The opinion
FILED
17-0637
12/21/2017 3:21 PM
tex-21442760
SUPREME COURT OF TEXAS
BLAKE A. HAWTHORNE, CLERK
NO. 17-0637
__________________________________________________________________
IN THE SUPREME COURT OF TEXAS
__________________________________________________
THE DALLAS MORNING NEWS, INC. AND KEVIN KRAUSE,
PETITIONERS
V.
LEWIS HALL AND RICHARD HALL, INDIVIDUALLY AND ON
BEHALF OF RXPRESS
PHARMACIES AND XPRESS COMPOUNDING,
RESPONDENTS
__________________________________________________________________
ON APPEAL FROM THE SECOND COURT OF APPEALS
FORT WORTH, TEXAS
NO. 02-16-00371-CV
TRIAL COURT CAUSE NO. CV16-0309
rd
43 JUDICIAL DISTRICT COURT OF PARKER COUNTY, TEXAS
__________________________________________________________________
RESPONDENTS’ UNOPPOSED CONDITIONAL MOTION FOR
JUDICIAL NOTICE
______________________________________________________________
TO THE HONORABLE SUPREME COURT OF TEXAS:
Respondents, Lewis Hall and Richard Hall individually and on behalf of
Rxpress Pharmacies and Xpress Compounding (collectively “Respondents”), file
1
this Unopposed 1 Conditional Motion for Judicial Notice, and would respectfully
show the Court:
Respondents conditionally2 request the Court take judicial notice of the
following documents:
1. Tab A – Plaintiff’s Original Petition
2. Tab B – Plaintiff’s Amended Petition
3. Tab C – Plaintiff’s Motion to Compel
4. Tab D – Supplement to Plaintiff’s Motion to Compel
The above-referenced court records, particularly the transcripts attached to
Tabs C and D, contain evidence supporting the statements in Respondents’
Advisory to the Court and Parties filed in the trial court. CR 979–1086.
Particularly, these documents support the allegations that Petitioner Krause had not
just a passive role in the publication of the complained of publications, but that he
struck a deal to publish matters that he knew to be false or dramatically overstated
for the purpose of creating a story3 that would sell newspapers at Respondents’
1
Respondents direct the Court’s attention to the certificate of conference. Clearly Petitioners
request for judicial notice is improper and should not be granted.
2
The request is conditional upon this Court’s ruling on the Motion for Judicial Notice filed by
Petitioners. As explained more fully in Respondents’ motion and response to the Petitioners’
motion, consideration of these matters is not for this Court or the court of appeals, but rather the
trial court in the normal course of this lawsuit. However, should the Court entertain the court
records proffered by Petitioners, those proffered by Respondents should likewise be considered.
3
Respondents again recognize the constitutional implications raised when the media is sued for
defamation. However, Respondents cannot ignore that the Fourth Estate has come under recent
scrutiny itself for the publication and/or creation of “fake news” at the expense of those they are
2
expense—literally.
Pursuant to Rule 201, Respondents hereby conditionally request the Court
take judicial notice of the attached records for consideration of the Petition for
Review and any further briefing or consideration of this case.
Respondents so conditionally pray and for other general relief.
Respectfully submitted,
__________________________________
Robert J. Myers, SBN 14765380
John J. Shaw, SBN 24079312
MYERS ✯LAW
2525 Ridgmar Blvd., Ste. 150
Fort Worth, TX 76116
Tel: (817) 731-2500
Fax: (817) 731-2501
rmyers@myerslawtexas.com
jshaw@myerslawtexas.com
COUNSEL FOR RESPONDENTS
meant to serve. What better example would there be than a reporter sacrificing independence for
the sake of sensationalism?
3
CERTIFICATE OF COMPLIANCE
I certify that the foregoing document contains 371 words, excluding the
portions excluded by Texas Rule of Appellate Procedure 9.4(i)(1). It was prepared
in Microsoft Word using 14-point typeface for body text and 12-point typeface for
footnotes. In making this certificate of compliance, I am relying on the word count
provided by the software used to prepare the document.
_____________________________
John J. Shaw
CERTIFICATE OF CONFERENCE
I certify that I have conferred with counsel in this matter and he is
unopposed to the relief sought, specifically stating:
“Petitioners are not opposed to the Court taking judicial notice of these
filings, but Petitioners do not concede that these filings are relevant, admissible, or
properly considered by the Court under the TCPA.”
Thus this matter is tendered to the Court for ruling.
Certified to on this 21st day of December, 2017.
_____________________________
John J. Shaw
4
CERTIFICATE OF SERVICE
The undersigned certifies that on December 21, 2017, a true and correct
copy of the foregoing instrument was served on all counsel listed below using the
Court’s electronic case filing system.
Thomas S. Leatherbury
Marc A. Fuller
Kimberly R. McCoy
Margaret D. Terwey
VINSON & ELKINS, LLP
2001 Ross Avenue, Ste. 3700
Dallas, TX 75201
_____________________________
John J. Shaw
5
TAB A
FILED
DALLAS COUNTY
9/29/2017 1:54 PM
FELICIA PITRE
DISTRICT CLERK
Marissa Pittman
NB~-17-13448
BNM, § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. § DALLAS COUNTY, TEXAS
§
JOHN/JANE DOES 1-10, §
§
Defendants. § - -- JUDICIAL DISTRICT
PLAINTIFF'S ORIGINAL PETITION
TO THE HONORABLE DISTRICT JUDGE OF SAID COURT:
COMES NOW, Plaintiff BNM ("Plaintiff'), and files this, Plaintiff's Original Petition
against Defendants JOHN/JANE DOES 1-10 ("Defendants") and, for cause, would respectfully
show unto this Honorable Court as follows:
NATURE OF THE ACTION
1. This suit is the vehicle through which the Plaintiff can recover against the
outlandish, brazen acts of the Defendants, morally bankrupt individuals unlawfully tarnishing the
reputation of a highly decorated former Assistant United States Attorney. The Plaintiff brings
this claim for defamation and tortious interference with contract/prospective business advantage.
2. Plaintiff alleges that as a proximate result of the tortious and willful conduct of
the Defendants, he has suffered financial damages. The Defendants have committed
extraordinary acts of dishonesty and deceit towards Plaintiff. Therefore, the Plaintiff seeks all
compensatory damages allowed under Texas law for the injuries caused by their tortious acts and
om1ss1ons.
DISCOVERY CONTROL PLAN
3. Discovery shall be conducted under Level 3 pursuant to Rule 190.03 of the
TEXAS RULES OF CIVIL PROCEDURE.
PARTIES
4. Plaintiff BNM can be served by and through his undersigned counsel of record.
5. Defendant JOHN/JANE DOES 1-10 are unknown at this time but the Plaintiff will
supplement with the individual names of the Defendants.
6. This Honorable Court has jurisdiction over this matter, as the amount of the dispute
is within the jurisdictional limits of this Honorable Court. Venue is proper in Dallas County, Texas,
as it is a county in which a substantial part of the events or omissions giving rise to the claims
described herein occurred. This case is not subject to removal.
7. At this time, the Plaintiff is seeking more than $1,000,000.00 in damages against
the Defendants, jointly and severally, and an expedited trial by jury. This case is not subject to
removal to federal court
FACTUAL BACKGROUND
8. This action arises out of Defendant's blatant, egregious, and inequitable trespasses
to, and violations of Plaintiff, Plaintiffs rights and interests, as well as numerous breaches of duties
Defendants owed to Plaintiff. Defendants' fraud, negligence, and intentional torts against Plaintiff,
includes the infliction of severe physical and emotional hardship upon the Plaintiff, and the
intentional infliction of harm to Plaintiff. In addition, upon information and belief, Defendants
knowingly, recklessly, or negligently pursued Plaintiff with tactics designed to deceive, coerce,
harass, or force Plaintiff to engage in dealings with the Defendants.
9. The Defendants have knowingly, recklessly, and/or negligently engaged, or have
allowed themselves to be engaged, in various deceptive techniques and trade practices designed to
mislead the Plaintiff. Defendants and/or their principals, agents, franchisors, and employees have
knowingly, recklessly, and/or negligently misrepresented the true nature of their dealings with the
Plaintiff and knowingly, recklessly, or negligently omitted the disadvantages of associating with
the Defendants. In addition, upon information and belief, Defendants knowingly, recklessly, or
negligently pursued Plaintiff with tactics designed to deceive, coerce, harass, or force Plaintiff to
engage in dealings with the Defendants.
10. Plaintiff brings this action to remedy the harm that Defendant has caused him: (1)
by falsely and fraudulently inducing him to enter into and execute contracts; (2) by fraudulently
inducing him to enter into and execute contracts under duress; (3) by committing numerous
intentional torts against him including, but not limited to, numerous common law torts; (4) by
inflicting severe and intentional emotional distress; (5) by stalking, harassing, and threatening
Plaintiff; (6) by acting negligently toward Plaintiff; (7) by acting recklessly with wanton disregard
to the rights of Plaintiff; (8) by making fraudulent and negligent misrepresentations to Plaintiff and
others; (9) by failing to disclose material information to Plaintiff; and; (10) by breaching fiduciary
duties to Plaintiff.
CAUSES OF ACTION
TORTIOUS INTERFERENCE WITH CONTRACTS AND/OR PROSPECTIVE
BUSINESS RELATIONS
11. Plaintiff re-alleges each and every one of the foregoing paragraphs as though set
forth fully herein.
12. The Defendant acted with the intent to interfere with existing contracts as well as
to prevent execution of prospective contracts. The Plaintiff has lost the opportunity to enter into
several contracts as result of the interference by the Defendant. On information and belief, the
wrongful acts of the Defendant set forth in this Count were done maliciously, oppressively, and
with the intent to harm the Plaintiff, and the Plaintiff is entitled to punitive and exemplary damages
to be ascertained according to proof, which is appropriate to punish and set an example of the
Defendant. Accordingly, the Plaintiff respectfully request that exemplary damages be awarded
against the Defendant in a sum that is not less than three (3) times the amount of Plaintiffs actual
damages.
NEGLIGENCE AND GROSS NEGLIGENCE
13. Plaintiff re-alleges each and every one of the foregoing paragraphs as though set
forth fully herein.
14. The Defendants owed and still owes duties to the Plaintiff. The Defendants
breached these duties which proximately caused damages to the Plaintiff.
15. In addition, Plaintiff will show that the Defendants' acts and omissions, when
viewed objectively from the Defendants' viewpoint, involved an extreme degree of risk,
considering the magnitude and potential harm to the Plaintiff.
16. And, the Defendants had actual, subjective awareness of the risk, but still proceeded
with their scheme with a conscious indifference to the rights, safety or welfare of the Plaintiff.
17. As a proximate result of the Defendants' negligence and gross negligence, the
Plaintiff has been damaged and he seeks to recover all actual, consequential, incidental, and
exemplary damages.
DEFAMATION, SLANDER, AND LIBEL
18. Plaintiff re-alleges each and every one of the foregoing paragraphs as though set
forth fully herein.
19. The Defendants published false statements that negatively affected the Plaintiff.
No privilege, absolute or conditional, attaches to these statements.
20. The Defendants made these statements to third parties without any legitimate
interest in the information contained therein.
21. The Defendants' false statements and omissions caused damages to the Plaintiff.
22. These statements are unambiguous and defamatory or, alternatively, defamatory by
innuendo or implication.
23. Each of the above-referenced acts and omissions, single or in combination with
others, constituted defamation, libel, and slander as well as defamation, libel, and slander per se
and caused the damages suffered by the Plaintiff.
24. As a result, the Plaintiff has been damaged and seeks to recover all actual,
consequential, and incidental damages caused by the defamation/slander.
25. On information and belief, the wrongful acts of the Defendants set forth in this
Count were done maliciously, oppressively, and with the intent to harm the Plaintiff, and the
Plaintiff is entitled to punitive and exemplary damages to be ascertained according to proof, which
is appropriate to punish and set an example of the Defendants. Accordingly, the Plaintiff
respectfully requests that exemplary damages be awarded against the Defendants in a sum that is
not less than three (3) times the amount of Plaintiffs actual damages.
BUSINESS DISPARAGEMENT
26. Plaintiff incorporates each and every one of the foregoing paragraphs as though set
forth fully herein.
