Opinion

in Re Solid Software Solutions, Inc., D/B/A Edible Software

Court: Texas Court of Appeals, 1st District (Houston)
Filed: Mar 25, 2015
Status: Published
Cited by: 0 cases
Authority: More cited than 3.1%

The opinion

NO. 01-15-00267-CV

FILED IN

1st COURT OF APPEALS

IN THE COURT OF APPEALS HOUSTON, TEXAS

FOR THE 1ST JUDICIAL DISTRICT OF TEXAS

3/25/2015 12:01:47 PM

AT HOUSTON CHRISTOPHER A. PRINE

Clerk

IN RE SOLID SOFTWARE SOLUTIONS, INC., d/b/a EDIBLE SOFTWARE

Original Proceeding from the 215th Judicial District

Of Harris County, Texas

Trial Court Cause No. 2013-74668

RELATOR SOLID SOFTWARE SOLUTIONS INC. d/b/a EDIBLE

SOFTWARE’ S APPENDIX E-F TO PETITION FOR WRIT OF

MANDAMUS

Gregg M. Rosenberg

Texas State Bar No. 17268750

Tracey D. Lewis

Texas State Bar No. 24090230

ROSENBERG SPROVACH

3518 Travis, Suite 200

Houston, Texas 77002

Telephone (713) 960-8300

Facsimile (713) 621-6670

gregg@rosenberglaw.com

Attorneys for Relators

TABE

2/26/2015 4:50:26 PM

Chris Daniel - District Clerk Harris County

Envelope No. 4304972

By: GAYLE FULLER

Filed: 2/26/2015 4:50:26 PM

CAUSE NO. 2013c74668

ANDREA FARMER § IN TBE DISTRICT COURT OF

Plaintiff, §

v. § BARRIS COUNTY, TEXAS

HENRI MORRIS and SOLID SOFTWARE §

SOLUTIONS, INC. d/b/a EDIBLE § ~

SOFTWARE § 215TH JUDICI~~ISTRICT

Defendant.

DEFENDANTS' REPLY TO PLAINTIFF'S RESPONSE T " FENDANTS' MOTION

TO DISMISS OR ALTERNA

TRADITIONAL MOTION FOR SUMM JUDGMENT

ffJ

COMES NOW, Hel11i Mortis (''Defendant ~~) and Solid Software Solutions, Inc.

d/b/a Edible Software {"Defendant Edible Softw~~ collectively ("Defendants"), h1 the above-

styled and numbered cause of action, filin~~eply to Plaintiff's Response to Defendant's

Motion to Dismiss or, alternatively, ~~ for SI!111maty Judgment on Plaintiff's claims of

ocr

assault and invasion of privacy on t~sis of Defendants' affinnative defense oflimitations and

failure to adhere. to the TCHRA~11inistrativt: requirements.

Ul!;di~ I. INTRODUCTION

Plaintiff's respo~ does not question any ofthe facts applicable to Defendants' bases for

;!£,@" .

.its Motion to. Di~or altematively its Motion for Summary Judgment. Instead, Plaintiffs

factual and ~sertions urge this Court lo iguore the filet that Plaintiff did not plead a claim

of sexual assault because the requisite elements are not present based on the facts of tlus case and

Plaintiff's own testimony. Plah1tiff attempts to characterize Defendants' Motion as "cynical"

and "delusional" however, Defendants have taken the cle<tr la!lgxlage of the applicable Sections

of the Texas Penal Code, tlmt she now attempts to apply to avoid dismissal based on statute of

limitations, and applied that law to the facts as they stand. Defendants have no intent or

expectation that the plea agreement si.gneq by Defendant Morris in the criminal proceedings

against him be ignored by this Court. Defendants, however respectfully request that Plaintiff not

be allowed to sidestep the law in this case, ignore its .own pleadings,. and asse1t unmeritorious

arguments to avoid the clearly applicable two year statute of limitatibns o~r assault and

invasions of privacy claims that she pled. as well as the administrative ~uisites under the

Texas COI:mnission on RUJna:n Rights Act (TCHRA), directly rei~ employer liability in

sex.ual harassment cases that .she wholly failed to satisfy. Q~

.Plaintiff's urging misses the mark and her argument~~ not enough to save her claims

o;ff»-

fi·om dismissal under the laW. As Def~ndants have al~ outlined the pertinent facts in its

Motion, Defendants will spare the comt a recitation oD:Ve facts in this reply and squarely address

Plaintiffs Response. As outlined herein, Deftfs respectlillly requests that Plaintiff's claims

for assault and invasion of privacy be &issed or altematively, Defendants' Motion for

({@

Summary Judgment be grarited.

~QJ

II. ~GUMENT AND AUTHORITIES

A, Plaintiff never pled Sll__~

assault in this case aud her pleading contains no facts or

citation to any la"!'-~l'lltute that would put Defendlmton sufficient notice of such a

claim. ~U

Plaintiff atten~~ <:tire her failure to plead sexual assault and/or assert any facts to meet

the requisite elen ~of sexnal assault in her petition

~~s . by asserting that Defendants want to take

the claims ~ere actually pled, "assault'' and ''invasion of privacy" "at face va1ue." 1

The

Tex.as Rnles of Civil Procedure specifically state that pleadings. shall "consist of a statement in

plain and concise language of the plaintiff's cause of .action..." 2 Liberal construction of the

1 Pl.'s Resp. to Def;'s MII\!LSJ, ~IJ>. \4.

2 Tex. R. Civ. P. 45(b).

petition is fiat a license to read into i:he petition a claim that it does not contain. TI1e petition

must give fair and adequate notice of the claims being assetied. If it cannot be reasonably

inferred that the petition contains a given claim, then the claim cannot be somehow created to for

instance, avoid a statute of limitatiOJts defense. 3 As will be further explained herein, the five

year statute of limitations for a suit for perso11al injury is applied only when 'll» injtuy is as a

~'0·

result of conduct that violates sexual assault, aggravated sexual assault, c~uous sexual abuse

of a young child or childroo, 1:rafficki11g of persons, or compelling ~~tution. 4 Plaintiff now

claims thatthis is a sexual assault action but has pled nothing t~ Defendants fair notice that

such a claim was being made. Therefore, Defoodants' t"~ the claims at "face value" is

o~"'

exactly il1line with what the Texas Rules of Civil Proced~nmtdate.

Plaintiff pled the following: ?5}

o~dl

Defendant MORRIS intentionall)b~sed physical contact with

P. laintiff FARMER directly a11d~:fhrtll·gh the instrumentality of dmgs,

while he knew or should reasol't lmve k.nowfi that FARMER would

find that contact offet1sive or~ ocative. 5

Assault occurs when: ~

~ontact

A person int.er.1tionlJ!'liYQr k.n..owiugly .. causes p.hy.sicaJ

another when t11e ~n knows or sl;ould reasonab~y believe that the

witl1

ot11er wtll regaft»~'tontact as offenstve or provocatt.ve. 6

The Plaintiff's petitio!l ~·ors, almost exactly, the lm1guage of assault, not sexual assault.

In suppo~1et: proposition t11at §16.0045(a)(l) should apply in the instant case,

©i

Plaintiff oit~tephanie M v. Copti¢ Orthodox Patriarchate Dioce$e o.f S. U:.S., 362 S.W. 3d

656, 659 (Tex. App. -Houston [14th Dist.] 2011, rev. den'd). First, in Coptic Orthodox the

issue was, "whet11er the five year statute of limitations applicable to petsonai injury claims

~ Flowersv. Flower:;,407 S.W.3d 452,451-458 (rex. App. -Houston, 2013).

4 Tex. Civ. Prac. & Rem. Code §16.0045(a)(l)-(5).

5 Pl.'s Original Petition, .at 11 l.Q.

6 Tex. Penal Code §22.01(a)(3).

arising as a result of sexual assault applied only to suits against the pe1petrator of the sexual

assault, not to suits against third-parties who are alleged to have negligently supervised the

perpetrator or negligently failed to institute policies or procedures designed to prevent such

behavior.'' 7 That is not the issue here. Defendants have asserted in their motion to dismiss or

alternatively motion for summary judgment that the two-year statute of ]~lions applies

~!}""--

because this is a civil assault and invasion of privacy claim not a sexual a~ claim.

Additionally, the petition in Coptic Orthodox clearly put theo~ndants in that case on

notice that th(;l cause of action was for sexual assault, not asQ~ Specifically the plaintiff's

petition read as follows under "cause of action": ,~

Upon trial of this case, the evidence will ~ that Stephanie M.,

whose date of birth is Nowmber 24, 1986~as sexually assaulted, as

defined by §22.011 of the Texas Penal oC~e, in Harris CoU!lty, Texas,

byDefendant. .. 8 ~

In the Appellate Court's opinionr:g,~g the trial court's grant of the defendant's

1liotion for summary judgment based op,..,~tute of limitations, tl1e coort did state that "talcen

!f:JJV!g

together, the provisions of section t~45 unambiguonsly show a legislative inte!l.t to provide

victims of sexual assault ... mo;r_~9me to seek dan1ages for their injuries."9 The key phrase in

that conclusion is ''sexuaJU$Sj\jft." In this case, Plaintiff did not plead sexual assault and does

not assert facts to fal10 ~r Section22.01I(a)(l)(A) of the Penal Code which Plaintiff claims is

applicable. 10 lrtst~qlaintiff asse1is language that mhmrs the civil assault elements and/or

cause of acti~~

7 Stephan.ie M. v. Coptic 0!'thodax Patriarchate. Diocese of S. U.S., 362 S.W. 3d 656, 657 (Tex. App. - Houston

[14th Dist.]20U, rev. den'd).

8 Stephanie M. v. Coptic Orthodox Patriarchate Diocese afS. U.S., 362 s.w. 3d 656, 657 (Tex. App.- Houston

[14t11 Dist.] 201l,rev. den'd)(Second Amended Original Petition, NO. 2008-523&2, at p.2), Ex. A.

9 StRplumie M. v. Coptic Orthodox Patriarchate Diocese of S. U.S., 362 S.W. 3d 656; 659 {Tex. App. - Houston

[14th Dis!.] 2011, rev. den'd); see also Pl.'s Resp. to De£'s MllvlSJ at p.. l3.

IOp].'s Resp. to Def.'s MIMSJ, atpp. 16-17.

Plaintiff indicates that Defendants "never once" cited the statute, Texas Civil Practice &

Remedies Code Section 16.003(a) in its Motio11 to Dismiss and Motion for Summary Judgment

to imply that Defendants did not cite to the statute because it does 110t apply. This is simply not

the case. Interestingly, .although Plaintiff does not apply that same assertion to her own Petition

which also does not once cite the Texas Penal Code for sexual assault, SectiliJ>=22.001{a)(l) ,

ijv

even though she goes to great lengths to convince this comt that it somehcQould apply now in

order to .avoid the correct, two year statute of limitations for her as~nd invasion of privacy

causes of action. ~~

B. Civil .Practice and Remedies. Code §16;0~.45(..a) is i~~Iicable to the facts ofthis case

and therefore the five-year statute ofllll11tal;ions~ot apply.

Plaintiff now asseJts that this case is "clearly #Ilj)ted by the provisions of Civ. Prac. &

Rem. Code §16.0045(a) which provides for an ~ble five (5) year statute of limitations.''11

First, Plaintiff admits that her petition asseti~as ofactlon f.or assault and invasion of privacy.

Now, in order to avoid the stahlte of lhni~ons of these claims, Plaintiff suddenly asserts that

:t:JJ"@

"her claims fall more reasonably o~he parameters of Civ. Prac. & Rem. Code §16.0045(a},

which provides fcr a five (5) ye~mitation period in cases involving sexual abuse.. .'' 12

(a) A persoil must;b~suit.

for personal injury not. later than five years after the

~y the caus~~ction accrues if the injury arises as a result of conduct that

vwlates; o r!fi}

(I) S * 22.011. Penal Code (sexual assault). 13

~rg

Section22.0~fthe Penal Ccde, "Sexual Assault'' states in pettineilt prut as follows:

A person commits an offense if th.e pe1·son:

(1) inteJJtionally or knowingly:

11 PL's Resp. toDef.'sMIMSJ, atp. 12.

12 Pl.'sResp. to Def's MJMSJ, atp. 14.

13 Civ. Prae. & Rem. Code §l6.0045(a)(l) (West 2015).

(A) causes the penetration of the anus or sexual organ of anotl1er person

by ru1y means, without the person's consent;

(B) causes the penetration of the mouth of Mother person by the sexual

organ of the actot, without the person's consent; or

consent, to contact or penetrate the mouth, anus, or sexual organ of

anotl1er person,including the actor ... 14

that Plaintiffhas alleged occurred. Additionally, Defendm1ts are not

Defendants are not attempting to ignore fue facts of fue case or diminish or~~spect the events

bl~the Plea Agreement

signed by DefendaJJt Morris and/or tl1e Superseding Indictment in

· . . o{f77

~~imina! case. However,

as is necessary aJJd appropriate, Defendants must apply fue laQ it stands to the facts as they

are in this case.

¢~

.·~

state~~e Civil Practice & Remedies Code

The five year statute of limitations as

§16.0045(a), on which Plaintiff now intends to~s only applicable if tl1e injmy to plaintiff

arises as a result of co11duct that violates Se~Q2.011 of the Texas Penal Code. Plaintiff even

admits tllis and refers to the reqliiremen~flenetration of the sexual organ of another person by

any meaJJs, without that person'~~ent. 15 Plaintiff attempts to gloss. over and ignore the

meaning of "sexual assault" a~e elements necessary for a person to be guilty of suc!J offense.

