required by the federal rules to be redacted, and providing the court reporter or transcriber with a statement of the redactions to be made to comply with the rules. Unless otherwise ordered by the court, the attorney must review the following portions of the transcript: (a) opening and closing statements made on the party’s behalf; (b) statements of the party; (c) the testimony of any witnesses called by the party; (d) sentencing proceedings; and (e) any other portion of the transcript as ordered by the court. Within seven calendar days of the delivery by the court reporter or transcriber of the official transcript to the clerk’s office, each attorney must inform the court, by filing a notice of redaction with the clerk, of his or her intent to direct the redaction of personal data identifiers from the electronic transcript of the court proceeding. If no such notice is filed within the allotted time, the court will assume redaction of personal data identifiers from the transcript is not necessary. An attorney serving as “standby” counsel appointed to be available to assist a pro se defendant in his or her defense in a criminal case must review the same portions of the transcript as if the pro se defendant were his or her client. If the transcript relates to a panel attorney representation pursuant to the Criminal Justice Act (CJA), including serving as standby counsel, the attorney conducting the review is entitled to compensation under the CJA for functions reasonably performed to fulfill the redaction obligation and for reimbursement for related reasonable expenses. A party is to submit to the court reporter or transcriber, within 21 calendar days of the transcript’s delivery to the clerk, or longer if a court so orders, a statement indicating where the personal data identifiers to be redacted appear in the transcript. The court reporter or transcriber must redact the identifiers as directed by the party. These procedures are limited to the redaction of the specific personal data identifiers listed in the rules. During the 21-day period, or longer if the court so orders, an attorney may move the court for additional redactions to the transcript. The transcript shall not be made available on the internet until the court has ruled upon any such motion. The court reporter or transcriber must, within 31 calendar days of the delivery of the transcript to the clerk of court, or longer if the court so orders, perform the requested redactions, and file a redacted version of the transcript with the clerk of court. The original unredacted electronic transcript should be retained by the clerk of court. 2 Policy Note This policy applies to transcripts made available via CM/ECF, WEBPACER, PACER, RACER or a non-court related electronic depository (e.g., Exemplaris). It does not affect in any way the obligation of the court reporter or transcriber, pursuant to Judicial Conference policy, to promptly deliver to the clerk of court the court reporter’s or transcriber’s original records of a proceeding or the inclusion of a transcript with the records of the court. If a party desires to respond to a motion for additional redaction, the court may establish a briefing schedule. Nothing in this policy creates a private right of action. Nothing in this policy changes any rules or policies with respect to sealing or redaction of court records for any other purpose. This policy does not affect or limit the right of any party (or any other person or entity) to order production of a transcript on an expedited basis. This policy does not affect any court rules or ruling requiring the sealing of materials or the protection of sealed materials. An attorney appointed pursuant to the Criminal Justice Act (CJA) is entitled to compensation under the CJA for functions performed to fulfill his or her obligations under the policy, including the following: (1) traveling to gain access to the transcript, if needed; (2) reviewing a transcript to determine whether to file notice of intent to redact; (3) filing a notice of intent to redact or a motion for an extension of time; (4) reviewing a transcript to determine the location of information to be requested to be redacted or whether to file a motion for additional redaction; (5) preparing and filing a redaction request or motion; and (6) other actions (including creating pleadings, attending hearings or other follow-up). The attorney is also entitled to reimbursement under the CJA for the costs of obtaining a transcript for purposes of review. If a case involving a CJA representation has already been closed and the original attorney is no longer available, or if standby counsel is no longer available, new counsel may be appointed under the CJA and compensated as outlined above. In the event that the original appointed counsel is still available, but has filed a final voucher for the underlying case, the attorney shall be permitted to file a supplemental voucher for compensation. Extensions of time to comply with the deadlines set forth in these procedures should not be routinely granted, due to the potential for delay of court of appeals proceedings in the event redaction procedures extend beyond 31 days. 3