27. Defendants published disparaging words about Plaintiffs economic interests.
28. The words were false.
29. Defendants published the words with malice.
30. Defendants published the words without privilege.
31. The publication caused special damages.
32. As a result, Plaintiff has been damaged and seeks to recover all actual,
consequential, and incidental damages caused by Defendants' conduct.
33. On information and belief, the wrongful acts of Defendants set forth in this Cause
of Action were done maliciously, oppressively, and with the intent to harm Plaintiff, and Plaintiff
is entitled to punitive and exemplary damages to be ascertained according to proof, which is
appropriate to punish and set an example of Defendants. Accordingly, Plaintiff respectfully
requests that exemplary damages be awarded against the Defendants in a sum that is not less than
three (3) times the amount of Plaintiffs actual damages.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
34. Plaintiff incorporates each and every one of the foregoing paragraphs as though set
forth fully herein.
35. The Defendants are fully aware of the facts that support this claim. The Defendants'
conduct was extreme and outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, as to be regarded as atrocious, utterly intolerable, despicable, and the
bottom of depravity in a civilized community.
36. The Defendants' conduct proximately caused Plaintiff damages in that it caused
Plaintiff to suffer severe emotional distress. In particular, the Defendants' conduct was the direct
and proximate cause of Plaintiffs severe mental pain and anguish. In addition, the Plaintiff
continues to suffer from the actions of the Defendants.
3 7. In addition to severe emotional distress, the Plaintiff has suffered and will continue
to suffer, additional damages as a proximate result of the Defendants' conduct in that, in all
reasonable probability, Plaintiff will continue to suffer this mental pain and anguish for a long time
into the future - most likely the rest of his life. The conduct of the Defendants were maliciously
negligent and/or grossly negligent, and fraudulent so as to entitle Plaintiff to recover exemplary
damages. In this connection, Plaintiff will show that as a result of Defendants' conduct, Plaintiff
has suffered losses of time and other expenses, including attorney's fees incurred in the
investigation and prosecution of this action. Accordingly, Plaintiff asks that exemplary damages
be awarded against the Defendants in a sum that is not less than three (3) times the amount of
Plaintiffs actual damages.
NEGLIGENT MISREPRESENTATION
38. The Plaintiff re-alleges each and every one of the foregoing paragraphs as though
set fully herein.
39. By reason of the Plaintiffs reliance on the representations and fraudulent
concealment of material facts by the Defendants, the Plaintiff has been damaged.
40. The Defendants employed a scheme and common course of conduct to defraud the
Plaintiff. The misrepresentations and concealment of facts by Defendants were material.
41. On information and belief, the Defendants knew the misrepresentations and
concealment of facts set forth herein were false.
42. Alternatively, the Defendants acted with reckless disregard whether the
representations made by Defendants were true. The Plaintiff relied upon the misrepresentations,
lies, and the facts concealed by Defendants. The Plaintiffs reliance on these representations and
concealment of facts was reasonable and justifiable.
43. The Plaintiff has suffered losses because of the wrongful conduct of the Defendants.
CONSPIRACY TO COMMIT INTENTIONAL TORTS SET FORTH HEREINABOVE
44. The Plaintiff re-alleges each and every one of the foregoing paragraphs as though
set fully herein.
45. Each Defendant was a member of a combination of two or more persons.
46. The object of the combination was to accomplish an unlawful purpose or a lawful
purpose by unlawful means.
4 7. The members had a meeting of the minds on the object or course of action.
48. One or more of the members committed an unlawful, overt act to further the object
or course of action.
49. The plaintiff suffered injury as a proximate result of the wrongful act.
50. As a result, Plaintiff has been damaged and seeks to recover all actual,
consequential, and incidental damages caused by Defendants' conduct.
51. On information and belief, the wrongful acts of Defendants set forth in this Cause
of Action were done maliciously, oppressively, and with the intent to harm Plaintiff, and Plaintiff
is entitled to punitive and exemplary damages to be ascertained according to proof, which is
appropriate to punish and set an example of Defendants. Accordingly, Plaintiff respectfully
requests that exemplary damages be awarded against the Defendants in a sum that is not less than
three (3) times the amount of Plaintiff's actual damages.
52. Plaintiff further respectfully requests that all members of the conspiracy be held
jointly and severally liable for all acts done by any of them in furtherance of the combination.
Such joint and several liability is respectfully requested to extend beyond the wrongdoer to
include those who have merely planned, assisted, or encouraged the wrongdoer's acts.
AIDING AND ABETTING THE COMMISSION
OF INTENTIONAL TORTS SET FORTH HEREIN
53. A primary actor committed a tort.
54. Defendants had knowledge that the primary actor's conduct constituted a tort.
55. Defendants had the intent to assist the primary actor in committing the tort.
56. Defendants gave the primary actor assistance or encouragement.
57. Defendants' assistance or encouragement was a substantial factor in causing the
tort.
58. As a result, Plaintiff has been damaged and seeks to recover all actual,
consequential, and incidental damages caused by Defendants' conduct.
59. Plaintiff further respectfully requests that the primary actor and all Defendants
who had the intent to assist and who assisted or encouraged the primary actor be held jointly and
severally liable for all acts done. Such joint and several liability is respectfully requested to
extend beyond the wrongdoer to include those who have merely planned, assisted, or encouraged
the wrongdoer's acts.
ATTORNEYS FEES
60. Plaintiff re-alleges each and every one of the foregoing paragraphs as though set
forth fully herein. Request is made for all costs and reasonable and necessary attorneys' fees
incurred by or on behalf of Plaintiff, and all fees necessary in the event of an appeal of this cause
to the Court of Appeals and the Supreme Court of Texas, as the Court deems equitable and just.
CONDITIONS PRECEDENT
61. All conditions precedent to the Plaintiffs right of recovery have been performed,
have occurred, or have been waived.
NO WAIVER
62. By filing this lawsuit, Plaintiff does not waive or release any rights, claims, causes
of action, or defenses, or make any election of remedies that they have, but expressly reserve such
rights, claims, causes of action, and defenses.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully requests that the
Defendants be cited to appear and answer, as required by law, and that Plaintiff have the
following relief:
• Judgment against the Defendants for pecuniary, economic, non-economic,
special, general, consequential, and incidental damages in excess of
$1,000,000.00;
• Actual damages in the amount determined to have been sustained by the Plaintiff;
• Compensatory damages;
• Pre- and Post-Judgment Interest;
• Costs of this lawsuit, including reasonable attorney's fees, experts' fees, and other
disbursements; and
• Such other and further relief, at law or in equity, to which the Plaintiff may show
himself to be justly entitled.
Dated, September 29, 2017
Respectfully submitted,
JAMES S. BELL, PC
Isl James S. Bell
By:
James S. Bell
James S. Bell P.C.
State Bar No. 24049314
james@jamesbellpc.com
2808 Cole Ave.
Dallas, TX 75204
(214) 698-9000 (Telephone)
ATTORNEY PLAINTIFF
CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 1.06: RELATED CASES
On information and belief, this case probably requires transfer pursuant to Local Rule 1.06.
The related case was filed under Cause No. DC-15-14415; BRADEN RICHARD POWER, et al vs.
CRAIG PATRICK POWER, et al. in the 134th District Court of Dallas County, Texas.
' I I •
TAB B
FILED
DALLAS COUNTY
10/26/2017 6:21 PM
FELICIA PITRE
DISTRICT CLERK
NO. DC-17-13448
BRANDON MCCARTHY, § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. § DALLAS COUNTY, TEXAS
§
JOHN/JANE DOES 1-10, §
§
Defendants. § 134th JUDICIAL DISTRICT
PLAINTIFF'S FIRST AMENDED PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Plaintiff BRANDON MCCARTHY ("Plaintiff'), and files this,
Plaintiffs Original Petition against Defendants JOHN/JANE DOES 1-10 ("Defendants") and,
for cause, would respectfully show unto this Honorable Court as follows:
NATURE OF THE ACTION
1. This suit is the vehicle through which the Plaintiff can recover against the
outlandish, brazen acts of the Defendants, morally bankrupt individuals unlawfully tarnishing the
reputation of a highly decorated former Assistant United States Attorney. The Plaintiff brings
this claim for defamation and tortious interference with contract/prospective business advantage.
2. Plaintiff alleges that as a proximate result of the tortious and willful conduct of
the Defendants, he has suffered financial damages. The Defendants have committed
extraordinary acts of dishonesty and deceit towards Plaintiff. Therefore, the Plaintiff seeks all
compensatory damages allowed under Texas law for the injuries caused by their tortious acts and
omissions.
DISCOVERY CONTROL PLAN
3. Discovery shall be conducted under Level 3 pursuant to Rule 190.03 of the
PLAINTIFF'S FIRST AMENDED PETITION Page I of 11
TEXAS RULES OF CIVIL PROCEDURE.
PARTIES
4. Plaintiff BRANDON MCCARTHY can be served by and through his undersigned
counsel of record.
5. Defendant JOHN/JANE DOES 1-10 are unknown at this time but the Plaintiff will
supplement with the individual names of the Defendants.
6. This Honorable Court has jurisdiction over this matter, as the amount of the dispute
is within the jurisdictional limits of this Honorable Court. Venue is proper in Dallas County, Texas,
as it is a county in which a substantial part of the events or omissions giving rise to the claims
described herein occurred. This case is not subject to removal.
7. At this time, the Plaintiff is seeking more than $1,000,000.00 in damages against
the Defendants, jointly and severally, and an expedited trial by jury. This case is not subject to
removal to federal court
FACTUAL BACKGROUND
8. This action arises out of Defendant's blatant, egregious, and inequitable trespasses
to, and violations of Plaintiff, Plaintiffs rights and interests, as well as numerous breaches of duties
Defendants owed to Plaintiff. Defendants' fraud, negligence, and intentional torts against Plaintiff,
includes the infliction of severe physical and emotional hardship upon the Plaintiff, and the
intentional infliction of harm to Plaintiff. In addition, upon information and belief, Defendants
knowingly, recklessly, or negligently pursued Plaintiff with tactics designed to deceive, coerce,
harass, or force Plaintiff to engage in dealings with the Defendants.
9. The Defendants have knowingly, recklessly, and/or negligently engaged, or have
allowed themselves to be engaged, in various deceptive techniques and trade practices designed to
PLAINTIFF'S FIRST AMENDED PETITION Page 2of11
mislead the Plaintiff. Defendants and/or their principals, agents, franchisors, and employees have
knowingly, recklessly, and/or negligently misrepresented the true nature of their dealings with the
Plaintiff and knowingly, recklessly, or negligently omitted the disadvantages of associating with
the Defendants. In addition, upon information and belief, Defendants knowingly, recklessly, or
negligently pursued Plaintiff with tactics designed to deceive, coerce, harass, or force Plaintiff to
engage in dealings with the Defendants.
10. Plaintiff brings this action to remedy the harm that Defendant has caused him: (1)
by falsely and fraudulently inducing him to enter into and execute contracts; (2) by fraudulently
inducing him to enter into and execute contracts under duress; (3) by committing numerous
intentional torts against him including, but not limited to, numerous common law torts; (4) by
inflicting severe and intentional emotional distress; (5) by stalking, harassing, and threatening
Plaintiff; (6) by acting negligently toward Plaintiff; (7) by acting recklessly with wanton disregard
to the rights of Plaintiff; (8) by making fraudulent and negligent misrepresentations to Plaintiff and
others; (9) by failing to disclose material information to Plaintiff; and; (10) by breaching fiduciary
duties to Plaintiff.
CAUSES OF ACTION
TORTIOUS INTERFERENCE WITH CONTRACTS AND/OR PROSPECTIVE
BUSINESS RELATIONS
11. Plaintiff re-alleges each and every one of the foregoing paragraphs as though set
forth fully herein.