Tims Defendm1ts will adt:Feaeh in tum to show fue inapplicability to the causes of action

herein and. therefure QI~ason why Plaintiffplead. as.sault m1d invasion of privacy not personal

injury caused by~ assault as she now claims.

Sex~ult with regard to Civil Practice. and Remedies Code §16.0045(a} is governed

by the defi1lition contained within Sectimi 22,Dll of the Penal Code as clearly delineated within

its text. TI1erefore, as Plaintiff is not a child, in order for § 16.0045(a) to apply, Defendm1t would

14 Penal Code §22.01J(a)(l)(A)-(C) {West 20l5)(Note: Defendants Qid not include the text of §22.Qll(a)(2)

because it applies to a child and.is therefore inapplicable in this case).

15 Pl.'s Resp. to Def.'s M/MSJ atp. 16.

have had to cohlmit sexual assault under Section 22.011(a){l) of the Penal Code.

As to the. first two ways to meet the requisite element of sexual assault, "penetration" is

required. In her recitation of the facts, Plaintiff states that she felt certain that "she was

physically violated because she had redness i11 her vaginal area and bruises on her a1m and "hip

area" Although she did not feel she had been raped, she felt like .she had "b~touched" a11d

she was sore in her "female regions", especially on the outside."16 Specifi~, Plaintiff testified

as follows: 0~

Q: ... Do you believe you have been sexually violate~

A: Yes. .~

Q: In what fashion? ifij?

A: I was having pictures taken of me w~tl"~

~·

clothes oft:

Q: Okay. Anything else !hat wo,~ad you to believe you had been sexually

violated? ~u~-

A: I felt like _J had beenlike~~1ed, but not like- like it didn't feel like anybody

had sex w1th me. tdP

Q: but I was l!ke kind ~e in my female regions.

A: You believed y~re sore in yDur female regions.

©>""'

Q: Yeah - h~Y- like on the outsideY

Plaintiff's ~·~tilnony h1dicates.that no penetratibil as set forth in Texas Penal Code

Section 22.011~ A) or (B) took place. Plaintiff also offers no facts to support an offense of

sexual assau~der Section 22.011 (a)(1 )(C). 18

16 Pl.'s Resp. to Def.'s MSJ, at p, 7 (citing Farmer Dep., at99:12-22),

1' Fanner Dep., atpp. 9~:20-100:10, Ex. B.

In evaluating a similar situation where the plaintiff did in fact plead assault and sexual

assault but the facts revealed tbat the statute of limitations had e:>.'Pired on the assault claim and

the alleged actions of Defendants did not meet the elements and/defmition of sexual assault in

the Texas Penal Code, the court determined that the defendant's motion fot sui11mary judgment

on those grounds should be granted with prejudice. 19 Similarly here, Plaint~annot

i}~y

simply

avoid the two-year statute of limitations for personal injW'y although ~oes not meet the

requisite elements for sexual assault in which the five-yem· statute of l~tions would apply.

"~""'-.

Plaintiff incotTectly cnncludes that, "Ms. Fanner ma~ry clear in both her FBI

statement at1d her deposition t(lstimo)IY that her vaginal regia"~:; red and sore, indicating to her

at least some degree of penetration, although she did ~elieve she had been raped."10 As

outlined in ti1e excerpted deposition testimony of j,>lsff above, she did not say that there was

tf!"

"some degree of penetration." Plaintiff now 1~ this faqtually baseless cnnclnsion tb attempt

to push her claims into §16.0045 to avoid +dants statute of limitations defenses.

Plaintiff cites to Mayzone ~.1/!sionary Obliates ofMary Immaculate of Texas, to

$Upport its assertion that a five y~tute of li111itations applies where the plaintiff btings suit

for personal injury caused ~~nal assault or aggravated sexual assault.21 However, in

Mayzone, plaintiff Ma~"led a lawsuit alleging that he was sexually abused by Defendant

when he was a mi~~refore, the claims asserted therein were related to Section22.011(a)(2)

as to ti1e sext~~a®lse of a minor child. The, instant case is clearly distinguishable ;fi·om sexual

abt)Se of a 6~

-----·------

19 Ccu-r"ion v. A..rawi, No. DC1403691, 2014 WL 6682548 (Tex. Dist.- Dallas County, Nov. 10, 2014)(dting Tr. Ct.

Order, 101" JudicialDist), Ex. C.

'0Pl.'s Resp, to Def.'s M/MSJ, atp. I 6-17(citingFarmer Dep. 99:20-100:7).

21Pl.'s Resp. to Def."s M/MSJ, at p. 19 (citing Mayzone v. Missionary Oblates qfMmy Immacu]JJte of TeJ({IS, No;

04-13-002.75-CV, 2014 WL 3747249, at *3(Tex. App.- San Alltonio, July 3, 2014).

As to Plaintiff's ilwasion of privacy claim, Plaintiff asserts that the "claim is a pari and

parcel of her sexual violation."22 It seems that Plaintiff is trying to assert that the invasion of

privacy claim must then have a five-year statute of limitations instead of a two-year limitations.

As set forth in Defendant's Motion, the ii1vasion of privacy statute oflimitation is clearly stated

within Texas law as being two years. The fact that nude pictures were taken oi'5P'hintiff does not

. ~~

suddenly extend the two year statute of limitations on an invasion Qivncy claim, and

Plaintiff's point to. no. case law stating same. In fact, in Wood v. ~r Magazine, Inc., 736

F.2d 1084 (5th Cir. 1984) plaintiff and her husband brought a~ against Hustler magazine

alleging invasion of her ptivacy when it published a nude ,&to graph of her. In finding that

o:!f!jF

Toxa$ law applied to the case, the Court determined ~-year statute of limitations for tl1e

invasion of privacy claim. "Texas courts constn,Je ~es of limitations strictly, 1·eqt1iring tllat

O~JI

an action be specifically excepted in order~void application of the general statute of

limitations.'>23 Similarly here, the two-ye~tute of limitations mnst apply as Plaintiff's claim

is clearly pled as "invasion ofptivacyt"0@!

Plaintiff's sudden relianc{]l.~ex. Civ. Prac. & Rem. Code §16.0045 is simply an

attempt to defeat Defendants' J~ations defense ahd a futile

©~ .

attempt to utilize the extended five-

year statute to bring ass~Yd invasion ofprivacy c1 aims under tl1e purview of sexual assault.

C. The Statu~#nitations should not be Tolled

Plaintiff'~rtion of fraudulent conceahnent as an affinnative defense to a statute of

.~~ .. .

JimitatiO\Js IS::;i;l!isplaced ru1d inapplicable to t11e instant case. Plaintiff claims tl1at fraudulent

conceahnent makes her invasion of privacy claim timely even if the Court wete to. apply the tWo-

year statute of lin1itations because Plaintiff allegedly "leat11ed of the photos ru1d what they

21 Pl.'s Re•'P· to Def. 's MIMSJ,

atp. 17.

:n Wood v. Hustler Magazine, Inc., 736 F.2d i084, 1089 (5th Cir. 1984).

showed only after the FBI seized th.em ft·om Morris and showed them tO her in May, 2012. "24

This assertion is without merit

Fraudtdent concealment is based upon the doctrine of equitable estoppel. If proved, the

defense of fraudulent concealment estops a defendant fi·omrelying on the statute of limitations as

an affinnative defense until the plaintiff discovers or, through reasonabl~~gence, could

. ~

discovqr its cause of action? 5 Therefore, under the facts of tl1e. pr~ case, Defendants

challenge Plaintiff's fraudulent-concealment defense, and in es~1er equitable-estoppel

defense. <i;f

Fraudulent concealment is an affhmative defense at~~~efore, the burden is on Plaintiff

to present sm11mary judgment evidence to support suc~ense. Plaintiff failed to meet this

bntden. To show that the defendant engaged 0 i,.:2udulent concealment fur purposes of

estopping the assertion that limitations has r~~ plaintiff must show that the defendatll had

actuallmowledge that a wrong had occurr~1d had a fixed purpose to conceal f<Jcts nec<:;ssary

for the plaintiff to discover that its~~ of action had accrued. The estoppel effect is not

pennanent, but merely tolls Iimiu@ll~until the plaintiff learns of the facts that give rise to its

cause. of action or should©~ of the facts in the exercise of reasonable diligence.26

Plaintiff attempt~

Uore or gloss over the fact that Plaintiff !mew of her cause of action

by May 2011. Sh~l~d in her deposition that in May 2011 she had reason to believe she was

violated becau~~"'tmd "pictures take on [her] with [her] clothes off."27 Plaintiff in fact knew

that pictnre~d been taken of her as of May 2011. "Relint1ce is not reasonable when

"'Pl.'sResp. toDef.'sl\1/MSJ, atp. 41.

1'5Robinson v. Ultramar Diamond Shamrodc Corp., Nv. 01-02-00738, 2003 WL 211()1730, at* (Tex. App.-

Houston [lstDist.] May 15, 2003).

26 Bayou Bend Towers Council of Co-Owners v. Mimhattan Canst. Co., 866 S,W.2d 740, 746 (Tex. App. 1993), wrlt

denied (Apr. 28, 1994).

27 FannerDep., at99:12-IOO:l0, Ex. B; see also IJe±:'s M!MSJ, at p, 15.

information revealing the ttuth could have been discovered within the limitations period." In the

instant case, Plaintiff had knowledge that pictures were taken of her as she testified "...I heard

the sound of a Blackberry camera ... " "Like a clicking, like the picture sound that a Blackberry

makes when it's. taking a picture."28 She also testified, ''I was having pictm·es taken of me with

my clothes off" when asked if she had teru)on to believe she had been violated ~May 2011. 29

,.fi?~@J

Knowledge of facts, conditions, or circumstruwes wl1ich would ca~reasonable person

to make inquiry leading to the. discovery of the concealed cause of~~ in the law equivalent

to knowledge of the cause of action for lhnitation purposes.~·n where a child has been

sexually abused, ru1d claims "chronic psychological ;';&,clition" prevented him from

o{P-

understanding his injuries were as a result of the. sexua~se ru1d other actions of defendants,

Texllil courts have found that fraudulent concealw~illnot toll the. statute of limitationsY

Plaintiffs llilSertion that she "first saw the pho~ly after the FBNI [sic] seized them" does not

remove the clear fact that she knew picture~re taken of her while she wM naked in May 2011,

as she cle11dytestified. 32 '!:JI@

Despite Plaintiffs burden ~et all the elements of fraudulent conceahnent in order for

it to apply, Plaintiff buries ~

cg~

clen1ent!l in its Response and fails to provide competent

summruyjudgment evi~"at each of the elenwnts are met.

D. Defendan~i"'~on to Dismiss based on the affirmative defense of limitations is

timely. ~·

~rg

28 FarmerDep., at97:15-20, Ex.B; see also Def.'sM!MSJ, atp.4.

29 Def:'s M!MSJ, atp. 5 (citing Famerbep. 197:15-198:3,Ex. A; see also Farmer 2.2.12 Interview FBI, at 33:9-15,

Ex. D).

3.0 Bayou Bend 1bwers Coandl ofCocOwners v. Manhattan Consi. Co., 866 S.W.2d 740, 747 (Tex. App. 1993), writ

denied (Apr. 28, 1994).

31 Doe v. Roman Catholic Archdioceses ofGalvestOJlc Houston ex rei. Dinardo, 362 S.W.3d 803, 814(Tex. App.-

Houston [14th Dist.] 2012.

>2 Pl.'s Re-'lp. to Def. '.s M!MSJ., at p. 21.

1.1

Plaintiffs asseJiitm that Defendants have. waived their right to file a motion to dismiss in

this case based on the affirmative defense of limitations pursuatlt to Texas Rule of Civil

Procedure Rule 91a is flatly incon·ect. Texas Rule of Civil Procedure Rule 9la states;

Except in a case brought under the Family Code or a case govemed by

Chapter 14 of the Texas Civil Practice and Remedies Code, a party may move

to dismiss a cause of action on the grounds that it has no basis in law. ~ct.

A cause of action has no basis in Jaw if the allegations, taken as ~ether

with inferences reasonably drawn fi·om them, do not entitle the c!aY~tto fue

relief sought. A cause of action has no basis in fact if no re~ble person

could believe the facts pleaded. 33 ~

The clear l!tngoage of Rule 91 st::ttes that a party may move to~iss a cause of action on the

grounds that it has no basis in law or fact. Rule 91 does n~.-ndate that a patiy tl1nst take this

action pui'snant to tlus rule. Plaintiff claims tllat a ~~a motion to dismiss is the proper

vehicle to assert an affit1native defense of limita~ 4 Then Plaintiff attempts to stretch this

assertion to cover her own creative assertit\uaat this automatically means that a motion to

dismis.s at any other time is suddenly "uni:iMy." This is not the scope of Rule 9la. Instead the

rule is a vehicle to provide an expe~ay to get fue court to review a baseless claim early on

co~ust grant .or deny tlte motion within 45 days and is not

in tlte litigation because fue

-~~· before ruling on the. motion. Altematively, Defendants

tcqnired to even conduct U~~1g

. 5

also asserted such affi1!J~tive defense in its. motion for sununary judginent which is also a

o%,(!JF

proper vehicle for~defenses.

E. The ~~ is the appropriate . vehicle for Plaintiff to bring a cll!inl against

Defe~nt Edible however she fail~ to do so and is now precluded pursuant to its

administrative requirements.

llTex. R. Civ..P. 91 ~.

34Pl.'s Resp. to Def. 's M/MSJ, at p. 24.

"Tex. R. Civ. P. 9.1 a.

In response to Plaintiff's assertion that the TCHRA only applies to "actions in the.

workplace which implicate the conditions of employment" Defetidants. first assert that the

location of the sexual actions being on business trips does not negate the applicability and

subsequent administrative requirement of the TCHRA. In Dorn Hecker v. Malibu Grand Prix

Corp., 828 F.2d 307, 308 (5th Cir. 1987), the district court found for a plainti~1ployee who

resigned because of sexual harassment that involved the following inci~\at occuncd m1

out-of-town business flips; (l) a marketing consultant hired by Mali~d sent on a business

ttip with plaintiff employee put his hands on her hips in an ai~cket line and dropped his

pants in front of the passengers while waiting to board the aWt;ne, (2) he touched her breasts

¢~~

and (3) he put his stocking feet on a cocktail table d~y in front of her and "playfully"

choked her when she complained. The plaintiff in Pt!!JY!Iecker filed suit for sexual harassment

pmsuant to Title VII and the court consideretJ~~uch although the actions took place away

fi•om the actual woi'kplace while oil busine~ps, analogous to the.incidents in the instant case,

In Gazda v. Pioneer Chlor Alkall Co't{f/J!! 10 F.Supp.2d 656, 665 (5th Cir. 1997) the plaintiff-

employee was subjected to unwm~~exual conduct While on a business trip and such actions

were evaluated hy the Court ·~ Title VU sexual harassment. All ofthe incidents related to

the case took place on ~Jness trip away from the plaintiff's usual workplace however, this

did not negate th~#ation of Title VJI sexual harassment claim. 111erefore, Plaintiff's

assertion thatth~~ed sexual actions took place "outside the workplace, in fact in a remote

state" are h~~levant.36

Seco11d, Plaintiffs assertion that tl1e TCHRA has no application here is also without

merit especially to Defendant Edible Software. Jn Wciffie House, Inc. v. Williams, the Texas

Supreme Court held that "employer liability for unwanted sexual touching by a coworker

36 Pl.'s Resp. to Def.'s M/MSJ, at p. 31.

(simply assault under Texas law given its 'offensive or provocative' nature) is limited to a

tailored TCHRA scheme that specifically covers employer liability for sexual

harassment." 37 Plaintiff contends that this is manifestly distin&itlishable be.cause "Monis didn't

abuse Ms, Fanner to "affect a tangible aspect of the employment relationship."38

To affect a term, condition, or privilege of employment, the harassme~ust be

sufficiently severe or pervasive to alter the conditions of the victim'~~loyment

and create an abusive working environment. The alleged conduc~ust be both

objectively offensive, meaning that a reasonable person woul~ ~ it hostile and

abusive, and subjectively offensive, meaning that the vic~rceived it to be

so." Further, it is examined under a ''totality of the cir~nces" test, which

considers "the frequency of the discriminatory conduct~ severity; whether it is

physically threateni11g. or hmniliating, or a me.re of.il~

~. utterance; and whether

it unreasonably interferes with an employee's work onnance. 39

{{{fj

Plaintiff misstates th.e meaning of "affect a term, c~tion or privilege" of employment by

stating that the conduct that forms the basis o~~tiffs claims must not be applicable to the

TCHRA because Defendant Monis did n~Qe such actions with the intention to make an

eJnployrnent decision or affect a con£1;;1>hm of her employment TI1is argument is in fact

tlf

nonsensical. There is no require1~at there be evidence that the employer "intended" to

make an employment decisi~r affect a condition of her employment. TI1e key is the

conditions imposed, 11ot ~mployer's state of mind.40 Here Defendant Morris' unwanted

sexual touching, as ~~d by Plaintiff, is governed by the TCHRA as to employer liability

(Defendant Edibl~~lity). As Defendant pointed out in its Motion, l'lai11tiff testified that this

unwanted s~ouching did affect tenns and conditions of her employment because she felt

uncomfortable around her supervisor Defendant Monis and began looking for other employment

'' Wlfffle House, Inc. u. Tiflilliams, 313 S.W.3d 796, 802-803 (Tex. 2010).

1> Pl.'s Resp.to Def.'s MIMSJ, at p. 30.

Paul v. Nortlwop Grumman Ship .5Ys., 309 F. App'x 825, 827'28 {5th Cir. 2009)(internal citations omitted).

40.McCawan v. Software Spectrum, Inc., No. 08-00-00077-CV, 2002 WL 505138, at *7 (Tex. App.- El Paso April

4,2002).

because of the sexual harassment. 41 TI1erefore, Defendant'.s a.ssertion that Plaintiff cannot point

to a single, "tenn, condition, or privilege of the plaintiff's employment" affected by the

harassment is untrue.

Hostile work environment sexual harassment occurs when an employer's conduct ''has

'0;~· #J;

the purpose or effect of umeasonably interfering with an individual's worli0:.-fonnance or

creating an intimidating, hostile, or offensive enviromnent." By Plainti~n recitation ofthe

facts, Defendant Morris' conduct had the effect ofunrea.sonably crea~n intimidating, hostile

' ~""

at1d/or offensive envirotm1ent. She testified that she spoke wQ~fendant Monis about what

happened while on the business trip and told him it was inap1~riate, \vt'ong and that she needed.

to find a different job. 42

Plaintiff did in fact start lo~~ for another J'ob due to Defendant

Morris' conduct. 43 Her actions a11d feeling that. ~~auld not work with Defendant Manis

anymore also gives rise to a constructive alt~ of the te1ms or conditions of employment

althongll not culminating in a tangible en~ent actiou.44 Plaintiff cmmot try to avoid the

administrative pre-requisites of the 'I~~@)· now by a.ss.etting that there was no creation ofan

. ~

intimidating, hostile or offensiv~iromnent. Tiris is wholly inapposite to Plaintiffs own

testi1110ny. ~

A hostile work~Yonment sexual harassment claim was the exclusive remedy for

Plaintiff to bring ~s{~~gaiust Defendant Edible for sncl1 conduct as asserted here, which took

place on a busin~ip drui:ng her employment by Defendant Edible. The law is clear a11d also

the legislati~~nt is also clear related to dmnage caps that conm1o11law claims do not have.

In determining that the sexual harassment statutes precluded state

common-law claims, the Texas Supreme Court noted tbat the state statutes

41 Def's MIMSJ, at p. 11 (citingFamrer Dep., at 27:13-16; 133:21-134:10, Ex. A).

42 Farmer Dep,, at 106:5-7, &. li.

43 Fanner Dep., at 29:1S-25; Ex. B.

~·Twig{and Fashions, Ltd. v. Miller, 335 S.W.3d 206, 217 (fex. App.- Austin, 2010).

have caps on compflnsatory and punitive damages available to a plaintiff

that the common law claims did not have. Title VII has similar caps. The

court noted that allowing conm1on Jaw claims to be pursued would allow

plaintiffs to avoid those damage limitations.45

Allowing a common law claim to be pursued against Defendant Edible when the case falls

within the purview of the TCHRA would be allowing Plaintiff not only to avoid the mandatory

administrative requirements but also to avoid damage limitations. ~Jf

F. Defendants meet the.ir burden to establish the affirmativ~ d~~Q

of limitations and

therefore the alternative motion for summary judgments~ be granted.

Plaintiff is misplaced in her assertion that Defend~~1mot meet the summary

judgment standard in this case that the Plaintiff cannot meet ~neuts of her causes of action.

Q~v

That argument is inapplicable because the sm11maryjudrnt motion before the comt is based

on affii1native defenses. 46 A defendant is entitle~9

¢~

sununary judgment on an affnmative

defense, such as limitations, if the defenddnclusively proves all the elements of the

affinnative defense. To conclusively prov~il of the elements of the af:finnative defense, the

movant mttst present su1ru11ary jud~iilll.t evidence that establishes each element of the

~15f;Jf'"

affinnative defense as a matter of~~ If the defendant meets this burden, the plaintiff inliSt then

produce evidence raising a g~e issue of material fact to avoid summary judgment on the

(\)

affinnative defense. 47 P~'f asserts that it has "more than met that obligation by compellingly

demonstrating that h~ms are governed by tile Civ. Prac. & Rem. Code §16.0045(a)(1)'s five

(5) year limita~eriod." .However, as explained herein, Plaintiff has brought forth no

competent ~ary judgment evidence that she in fact pled sexual assault or that the

requirements of Section 22.ol 1 of the Penal Code were met for her Claims to fall under

<s Garafa v. Shell Oil Co., 355 S.W.3d 768, 777 (Tex. ApJ>. 2011).

46 Fl.'s Resp. to Def. 's MSJ, at p·; 35-36 ("Here, the Defundants have negated Mthing, much less any prima facie

elements of Ms-. Frumel''s claims. H).

41 Vu v, ExxonMobil Cmp., 98 S.W,3d 318,320 {Tex. App. 2003).

§16.0045(a)(l) for sexual assault. Without such evidence, Plaintiff's attempt to raise a gem:dne

issue of material fact to avoid summary judgment on Defendants,, statute of limitations defense

fails.

ill. CONCLUSION

For the foregoing reasons, Defendants respectfully requests th~ Court grant its

Motion to Dismiss Dr alternatively, Motion for Sum111ary Judgment ~der that Plaintiff take

~othh~g for her claims against Defendants. Defendants fi:uiher r4!!tl;{iJ all other relief to which it

!S enfltled. ,~

R,~ctfully Submitted,

U~Is/ Gregg Af. Rosenberg

~ Gregg M. Rosenberg

,?~ ROSENBERG & SPROVACH

,rt,_"''U

~"" 3518Travis, Suite200

~ Houston, Texas 77002

~\ Tel: (713) 960-8300

~~ Fax: (713) 621-6670

U©J Attorney-in-Charge for Defendants

OF COUNSEL: o~

ROSENBERG & ~VACH ATTORNEYS FOR DEFENDANTS

{f:::©

CERTIFICATE OF SERVICE

1 certify that a true aud correct copy of the foregoing instrument has been forwarded via

electronic transmission aud hand delive1y on this the 26th day of February 2015 to:

JeffreyN. Todd

312 S. Friendswood Drive

Friendswood, Texas 77546

if~

(281) 992-8633 (Tel)

(281) 648-863 3

jeff@actlaw .com

Is! Gre M. Rosenbe ~

GREGG M. ROSE .. G

ANDREA FARMER 7/11/2013

1 (Pages 1 to 4)

1 3

CAtlSE NO. 2012-65503

1 INDEX

KER.I IJILL and

MICHELLE BARNETT '

IN THE DISTRICT COURT 2

ve.

Plaintiffs

'' 3 Appearances ......................................... 2

'' 55TH JUDICIAL DISTRICT

HENRI MORRIS and SOLID 5 ANDREA FARMER

SOFTWARE SOLUTIONS, INC.,

d/b/a EDIBLE SOFTWARE

'' 6 Examination by Mr. Rosenberg ................... 5

Defendants

'' HARRIS COUNTY, TEXAS

7 Examination by Mr. Cogdell ..................... 148

****************~******"* *********

.ORAL AND VIDEOTAPED DEPOSITION OF 8 Re-Examination by Mr. ~berg ................ 222

1~ iF~!@~

ANDREA FARMER

JOLY 11, 2013

"n * ************************ *** ******

Certified Question ... ................ 143

" ORAL AND VIDEOTAPED DEPOSITION of ANDREA FARMER,

produced as a witness at the instance of the Defendants, 11 Signature and Chang~!... ......................... 239

and duly sworn, was taken in the above-styled and

numbered cause on the 11th of July 2013, from 10:09 a.m. 12 Reporter1s Certifi~............................. 241

19 to 3:56p.m., before Molly Carter, CSR in and for the

20 State of Texas, reported by machine shorthand, at the 13

21 offices of !J.S. Legal Support, 802 North Carancahua, 14

Suite 2280, Corpus Christi, Texas, pursuant to the Texas

"23 Rules of Civil Procedure and the provisions stated on the

15 °~EXHIBITS

," record or attached hereto.

16 NU~ DESCRJPTION . PAGE

17 Exh~l Photo of Andrea and Comedian ............ 85

18 ~2 Photo of Henri and Comedian ............. 95

19 it3 EmailfromAndreatoHenri .............. 125

~~hibit 4 Handwritten Notes on Back of Statement .. 1 9

~ Exhibit 5 5/9/11 Facebook Po9t .................... 193

.o f:d2 Exhibit6 5/9111 FacebookPost .................... 193

1 :(d23 Exhibit 7 5110&11/11 Facebook Posts ............... 222

~ 24 Exhibit 8 5/9/11 Facebook Post .................... 222

25 Exhibit 9 5111 &12/11 Facebook Posts ............... 222

2 4

1 APPEARANCES 1 Exhibit 10 5112 & 7/27/11 Facebook Po9t9 ........... 22

3 FOR THE PLAINTIFF(S): 2 Exhibit 11 7/27&29111 Facebook Posts ............... 222

MR. JEFFREY N. TODD 3 Exhibit 12 8/2111 Facebook Post .................... 222

The Law Finn of Alton C. Todd

5 312 South Friendswood Drive

4 Exhibit 13 8/2&8111 Facebook Posts ................. 222

Friendswood, Texas 77546 5 Exhibit 14 8/8/11 Facebook Po9t .................... 222

6 Phone: (281) 992-8633 6

Fax: (281) 648-8633

jetl@actlaw.com 7

10 9

12 12

FO~~;gjl~~~~~~:r HENRI MORRIS: 15

Fhm 16

17 Street, 4th Floor 17

Houston, Texas 77002

18 Phone: (713) 426-2244 18

Fax: (713) 426-2255 19

19 dan@cogdell-law.com

20 20

21 ALSO PRESENT: 21

22 MR. TOMMY KLING, VIDEOGRAPHER

MR. DESTRY QUIROZ, VIDEOGRAPHER

23 MR. TREVOR MORRIS 23

MS. BETH JACKSON (Present ffom 10:09 to 10:38) 24

25 25

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5 7

1 THE VIDEOGRAPHER: Time is 10:09 a.m., lu1 1 A. Yes.

2 11th, year 2013. We are recording. 2 Q. Where did you live prior to that?