12. The Defendant acted with the intent to interfere with existing contracts as well as
to prevent execution of prospective contracts. The Plaintiff has lost the opportunity to enter into
several contracts as result of the interference by the Defendant. On information and belief, the
PLAINTIFF'S FIRST AMENDED PETITION Page 3of11
wrongful acts of the Defendant set forth in this Count were done maliciously, oppressively, and
with the intent to harm the Plaintiff, and the Plaintiff is entitled to punitive and exemplary damages
to be ascertained according to proof, which is appropriate to punish and set an example of the
Defendant. Accordingly, the Plaintiff respectfully request that exemplary damages be awarded
against the Defendant in a sum that is not less than three (3) times the amount of Plaintiffs actual
damages.
NEGLIGENCE AND GROSS NEGLIGENCE
13. Plaintiff re-alleges each and every one of the foregoing paragraphs as though set
forth fully herein.
14. The Defendants owed and still owes duties to the Plaintiff. The Defendants
breached these duties which proximately caused damages to the Plaintiff.
15. In addition, Plaintiff will show that the Defendants' acts and omissions, when
viewed objectively from the Defendants' viewpoint, involved an extreme degree of risk,
considering the magnitude and potential harm to the Plaintiff.
16. And, the Defendants had actual, subjective awareness of the risk, but still proceeded
with their scheme with a conscious indifference to the rights, safety or welfare of the Plaintiff.
17. As a proximate result of the Defendants' negligence and gross negligence, the
Plaintiff has been damaged and he seeks to recover all actual, consequential, incidental, and
exemplary damages.
DEFAMATION, SLANDER, AND LIBEL
18. Plaintiff re-alleges each and every one of the foregoing paragraphs as though set
forth fully herein.
PLAINTIFF'S FIRST AMENDED PETITION Page 4 ofll
19. The Defendants published false statements that negatively affected the Plaintiff.
No privilege, absolute or conditional, attaches to these statements.
20. The Defendants made these statements to third parties without any legitimate
interest in the information contained therein.
21. The Defendants' false statements and omissions caused damages to the Plaintiff.
22. These statements are unambiguous and defamatory or, alternatively, defamatory by
innuendo or implication.
23 . Each of the above-referenced acts and omissions, single or in combination with
others, constituted defamation, libel, and slander as well as defamation, libel, and slander per se
and caused the damages suffered by the Plaintiff.
24. As a result, the Plaintiff has been damaged and seeks to recover all actual,
consequential, and incidental damages caused by the defamation/slander.
25. On information and belief, the wrongful acts of the Defendants set forth in this
Count were done maliciously, oppressively, and with the intent to harm the Plaintiff, and the
Plaintiff is entitled to punitive and exemplary damages to be ascertained according to proof, which
is appropriate to punish and set an example of the Defendants. Accordingly, the Plaintiff
respectfully requests that exemplary damages be awarded against the Defendants in a sum that is
not less than three (3) times the amount of Plaintiff's actual damages.
BUSINESS DISPARAGEMENT
26. Plaintiff incorporates each and every one of the foregoing paragraphs as though set
forth fully herein.
27. Defendants published disparaging words about Plaintiff's economic interests.
PLAINTIFF'S FIRST AMENDED PETITION Page 5of11
28. The words were false.
29. Defendants published the words with malice.
30. Defendants published the words without privilege.
31 . The publication caused special damages.
32. As a result, Plaintiff has been damaged and seeks to recover all actual,
consequential, and incidental damages caused by Defendants' conduct.
33. On information and belief, the wrongful acts of Defendants set forth in this Cause
of Action were done maliciously, oppressively, and with the intent to harm Plaintiff, and Plaintiff
is entitled to punitive and exemplary damages to be ascertained according to proof, which is
appropriate to punish and set an example of Defendants. Accordingly, Plaintiff respectfully
requests that exemplary damages be awarded against the Defendants in a sum that is not less than
three (3) times the amount of Plaintiff's actual damages.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
34. Plaintiff incorporates each and every one of the foregoing paragraphs as though set
forth fully herein.
35. The Defendants are fully aware of the facts that support this claim. The Defendants'
conduct was extreme and outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, as to be regarded as atrocious, utterly intolerable, despicable, and the
bottom of depravity in a civilized community.
36. The Defendants' conduct proximately caused Plaintiff damages in that it caused
Plaintiff to suffer severe emotional distress. In pa11icular, the Defendants' conduct was the direct
and proximate cause of Plaintiff's severe mental pain and anguish. In addition, the Plaintiff
PLAINTIFF'S FIRST AMENDED PETITION Page 6of11
continues to suffer from the actions of the Defendants.
37. In addition to severe emotional distress, the Plaintiff has suffered and will continue
to suffer, additional damages as a proximate result of the Defendants' conduct in that, in all
reasonable probability, Plaintiff will continue to suffer this mental pain and anguish for a long time
into the future - most likely the rest of his life. The conduct of the Defendants were maliciously
negligent and/or grossly negligent, and fraudulent so as to entitle Plaintiff to recover exemplary
damages. In this connection, Plaintiff will show that as a result of Defendants' conduct, Plaintiff
has suffered losses of time and other expenses, including attorney's fees incurred in the
investigation and prosecution of this action. Accordingly, Plaintiff asks that exemplary damages
be awarded against the Defendants in a sum that is not less than three (3) times the amount of
Plaintiffs actual damages.
NEGLIGENT MISREPRESENTATION
38. The Plaintiff re-alleges each and every one of the foregoing paragraphs as though
set fully herein.
39. By reason of the Plaintiffs reliance on the representations and fraudulent
concealment of material facts by the Defendants, the Plaintiff has been damaged.
40. The Defendants employed a scheme and common course of conduct to defraud the
Plaintiff The misrepresentations and concealment of facts by Defendants were material.
41. On information and belief, the Defendants knew the misrepresentations and
concealment of facts set forth herein were false.
42. Alternatively, the Defendants acted with reckless disregard whether the
representations made by Defendants were true. The Plaintiff relied upon the misrepresentations,
lies, and the facts concealed by Defendants. The Plaintiffs reliance on these representations and
PLAINTIFF'S FIRST AMENDED PETITION Page 7of11
concealment of facts was reasonable and justifiable.
43. The Plaintiff has suffered losses because of the wrongful conduct of the Defendants.
CONSPIRACY TO COMMIT INTENTIONAL TORTS SET FORTH HEREINABOVE
44. The Plaintiff re-alleges each and every one of the foregoing paragraphs as though
set fully herein.
45. Each Defendant was a member of a combination of two or more persons.
46. The object of the combination was to accomplish an unlawful purpose or a lawful
purpose by unlawful means.
47. The members had a meeting of the minds on the object or course of action.
48. One or more of the members committed an unlawful, overt act to further the object
or course of action.
49. The plaintiff suffered injury as a proximate result of the wrongful act.
50. As a result, Plaintiff has been damaged and seeks to recover all actual,
consequential, and incidental damages caused by Defendants' conduct.
51. On information and belief, the wrongful acts of Defendants set forth in this Cause
of Action were done maliciously, oppressively, and with the intent to harm Plaintiff, and Plaintiff
is entitled to punitive and exemplary damages to be ascertained according to proof, which is
appropriate to punish and set an example of Defendants. Accordingly, Plaintiff respectfully
requests that exemplary damages be awarded against the Defendants in a sum that is not less than
three (3) times the amount of Plaintiffs actual damages.
52. Plaintiff further respectfully requests that all members of the conspiracy be held
jointly and severally liable for all acts done by any of them in furtherance of the combination.
PLAINTIFF'S FIRST AMENDED PETITION Page 8of11
Such joint and several liability is respectfully requested to extend beyond the wrongdoer to
include those who have merely planned, assisted, or encouraged the wrongdoer's acts.
AIDING AND ABETTING THE COMMISSION
OF INTENTIONAL TORTS SET FORTH HEREIN
53. A primary actor committed a tort.
54. Defendants had knowledge that the primary actor's conduct constituted a tort.
55. Defendants had the intent to assist the primary actor in committing the tort.
56. Defendants gave the primary actor assistance or encouragement.
57. Defendants' assistance or encouragement was a substantial factor in causing the
tort.
58. As a result, Plaintiff has been damaged and seeks to recover all actual,
consequential, and incidental damages caused by Defendants' conduct.
59. Plaintiff further respectfully requests that the primary actor and all Defendants
who had the intent to assist and who assisted or encouraged the primary actor be held jointly and
severally liable for all acts done. Such joint and several liability is respectfully requested to
extend beyond the wrongdoer to include those who have merely planned, assisted, or encouraged
the wrongdoer' s acts.
ATTORNEYS FEES
60. Plaintiff re-alleges each and every one of the foregoing paragraphs as though set
forth fully herein. Request is made for all costs and reasonable and necessary attorneys' fees
incurred by or on behalf of Plaintiff, and all fees necessary in the event of an appeal of this cause
to the Court of Appeals and the Supreme Court of Texas, as the Court deems equitable and just.
CONDITIONS PRECEDENT
PLAINTIFF'S FIRST AMENDED PETITION Page 9of11
61 . All conditions precedent to the Plaintiffs right of recovery have been performed,
have occurred, or have been waived.
NO WAIVER
62. By filing this lawsuit, Plaintiff does not waive or release any rights, claims, causes
of action, or defenses, or make any election of remedies that they have, but expressly reserve such
rights, claims, causes of action, and defenses.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully requests that the
Defendants be cited to appear and answer, as required by law, and that Plaintiff have the
following relief:
• Judgment against the Defendants for pecumary, economic, non-economic,
special, general, consequential, and incidental damages in excess of
$1,000,000.00;
• Actual damages in the amount determined to have been sustained by the Plaintiff;
• Compensatory damages;
• Pre- and Post-Judgment Interest;
• Costs of this lawsuit, including reasonable attorney's fees, experts' fees, and other
disbursements; and
• Such other and further relief, at law or in equity, to which the Plaintiff may show
himself to be justly entitled.
PLArNTIFF'S FIRST AMENDED PETITION Page IO of 11
Dated, October 26th, 2017
Respectfully submitted,
JAMES S. BELL, PC
Isl James S. Bell
By:
James S. Bell
James S. Bell P.C.
State Bar No. 24049314
james@jamesbellpc.com
2808 Cole Ave.
Dallas, TX 75204
(214) 698-9000 (Telephone)
ATTORNEY FOR PLAINTIFF
PLAINTIFF'S FIRST AMENDED PETITION Page 11 ofll
STATE OF TEXAS }
COUNrY OF DALLAS
I, FELICIA PITRE, Clark of the 01~trl ct of Dallas County,
Te"as, do hereby ct rtliy th\h I h .vJ comnamcl •his Instrument
to · ea truu Eintl correct cony of the or lgtnal es appears on
r<....Jrd In my r1'co.
GIVCN ll\JOCR MY l'J.1.t~ ~A .... SF ~- l)",.f s JI j ".JUrt, at office
In oat!:1G, lcxa~. thl il~ yo· .l)~ AD.~
FELICIA r1T.1E, OlJ 1.1l r ERK
DAL COUNTY, •.-,. -
By, alt Deputy
TAB C
FILED
DALLAS COUNTY
, . 11/20/2017 1 :08 PM
FELICIA PITRE
DISTRICT CLERK
CAUSE NO. DC-17-13448
BRANDON MCCARTHY, § IN THE DISTRICT COURT
Plaintiff, §
§
§
v. § 134TH JUDICIAL DISTRICT
§
§
JOHN/JANE DOES 1-10, §
Defendants. § DALLAS COUNTY, TEXAS
PLAINTIFF'S MOTION TO COMPEL DEPOSITION TESTIMONY FROM WITNESS
RYAN REYNOLDS
Plaintiff Brandon McCarthy ("Plaintiff' or "McCarthy") serves this Motion to Compel
Deposition Testimony from Ryan Reynolds and would respectfully show the Court the following:
SUM AND SUBSTANCE OF THIS MOTION
1. Plaintiff respectfully seeks an order from this Court compelling Ryan Reynolds to
appear again for his deposition and answer questions that he refused to answer at his deposition on
November 10, 2017, because of baseless assertions of attorney-client privilege made by Reynolds'
attorney at that deposition, David Bell.
2. Plaintiff has attached as Exhibit 1 to this Motion a rough draft of the transcript of
that deposition with the specific questions Plaintiff seeks to compel answers to highlighted in
yellow.