3 ANDREA FARMER, 3 A. 1117 North Austin Street in Rockport, Texas.

4 having been first duly sworn, testified as follows: 4 Q. And Rockport is in a neighboring county.

5 EXAMINATION 5 Conect?

6 BY MR. ROSENBERG: 6 A. Yeah, it's like 45 minutes away.

7 Q. _Can you please state your name, state and spell 7 Q. Okay. And how long did you live there?

8 your name for the record? 8 A. It was my parents' ~!!!;nee, so it was sort of

9 A. Andrea Farmel'. 9 like my permanent resid ~~ guess. But I lived tlter

'1:

10 Q. Okay. Ms. Fmmer, we're going to put you on 10 from September ~- six- s.

11 hold for just one second. There's a technical issue that 11 Q. Where did yo prior to the Rockport

12 Mr. Todd and I need to address that really doesn't 12 address? ~

13 concern you. So we're just going to forget about you for 13 A. 3000 s~tJont-- I can't remember my old

14 a second and address this, get it on the record, and 14 address~~ S~ont and Washington, Houston, Texa .

15 continue with your deposition. 15 Q. ~you do for a living today?

16 MR. ROSENBERG: Jeff, tell me ifl'm wrong, yo 16 A. Q~ for Konica Minolta, with a K. It's a

17 lodged an objection prior to the deposition starting 17 bus~'Yoiutions company, so I sell hardware and

18 contending that Ms. Jackson should not be here, and you 18 so e to different businesses.

19 were invoking the ruie. My position was that we notic 19 And how long have you been working for Konica

20 that Ms. Jackson and Mr. Morris, Trevor Morris would ~-,;:._malta?

21 here, in accordance with the appropriate Rules of Civil ~ A. Since February.

22 Procedure, and our position is you didn't object. You ~2 Q. Do you have a territoty?

23 said you're invoking the rule. 3 A. Yes.

24 We agreed to take it up later, with my riski 24 Q. Where is the territ01y?

25 the fact that Ms. Jackson might not be able tote ' 25 A. Well, I have vertical, so anywhere in Corpus

rg 8

1 trial. ~ 1 and the surrounding area, and I'm verticalized into leg I

2 MR. TODD: That is correct~~Q 2 oil and gas, education, finance.

3 MR. ROSENBERG: Okay. ~ 3 Q. So you cover Corpus Christi in a multifaceted

4 MR TODD: Counsel tOr~tiff objects to the 4 area of their, ofKonica Minolta's --

5 attendance of Beth Jackson. I' ifDfnecessarily --it's 5 A. Right, so as far east as VIctoria and as far

6 not an objection. I'm invoki rule at this time. 6 west as Kingsville.

7 It's anticipated that she's to testify at trial. 7 Q. Okay. Have yo~ ever provided deposition

8 As such, I'm involdn&(t;] e. If they don't mind the 8 testimony such as what we're doing this morning?

9 rule, then she shall~xcluded from testifying live at 9 A. No.

10 trial. 0 llii 10 Q. Have you spoken with anybody in preparation of

11 I further NN"bjecting to her attendance at any 11 this deposition?

12 other de , as she is anticipated to be a witness 12 A. Yes.

13 in this m , She's not a corporate rep. We haven't 13 Q. Who have you spoken with?

14. objec y attendance by Trevor MoiTis because he s 14 A. Sherri Zack, and her assistant, John-- I'm at

15 th~ ate rep. 15 a loss for John's name. I didn't know him that well.

16 'fk

e will also be quashing any other depositions 16 Q. It's a him?

17 ofnonparties in this matter at this time. 17 A. Uh-huh.

18 Q. (By Mr. Rosenberg) Okay. Where do you reside 18 Q. Is that a yes?

19 ma'am? 19 A. Yes.

20 A. 3418 Austin Street in Corpus Christi. 20 Q. Okay. Sean is a man?

21 Q. How long have you lived at that address in 21 A. John.

22 Corpus Christi? 22 Q. Oh, John.

23 A. A year and three months. 23 A. I think his name is John.

24 Q. Bringing us back to approximately March of 24 Q. Okay. Whoe]sedidyouspeaktoinpreparation

25 2012? 25 fbr this deposition?

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9 11

1 A. That's it. 1 restroom, to do whatever, maybe have a cigarette,

2 Q. Okay. You spoke to JeffTodd? 2 whatever it is you want to do, let us know. But I think

3 A. Not in preparation, but yes, I've spoken to 3 you heard-- or if you didn't hear, ru remind you--

4 him. 4 the video disks or tapes last for about an hour, so there

5 Q. When did you speak with Mr. Todd? 5 will be a natural hour break.

6 A. Last Wednesday, the 3rd. 6 A. Okay.

7 Q. In person or over the phone? 7 Q. Even though you can anticipate what my questio

8 A. Over the phone. 8 may be, allow me to finish ~,.Q!.J.estion before you begi

9 Q. When you met with Sherri Zack and this person 9 your answer. It, again, aiatk.'~ihe court reporter to get

10 John, when was that? 10 a question-and-answet ript in sequence.

11 A. Yesterday. 11 A. I do have a ~on.Ji

12 Q. Was that in person or over the phone? 12 Q. Sure. ~

13 A. It was a video meeting, conference. 13 A. Some ~~~estimony that I gave in my

14 Q. Okay. So you were here in Corpus Christi? 14 statement t~1Bi is actually about Beth, so I don'

15 A. Uh-huh. 15 nndersta~w that's an appropriate --lil(e will you

16 Q. And she was somewhere else? 16 just n G me questions about her or about the

17 A. In Houston. 17 stat~'rifthat I made about her, or-- that's what I'n

18 Q. Okay. Because you haven't provided depositio 18 ~a hard time with her being here.

19 testimony before and we're going along in a dialogue, I 19 ~· Yeah.

20 want to JUSt pomt out a few things that are a little bit ~li!!fj A. Because like some of my testimony is about he •

21 different in a deposition than are, than would be m ~ Q. I understand that. All I can tel1 you in

22 nonnal conversation. ~2 response to that is my role here is to defend the compan

23 Obvtously, you're being videotaped. And o~~VIOU r ~q3 m a case that other people have brought against it.

24 I'm sitting here at a table with vanous attendees 24 A. Right

25 the table, and we alllmow what each other's sa 25 Q You have provided infom1ation about allegation

~ 10 12

1 Correct? ~ 1 of conduct that relates to these claims. And I'm going

2 A. Uh-buh. ~ ~ 2 to be asking you what I believe I need to ask you in

3 Q. But the most important, the~~e get this 3 defense ofthe claims brought by those three people

4 r:c~rd official is by the presenc~"'Vcourt reporter 4 against my two clients. Okay?

5 s1ttmg between us. ,.__~ 5 A. Whatthree people?

6 A. Uh-huh. ~J"..-c§i)) 6 Q. Well, let me ask you --let me ask you, do you

7 Q. And she has this l~J)''t&achine with all these 7 know who the three people who brought suit against Edibl

8 buttons. Q 8 Software 8nd Henri Manis are?

9 A. Uh-huh. ~ - 9 A. I mean, I lrnow the people that it says on this

10 Q. Unfortuya~'4here 1 s no button for "uh-huh" 10 paper.

11 or "huh-uh." S~~n though I know what you mean wh n 11 Q. What paper are you referring--

12 you say . . .'Ufi;or

"huh-uh" or something ofthatnatur , 12 A. Keri Hill and Michelle Barnett.

13 I'm go~·n

~you if that's a "yes" or if that's a 13 Q. Bamett. And--

14 "no." ~ ~f lmow what it is, but the way the record is 14 A. This is my subpoena.

15 o~ if I do that. 15 Q. Right. I-- thank you. I see it. There's an

16 A. Okay. 16 additional person who's joined named Stacy Stewart.

17 Q. Okay? So I'm not, I'm not going to be --I'm 17 A. Right.

18 not picking on you. I just, it's something we've got to 18 Q. Okay. So those three people--

19 do until they figure out a way to get an extra button on 19 A. OJ{ay.

20 those machines -- 20 Q. --have brought lawsuits. Let me clarify.

21 A. Uh-huh. 21 Those tlll'ee people have joined in one lawsuit--

22 Q. --we're done. Okay? 22 A. I understand.

23 A. Okay. 23 Q. -- against my two clients. Okay? I may be

24 Q. If at any time today you want to take a break, 24 asking you questions about comments you may or may no

25 except when a question's pending, of course, use the 25 have made to Ms. Jackson, but at this point, I'm not

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13 15

1 certain. 1 A. Once a month for the past year, and then

2 A. Okay. 2 sometimes a couple of times a weel(, depending on what s

3 Q. Okay. Where were you when you provided the 3 going on with the criminal trial.

4 video conference discussion with Ms. Zack and this 4 Q. Okay. Let's go to your conversation yesterday

5 gentleman named John yesterday? 5 with Ms. Zack and this gentleman, Jolm.

6 A. At the U.S. Attorney office at One Shoreline, 6 A. Uh~huh.

7 the Bank of America building. 7 Q. What did y'all discuss?

8 Q. What time of day was that? 8 A. They just, you kno*me to be honest and

9 A. It was 2:30. 9 tell the truth and take my~ with my answers. And i

10 Q. How long did it last? 10 was more of me soli~ nting to feel more

11 A. Two hours. 11 comfortable, becaus b iously I don't have any

12 Q. Was that the first time you've ever spoken with 12 representatlon~oom, and I wanted to get an idea

13 Ms.Zack? 13 of what was go~ happen and what a deposition is

14 A. No. 14

like. ~

15 Q. On how many other occasions have you spoken 15Q. O~re you comfortable that you know what a

16 with Ms. Zack? deposi~ 'ke and what it's used for?

17 A. Four to six. 17A~e·,

18 Q. Four to six occasions? 18

# Y o u understand yom· testimony is under oath?

19 A. (Nodding head.) 19 . Yes.

20 Q. Yes? «'@

~ Q. And that's the same oath that you will be

21 A. Yes. provided if you testify live at any other proceeding, not

22 Q. Nods of head, there's no button for that ~2 necessarily this one.

23 either. j

["- 3 A. So this, and possibly including the criminal

24 A. Right. ~ 24 case.

25 Q. Have you spoken with anybody else fron(~e . . 25 Q. Well, the oath is the ·same. I'm not here about

~14 16

Attorney's Office? rl

A. John, who was there at the ~~epositiml.

the criminal case.

A. Right.

3 Q. Right. Video deposition? ~~ 3 Q. I'm here about the facts. Some of the facts

4 A. Or not video deposition,~ conference. 4 overlap, and I'm here about certainly those facts. I'm

5 Q. Okay. ~ 5 ce11ainly not going to mislead my, my goal in asking you

6 A. And then anyone w~ wers the phone when 6 questions. There's-- as you lmow, there's some

7 call. 7 commonality in the facts.

8 Q. Okay. Have y~enwith a gentleman named 8 A. Yes.

9 Jocher? Wv~ 9 Q. Correct? But I can tell you, since you did

10 A. Maybe tJt'l!: ho was-- 10 ask, and I think it's a fair question, my understanding

11 Q. The oth~at --that might be John? 11 is that the oath is the same in federal-- in crimina]

Ye~~t

0~ akes sense. I just want to make sure

court and civil court.

A. Okay.

tha~ Q. No different than what you just were

15 • ell, I don't want to say that, because I'm not 15 administered.

16 sure what his name was. 16 A. OJ<ay.

17 Q. Okay. Have you spoken with anybody with the 17 Q. Okay. Did you and Ms. Zack, at your video

18 office of the Fede1·al Bureau oflnvcstigations? 18 conference yesterday, go over any of the facts giving

19 A. Yes. 19 rise to experiences you had that concem Henri Morris or

20 Q. On how many occasions? 20 Edible Software?

21 A. Fifty. 21 A. Yes.

22 Q. About fifty times? 22 Q. What experiences did you discuss?

23 A. I mean, once a month for the past two-- or 23 A. There were some unclear points in my original

24 maybe less than fifty. I would say twenty. 24 statement to the FBI, as far as dates were concerned a

25 Q. Okay. So you're-- 25 which city J was in, ami so it was clal'ification on times

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17 19

1 and dates. 1 A. Yes.

2 MR. COGDELL: Do you need some water? 2 Q. If your cell phone is like my cell phone and

3 THE WITNESS: No, thank you. 3 any others, if the number is not engaged in your

4 MR. COGDELL: Anybody? 4 contacts, it will come up as just a number, without

5 MR. TODD: No thanks. 5 knowing who it is.

6 Q. (By Mr. Rosenberg) For example, what times and 6 A. Uh-lmb.

7 dates were you concerned about? 7 Q. Correct?

8 A. For example., one instance, I -- in my 8 A. Yes, sir. ~

9 deposition, I started talking about something that had 9 Q. And is it fair to say,~'l&ere are times when

10 happened in Washington, D.C., and it was-- I was talkin 10 you will receive a caq;lli~~ a number that's not

11 about it as if it bad happened in Chicago. But then I 11 engaged or aligned w~y of your contacts, that you'll

12 remembered that it had happened in Washington, D.C. 12 just let it go to voi~ and figure out who it is?

13 Q. Now, you refeiTed to it as your deposition. 13 A. Yes. -~~~as a 713 number, and I have

14 A. My statement. 14 several closl~~s who work in the Houston area. I

15 Q. Okay. And I know what you mean, and I'm going 15 was liv~n ~ockport at the time. And I answered it,

16 to just clarify

ww 16 assum at it was one of my close associates.

17 A. I feel like we called it my deposition for so 17 ~o ou spoke to Mr. Gregory head on. You

18 long, and I know that it wasn't, that it's hard to get 18 ~~ave to return the call?

19 out of the habit of calling it that. 19 ~ No.

20 Q. Who called it your deposition? ~lft!jj Q. You were engaged m conversation immediately?

21 A. I think Glenn Gregory. ~ A. Yes.

22 Q. Tell us who Mr. Gregory is. ~2 Q. What dJd he tell you about allegations that

23 A. Glenn Gregory is the FBI Agent that originali~Jt ~.::!23 were being made against Mr. Morris?

24 called me on the allegations against Henri Morri~r~ 24 A. He didn't say much at all. And I remember

25 U"

Q. Okay. Up until the time that Mr. Oregmy 25 tllinking, just kind of letting my mind run, li]{c, "Oh, n y

~ 18 20

1 called you, is it fair to say that regardin~~ 1 God, what did he do?" Knowing what--

2 allegations and the treatment you ~~~1)r endured 2 Q. What did who do?

3 while employed at Edible Softwar~u: had, you hadn' 3 A. Henri.

4 reported that to anybody? Q 4 Q. Okay.

5 A. No. -~ 5 A. Knowing what I had experienced, I assumed that

6 Q. It's not fair to say -~s._e:']V 6 it had to have been somewhere along those lines. I

7 A. It is fair to say t~ 7 didn't really know anything at that point, because like I

8 Q. Okay. I(~ 8 mentioned earlier, I hadn't told anybody or even really

9 A. No, I had ~'ei>'orted it to anybody. 9 thought about it at all.

10 Q. Okay. -&~~re arc, however, allegations that 10 So he just mentioned that there had been some

11 you have rela~ Henri Morris and Edible Software'. 11 concern with Henri when he's in his relationship with hi·

~tell me approximately when it was that

12 12 female employees, specifically when he's traveling, if I

13 13 had anything that I might care to add to that or to say

14 Mr first contacted you? 14 about it. And I said, "Yes, I do." And so then they

15 early December 2011. 15 arranged a meeting down here to meet with me. I belie fC

16 Q. And how did he contact you? 16 it was in February.

17 A. He called me on my cell phone. 17 Q. All right. So you have this conversation with

18 Q. How did he initiate the conversation? 18 Mr. Gregory December of2011 asking you about conduct

19 A. Can you clarify that question? 19 aliegations against Mr. Mmris, who was your boss at

20 Q. Ycab. I mean, it's the first time you've ever 20 Edible Software.

21 had contact with this. with this gentleman. 21 A. Uh-huh.

22 A. Uh-huh. 22 Q. Correct?

23 Q. Correct? 23 A. Yes.

24 A. Yes. 24 Q. He was the President of the company?

25 Q. He's calling you on your cell phone. Correct? 25 A. Yes.

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21 23

1 Q. And did you repmt to him? 1 A. There's probably m.ore. That's all I can tltink

2 A. Yes. 2 about, of right now.

3 Q. So did he tell you what other people were 3 Q. Okay. What are the things that Henri said that

4 alleging? 4 you observed or heard that were inappropriate?

5 A. No. 5 A. I can't think of a specific dialogue.

6 Q. He just, you just told him that you did have 6 Q. Okay. I know that it's been some time since

7 some experience traveling with Mr. Manis. 7 your disaffiliation--

8 A. Yes. Andlthinkinitiallygoingin,Iwas 8 A. Uh-huh. ~

9 more going to talk about, you know, since this was 9 Q. -- since you left Ed~'1oftware, but you've

10 something that I was keeping to myself, that I was more 10 had time to think abo]fb~~as going to haPpen today

11 going to talk about his relationship with his other 11 and what was going ~e place. You knew that we wee

12 employees, and maybe some-- 12 asking questions~ a case that at least two people,

13 I didn't know what had hap}lened. So obviously, I 13 from looking ar~tyle of your subpoena--

14 had good and bad experiences at Edible Software. So I 14 A. Ub-h~

15 knew that they were, depending on the nature of what w 15 Q. --~ainst Mr. Morris. Correct?

16 going on, I would definitely have something to say 16 A. ~ect

17 regarding that. 17 ~~coking back today, even though you rememb r

18 Q. So you, you felt thatthe nature of the 18 th~nri said things inappropriate, is it fair to say

19 conversation Mr. Gregory was having with you related to 19 r~)ou're unable to recall anything specific that you

20 Henri's relationship with other employees. ~~all him saying in the workplace that was

21 A. Yes. ~ inappropriate?

22 Q. Did you observe Herui's relationship with other ~2 A. I can recall things that he said that were

23 employees? Jt~q3 inappropriate to me.

24 A. Yes. ri."~ 24 Q. Okay.

25 Q. Which other employees did you observe H~~- 25 A. But I'm not keeping a dialogue of every

~ 22 24

1 interacting with? @l 1 inappropriate thing that Henri Morris said while I was in

2 A. I mean, I worked there for~~ 2 that office. It would be too much.

3 Q. Okay. Let me give you a b ~estion. 3 Q. So yom·, is it your testimony that Mr. Manis

4 Thank you. Sometimes lawyers~ d questions. 4 was constantly inappropriate in the workplace?

5 A. Uh-huh. 5 A. Yes.

6 Q. Did you observe any·- t untoward or 6 Q. So it never, it never stopped? T11ere wasn't a

7 inappropriate with the w· i treated other employee ? 7 time that he was appropriate?

8 Not talking about yo ,.-;·~ her employees. 8 A. I feel that in a given day, there may have been

9 A. Yes. ,~ 9 times in the day that he was appropriate, and times of

10 Q. Okay. W.~rd you observe? 10 the day that were inappropriate. But I would say on days

11 A. Sayi~g~s that were inappropriate in the 11 that I did interact with him and with other employees,

12 ~ffice, dri~excessively. What I deemed as 12 there ·was at least one thing in the day I would say that

13 mappmnEt"f · 13 I felt uncomfortable with,

Q"'~

~~gging.

Q. And you worked there for how long?

A. Three months.

16 Q. Okay. Anything else? 16 Q. And obviously, if! refer back to your prior

17 A. And I thought it was inappropriate when I sa~ 17 testimony, despite the fact that this happened on a daily

18 him pour something into Beth Jackson's drink at the 18 basis, you didn't report it to anybody. Concct?

19 Hancock Center in Chicago. 19 A. Who would I report it to? His son in HR?

20 Q. Okay. What's the Hancock Center? I should 20 Q. Timt would be one.

21 know this, but -- 21 A. Uh-huh. Actually, I think I did report it to

22 A. It's like one of the tallest buildings in 22 Henri and Allen and-- or sorry, Trevor and Allen and ha

23 Chicago. It's on Michigan Avenue. 23 conversations with them about the way that Henri spoke

24 Q. What else did you observe that was 24 me and how it made me uncomfortable. And not

25 inappropriate? 25 necessarily-- when I say "inappropriate," it doesn't

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25 27

1 necessarily have to mean sexual. 1 Q. Well, you just said you could recall, so I want

2 Q. I understand. Inapprop1iate has-- 2 to know what it is you recall.

3 A. Inappropriate is just unprofessional. And you 3 A. SpecificalJy with me, or with others?

4 lrnow, I feel that given t11e short time I was there, yes, 4 Q. Let1s start with you first.

5 tl1ere were times that I brought it up to him, I brought 5 A. Can you repeat the question?

6 it up to Trevor, and I brought it up to Allen tlmt there 6 Q. Yes. Can you recall any instance where you

7 were things that made me uncomfortable about tlte way tlt t 7 observed Henri Morris act in either a sexually offensive

8 he spoke to his employees and myself. 8 or sexually mappropriate m~ to you, or manner to

9 Q. Well, I'm confused, because you just, in 9 you? ~~

10 response to my question, you asked me a question -- I 10 A. Can I take a b ·

11 don't want to assign a definition to the way you were 11 Q. Not when a q s n's pend mg. Yes, you can,

12 asking me, but almost dismissively, "Who would I report 12 but I want the que answered.

13 it to? His son?" 13 A. Yes, th re two times-- well, I would say

14 A. Right. 14 every time traveled witl1 Henri, I observed him

15 Q. And then, but then tell me that that's who you 15 being seJ@inappropriate with either Beth Jackso ,

16 did rep01t it to. 16 one of~ents, or myself.

17 A. So I guess there were two times tltat I bad a 17 ~Yt·ight. You did want a break, and I told

18 conversation with Allen about Henri and his behavior. 18 ~cr?$ give it to you after the question, but before we

19 Q. Now, stop for a second. Allen, what do you-- 19 . r~~ break, is there anything you need to elaborate on

20 A. Morris, who was the HR representative for ~~t, before I ask you more questions?

21 Edible Software. ~ A. If you're okay with that answer, I'm okay witl

·ed 2 it.

Q. Thanks. That's what I was going to ask you.

A. So, but I guess to answer your question, this ~~ 3 J Q. Okay. I just want to, like I told you, I'll

is somebody that was very infrequently in the offinc~r'~ 2 4 give you a break any time you want it, except when a

25 The times that he did come into the office, itwas.rv' 25 question's pending. So you did answer it. I have a

©? 26 28

1 some sort of reprimanding. And I didu_'~llike it wa 1 follow-up, but if you need a break, let's go off the

2 a situation where I could sit down ~~e a 2 record now.

3 conversation with him about that.~~ 3 A. Okay.

4 And I think that when I did ~ Trevor about it, 4 THE VIDEOGRAPIIER: Time is 10:38 a.m. We'r

5 it was the response of, "Well~ -s just the way he 5 off the record.

6 is," and "Just ignore him." 6 (Recess from 10:38 a.m. to 10:50 a.m.)

7 Q. Okay. Did you~ive a pe"onnel manual 7 THE VIDEOGRAPHER: Time is 10:50 a.m. Weae

8 or harassment policy~ fthat type of 8 recording.

9 information -- ~ '" 9 Q. (By Mr. Rosenberg) Ms. Fanner, during the

10 A. No. ~~ 10 break, did you have any contact, e-mail, telephone or

11 Q. --from e Software? 11 otherwise, with the FBI, U.S. Attorney's Office?

12 A. J w~g told that it was being revised or 12 A. Yes, with the U.S. Attorney's Office.

13 Q. Who did you speak with?

13 th~~ urrcnt.

14 : . . Our testimony is you've never-- 14 A. Sherri Zack.

15 15 Q. What did you and Ms. Zack discuss?

16 Q. --received it. Forgetting for a second about 16 A. My objection to Beth Jacl{son being in the room

17 inappropriate and nanowing it down-- 17 Q. Okay. And what did she tell you?

18 A. Uh-huh. 18 A. She can't be in the room, because she's a

19 Q. -- to either something that falls into the 19 witness.

20 category of sexually inappropriate or sexually offensive 20 Q. That's what she told you?

21 at the workforce, do you recall anything that Mr. --that 21 A. (Nodding head.)

22 Henri Morris did in that definition? 22 Q. Okay. Well, prior to you speaking with

23 A. Yes. 23 Ms. Zack, we made a decision intemally, and we asked--

24 Q. Tell us. 24 we realized it was making you uncomfortable, and we ask d

25 A. Can you be more specific? 25 Ms. Jackson to ]eave.

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29 31

1 So w• the camera's only on you, so would you verity 1 because of the emotional state that I was in about what

2 that Ms. Jackson is no longer in the room? 2 had happened witl1 Henri and I at that time.

3 A. Yes, she's no longer in the room. 3 Q. We're going to get to I promise you we're

4 Q. Okay. And you feel better about that? 4 going to get to Henri and you in a second.

5 A. Yes. 5 A. I'm fine. I'm just trying to be as clear as I

6 Q. All right. What was it about Ms. Jackson's 6 can, and there are, you lmow, a multitude of reasons wh

7 presence that concerned you? 7 people do what they do. But at that time I just didn't

8 A. I just feel like -· the first time that the FBI 8 feellil<e opening a can of w~

9 contacted me-- you lmow, in my time at Edible Software, 9 Q. And you said "atthahQ·" That's while you

10 the one thing that really stood out and made me think, 10 were going through it'~~@v

11 "Oh, my gosh, something's gone terribly wrong," was whe 11 A. Right. ~~

12 I saw Henri pour something into Beth Jackson's drink at 12 Q. All right~lk first, we're-- we've

13 the Hancocl{ Center. 13 come back to tl "Uent at the Hancock--

14 And that was the first time that I was Jil{e 14 A. Cente~

15 something more may have gone on here than I'm aware of, 15 Q. -- ~- And you, you're telling us that you

16 and just the inappropriateness of, the immoralncss of 16 saw H~if~omething into Beth Jackson's drink.