3. Those questions generally concern the following subject matter:
a. When Reynolds first retained David Bell as his counsel.
b. When Reynolds first met with David Bell as his counsel.
c. The general terms of David Bell's representation of Ryan Reynolds (i.e.,
rate, fees to be charged, scope of representation).
d. The identity of the person or persons who referred Ryan Reynolds to David
Bell.
e. The start and end date of any alleged attorney-client relationship between
Ryan Reynolds and Cameron Smith and/or James Rolfe and the scope of
such representation(s).
f. The terms of any Cameron Smith's legal representation of Ryan Reynolds.
(e.g., rate, fees to be charged, scope of representation).
g. The terms of James Rolfe's legal representation of Ryan Reynolds. (e.g.,
rate, fees to be charged, scope of representation).
h. The substance of communications between Ryan Reynolds and James Rolfe
and/or Cameron Smith outside of the attorney-client relationship.
1. Whether Cameron Smith and/or James Rolfe have ever hired Ryan
Reynolds to perform and work for them and the substance of that work and
identity of any client for whom that work was performed.
4. The law in Texas is clear that the attorney-client privilege does not apply to these
categories of questions. Reynolds' counsel's assertion of privilege as to these questions was
baseless and has served to only delay the discovery process and increase Plaintiff's costs in seeking
the truth. Plaintiff therefore requests that Reynolds and his counsel pay the fees and costs that
Plaintiff has had to incur to bring this Motion.
PLAINTIFF'S MOTION TO COMPEL DEPOSITION TESTIMONY
FROM WITNESS_RYAN REYNOLDS - Page 2
THE FACTS
Unknown Defendants Are Engaging in an Illegal Smear Campaign Against Former United
States Attorney Brandon McCarthy and Ryan Reynolds Likely Knows
WhoTbev Are
5. Plaintiff McCarthy is former Assistant United States Attorney for the Northern
District of Texas with a sterling reputation in the legal community. However, in the past year, one
or more individuals have engaged in and continue to engage in a smear campaign against
McCarthy by making intentionally false representations of purported fact to various people with
the intent of harming his reputation and professional standing and painting him in a false light.
Plaintiff has filed this lawsuit in order to determine who those people (named as Jane/John Does
1-10 in this suit) are and hold them legally accountable for their actions.
6. Ryan Reynolds ("Reynolds") is a convicted federal felon who has flouted the laws
of this country and disobeyed Court orders. Indeed, the Honorable Judge Boyle of the United
States District Court for the Northern District of Texas, Dallas Division, has previously found
Reynolds in contempt of Court for failing to obey an asset-freeze order.
7. On information and belief, Reynolds has been used by a tool of these John/Jane
Does to spread the false information about Defendant. For that reason, it is critical that Plaintiff
depose Reynolds to learn if he has in fact been working for these John/Jane Does and to learn their
identities. 1 Accordingly, Plaintiffs counsel issued and had served a subpoena requiring Reynolds
to appear for his deposition on November 8.
1
Because the person or persons engaging in this smear campaign are not yet known, they have been identified in this
lawsuit as "John/Jane Does 1-10." On information and belief, this smear campaign may be related to a highly
con tentious case pending in the 134th District Court for wh ich 'f laintiff acts as counsel for one of the parties. For that
reason, the case was transferred to the 134th after filing. Reynolds' allegation that such transfer was a "fraud on the
court" is as baseless as it is outrageous.
PLAINTIFF'S MOTION TO COMPEL DEPOSITION TESTIMONY
FROM WITNESS_RYAN REYNOLDS - Page 3
Reynolds and Others are Trying to Block Discovery of Relevant and Discoverable
Information Concerning the Smear Campaign and the
Identities of the John/Jane Doe Defendants
8. But Reynolds and/or whomever he is conspiring with to harm Brandon McCarthy
continues to try to thwart Plaintiffs attempts to determine the identities of these John/Jane Does.
9. First, in response to Plaintiffs subpoena, Reynolds filed a document titled
"Objections and Motion for Protective Order" regarding that subpoena, and Reynolds refused to
appear for his deposition on November 8. Reynolds himself signed the Motion and represented
that he was appearing "pro se."
10. After a hearing on November 8, this court ordered that Reynolds appear for his
deposition on November 10.
11. At that deposition, it came to light through Reynolds testimony that the Objections
and Motion for Protective Order (the "Motion") made material misrepresentations to this Court,
including:
a. The Motion falsely represented that Reynolds was appearing pro se. Reynolds
testified at his deposition that an attorney had actually drafted that Motion for
Protective Order and he identified that attorney as David Bell. (See Ex. 1 at page
46.)
b. The Motion falsely represented that "Movant is a witness against the Plaintiff in
another matter(s), and Plaintiff and his counsel are seeking to intimidate the
witnesses against him in the other matter." Reynolds testified at his deposition that
he had no knowledge of any "other matter" in which he is a witness against Plaintiff.
(Id. at page 59, lines 20-23.)
PLAINTIFF'S MOTION TO COMPEL DEPOSITION TESTIMONY
FROM WITNESS_RYAN REYNOLDS - Page 4
12. Plaintiff is filing a separate Motion for Sanctions against Reynolds' attorney David
Bell for filing the baseless and intentionally misleading motion with the Court in attempt to block
the Reynolds' deposition.
13. However, this Motion deals with Reynolds and his counsel's obstructionism at the
deposition itself.
ARGUMENT AND AUTHORITIES
Reynolds Cannot Refuse to Answer Questions Regarding His Communications with
James Rolfe and Cameron Smith that
Without Establishing Thev Concern His Criminal Case or Custody Dispute
14. At Reynolds' deposition on November I 0, Plaintiffs counsel asked Reynolds
numerous questions regarding attorneys Cameron Smith and Jim Rolfe to determine if they might
be the Jane/John Does that are the subject of this suit. However, Reynolds' counsel refused to let
Reynolds answer any of these questions on grounds of attorney-client privilege because Smith and
Rolfe are "attorneys." In fact, Reynolds' counsel stated that he would not let Reynolds answer any
questions concerning any attorneys. (See Ex. 1, page 12.)
15. Of course, as this court is well-aware, a communication is not privileged merely
because it is with an attorney, even if it is a communication between an attorney and his/her client.
See Huie v. DeShazo, 922 S.W.2d 920, 926 (Tex. 1996); Borden, Inc. v. Valdez, 773 S.W.2d 718,
720 (Tex. App.--Corpus Christi 1989, orig. proceeding) (not all communications between a client
and an attorney are privileged, and the burden is on the party resisting discovery to show that the
communication was, in fact, protected by the privilege).
16. The elements of the attorney-client privilege under Texas law are: ( 1) a confidential
communication; (2) made for the purpose of facilitating the rendition of professional legal services;
(3) between or amongst the client, lawyer, and their representatives; and (4) the privilege has not
PLAINTIFF'S MOTION TO COMPEL DEPOSITION TESTIMONY
FROM WITNESS_RY AN REYNOLDS - Page 5
been waived. See TEX. R. EVID. 503(b)(l); Navigant Consulting, Inc. v. Wilkinson, 220 F.R.D.
467, 473 (N.D. Tex. 2004) (Kaplan, J.) (applying Texas law of privilege). These elements can be
established by affidavit or live testimony. Seibu Corp. v. KPMG LLP, 2002 U.S. Dist. LEXIS 906,
at *1 (N.D. Tex. Jan. 18, 2002) (applying Texas law of privilege).
17. The burden is on the party asserting the privilege to demonstrate how each
document or communication satisfies these elements. Navigant Consulting, Inc. v. Wilkinson, 220
F.R.D. at 473 (citing Hodges, Grant & Kaufmann v. United States, 768 F.2d 719, 721 (5th Cir.
1985)) (applying Texas law of privilege). Courts generally construe the privilege narrowly because
an assertion of privilege inhibits the search for truth. Id. A general allegation of privilege is
insufficient to meet the burden. Id.
18. Here, Reynolds testified that Smith had only acted as his attorney concerning
a child custody dispute and Rolfe represented him concerning his criminal case, both of
which have been resolved. However, Reynolds did not establish that he has any ongoing attorney-
client relationship with either Smith or Rolfe or that these communications occurred in the
furtherance of providing legal services. Therefore, communications between Reynolds and Smith
and/or Rolfe that do not concern their legal representation of him are not privileged and Reynolds
and his attorney cannot assert that privilege as a basis for not answering questions regarding those
communications.
19. Reynolds therefore respectfully requests that the Court order Reynolds to re-appear
for his deposition and answer questions concerning the substance of communications between
Ryan Reynolds and James Rolfe and/or Cameron Smith that do not concern the rendition of legal
services in relation to Reynolds' custody dispute or criminal case, i.e., communications that fall
outside of their alleged attorney-client relationship.
PLAINTIFF'S MOTION TO COMPEL DEPOSITION TESTIMONY
FROM WITNESS_RYAN REYNOLDS-Page 6
Reynolds Cannot Refuse to Answer Questions Concerning the Factual Circumstances
Surrounding His Attorney-Client Relationships with
David Bell, Cameron Smith, and James Rolfe
20. Reynolds' attorney instructed Reynolds not answer any questions regarding the
factual circumstances of Reynolds' retention of himself (David Bell), Cameron Smith or James
Rolfe as attorneys. Specifically, Reynolds' counsel David Bell would not let Reynolds answer
when Reynolds had first consulted with and retained any of these attorneys, the fee arrangement
with any of these attorneys, or who referred Reynolds to David Bell as counsel. David Bell's
assertion of privilege as to these questions is baseless.
21. Texas law is clear that this information is not subject to the attorney-client privilege.
As on Texas court stated:
Under the great weight of authority, information concerning the factual
circumstances surrounding the attorney-client relationship has no privilege, at least
as long as disclosure does not threaten to reveal the substance of any confidential
communications. Therefore, the attorney-client privilege does not encompass such
nonconfidential matters as the terms and conditions of an attorney's employment,
the purposes for which an attorney has been engaged, or any of the external
trappings of the relationship between the parties.");
See Duval County Ranch Co. v. Alamo Lumber Co., 663 S.W.2d 627, 634 (Tex. Ct. App.-
Houston 1988): see also Goode, Wellborn and Shariat, 2A Courtroom Handbook on Texas
Evidence 456 (2012) ("Texas courts have followed the widely accepted common-law rule that the
identity of the client and fee arrangements ordinarily are not shielded from disclosure.
22. Similarly, "by whom and when" a client was referred to a particular lawyer for
representation is considered a factual circumstance surrounding the attorney-client relationship
that is not protected from disclosure by privilege under Texas law. See Alpert v. Riley, 2009 U.S.
Dist. LEXIS 36612 at *41 (S.D. Tex. Apr. 30, 2009) (holding the circumstances surrounding
client's attorney-client relationship with law firm Scardino and Courtney, including by whom and
PLAINTIFF'S MOTION TO COMPEL DEPOSITION TESTIMONY
FROM WITNESS_RYAN REYNOLDS - Page 7
when client was referred to Scardino & Courtney, was discoverable and not privileged under Texas
law).
23. Reynolds therefore seeks an order from this Comi compelling Reynolds to appear
for deposition within the next 2 weeks at a mutually agreed date and time and to answer questions
concerning:
a. When Reynolds first retained David Bell as his counsel.
b. When Reynolds first met with David Bell as his counsel.
c. The general terms of David Bell's representation of Ryan Reynolds (i.e.,
rate, fees to be charged, scope of representation).
d. The identity of the person or persons who referred Ryan Reynolds to David
Bell.
e. The start and end date of any alleged attorney-client relationship between
Ryan Reynolds and Cameron Smith and/or James Rolfe and the scope of
such representation(s).
f. The terms of any Cameron Smith's legal representation of Ryan Reynolds.
(e.g., rate, fees to be charged, scope of representation).
g. The terms of James Rolfe's legal representation of Ryan Reynolds. (e.g.,
rate, fees to be charged, scope of representation).
h. The substance of communications between Ryan Reynolds and James Rolfe
and/or Cameron Smith outside of the attorney-client relationship.
i. Whether Cameron Smith and/or James Rolfe have ever hired Ryan
Reynolds to perform and work for them and the substance of that work and
identity of any client for whom that work was performed.