17 pouring something in a woman's drink without her knowh g. 17 ~~Y.

18 And I think that was my biggest red flag. And when the 18 .~ay the foundatiOn for us. And what I mean by

19 FBI originally called me, that's what I had planned on 19 ~ttV~ I want to figure out what was taking place at the

20 going in and talking to them about. ~~uncock Center For example, why were y'all there? Who

21 Q. Okay. So you weren't-- I don't want to put ~ was there? And I don't want to do tt m a compound

22 words in your mouth, but let me just make sure we're -- f?d. 2 questwn, since you don't have representation here, but

23 A. Uh-huh. j 0

~d23 those are the types of things I'm looking for.

24 Q. Excuse me, just to make sure we understand eac~ 24 So what was the purpose you were at the Hancock

25 other, your concem was the way Henri conducted hin{[eif))~ 25 Center?

~ 30 32

1 with other people, not necessarily you. _(cYJ) 1 A. It was having a drink after worldng at the

2 A. I mean, obviously I have con~~ myself, 2 National Sweets and Snacks convention.

3 and I felt very uncomfortable with.~ had transpire 3 Q. Okay. So there was a convention going on in

4 between Henri and I, in our tr~~~d I had a lot of 4 Chicago--

5 guilt and uncomfortablen~ss nd~ying to just forget 5 A. Yes.

6 about it, but I knew I had s esponsibility to other 6 Q. --that you all were there for?

7 people who might ha'::~.~ the same situation. 7 A. Yes.

8 Q. But that respot(~ was something you 8 Q. Business related?

9 didn1t become awiir.

o'f:crrecognize until the FBI 9 A. Yes.

10 contacted you. ~!;)'6 . 10 Q. And who was there from Edible Software?

11 A. l felt ~u out not being more vocal about 11 A. Henri Morris, Trevor Morris, Beth Jackson au

12 seeing H~ ~ r something in Beth's drink. I felt lik 12 myself.

13 I should ~~id more about that So when the FBI 13 Q. Those were the only four?

14 called~ saw it as my opportunity to say more abou 14 A. Yes.

15 it.~~"' 15 Q. And it's a trade show that's open to the public

16 ~ut until then, you didn't feel guilty enough 16 in the industry, and people display what it is they're

17 to report it, until then. Correct? 17 selling or providing?

18 A. Correct. 18 A. Right. It's open to the public, but you have

19 Q. All right. Let's-- 19 to have a ticket.

20 A. Well, no ww 20 Q. Okay.

21 Q. Well, you just said it was correct. 21 A. And you have to be invited, I believe.

22 A. I changed my mind. 22 Q. And after one day of the trade show, you··-

23 Q. Okay. So tell me why you changed your mind. 23 you, Henri, Trevor and Beth gathered at the Hancock

24 A. I felt extremely guilty, but tlmt's not the 24 Center to have a drink.

25 reason that I didn't report it. I didn't report it 25 A. Yes.

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1 Q. What part of-- I just don't know what the 1 was like, "Wc11, I'm only coming because Henri's not

2 Hancock Center is. So what part of tlte Hancock Center 2 there." So she came and met us.

3 were you in? Was there a restaurant in there or-- 3 Q. Were there any business-related people,

4 A. There, at the top of the Hancock Center, there 4 clients, customers, vendors, anything like that?

5 is a restaurant/bar area that overlooks Chicago, since 5 A. No.

6 it's a very high building and it's all windows. So I 6 Q. Was there-- what time of day was this?

7 wanted to go up there and see Chicago. And Trevor 7 think you had left the game at about --

8 bad just got back from a baseball game, and so we had 8 A. It was evening, so it*robably close to

9 seen Henri on the street, I guess. He had been shopping, 9 10:00 p.m., I would say. r{jj~

10 and then called Beth and had her join us as well. 10 Q. Okay. p~"Y

11 Q. So you and Trevor went to a baseball game on a 11 A. Maybe early ~ybe --between 9:00 and

12 social basis. Right? 12 Q. Had y'all had dinner?

13 A. Yeah, like -- 13 A. We ate game,

}la~Q~.oc;~~~~~~:~~;.

14 Q. It wasn't part of business? 14

to the restaurant of the

15 A. It wasn't part of business. It was lil<.e 15 what happened?

16 working, social, you lmow. 16 ordered a drink, and we were just

17 Q. Which baseball game? 17 .......:o""··-····· the day. And I remember Henri being

18 A. It was the Cubs at Wrigley Field. 18 "i~l!i!Jlntto:<icatcd. I guess he was drinking some sort

19 Q. So after the game, which was a day game, I take in a Pepsi bottle tltat he had been walking

20 it? jf~~~c~tigom Avenue shopping and drinking,

21 A. It was like, I don't lmow, 4:00 o'clock, 5:00 How do you !mow that?

22 o'clock. A. That he was intoxicated?

23 Q. What time did the game end? Q. How do you know that he was walking around

24 A. We left early because it was cold. Michigan Avenue walking and dtinking Pepsi with liquor

25 Q. Okay. Whattimeoftheyearwasit? 25 it?

1 A. May. But it was like 40 degrees, ClWJWo. 1 A. Because he had the Pepsi bottle, and he was

2 Q. Got it. So you get to the resta~:~~~ 2 drunk, and we knew that be had been walking

3 Hancock Center. I take it you have to~ elevator 3 Q. You didn't see him walking around Michigan

4 to get up there? V 4 Avenue?

5 A. Uh-huh. ~ 5 A. He told us he was on Michigan Avenue. He

6 Q. And you meet up with tl-1r people y'all are 6 looldng for a belt.

7 ·ct

Wll-- gD 7 Q. But you didn't see him drinking on Michigan

8 A. Uh-huh. If' fJ 8 Avenue?

9 Q. --youmetuR:&'~.Yes? 9 A. I saw him drinldng out of a Pepsi bottle.

10 A. Yes. Tre3o~rcvor and Henri were, we met 10 Q. When you got to the Hancock Center?

11 up with Henri W~ street, and I guess he had been 11 A. Uh-huh.

12 shopping. ~cd Beth, and she was alrendy in her 12 Q. Yes?

13 ) nd Trevor convinced her to go, with the 13 A. Uh-huh. Yes.

14 u·i's not there." 14 Q. Okay. But you didn't see him while he was

15 15 walking on Michigan A venue?

16 16 A. No.

17 What did Trevor tell Henri? 17 Q. You didn't see when he filled up the Pepsi

18 A. He was like, "No, no"-- what did Trevor ten 18 bottle with anything that wasn't a Pepsi?

19 Henri, or what did Trevor tell Beth? 19 A. No. So maybe-- no, olmy, that's fine.

20 Q. I'm sony. What did Trevor tell Beth? Thank 20 Q. Did y'all order drinks?

21 you. 21 A. Yes.

22 A. He was Jike, "No, it's just me and Andrea. 22 Q. You ordered one as well?

23 Come have a drink with us at the Hancock Center. 23 A. Yes.

24 not here. 11 But Henri was there, and they were kind of 24 Q. What did you order?

25 a trick on about it. And she 25 A. I think I ordered a martini.

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37 39

1 Q. Do you remember what the other people ordered? 1 what?

2 A. Trevor ordered a Jack and Coke, and Beth 2 A. Clear.

3 ordered a vodka cranberry, and I don't recall what Henr 3 Q. And you saw Henri pour into, that substance

4 ordered. 4 into what was Beth's drink.

5 Q. Okay. But at some point, you said you saw 5 A. Right.

6 Hemi put something in Beth's drink. 6 Q. Did you see Beth drink the drink?

7 A. Right. 7 A. Yes.

8 Q. Tell us what you saw. 8 Q. How much.ofit -- fr~t point forward, how

9 A. Well, we were all sitting there, and we had 9 much of it did she drink? !};;

10 been looking around. Like I said, it's a panoramic view 10 A. You know wh~nk --I don't think that

11 of Chicago. And all of a sudden, Henri pointed to the 11 she finished it. I dm~ can.

12 far window, like as if-- we're sitting at a cocktail 12 Q. All right. ~u recall that Henri finished

13 table. I think Henri was here, Beth was-- Henri was to 13 it? ~'

14 my left, Beth was to my right, and Trevor was across fro 14 A. No.~

15 me. 15 Q. D&~ecall that anybody finished it?

16 Q. Okay. 16

A.~

17 A. And so-- actually, I can't recaJI exactly. 17 ~u your best recollection is that Beth did not

18 Maybe Henri was sitting -- I don't think Henri was 18 #'edrink.

19 sitting next to me. Maybe he was sitting auoss from me. 19 _ I don't believe that she did.

20 Anyways, he pointed in the direction away from us, to ~1!? Q. What do you base that belief on? I'm not

21 where we were all looking away from the table. He was quanehng with it. I JuSt want to--

22 like, "Look, look, look. Look over there. Look over ~2 A. My memory.

23 there, Look over there, Quickly, quickly, look, look, j

»- 3 Q. Okay.

24 look." ~ 24 A. I'm trying to remember something that happen d

25 So aU of us, of course, turned to see what hew()) 25 two years ago.

~ 38 40

1 fussing about. But in doing that, I was ~g --and I 1 Q. Sure.

2 guess he was kind of standing over ~ I see him li e 2 A. And feeling uncomfortable with it, and then I

3 having something in his pocket an~ iug like out of 3 think kind of watching. I don't Jmow. Something

4 small bottle, like from a mini b v e little bottles 4 happened to where-- I don't remember if Henri became

5 of liquor that you get at the,~ £'airport plane, into 5 like increasingly intoxicated and acting dramatic, or

6 Beth's drinl<. ~ 6 being sad, and then everybody was kind of ready to lcav

7 And Trevor and Beth oldng for this thing 7 I don't remember. But for some rcasoil, we left. And I

8 that-- we didn't see~' g, so I don'tlmow exactly 8 don't think that she finished her drink. I'm not 100

9 what Henri wasp~ gat. I would assume that it wa 9 percent on that, though.

10 nothing. 0

~ 10 Q. Okay.

11 And I star~ almost reprimand Henri and say, 11 A. I don't remember me finishing my drink, so--

12 "What ar~ -oing?" You know, "Why are yon doin 12 Q. Let's focus on what you remembel', what you've

13 already testified about.

that?'~

14 An at point, he was like, "Shh, it's fine. 14 A. Uh-huh.

15 It'~ t's fine. No, it's okay. Don't say 15 Q. Your recollection was that on the street, or

16 any 1 ng." And at that point, in working with Edible 16 before you entered the restaurant --

17 Software, I just didn't feel like fighting with him. 17 A. Uh-huh.

18 And so I watched Beth, and I think that she 18 Q. -- you recall a conversation where Trevor told

19 acknowledged that her drink tasted stronger, like she 19 Beth inconect information as to whether or not Henri

20 wasn't really drinldng it. And then I got up and went t 20 would be there, because your assumption, based on that,

21 the restroom. Then shortly thereafter, we left. 21 was that Bctl1 didn't want to be there if Henri was going

22 Q. Okay. The substance that you saw Henri put 22 to be there.

23 into Beth's drink, was it liquid or solid? 23 A. Correct.

24 A. It was liquid, clear. 24 Q. So you at least reconciled in your mind that

25 Q. Clear liquid. The color of the bottle was 25 there was some issue going on between Beth and Henri --

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41 43

1 A. Yes. 1 Q. (By Mr. Rosenberg) Why?

2 Q. --that would warrant her not wanting to be 2 A. Under the understanding or observation of their

3 there. 3 relationship, it was very tumultuous, and very, like they

4 A. Correct. 4 bicl{ered a lot and argued a lot, and she acted very

5 Q. So if I'm understanding your testimony 5 annoyed with Henri, but still chose to be around him an

6 correctly, Beth was duped or tricked into going to some 6 spend time witl1 him.

7 place she didn't want to be, to be with somebody who he 7 And though it did appear as though she was being

8 didn't, she didn't want to be with? 8 tricked, it seemed like som~~ that was par for the

9 A. She chose to go there, under the understandin 9 course in this relationshi ~ it was my decision at

10 that it would just be TreYor and I. 10 that time, not knowin dsight doesn't matter in

11 Q. She was tricked. 11 this situation. At th~ , I assumed it was vodka. I

12 A. If that's what you choose to call it. 12 knew we were all~ng a drink. I knew he was

13 Q. Right? Well, Trevor didn't tell her the truth. 13 encouraging B~~)get a double, and she didn't want a

14 A. Okay. 14 double. ~

15 Q. Is that right? 15 And at~ime, I just made the decision I'm not

16 A. Yes. 16 going~ and argue with a drunl< person that's my

17 Q. Okay. It's reasonable for yoU to assume that 17 boss~e re all having a drink here. She could taste

18 the reason why Beth went is because she thought Henri 18 . t~~ngness in her drinl<. If she chooses not to drink

19 wasn't going to be there. 19 ~hole thing, then that's her decision.