PLAINTIFF'S MOTION TO COMPEL DEPOSITION TESTIMONY
FROM WITNESS_RYAN REYNOLDS - Page 8
CONCLUSION AND PRAYER
For the foregoing reasons, Plaintiff respectfully seeks an order from this Court granting the
relief requested herein. Plaintiff further requests any other relief in law or equity to which he may
be justly entitled.
Respectfully submitted,
JAMES s. BELL, P.C.
2808 Cole Avenue
Dallas, Texas 75204
Tel: (214) 668-9000
By:lsl James S. Bell
James S. Bell
State Bar No. 24049314
jnmes@ jame beJlpc.com
Attorney for Petitioner
Certificate of Service
I hereby certify that I have served a copy of this document on all counsel of record in
compliance with the Texas Rules of Civil Procedure.
Isl James S. Bell
James S. Bell
PLAINTIFF'S MOTION TO COMPEL DEPOSITION TESTIMONY
FROM WITNESS_RYAN REYNOLDS - Page 9
ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF11
1 NO. DC-17-13448
2 BRANDON MCCARTHY ) IN THE DISTRICT COURT
)
3 vs. ) 134TH JUDICIAL DISTRICT
)
4 )
JOHN/JANE DOES 1-10 ) DALLAS COUNTY, TEXAS
5
6
* * * * * * * * * * * * * * * * * * * * * * * * *
7
ORAL DEPOSITION OF
8
RYAN REYNOLDS
9
NOVEMBER 10, 2017
10
Volume No.
11
* * * * * * * * * * * * * * * * * * * * * * * * *
12
13
14 ORAL DEPOSITION of RYAN REYNOLDS, produced
15 as a witness at the instance of the Plaintiff, and
16 duly sworn, was taken in the above-styled and numbered
17 cause on the 10th of November, 2017, from
18 Time to Time, before Sherry Fol chert, CSR, in and -for
19 the State of Texas, reported by machine
20 shorthand, at the offices of David Bell, 8350 Meadow
21 Road, Suite 186, Dallas, Texas, pursuant to the Texas
22 Rules of Civil Procedure.
23
24
25
EXHIBIT 1
ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF12
1 A P P EA RA NC ES
2 FOR THE PLAINTIFF:
3 James S. Bell
JAMES S. BELL, P.C.
4
FOR THE WITNESS:
5
David Bell
6
ALSO PRESENT:
7
Brandon McCarthy
8 Kelley Cash
Matt Segedy
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
EXHlBIT 1
ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF13
1 INDEX
2 PAGE
3 Appearances . 2
4 Stipulations. 4
5 RYAN REYNOLDS
Examination by Mr. James Bell. 5
6
Signature and Changes . Pg
7
Reporter's Certificate. Pg
8
EXHIBITS
9
NO. DESCRIPTION PAGE
10
1 Fifth Amendment Invocation
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
EXHIBIT 1
ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF14
1 AGREEMENTS
2 It is hereby agreed by and between the parties
3 hereto, through their attorneys appearing herein, that
4 any and all objections to any question or answer herein,
5 except as to the form of the question and responsiveness
6 of the answer, may be made upon the offering of this
7 deposition in evidence upon the trial of this cause with
8 the same force and effect as though the witness were
9 present in person and testifying from the witness stand.
10 It is further agreed by and between the parties
11 hereto, through their attorneys appearing herein, that
12 this deposition may be signed before any notary public
13 in and for the State of Texas, but if the original
14 deposition has not been signed by the witness and
15 returned by the time of the trial or any hearing in the
16 case, the unsigned original or a copy thereof may be
17 returned into Court and used with the same force and
18 effect as though all requirements of the rules and
19 statutes with reference to signature and return had been
20 fully complied with.
21
22
23
24
25
EXHIBIT 1
ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF15
1 P R0 C E E DI NGS
2 RYAN REYNOLDS,
3 having been first duly sworn, testified as follows:
4 EXAMINATION
5 BY MR. BELL:
6 Q. Sir, will you introduce yourself to the folks
7 on the jury, as well as the Court?
8 MR. DAVID BELL: Excuse me, Counsel. First
9 identify yourself and everybody that you've brought with
10 you today.
11 MR. JAMES BELL: My name is James Bel 1 . I
12 have my client here and two folks that work for me.
13 Matt Segedy and Kelley Cash.
14 MR. DAVID BELL: And your client is who?
15 MR. JAMES BELL: Brandon McCarthy.
16 MR. DAVID BELL: Okay. And Matt Segedy
17 works for you, I believe, as of today, correct?
18 MR. JAMES BELL: I'm not here to answer
19 your questions. I'm telling you he works for me.
20 MR. DAVID BELL: Well, I'm going to
21 exclude -- ask that he be excluded because he's I
22 anticipate he's going to be a witness in these
23 proceedings. So if you insist on him staying here, I'm
24 not waiving that objection. Just placing you on notice
25 that we'll move to strike your use of this deposition if
EXHIBIT 1
ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF16
1 he stays in this deposition.
2 Q. (BY MR. JAMES BELL) Sir, can you state your
3 name for the -- strike that.
4 Can you introduce yourself to the folks on
5 the jury as well as the Court?
6 MR. DAVID BELL: Let the record show that
7 you refuse to acknowledge my comment or to respond to my
8 comment. Pl ease proceed at your own risk and peri 1.
9 THE WITNESS: My name is Ryan Reynolds.
10 Q. (BY MR. JAMES BELL) Okay. And, Mr. Reynolds,
11 you're convicted a felony, true?
12 A. I am.
13 Q. And have you had your deposition taken before?
14 A. Yes.
15 Q. How many times?
16 A. I don't remember.
17 Q. Approximately how many times?
18 A. I don't remember.
19 Q. Is it more than once?
20 A. Yes.
21 Q. More than five times?
22 A. I don't recall.
23 Q. You don't recall whether or not you've been
24 deposed more than five times?
25 A. I do not.
EXHIBIT 1
ROUGH DRAFl OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF17
1 a. Okay. And you were served with a subpoena to
2 appear for your deposition last Wednesday , correct?
3 A. Yes.
4 a. You id~;t~d~ 1c:ra1! appear, '~0)Prr ect?
5 A. Le i: tITa se e ')Nhera ~ l:'i a U- w~as :e xacfl y. No , l was
7 Q. Okay. Wheh dio David Bell become your lawyer?
8 MR. DAVID BELL: Object. I'm n0t goi n!!:} to
9 allow you to answer any questions about my
10 repr&sentation of you.
11 Q. (BY MR. JAMES BELL) Sir , I'm not asking you to
12 get in e01ttl1U1Llhieati0ns with y0ur lawyer. V.Jllilein did y:o u
1
13 retain Mr. Bell for services?
14 MR. DAVID BELL: I'm not going to allow him
15 to answer any ~uestioh that might invade the
16 attorney/client ptiVilege.
17 Q. C~V M~ . J~MES BELL) So yo~·re g~ing te refwse
18 to answer --
19 A. On the advice on my counsel.
20 a. So you'~e going to refuse to answer my question
21 about when you retained Mr. Bell to become your lawyer?
22 A. I'm going to object on the advice of my
23 counsel .
24 Q. (BY MR. JAMES ·BELL) Are you going to refuse --
25 MR. JAMES BELL: Objection; nonresponsive.
EXHIBIT 1
ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF18
1 Q. (BY MR. JAMES BELL) Are you going to refuse to
2 answer my question about when you retained Mr. Bell as
3 your lawyer?
4 MR. DAVID BELL: Counsel, you're asking for
5 a legal conclusion. I'm not going to allow my client to
6 answer that question.
7 Q. (BY MR. JAMES BELL) Sir, are you going to
8 refuse to answer my question about when you retained
9 Mr. Bell to become your lawyer?
10 MR. DAVID BELL: Again, you're asking for a
11 legal conclusion. I'm not going to allow him to object
12 (sic). Objection; form.
13 MR. JAMES BELL: So that's an objection
14 form or are you just --
15 MR. DAVID BELL: Both.
16 Q. (BY MR. JAMES BELL) So are you going to refuse
17 to answer my question about -- strike that.
18 When did you first meet Mr. Bell?
19 MR. DAVID BELL: I'm not going to allow him
20 to answer questions about me or my representation of
21 him. So ask any other question you want. Go ahead.
22 Q. (BY MR. JAMES BELL) So you're going to
23 refuse just so that I have
24 MR. JAMES BELL: Make sure you certify
25 these.
EXHIBIT 1
ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10 , 2017 - ROUGH DRAF19
1 Q. (BY MR. JAMES BELL) You're going to refuse to
2 answer my q ~ e ~ tion about when Mr. Bell be~a~e y0ur
3 lawyer. Would that be a true statement?
4 MR. DAVIO BELL: I advise the client not to
5 answer any questions about my representation.
6 MEL JJ Ari1;.&s B1E l ~: l need t -o· ge t a 1J'i'e,f 1:.11sal on
7 the -- on the --
8 Tm wIT N:E s s : I ' nr g e 1i ffg 'ke- 0"b j e ct ¥l>;.rm a d v i o e
9 o fr' mw rno:wn s e TI •
10 Q. (BY MR. JAMES BELL) F'm no t aa ki ng you to
11 <iibj ec t . I ne e;. "C0 get en ll!he a c~ ~ d jus t so i t 's
12 clear , you ' re going 1:t0, 1,1g r{f-',UtS\et to ·a~ nswe my question
13 b a s e c;i o n t he a d v i c e of yo u r l aw ye r . h~:. ft'h a -& a t rue
14 statement?
15 A. Correct.
16 Q. Okay. And you ' re going to refuse to answer my
17 question based on the advice of your 1 awyer oii vi.hen he
18 became -- Mr. Bell became your lawyer, correct?
19 A. Co , 1e':Q!ll .
20 Q. Okay. And you' re going to refuse to answer my
21 questions surrounding the circumstances which led to
22 Mr. Bell becoming your lawyer? You're going to refuse
23 to answer that question as well, true?
24 A. Correct.
25 Q. Okay.
EXHIBIT 1
ROUGH DRAFT Or RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF10
1 MR. DAVID BELL: Before you go further.
2 Let's try not to overtalk each other. And can I make a
3 suggestion, Counsel? Do you mind if we referred to as
4 James and David. It might make life easier for the
5 reporter?
6 Q. (BY MR. JAMES BELL) And so you understand what
7 the deposition is, correct?
8 MR. DAVID BELL: Objection; form. Asks for
9 a legal conclusion.
10 MR. JAMES BELL: You're only allowed to
11 object to the form. I didn't ask you for the basis.
12 MR. DAVID BELL: You're asking him for a
13 1ega1 conclusion.
14 MR. JAMES BELL: That's a form objection.
15 So just object to form. Let's - - let's follow rules.
16 MR. DAVID BELL: Let's be civil.
17 MR. JAMES BELL: Yeah, let's.
18 MR. DAVID BELL: That's part of the Rule.
19 MR. JAMES BELL: Let's.
20 MR. DAVID BELL: Please proceed.
21 Q. (BY MR. JAMES BELL) So you understand what a
22 deposition is' correct?
23 MR. DAVID BELL: Asks for a 1 egal
24 conclusion. Objection; form.
25 MR. JAMES BELL: You can still answer.
EXHIBIT 1
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1 THE WITNESS: I believe I do.
2 Q. (BY MR. JAMES BELL) Okay. And you understand
3 what an oath is 1 correct?
4 A. I do.
5 Q. You're going to te 11 the truth, the whole
6 truth , and nothing but the truth, correct?
7 A. Correct.
8 Q. You understand it's a felony in this state to
9 lie under oath?
10 A. Correct.
11 Q. You understand that your testimony is being
12 taken word for word by the court reporter here?
13 A. I do.
14 Q. Okay. And you understand that you're going to
15 have an opportunity to review your deposition, correct?
16 A. Correct.
17 Q. Now, throughout this deposition, you've already
18 hard it, there's going to be some objections by your
19 lawyer as to form of the question and/or some
20 instructions for you to not answer. Now, if he objects
21 to form of the question, you still got to answer my
22 question. Do you understand that?
23 A. I do.
24 Q. Okay. And if he instructs you not to answer,
25 then you don't answer, right?
EXHIBIT 1
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1 A. Right.
2 Q. Now
3 MR. DAVID BELL: Let -- let me say one
4 thing before you get started. I've instructed the
5 client not to answer and I'm not going to allow him
6 to -- as you can see answer, any questions about hiss
7 communication with any lawyers. I'm not going to allow
8 him to testify regarding any privilege shared with any
9 lawyers. And I'm not going to allow him to testify
10 about any matters not set out in the lawsuit you filed.
11 I just want to be clear on that.
12 Q. (BY MR. JAMES BELL) And you understand the
13 difference between direct knowledge and indirect
14 knowledge, correct? Direct knowledge is something that
15 you can see, touch, smell, you see for yourself,
16 correct?
17 MR. DAVID BELL: Objection; form.
18 THE WITNESS: Can you repeat that?
19 Q. (BY MR. JAMES BELL) Sure. You would agree
20 direct -- there's a difference between direct knowledge
21 and indirect knowledge? Direct knowledge is something
22 you can see, hear, smell, touch yourself, right?
23 MR. DAVID BELL: Objection; form.
24 THE WITNESS: I do.
25 Q. (BY MR. JAMES BELL) Okay. And indirect
EXHIBIT 1
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1 knowledge is what some -- something or somebody may tell
2 you, correct?
3 A. Correct.
4 Q. Okay. And you understand the difference
5 between a question that calls for yes-or-no answer
6 versus one that cal 1 s for a narrative, right?
7 MR. DAVID BELL: Objection; form.
8 THE WITNESS: I do.
9 Q. (BY MR. JAMES BELL) Okay. When did you meet
10 Brandon McCarthy?
11 A. I met him in a restaurant. I'm kind of bad
12 with dates, but I would say five, six years ago.
13 Q. Do you know when you met Brandon McCarthy?
14 A. The exact date?
15 Q. Do you know what year you met Brandon McCarthy?
16 A. I really don't remember. It was '09 or I 10,
17 Q. Did you meet Brandon while he was still an
18 Assistant United States attorney?
19 A. I believe, yes.
20 Q. Okay. And how many times have you had
21 in-person meetings with Brandon McCarthy?
22 MR. DAVID BELL: Objection; form.
23 THE WITNESS: By -- you mean where we were
24 both physically present at those meetings? Is that what
25 you mean by that?
EXHIBIT 1
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1 Q. (BY MR. JAMES BELL) My question is: How many
2 times have you been in the physical presence of Brandon
3 McCarthy?
4 A. Many times.
5 Q. How many?
6 A. Four or five.
7 Q. Okay. So the first meeting you had with
8 Brandon McCarthy was in either 2009 or 2010?
9 A. Well, it wasn't a meeting. I just -- that's
10 when I met him.
11 Q. Okay. How many meeting have you had with
12 Brandon McCarthy?
13 A. I believe two.
14 Q. When was the first meeting with Brandon
15 McCarthy?
16 A. It was at K&L Gates.
17 Q. How long did that meeting last?
18 A. Approximately an hour maybe.
19 Q. Okay. And when was the first meeting -- strike
20 that .
21 When did the first meeting at K&L Gates
22 take pl ace?
23 A. I don't remember the date, but it was right
24 when -- it was pretty close to when he had started
25 there.
EXHlBIT 1
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1 Q. Okay. When was your second and final meeting
2 with Brandon McCarthy?
3 MR. DAVID BELL: Objection; form.
4 THE WITNESS: It was at a hotel downtown
5 with my -- with a friend of mine. And there was another
6 gentleman there. I forget the name of the hotel.
7 MR. DAVID BELL: Just asked you when, I
8 be 1 i eve.
9 THE WITNESS: When, probably within --
10 within three or four months of the original meeting, the
11 first one.
12 Q. (BY MR. JAMES BELL) Would you say around
13 December 2015?
14 MR. DAVID BELL: Objection; form.
15 THE WITNESS: I don't know.
16 Q. (BY MR. JAMES BELL) Okay. And so you had two
17 meetings with Brandon McCarthy. Just so the record is
18 cl ear. One at K&L Gates and one at a hotel downtown.
19 Would that be a true statement?
20 A. Yes.
21 Q. Okay. No other meetings that you can think of
22 as you sit here right now?
23 A. Not that I can recall at this moment.
24 Q. And how long did the second meeting last?
25 A. Maybe an hour, hour and a half.
EXHIBIT 1
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1 Q. Okay. And at the second meeting you had
2 brought your friend, Ms. Sanchez; is that true?
3 A. No.
4 Q. What was the name of the friend that you
5 brought to the meeting?
6 A. Her first name is Brooke.
7 Q. What's her last name?
8 A. I don't recall.
9 Q. You - - so she's - - she's a friend of yours, but
10 you don't recall her last name?
11 A. Well , there were four people there, total . I
12 can't recall her last name right now.
13 Q. So you can't recall the name of the -- the last
14 name of the friend that you brought to the meeting at
15 the hotel; is that true?
16 MR. DAVID BELL: Objection; form.
17 THE WITNESS: I didn't know her very well.
18 I mean I had just gotten to know her and -- and we met
19 Brandon and another guy that was friends with Brandon,
20 another attorney. But I don't recall , no.
21 Q. (BY MR. JAMES BELL) Okay. And at the second
22 meeting you were there to discuss business involving
23 Protect My ID?
24 A. Yeah, I think it's protectmyid.org.
25 Q. And so you --
EXHIBIT 1
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1 MR. JAMES BELL: What is it?
2 MR. McCARTHY: It's keep My ID.
3 Q. (BY MR. JAMES BELL) And at the second meeting
4 you talked about keepmyid.com and potentially doing a
5 commercial or some social media for keepmyid.com; is
6 that true?
7 A. It's keepmyid.org. But we discussed, you know,
8 different marketing -- you know, how to market the
9 business and how to get it out there and, you know, kind
10 of like LifeLock does. But yes, pretty much marketing
11 type stuff.
12 Q. So the purpose of the second meeting was to
13 market -- discuss marketing and get out the business of
14 keepmyid.org, correct?
15 MR. DAVID BELL: Objection; form.
16 THE WITNESS: Yeah, for the most part. I
17 mean that was the -- that was the reason for the
18 meeting, correct.
19 Q. (BY MR. JAMES BELL) Okay. Can you - - do you
20 remember anything else being discussed at that meeting,
21 at the second meeting?
22 A. Nothing that's relevant. Just, you know, what
23 people talk about when they're having a drink or
24 whatever. Just -- but, you know, nothing -- no other
25 kind of business or anything.
EXHIBIT 1
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1 a. Okay. As you -- as you sit here right now, can
2 you recall anything else you talked to Brandon McCarthy
3 about at the second meeting at the hotel downtown --
4 A. No.
5 a. where you --
6 Okay. Now, with respect the first meeting
7 at K&L Gates that lasted approximately one hour, is that
8 what you testified to?
9 A. Yes.
10 Q. Okay. You talked about a business you start --
11 started, White Collar Advisors; is that true?
12 MR. DAVID BELL: Objection; form.
13 THE WITNESS: We might have. But we talked
14 about other things. That wasn't the point of the
15 meeting.
16 a. (BY MR. JAMES BELL) Did you discuss White
17 Collar Advisors?
18 A. I mean I may have with him, I don't -- I don't
19 remember that.
20 a. Okay.
21 MR. DAVID BELL: Just tell him what you
22 remember. Don't tell him what you may have remembered,
23 please.
24 THE WITNESS: So can you repeat that?
25 a. (BY MR. JAMES BELL) Sure. What all did you
EXHlBIT 1
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1 say to Brandon at the first meeting at K&L Gates, the
2 first meeting you had with him?
3 A. Wel 1 , it was Gus He fl er and myself and we
4 talked about possibly doing a Qui Tam case against
5 Dustin Raul and Scott Shuster and however many companies
6 they have.
7 Q. And you discussed that with Brandon?
8 A. Yes.
9 Q. Okay. And what would be the basis for the
10 alleged Qui Tam case?
11 A. Possible criminal acts that -- that they were,
12 I guess, doing or conspiring to do.
13 Q. And you didn't have any personal knowledge of
14 that, correct?
15 A. Of what?
16 Q. Of any criminal acts that Scott Shuster Dustin
17 Raul were doing, true?
18 A. No, I didn't.
19 MR. DAVID BELL: Counsel, can we go off the
20 record for a second?
21 MR. JAMES BELL: No.
22 MR. DAVID BELL: Okay. So on the record, I
23 understand that represent Mr. Shuster and I'm perplexed
24 as to why you would you ask questions about Mr. Shuster,
25 if you do represent Mr. Shuster. I'd rather have this
EXHIBIT 1
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1 discussion with you off the record.
2 Q. (BY MR. JAMES BELL) So just -- so just so that
3 I'm aware, you -- you right now are on supervised
4 release. Would that be a true statement?
5 A. Correct.
6 Q. Okay. And part of your supervised release
7 standards are that you're not allowed to associate with
8 persons engaged in criminal activity, correct?
9 A. Correct.
10 Q. And you're not allowed to associate with folks
11 convicted of a felony, correct?
12 A. Correct.
13 Q. And you're not allowed to enter into any
14 agreements to act as an informer or special agent of a
15 law enforcement agency, correct?
16 A. Without permission, I'm not.
17 Q. That's right. Okay.
18 MR. DAVID BELL: Let me -- let me -- let
19 interject an objection here. I told you earlier that
20 I'm not going to allow the witness to testify about any
21 matters that aren't set out in your pleadings and I
22 don't see where any of these matters that you're asking
23 him for comments about, his criminal conviction or
24 anything else, are anywhere supported by anything in
25 your pleadings.
EXHIBIT 1
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1 MR. JAMES BELL: Okay.
2 Q. (BY MR. JAMES BELL) Have you ever gotten
3 special permission to act as an informer for the -- the
4 government?
5 MR. DAVID BELL: Objection. I'm not going
6 to allow him to testify about any matter that impedes
7 the attorney/client privilege. I'm not going to let him
8 testify about any meetings he had with any lawyer.
9 Q. (BY MR. JAMES BELL) Are you going to refuse to
10 answer that question?
11 A. Yes.
12 MR. DAVID BELL: And any other question
13 similar to the --
14 Q. (BY MR. JAMES BELL) Do you -- do you
15 understand what defamation is?
16 MR. DAVID BELL: Objection. Calls for a
17 legal conclusion. Objection; form.
18 THE WITNESS: Defamation, no.
19 Q. (BY MR. JAMES BELL) What is your understanding
20 of defamation?
21 A. I don't have an understanding.
22 Q. Okay. Have you ever made any false statements
23 about Brandon McCarthy?
24 A. No.
25 Q. Okay. Do you have any direct evidence or
EXHIBIT 1
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1 knowledge of facts that Brandon McCarthy has committed
2 any illegal conduct?
3 A. No.
4 Q. Do you have any direct evidence knowledge or
5 facts to support the position that Brandon McCarthy has
6 engaged in unethical conduct?
7 MR. DAVID BELL: Calls for a 1 egal
8 conclusion. Objection; form.
9 THE WITNESS: Meaning from myself
10 personally or people that I've spoken to on the phone
11 or
12 Q. (BY MR. JAMES BELL) I'm talking about direct
13 knowledge, sir.
14 A. From -- from a person that I know that called
15 me and told me what --
16 Q. I'm not asking your what a person called and
17 told. Remember we talked about direct knowledge versus
18 indirect?
19 A. Well, I don't have any direct knowledge, no.
20 Personally.
21 Q. I'm talking about what your personal knowledge
22 is. Okay. And that way we can keep - - we probably can
23 shorten this deposition a bunch. Is much that fair?
24 A. Yeah. That's cool.
25 Q. All right. That way maybe you can get out of
EXHIBIT 1
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1 here and your lawyer can get out of here.
2 So you don't have in direct evidence that
3 Brandon McCarthy engaged any wrongful conduct, true?
4 MR. DAVID BELL: Objection; calls for a
5 legal conclusion. Objection; form.
6 THE WITNESS: No.
7 Q. (BY MR. JAMES BELL) Well, maybe I asked you a
8 double negative. It would be a true statement to say
9 that you don't have any direct knowledge that Brandon
10 McCarthy engaged in any unlawful conduct. That would be
11 a true statement, correct?