20 A. Yes. ~If([;} Q. Did you believe that he was adding anything but

21 Q. Okay. So you already, you know that there's ~ alcohol to the drink?

22 some reason why Beth doesn't want to be there with He 2 A. No.

. 0

23 and you see Henri adding a substance to Beth's drink. Q. Let me make sure I got the question out.

24 A. Right. ~ think I got it. Did you believe that he was adding

25 Q. He tells you not to tell her about it. 25 anything but alcohol to the drink?

1 A. Correct. ~ 1 A. At that time, no.

2 Q. And based on that, with al~t~ng on, you 2 Q. Okay. Subsequently, have you ever come to a

3 still didn't tell Beth, 11Hey, wait, d nk that." 3 conclusion that he was adding anything but -- had added

4 MR. TODD: Fonn. You~ Ill answer. 4 anything but alcohol to the drink?

5 THE WITNESS: What 5 A. Yes,

6 MR. TODD: That's · preserving an 6 Q. When?

7 objection on the record 7 A. The first time that I had a suspicion that it

8 but you still have to 8 could have been something other than alcohol was when" e

9 9 were in Washington, D.C., for the Fancy Food Show. An

10 10 we bad all been doing something separate, but then ended

11 11 up meeting later downstail's in the bar. And Henri and

12 osenberg) I can paraphrase it. 12 Beth were sitting at a table, and Henri was sort of

13 u able to read back what you're saying 13 slouched over Beth with his arm around her. And Trevor

14 ~1 ,Jean. 14 met us as well.

15 ~ that allowed? 15 So it was the four of us, Beth, myself, Henri and

16 Q. Yeah, it is allowed, and I can-- she can-- 16 Trevor. And Beth was just so intoxicated, just not

17 you want to read it back? 17 malting sense, all over the place, cleal'ly just

18 A. No, I want you to paraphrase it again. 18 cmnpletely, like just completely wasted. And I had never

19 Q. Sometimes that works best. Is it true that 19 seen her like that. I didn't feel that that was Iter

20 despite the fact that you had reason to believe Beth 20 demeanor or her personalii'y, based on the way that she

21 didn't want to be there with Henri, and you saw Henri 21 was acting, eyes closed, slumped on the table, arms

22 adding a liquid substance to Beth's drink, that you chos 22 everywhere.

23 not to tell Beth that this had happened? 23 So in my mind, I was like, it doesn't seem- based

24 MR. TODD: Form. 24 on my experience with Beth, it doesn't seem like this is

25 THE WITNESS: Yes. 25 a normal thing for her to be acting this way and acting

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45 47

1 this wasted. And I think at t11at time my suspicion was 1 Center in Chicago, Henri put an intoxicant in Beth s

2 that there may have been something else involved, 2 drink.

3 especially since she was with Henri at that time. 3 A. An intoxicant, including alcohol?

4 And then there was another time tl1at she had come 4 Q. That1s a really bad word. You thought that

5 into town and was in Houston, and the whole interaction 5 Beth ~w I'm sorry -- you thought that Henri put something

6 was kind of odd, because I know tltat Hemi 1s wife, Ruth, 6 else other than alcohol in Beth1s drink, additionally to

7 was out of town and somewhere. And Henri came in, and e 7 alcohol.

8 was very late, and his shirt was wrinkled, and he made 8 A. I don't think at that~! could have

9 some excuse that he couldn't get into the dry cleaners. 9 conc_eptualized tltat hap~~"l and-- because I think

10 And then I remember Beth looking very, very iU, 10 tltat if I had been abl~k he drugged her drink, a

11 like grayish green, and just looking terrible. And she 11 that time I probabl~~d ltave said something. I thin<

12 was like-- we we1·e working on tlte computer, and her 12 that at that~~timeI~-...very suspicious of Henri's

13 hands were shaking. And that was the same way that site 13 behavior in re ~-to drinking,

• ~or other people's drinking?

14 looked the day after she had been acting so wasted in 14 Q. His d

15 Washington, D.C. 15 A. H~nragement of other people drinldng

16 So I'm-- I feel that I'm a perceptive person, and I 16 arollll~.

17 just kind of, those two things in my mind stuck out to 17 ~~ou became very suspicious at that point in

18 me. And I feel like at that point I started questioning )}®

19 is there maybe something else involved, some other 19 _-~ Yes,

20 substance. Certainly at tltat point I didn't think tltat if(jjj

~ Q. When you became vety suspicious of it, who at

21 it was -- I thin I' that at that point I didn't have the ~ all did you report the suspicion to?

22 ability to make assumptions about what it was. ~~2 A. No one.

23 Q. Okay. Help me timing-wise. -;:::.~ ~d2.3 Q. I need to ask you a little bit about your

24 A. Okay. ;?~ 24 personal life. rm

not going to get that faf into it.

25 Q. Te11me the relationship in time between the--~_))' 7.5 Were you~- did you have a significant other at that

~ 46 48

1 I believe it was Fancy Food~- . ~~ 1 point?

~: ~~~~~~? ~0

2 2 A. No.

3 3 Q. Who was your closest friend in the wodd at

4 A. Ult-ltult. ~ 4 that point?

5 A. Christina.

~: ~=~ ~~

6 6 Q. The lady who's here?

7 Q. And the Hancock T incident in Chicago. How 7 A. Yes.

8 much time transpired l#[w those two events? 8 Q. Okay. How often would you speak to Christina?

9 A. Between th~ri\i-cy Food Show and HancocJ(? 9 A. Daily.

10 Q. Washing!,o~. --well, yeah, I think the 10 Q. So you didn't talk to Christina about it?

11 Fancy Food w~r. 11 A. I told her about me seeing Henri pour something

12 A. Aftel-~tt. So Chicago was the last week of 12 into Beth's drink at the Hancock Center.

13 May. I r~~er because it was right around May 28tl , 13 Q. Well, that's different than nobody.

14 That's£I~if my, I have a friend that had a son tltat has 14 A. I'm sorry, I misunderstood the question. I

15 bir~Figltt around that time. And then-- so that wa 15 thought you meant did I suspect that he poured somethh g

16 the Cindy Show. And then Fancy Food was mid July, I 16 else aside from alcohol into her drink.

17 believe. It was definitely after the 4th of July. 17 Q. I asked who you told, Did you tell anybody?

18 Q. Okay. So at least six weeks-- 18 A. Right. The question, in my understanding, was,

19 A. Yes. 19 did yon tell anybody that you were suspicious? Because

20 Q. --afterwards. So six weeks later, by Beth's 20 that's what we're talking about right now.

21 conduct at the Fancy Food Show in Washington, D.C. -- 21 The question I thought I was answering is, did you

22 1'11 refer to them as cities -- 22 teJJ anybody that you were suspicious that Henri Morris

23 A. Uh-huh. 23 was pouring something else other than alcohol into Beth

24 Q. --so those shows don't get mixed up. It's at 24 Jackson's drink at the time of the Hancock Center.

25 that point you then believe that perhaps at the Hancock 25 Q. Okay.

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49 51

1 A. And the answer to that question is no. I did, 1 A. Uh-huh.

2 however, tell Christina when I got back from the Hancoc 2 Q. How is that sexually inappropriate?

3 Center that Henri had poured a bottle of vodka into Beth 3 A. I guess it's not sexually inappropriate.

4 Jackson's drink. 4 Q. Okay. It might have been inappropriate to add

5 Q. And what did Christina tell you to do about it? 5 something to somebody's drink without their knowledge,

A. She asked me ifl said something, and I said,

"No.'' She was like, "I would have said something."

And I was like, you know, "He made up"-- I did

address Henri the next day about it.

sexual regarding that.

A. Right. ;:p

notwithstanding Hemi's explanation, but there's nothing

Q. Okay. You were th~ ·· r about three months,

Q. Still in Chicago?

A. StillinChicago. Andiwaslike,"Youknow,

you really just can't do that. That's-- you can't pour

12 ·

A. Uh-huh. u)

10 by your, by your testi199~

Q. I think tha~tty much what we have. The

13 something into somebody else's drink without them 13 Aunt Sally's is~~ Orleans entity. Right?

14 knowing." 14 A. Uh-h~h-huh. ] guess I was t11ere about

15 And he said, "No, no, it's because Beth's an 15 four mo~ all of May, June, July and August. F01 J'

16 alcoholic, and she likes to drink doubles, But you and 16 monti.Q

17 Trevor don't drink as much as Beth and I do, so I carry 17 ~~y. Aunt Sally's is in New Orleans or that

18 around these bottles." And he pulled like, I don't know, 18 a~on·ect?

19 three or four of those little mini liquor bottles out of 19 ~~-: Yes.

20 his pockets. ~i!fj; Q. And of the four trips you went on, is it-- am

21 And he was like, "And I add extra to her drink, but ~ I tight that that's the last one?

22 she asks me to do it and she wants me to do it." <> ~2. A. Yes. Well, I can't •·ecaJJ. I was thinldng

23 Q. Did you ever ask Beth if that was the case? ~~ ~q 3 about this last night, and Trevor and I actllally took a

24 A. No. ;?~ 2 4 trip to Miami. But I can't recall when that trip was in

25 Q. So Hemi.'s story is Beth is consenting to this\~__))' 25 relation to the Aunt Sally's trips. They were close

~50 52

1 conducl? @ 1 together.

2 A. Beth is consenting to this condu~nd she's 2 Q. Now--

3 very embarrassed about it, so do~~Jer about it. 3 A. So there was five trips total.

4 MR. ROSENBERG: He h~'>me dmt il was, 4 Q. Obviously, you don't have any civil claims

5 that we're down -- ..-....~ 5 against the company, and I'm not going to ask you about,

6 THE WITNESS: Ok!:?'~ 6 about things dmt happened, with Trevor there and Henri

7 MR. ROSENBERGi('y~ the last little bit. 7 not.

8 Let's take a break. ~~ 8 A. Correct.

9 THE VIDE~HER: Time is 11:20. We're off 9 Q. But I do need to ask, do you have any

10 the record. -~-J@:"'"" 10 complainls about Trevor's conduct at ail?

11 (Recess f~~~~ ~.m. to 11:23 a.m.) 11 A. No.

12 Tf ·~ GRAPHER: Time is 11:23 a.m. We a 12 Q. Okay. That eliminated a whole bunch of

13 recordi~1g~ 13 questioning. I appreciate that.

14 ' r. Rosenberg) Ms. Farmer, with regard to 14 The Aunt Sally situation, remind me what the

15 w 1.1 bserved with Ms. Jackson, tills whole line of 15 comptroller's name is al Aunt Sally's.

16 ql ing started when I asked you about sexually 16 A. You know, I -- in my statement to the FBI, I

17 inappropriate things you've seen with Beth, or with 17 call her Cheryl the entire time. And I just truly can't

18 people. You said il happened every lime ym1 traveled, 18 remember her name. I think I thought it was Jackie for

19 and ym1 referenced Beth, yourself, and there was one 19 couple of days, and it might be Joan. But again, that

20 other person. Who was the olher person? 20 was so long ago, and it was a brief relationship, and I

21 A. It was the comptTollcr for Aunt Sally~s. A 21 just feel that from the beginning of our relationship, I

22 client, or a prospect. 22 was calling her by the wrong name. So I can't be clear.

23 Q. For the client. All right. You shared some 23 I can tell you her position.

24 information with me about Beth, about d1e substance beinl;] 24 Q. Which is comptroller?

25 added to her drink. 25 A. Yes.

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1 Q. And Atmt Sally's is a client of Edible 1 trying to separate myselffrom that, but it was a really

2 Software? 2 uncomfortable situation because of the le,•el that they

3 A. They weren't a current client at the time that 3 were both at.

4 I worked there. We were-- they were a prospect, and we 4 And at the moment that we got to the piano bar,

5 were trying to get them to close on Edible Software. 5 Henri said, "Come here. Sit down right here."

6 Q, Ws a praline, praline company? 6 Sat down. He was like, "What do you want to drink?

7 A. Praline. 7 And he was lil,e, "I got to take, I got to get her a cab.

8 Q. Cookies or candy? 8 I got to, she's got to go hom*'s too drunk. She's

9 A. Praline. 9 falling all over the place."to;.rt;;;

10 Q. Iknowwhattheyare. Ican'trememberif 10 Q. ThecomptrolleJ;b~~

11 they're cookies or candy. 11 A. The comptroU~o I said, "No, I'll go with

12 A. They're candy, 12 y'all. We can all ~back to the hotel. I want to go

13 Q. Okay. What was the incident that you believe 13 to sleep anywaf~'-'

14 was sexually inappropriate between Hemi and whoever this 14 He said, "~0, no, you sit here. I'll come back,

15 comptroller at Aunt Sally's is? 15 I'm jus~· get her a cab. She needs to go home."

16 A. Well, there was a point in time that we had 16 Q 1 'e were you befme that? You were at the

17 gone to New Orleans to meet with them, and they met us u 17 hote~1 concierge level?

18 in the concierge lounge at t11e top oft11e, it was some 18 o~e were at the hotel at the concierge level.

19 sort of Marriott Hotel, to have a drink. 19 ~~ ~~d then you went to dmner?

20 Henri and the comptroller and Tom, who was theCFO ~J({J A. Then we went to dinner.

21 of Aunt Sally's at that time, they were drinking pretty V Q. Mr. B's?

22 heavily at the concierge lounge and at dinner. And then -edf2 A. Okay,

23 we decided to go to Bourbon Stl·eet. _~ ~d2 3 Q. I'm not, I'm not suggesting it. I'm asking

24 And Henri and the comptroller were very much !6t(@t 24 you.

25 on each other; Henri posing it as "She's hanging oG~ 25 A. T don't rl'ntember the name of the restaurant.

& 54 56

1 because she's drunk." "Oh, come with us.~, I have 1 Q. How many drinks did you have at the concierg

2 three girls with me." That made m~£ l~omfortable at 2 level?

3 thattime. ~ 3 A. One. Did I have?

4 And then as soon as we got to ~e -I believe 4 Q. How many did you have?

5 it was Pat O'Brien's. It was so~~lr'eling piano bar on 5 A. One.

6 Bourbon Street that 1-Icn,;·~i

w )'J?~ interested in going 6 Q. How many do you believe Henri had?

Q. With who?

A. By myself. -~

to. He left with her, and I tltere. 7

A. Three or four.

Q. How about the comptroller?

A. Three or four as well.

10 Q. I'm sony.<>!~"'-- I mis-askcd. Henri left 10 Q. At any point, did you see Henri adding any

11 with who?~~ 11 substance to the comptroller's drink?

12 A. Th toller. 12 A. No, other than more wine.

13 Q WI s originally at the dueling piano bar? 13 Q. Other than more wine?

14 ;-'the CFO, he didn't go. 14 A. (Nodding head.)

15 for Aunt Sally's? 15 Q. But that was open and notorious out of a

16 A. For Aunt Sally's. He didn't go. He went home. 16 bottle. Right?

17 So it was, walking from the restaurant to the bar on 17 A. Yes.

18 Bourbon Street, the piano bar on Bourbon Street, it was 18 Q. Okay. The reason why I ask it that way, I

19 probably like three blocks. 19 believe from your testimony at the Hancock Center, th

20 And when-- the comptroller, she was having a hard 20 substance added to Beth's drink was done in a

21 time walldng aud very much like hanging on Henri. And e 21 surreptitious fashion; he didn't want anyone to see it.

22 was reciprocating in what I felt like was an 22 A. Uh-huh.

23 inappropriate way. 23 Q: Right?

24 And Henri was trying to include me in that kind of 24 A. Right.

25 drunk walking, one girl on each side, And I remember m 25 Q. But here at the Marriott concierge. he poured

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1 it in plain view. 1 A. He didn't have anything. He left as soon as we

2 A. Correct. 2 got there, to take the comptroller home.

3 Q. Added the wine to the glass in plain view. 3 Q. What did you observe that was sexually

4 A. Correct. 4

inappropriate between Henri and the comptroller that

5 Q. And then y'all went to dinner. 5

night?

6 A. Yes, 6A. I think that tbe touching was sexually

7 Q. How many drinks did you have at dinner? inappropriate. 1 think that the amount of time that th y

8 A. Two. 8 were gone, maybe I would~..l!Jl it sexually

9 Q. How many drinks did Henri have at dinner? 9 inappropriate, I don~t k B;~}> think it's inappropriate

10 A. Well, we split a bottle of the wine. The 10 when-- I thought th inappropriate that they

11 reason I'm saying two is because I know that we split it, 11 were gone for so Ion r hotel was not-- it was a

12 so I think I had about two glasses, and tl1en Henri bad 12 couple of blocks-~' four at the most. I think it was

13 the rest. So about four glasses in a bottle. And then I 13 just two street~~ actually, though.

14 don't know if he had another cocktail. At the time it 14 And I ca~all, but not far enough to be gone

15 dido 't seem relevant for me to count his drinks. 15 for over ~~r. And I felt, based on their body

16 Q. Okay. 16 languQ"'fu each other, tltat it was possibly a

17 A. And then Cheryl and Tom, the CFO, they had t" 17 situ~~here they maybe just went to the room

18 bottles of wine between the two of them. 18 t~~r, because there was like a flirtation, I guess.

19 Q. Cheryl is the comptroller? 19 ~~· You just speculated?

20 A. I'm sorry, that's what I call her. ~1fj A. Speculated.

21 Q. I understand that, but I want to make sure ~ Q. No factual basis to know that anything sexually

22 we're-- &f2 went on between the two of them.

23 A. The comptroJier, yes. That's not her nam:~· ~ ~<:!23 A. No.

24 Q. And you understand, I'm not being disrespec 24 Q. And you say he was walking with her holding her

25 to her. 25 up, but this is a person who you've described as having

~58 60

1 A. I understand. -~~6) 1 at least a bottle of wine, and more than that in wine--

2 Q. I'm just refening to her as there,g,__~ller 2 A. Uh-huh.

3 because we don't know what her na~ 3 Q. --and a few drinks as well. Correct?

A. Correct. \U

Q. Okay. So the comptroi~)Titl Tom split a

MR. TODD: Form.

Q. (By Mr. Rosenberg) Correct?

6 bottle between them? <:!~ 6 A. Will you repeat tlmt?

7 A. Two bottles. Q~ 7 Q. Yeah. You said that Henri was holding the

8 Q. Had a bottle e~1?0c 8 comptroller up.

9 A. Correct. .~

'Y 9 A. Yes.

10 Q. Okay. /in~~ y'all go to Pat, to the piano 10 Q. And that's after the comptroller had --

11 bar? Q 11 A. I don't know that I would classify it as-- oh,

12 12 sorry. Continue your question.

13 dinner you had a meal. Right? 13 Q. Well, are you getting to my "holding up"

14 ad appetizers, a meal and dessert. 14 characterization?

15 bstantial -- 15 A. Yes.

16 A. It was a heavy meal. 16 Q. Okay.

17 Q. --amount of food? 17 A. Because I don't feel like he was holding her

18 A. Uh-huh. 18 up, like she couldn'twalk. She was walking--

19 Q. Then you go to the piano bar? 19 Q. Right.

20 A. Correct. 20 A. --fine. She was hanging on him.

21 Q. And bow much did, how much did you drink ther ? 21 Q. She was hanging on him?

22 A. I had one beer. 22 A. Uh-huh, and he on her.

23 Q. One-- 23 Q. Okay.

24 A. Beer. 24 A. He certainly didn't need to have his arm aroun l

25 Q. --beer, and what did Henri have? 25 her--

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1 Q. That's your opinion? 1 Q. What did he do With you-- what did he do when

2 A. -- for her to walk 2 he got there?

3 MR. TODD: Form. 3 A. He was very disheveled and like sweaty, and his

4 Q. (By Mr. Rosenberg) But he did. 4 hair was amuck, and he told me be had to run all the wa ,

5 A. But he did, 5 like that she fell three or four times, and then be put

6 Q. And you believe that was sexually 6 her in a cab, and then she started hitting on him, and so

7 inappropriate? 7 he put her in a cab and he left. And then he ran all the

8 A. Yes. 8 way back to the piano bar, ~J!)en he ran there.

9 Q. You don't know whether or not that's 9 And he was being very 8~1imated and very, like

10 consensual? 10 disoriented almost a~~~&feah.

11 A. Does it have to be consensual to be sexually 11 Q. But obviously ~of, none of what happened

12 inappropriate? 12 when you weren't t~·~ou saw.

13 Q. I'm asking you whether or not you know whether 13 A. Right. ~ rt that I questioned, and my

14 or not it was consensual. 14 memory is ~~zzy on this, and it was something that

15 A. I don't know. 15 Henri ac~old me when we got back into town, so I

16 Q. Okay. Is that the only incident that you 16 do~n't.

~.-]I·- I'll just tell you what Henri told me.

17 recall between Henri and Ms. Comptrolier, this 17 '~

18 comptroller? 18 0 ecause I'm not really trusting my memory on

19 A. Yes. But Henri said, when we got back, that 19 .~~ hat when we got ~ack to the hotel lobby, that she

20 she was there at the hotel. And l just know tltat the A

~s there still.

21 story just didn't make sense, because he told me be put ~ Q. The comptroller?

22 her in a cab, several times. 0

l0it2

A. Yes.

23 Q. When you got back where? :~~~623 Q. Did you ever seethe comptroller there?

24 A. To the hotel. So Henri was gone for upw 24 A. I feel like I have a memory oftbat, but it's

25 an hour. In that time, I was sitting at a bar on ou bo 25 really fuzzy, and I don't know.

~ 62 64

1 Street by myself. And my phone bad ~~ I was 1 Q. When was the last recollection you have of

2 charging it, because I didn't want to~ ack to tlte 2 seeing to or speaking with-- seeing or speaking with the

bartender charging it. p

hotel with a dead phone. And so I ~ ving the

Well, I was just going to~ eand kind of

comptroller?

A. I spoke to Iter on the phone when we got back to

the office.

6 people watch, but then tiler these men who were 6 Q. That night. I'm sony.

7 there, and they were j # o f being men in a bar and 7 A. Right. That night was when she was leaving the

8 kind of wouldn't stop a n to me, and so I decided to 8 piano bar.

9 leave. ~ 9 Q. Okay. When did you get back to the office?

10 And I askedJI . tender-~ it was 10:00 o'clock at ·1o A. The next day.

11 that point. It ~rly, and I had never been to 11 Q. What did you speak to her about when you got

12 Bourbon ~ nd so I asked the bartender if there w 12 back to the office?

13 anywher~ hat was neat to go that I should probably 13 A. Not the next day, Two days later.

14 go tha~ e was a little bit more mellow and not so 14 Q. When you spoke with her from the office, what

15 cr~ ty-ish. 15 did you speak about?

16 An so he suggested, I went to this like historic 16 A. She apologized for being so drunk, and then she

17 bar that had a mechanically rotating floor. And so I 17 told me tl1at she got to her house, She was like, "I

18 went there, and Henri ended up coming there to meet m , 18 don't know how I got there. I don't remember. I just

19 Q. How did Henri know you were there? 19 woke up in my bed, and then I went outside nnd my car w

20 A. Well, I turned on my phone, and told him, "I'm 20 there."

21 going horne." And then it died, and then when I turned t 21 But Henri told me that he put Iter in a cab to get

22 bac]( on, he was like calling me and calling me and 22 there. And then he told me that he saw her hanging out

23 calling me and calling me. And so I think I finally 23 in the lobby- that we saw her in the lobby, and that

24 texted him and was like, "I'm at this bar." And then he 24 she was still there.

25 came there. 25 He was like, "Remember, remember, we saw her, She

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65 67

1 was in the lobby." 1 Q. Anything you can recall?

2 And I was like, "I don't know ifl remember that" at 2 A. No.

3 that time. 3 Q. Okay. Did Brannen, Ms. Deville, did she ever

4 Q. Okay. So you have no way-- your recollection 4 complain to you that Henri's conduct with her was

5 isn't going to allow you to tell us whether or not she 5 inappropriate?

6 was at the bar -- at the hotel lobby or not. You don't 6 A. No. We did not have that type of relationship.

7 know one way or the other. 7 Q. Did you ever hear Ms. Deville complain to

8 A. Based on what Henri said, she was there. Based 8 anybody else that Henri's c~ with these massages o

9 on what I remember, I don't feel comfortable saying 9 back rubs were inapproprj~

10 either way. 10 A. No. (f"~'@v

11 Q. Okay. 11 Q. Did you ever~enri touch any other part of

12 A. Because I don't remember a lot about that, 12 her body that w~sr back? For example, her breasts

13 so-- 13 or buttocks or < · g --

14 Q. We're going to get to you. But I want to know 14 A. No.~

15 if that's the substance of your information you have 15 Q. --~se?

16 regarding Henri being sexually inappropriate with anybody 16 A. ~ t think I ever saw that.

17 else when you traveled. 17 ~'11you ever notice any conduct with anybody

18 A. Yes. 18 e4$.1(@)lhe office, between Henri and anybody else in th

19 Q. Before we get to you, did you have any 19 r~that was sexually inappropriate?

20 observation of Henri acting sexually inappropriate with ~il((? A. No.

21 anybody at the office, physically on the office premises? ~ Q. When I say "anybody else, 01 I mean vendors or

22 A. Physica11y at the office, I feel like he and /;) ~2 clients that might have visited or anything of that

23 Brannen Deville were always like hugging and g~I~vinge · ~q 3 nature.

24 other back rubs, and I felt like that was inappropri 24 A. No.

25 Q. Always hugging? 25 Q. Did you ever work contemporaneously with Keri

~ 66 68

1 A. Oftentimes. ~ 1 Hill?

2 Q. Okay. Can you put a degree of ij'~cy, how 2 A. No.

3 often during Ore cou"e of a day that t~uld be 3 Q. Did you ever work contemporaneously with Stac

A. It wasn't every day.

Q. Okay. How many times

-dt

together would they be giving cacl~r ack mbs?

eek?

Stewart?

A. No.

Q. Did you ever work contemporaneously with

7 A. It was sporadic~C) 7 Michelle Bamett?

B Q. Okay. From y~ rvation, was it B A. Yes.

9 reciprocal? ~ 9 Q. In the roughly four months that you were at

10 A. Yes, 0

{Jjjj 10 Edible Software, how many of those months were with

11 Q. Okay.!> F~our observation, was it offensive 11 Michelle Barnett?

12 toMs.Dev~ 12 A. One.

13 A.~ es,yes. 13 Q. Okay. So you were there with her a very short

14 Q. . mt --how would you describe the times 14 time?

15 wl~ as offensive to Ms. Deville? 15 A. Right.

16 A. -They had a very playful relationship, but at 16 Q. You didn't lmow her very well, I take it.

17 times I felt like th

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