12 MR. DAVID BELL: Calls for a legal
13 conclusion. Objection; form.
14 Q. (BY MR. JAMES BELL) Correct?
15 A. That would be correct.
16 Q. (BY MR. JAMES BELL) You don't have any direct
17 knowledge or evidence that Brandon McCarthy engaged in
18 any unethical conduct, correct?
19 MR. DAVID BELL: Calls for a legal
20 conclusion. Objection; form.
21 Q. (BY MR. JAMES BELL) Correct?
22 A. Give me a second to think. No, I don't.
23 Q. You don't have any direct knowledge or facts to
24 suggest that Brandon McCarthy engaged in any strike
25 that.
EXHlBIT 1
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1 You don't have any direct knowledge or
2 evidence that Brandon McCarthy breached any duties to
3 anybody, correct?
4 MR. DAVID BELL: Objection; form.
5 THE WITNESS: I do not.
6 Q. (BY MR. JAMES BELL) You don't have any direct
7 evidence or knowledge to suggest that Brandon McCarthy
8 defamed anybody, correct?
9 MR. DAVID BELL: Objection; form. Calls
10 for a legal conclusion.
11 THE WITNESS: That's correct.
12 Q. (BY MR. JAMES BELL) You don't have any direct
13 knowledge that Brandon McCarthy wasn't faithful to any
14 of hiss clients, correct?
15 MR. DAVID BELL: Objection; calls for a
16 legal conclusion. Form.
17 THE WITNESS: I do not.
18 Q. (BY MR. JAMES BELL) You don't have direct
19 knowledge that Brandon McCarthy harmed any of his
20 clients, correct?
21 A. I do not.
22 Q. You don't have direct evidence or kn owl edge
23 that Brandon McCarthy was deceptive towards any of his
24 client, correct?
25 MR. DAVID BELL: Objection; calls for a
EXHIBIT 1
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1 legal conclusion. Objection; form.
2 THE WITNESS: I do not.
3 a. (BY MR. JAMES BELL) You don't have direct
4 knowledge that Brandon McCarthy cheated any of his
5 clients, correct?
6 MR. DAVID BELL: Calls for a legal
7 conclusion. Objection; form.
8 THE WITNESS: No.
9 MR. JAMES BELL: Do you want a running
10 objection?
11 MR. DAVID BELL: No, I prefer to do it this
12 way. Thank you.
13 Q. (BY MR. JAMES BELL) You don't have any direct
14 evidence or knowledge that Brandon McCarthy defrauded
15 anybody, including any of his clients, correct?
16 MR. DAVID BELL: Objection; form. Calls
17 for a legal conclusion.
18 THE WITNESS: Correct.
19 Q. (BY MR. JAMES BELL) You don't have direct
20 knowledge that Brandon McCarthy betrayed any of his
21 clients or anybody, correct?
22 MR. DAVID BELL: Objection; form.
23 Objection; calls for a legal conclusion.
24 THE WITNESS: Correct.
25 Q. (BY MR. JAMES BELL) You don't have any
EXHlBIT 1
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1 knowledge -- strike that.
2 You don't have any direct knowledge or
3 evidence or facts to suggest that Brandon McCarthy
4 wasn't loyal to anybody or any of clients, correct?
5 MR. DAVID BELL: Objection; calls for a
6 legal conclusion. Objection; form.
7 THE WITNESS: Correct.
8 Q. (BY MR. JAMES BELL) You don't direct knowledge
9 that that or evidence that Brandon McCarthy didn't
10 have act with the utmost good faith towards any of his
11 clients, correct?
12 MR. DAVID BELL: Objection; form. Calls
13 for a legal conclusion. Objection.
14 THE WITNESS: Correct.
15 Q. (BY MR. JAMES BELL) You don't have any direct
16 knowledge and direct evidence that Brandon McCarthy
17 didn't act with candor towards any of his clients,
18 correct?
19 MR. DAVID BELL: Objection; calls for a
20 legal conclusion. Objection; form.
21 THE WITNESS: Correct.
22 Q. (BY MR. JAMES BELL) You don't have any direct
23 evidence that Brandon McCarthy engaged in any
24 self-dealing of any kind towards any of his clients or
25 anybody, correct?
EXHIBIT 1
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1 MR. DAVID BELL: Objection; form. Calls
2 for a legal conclusion.
3 THE WITNESS: Correct.
4 Q. (BY MR. JAMES BELL) You don't have any direct
5 knowledge that Brandon McCarthy didn't act with
6 integrity of the strictest kind towards any of any of
7 his clients or anybody, correct?
8 MR. DAVID BELL: Objection; form.
9 Objection; calls for a legal conclusion.
10 THE WITNESS: Correct.
11 Q. (BY MR. JAMES BELL) You don't have any direct
12 evidence that Brandon McCarthy wasn't fair to any of his
13 clients, correct?
14 A. Correct.
15 MR. DAVID BELL: Objection; form.
16 Q. (BY MR. JAMES BELL) You don't have any direct
17 evidence that Brandon McCarthy didn't act with the
18 utmost honest in dealing with his clients or anybody
19 else, correct?
20 MR. DAVID BELL: Objection; calls for a
21 legal conclusion. Objection; form.
22 THE WITNESS: Correct.
23 Q. (BY MR. JAMES BELL) You don't have any direct
24 evidence that Brandon McCarthy didn't fully disclose all
25 of the facts to all of his clients or to anybody else,
EXHIBIT 1
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1 correct?
2 MR. DAVID BELL: Objection; form.
3 Objection; calls for a legal conclusion.
4 THE WITNESS: Correct.
5 a. (BY MR. JAMES BELL) You don't have any direct
6 evidence or knowledge or facts to suggest that Brandon
7 McCarthy didn't act with fidelity towards his clients or
8 anybody else, correct?
9 MR. DAVID BELL: Objection; form.
10 Objection; calls for a legal conclusion.
11 THE WITNESS: Correct.
12 a. (BY MR. JAMES BELL) You don't have any direct
13 evidence that -- or facts to suggest that Brandon
14 McCarthy didn't act with care when he help dealt with
15 his clients or anybody else, correct?
16 MR. DAVID BELL: Objection; form.
17 Objection; calls for a legal conclusion.
18 THE WITNESS: Correct.
19 a. (BY MR. JAMES BELL) You don't have any direct
20 evidence or facts to suggest that Brandon McCarthy
21 wasn't fair and equitable in his dealings with any of
22 his clients or anybody else, correct?
23 MR. DAVID BELL: Objection; form.
24 Objection; calls for a legal conclusion.
25 THE WITNESS: Correct.
EXHIBIT 1
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1 Q. (BY MR. JAMES BELL) You don't have any direct
2 evidence strike that.
3 You don't have any direct evidence --
4 strike that.
5 You don't have any direct evidence or
6 knowledge to suggest that Brandon McCarthy made any
7 misrepresentations to any of his clients or anybody
8 else, correct?
9 MR. DAVID BELL: Objection; form.
10 Objection; calls for a legal conclusion.
11 THE WITNESS: Correct.
12 Q. (BY MR. JAMES BELL) You don't have any direct
13 evidence that Brandon McCarthy engaged in any type of
14 fraud, correct?
15 MR. DAVID BELL: Objection; form.
16 Objection; calls for a legal conclusion.
17 THE WITNESS: Correct.
18 Q. (BY MR. JAMES BELL) You don't have any direct
19 evidence that Brandon McCarthy breached any fiduciary
20 duties to any of his clients or anybody else, correct?
21 MR. DAVID BELL: Objection; form.
22 Objection; calls for legal conclusion.
23 THE WITNESS: Correct.
24 Q. (BY MR. JAMES BELL) You don't have any direct
25 evidence that Brandon McCarthy damaged any of his
EXHIBIT 1
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1 clients or anybody else, correct?
2 MR. DAVID BELL: Objection; form.
3 Objection; calls for a legal conclusion.
4 THE WITNESS: Correct.
5 Q. (BY MR. JAMES BELL) You don't have any direct
6 evidence that Brandon McCarthy acted with any ill will
7 towards of any of his clients or anybody else, correct?
8 MR. DAVID BELL: Objection; form.
9 Objection; calls for a legal conclusion.
10 THE WITNESS: Correct.
11 Q. (BY MR. JAMES BELL) You don't have any direct
12 evidence or knowledge to suggest that Brandon McCarthy
13 acted with any evil motive towards any of his clients or
14 anybody else, correct?
15 MR. DAVID BELL: Objection; form.
16 Objection; calls for a legal conclusion.
17 THE WITNESS: Correct.
18 Q. (BY MR. JAMES BELL) You don't have any direct
19 evidence that Brandon McCarthy acted with any kind of
20 malice towards any of his clients or anybody else,
21 correct?
22 MR. DAVID BELL: Objection; form.
23 Objection; calls for a legal conclusion.
24 THE WITNESS: Correct.
25 Q. (BY MR. JAMES BELL) You don't have any direct
EXHIBIT 1
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1 evidence or knowledge of any crimes Brandon McCarthy may
2 have allegedly committed, correct?
3 MR. DAVID BELL: Objection; form.
4 Objection; calls for a legal conclusion.
5 THE WITNESS: Correct.
6 Q. (BY MR. JAMES BELL) You don't have any direct
7 evidence that Brandon McCarthy was negligent in any way
8 towards any of his clients or anybody else, correct?
9 A. Correct.
10 MR. DAVID BELL: Objection; form.
11 Objection; calls for a legal conclusion.
12 Q. (BY MR. JAMES BELL) You don't have any direct
13 knowledge or evidence to suggest that Brandon McCarthy
14 was grossly negligent towards any his clients or anybody
15 else, correct?
16 MR. DAVID BELL: Objection; form.
17 Objection; calls for a legal conclusion.
18 THE WITNESS: Correct.
19 Q. (BY MR. JAMES BELL) You don't have any direct
20 evidence that Brandon McCarthy interfered with any
21 contractual relationships with any of his clients or
22 anybody else or any entities. That would be a true
23 statement, correct?
24 MR. DAVID BELL: Objection; form. Calls
25 for a legal conclusion. Objection.
EXHIBIT 1
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1 THE WITNESS: Correct.
2 Q. (BY MR. JAMES BELL) You don't have any direct
3 evidence that Brandon McCarthy willfully committed any
4 wrongful conduct, correct?
5 MR. DAVID BELL: Objection; form.
6 Objection; calls for a legal conclusion.
7 THE WITNESS: Correct.
8 Q. (BY MR. JAMES BELL) So can we -- is your basic
9 understanding of the word "defamation" it's a -- it's a
10 statement, whether written or oral, that tends to damage
11 somebody's reputation. Would -- would you agree with
12 that?
13 A. I would in sense that if it's a lie, correct.
14 Q. If it wasn't -- oh, I see. I see what you're
15 saying. Okay. Fair enough.
16 So it would be fair to say that you and I
17 can have an agreement that when we use the word
18 "defamation," it's -- it's a statement made by somebody
19 that causes harm to one's reputation, but -- but it's
20 not defamation it's if the truth?
21 A. That's my understanding.
22 MR. DAVID BELL: And I'm going to continue
23 to object that you're asking him to give a legal opinion
24 he's not qualified to make.
25 Q. (BY MR. JAMES BELL) Without giving a legal
EXHlBIT 1
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1 opinion, what is your understanding --
2 MR. DAVID BELL: So I'm objecting to your
3 question as to form.
4 MR. JAMES BELL: What is your understanding
5 of defamation based on our discussions and -- and your
6 living in world for I don't know how many years.
7 Thirty-three years, 34 years.
8 THE WITNESS: I wish.
9 MR. DAVID BELL: Objection; form.
10 Q. (BY MR. JAMES BELL) You're what?
11 A. Forty-six.
12 Q. Wow.
13 MR. DAVID BELL: How many did you say .
14 MR. JAMES BELL: I thought he was 33.
15 THE WITNESS: Appreciate that. My -- yeah,
16 my definition -- my definition would be, you know, to
17 say something about somebody that wasn't true.
18 Q. (BY MR. JAMES BELL) And harms their
19 reputation?
20 MR. DAVID BELL: Objection; form. Asks for
21 a legal conclusion.
22 Q. (BY MR. JAMES BELL) Or just saying a 1 i e about
23 somebody?
24 A. Yeah. If - - if somebody says that - - you know,
25 that Joe murdered somebody at the 7-Eleven last night
EXHIBIT 1
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1 and he really didn't and they print it in the paper
2 and and it was a lie, that to me is defamation. But
3 yeah.
4 Q. Okay. Are you aware of any defamatory
5 statements that Brandon McCarthy has made?
6 MR. DAVID BELL: Objection; form.
7 THE WITNESS: No.
8 Q. (BY MR. JAMES BELL) You don't have any direct
9 evidence of any misrepresentations Brandon McCarthy made
10 to anybody or any clients, correct?
11 MR. DAVID BELL: Objection; form.
12 Objection; calls for a legal conclusion.
13 THE WITNESS: Correct.
14 Q. (BY MR. JAMES BELL) Do you have any direct
15 evidence or knowledge that Brandon McCarthy breached any
16 contract towards any clients, anybody or any entity?
17 MR. DAVID BELL: Objection; form.
18 Objection; calls for a legal conclusion.
19 THE WITNESS: No.
20 Q. (BY MR. JAMES BELL) Have you ever had Brandon
21 McCarthy followed?
22 A. No.
23 Q. Have you ever had a private investigator on
24 Brandon McCarthy?
25 A. Absolutely not.
EXHIBIT 1
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1 a. Are you aware of anybody that's had a private
2 investigator on Brandon McCarthy?
3 MR. DAVID BELL: Objection to form.
4 THE WITNESS: No.
5 MR. JAMES BELL: Were you going to object
6 instruct not to answer that?
7 MR. DAVID BELL: No. Just
8 MR. JAMES BELL: Okay.
9 MR. DAVID BELL: You just don't have any
10 time in your question. You're asking all these
11 questions about what happened since the beginning of
12 time so I've had to object as to form.
13 Q. (BY MR. JAMES BELL) So you're not aware of any
14 private investigators that have investigated Brandon
15 McCarthy?
16 A. Private investigators? You mean like that are
17 privately hired in the public?
18 a. Sure.
19 A. No.
20 Q. Are you aware Of any other kind of
21 investigators?
22 A. Personally aware?
23 a. Yes.
24 A. No.
25 a. Okay. So you're not -- you're not aware of --
EXHIBIT 1
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1 okay. Are you -- so it would be fair to say that you've
2 never hired a private investigator to follow Brandon
3 McCarthy. That would be true?
4 A. Absolutely not. That's true. Absolutely true.
5 I've never hired anybody to do anything to Brandon
6 whatsoever.
7 Q. Okay. And do you wish i 11 wi 11 on Brandon?
8 A. No.
9 Q. Have -- are you aware of anybody that has hired
10 a private investigator on or did -- or somebody to
11 investigate Brandon McCarthy?
12 A. I am not.
13 Q. Okay. Do you have secondhand knowledge of
14 anybody privately investigating Brandon McCarthy or
15 publicly investigating Brandon McCarthy?
16 MR. DAVID BELL: Objection; form.
17 THE WITNESS: I mean had I an incident at a
18 restaurant where two guys walked up to me.and told me
19 that -- I was sitting there eating at Hillstone and this
20 guy put his hand on my shoulder and I kind of looked
21 around -- because it was kind of intimidating, you know,
22 he was real close to me and I looked like that
23 (indicating) and he said -- he said, Ryan, what's going
24 on? And I didn't know this guy. But I didn't want to
25 be rude because I thought maybe I do, you know, and he
EXHIBIT 1
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1 said I want you to know that Brandon McCarthy has a
2 connect at the IRS and this connect's going to get a guy
3 and they're going to investigate you. And and he
4 said don't worry, his own people are going to get him.
5 Don't worry about it. And walked off. And there was
6 another guy standing by the door and they both walked
7 off together (indicating). That's the only thing. It
8 was very strange.
9 Q. Did you get that person's name?
10 A. No.
11 Q. Okay. So -- just so that I understand the
12 facts. Somebody approached you in Hillstone restaurant
13 and said to you that Brandon McCarthy was having you
14 investigated? That's
15 A. They -- they specifically they said Brandon
16 McCarthy has a friend at the IRS, the friend won't be
17 doing the investigation, they're going to pass it to
18 another person and they're going to try to get you
19 fucked off. And he said don't worry about it because
20 Brandon's own people are going to get him and he walked
21 off. And I found -- I didn't know if he was trying to
22 intimidate me or if he was -- it was a very bizarre
23 conversation.
24 Because by the time I looked back to ask
25 who he was or figure it out, he was gone. And there was
EXHIBIT 1
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1 another guy standing by the door and they both walked
2 out together.
3 Q. Okay. So are you -- are you aware of Brandon
4 McCarthy trying to investigate you?
5 MR. DAVID BELL: Objection; form.
6 THE WITNESS: I mean I've heard from
7 numerous people that - -
8 Q. (BY MR. JAMES BELL) Let me say it a different
9 way.
10 A. Okay.
11 Q. Do you have any personal knowledge that Brandon
12 McCarthy is investigating you?
13 A. No.
14 Q. But you've heard from secondary sources that
15 Brandon McCarthy has -- is trying to investigate you or
16 is investigating you?
17 A. Yes.
18 Q, Who told you that?
19 A. A friend of mine named Carl Fleming called me
20 and said, hey, man, do you know Rob Castle and I said
21 no. And he said, we 11 , he's my attorney. And he said
22 he called me the other day and he was freaking out. And
23 I said okay. And he said, man, I need you to meet me
24 at this restaurant. I got to talk to you about Ryan
25 Reynolds and Carl is like I man, can we do it another
EXHIBIT 1
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1 time. He's like no, it's important. Right now.
2 So Carl said that he went down and met
3 whoever Rob Castle is and said he -- he seemed nervous
4 and seemed like this, you know, and he said, hey, man,
5 what's Ryan doing? We need some shit on him. We're
6 going to get him -- we're going to get him in trouble.
7 You know, give me some dirt on him. What's he doing
8 now? And Carl is like I have no idea.
9 And so I guess Rob worked -- I guess the
10 way I understood it was Rob was Carl 's attorney and then
11 Carl said, wel 1, can you help me with this matter - -
12 because I guess it was -- Rob wanted to talk about me
13 and he wanted to talk about some pending thing he had
14 going on. And Rob said, man, no, I'm -- you're --
15 you're fired. I'm not your attorney anymore. And he
16 goes, man, I just wanted to cal 1 you because that was
17 one of the weirdest things that -- that I've ever had
18 happened to me. And I say, man, I don't know. I don't
19 know Rob Castle, you know. So he goes do you know what
20 it and I -- and I told Carl, I said no.
21 Q. Are you -- strike that.
22 Do you have any direct evidence that
23 Brandon McCarthy failed to disclose any material
24 information or any information of any kind to any
25 clients or anybody else?
EXHIBIT 1
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1 MR. DAVID BELL: Objection; form.
2 Objection; asks for a legal conclusion.
3 THE WITNESS: No.
4 Q. (BY MR. JAMES BELL) Have you ever said that
5 Brandon McCarthy was a liar?
6 MR. DAVID BELL : Objection; form.
7 THE WITNESS: No.
8 Q. (BY MR. JAMES BELL) Have you ever said that
9 Brandon McCarthy has engaged in any unethical conduct?
10 MR. DAVID BELL : Objection; form. Calls --
11 no predicate. Calls for a legal conclusion.
12 MR. JAMES BELL: Let me ask it a different
13 way.
14 Q. (BY MR. JAMES BELL) Based on the fact that you
15 have no personal knowledge that Brandon McCarthy engaged
16 any unethical conduct, did you ever tell anybody that
17 Brandon McCarthy engaged in any unethical conduct.
18 MR. DAVID BELL: Objection; form.
19 THE WITNESS: I mean I've heard, you know,
20 what - -
21 MR. JAMES BELL : Answer my question,
22 please.
23 THE WITNESS: I don't know. I don't
24 remember. I mean maybe when these people have come to
25 me. I mean that's not the only story that I just told
EXHIBIT 1
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1 you about Cast 1 e. There's many more. So what I'm
2 saying is is I don't know if somebody comes to you and
3 says, hey, man, Brandon has got this hookup at the IRS
4 and be careful. You know, we heard this at a party from
5 these other IRS agents that he's going to get you -- you
6 know, try try to get you indicted. Could I have said
7 something then? Possibly. Do I remember, no.
8 Q. (BY MR. JAMES BELL) Okay. So just so I
9 understand -- and maybe deposition will be a lot shorter
10 than I thought.
11 MR. JAMES BELL: I'll object to my
12 side-bar. Do you want to sustain it?
13 MR. DAVID BELL: I don't have that power.
14 I would like to though. Thank you though.
15 MR. JAMES BELL: And I'll stipulate to --
16 if you object to my side-bar.
17 Q. (BY MR. JAMES BELL) So would you agree with
18 me, sir, that based on the fact -- strike that.
19 Based on the fact that you don't have any
20 personal knowledge or evidence that Brandon McCarthy
21 engage in any unethical or illegal conduct, you don't
22 recall ever saying that he engaged in any illegal or
23 unethical conduct. Would that be a fair statement?
24 MR. DAVID BELL: Objection; form.
25 Objection; calls for a legal conclusion.
EXHIBIT 1
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1 THE WITNESS: I don't know. I don't know
2 if I ever said, you know, maybe to all these people that
3 have been telling me these stories, I said, well --
4 well, I did to -- to Nathan Halsey.
5 a. (BY MR. JAMES BELL) What did you -- what did
6 you say to Nathan Halsey?
7 A. Well Nathan Halsey told me that Brandon sent
8 him to the FBI and had him wired up. I said, man, you
9 better be careful .
10 a. Okay.
11 A. I said you can't - - I - - I don't know if
12 Brandon did that or not. I'm not saying that he did.
13 I'm telling you what I heard secondhand. And I may have
14 said that's -- that -- you know, I may have said -- I
15 don't know if I've ever said anything I may have said
16 that's not right or whatever. But to be honest with
17 you, I always like Brandon as person. You know, I mean
18 I never -- I think he's a nice guy, you know. And so
19 this -- you know, when this whole thing got rolling,
20 whatever has been going on and -- and that thing, it
21 just seem to get crazier and crazier. And, you know, I
22 didn't -- you know -- but I don't know -- I don't recall
23 ever saying anything like, you know, Brandon's a crook,
24 criminal or anything like that. But I'm not saying I
25 haven't said, well, I -- I mean that's -- if that's
EXHIBIT 1
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1 true, that's not good. But never anything that I
2 rec a 11 .
3 MR. JAMES BELL: Sorry. I got to object as
4 nonresponsive, but I appreciate your answer.
5 Q. (BY MR. JAMES BELL) Let me just -- so that I'm
6 clear -- I can break this down. You've always liked
7 Brandon McCarthy, true?
8 A. I have.
9 Q. You always thought that Brandon McCarthy was a
10 nice guy irrespective of what you've heard from other
11 folks, at least based on your personal dealings with
12 him, correct?
13 A. Yes.
14 Q. And as you sit here right now, you don't recall
15 ever saying to somebody that Brandon committed any
16 criminal acts, correct?
17 A. No.
18 Q. I may have -- I'm wrong or did I ask a bad
19 question
20 A. No.
21 Q. a double negative. It could have been my
22 fault. And I apologize.
23 A. Say it one more time.
24 Q. Sure. You don't -- as you sit here right now,
25 you don't recall ever saying that Brandon engaged in any
EXHIBIT 1
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1 criminal conduct, saying that to anybody?
2 MR. DAVID BELL: Objection; form.
3 Q. (BY MR. JAMES BELL) Correct?
4 A. I have - - no, I - - correct. You' re correct.
5 Q. (BY MR. JAMES BELL) Okay. As you sit here
6 right now, you don't recall ever telling anybody that
7 Brandon has engaged in any unethical conduct based on
8 your personal knowledge, correct?
9 MR. DAVID BELL: Objection; form.
10 Objection; calls for a legal conclusion.
11 THE WITNESS: Not on my personal conduct,
12 but I - - but I - -
13 Q. (BY MR. JAMES BELL) Personal knowledge?
14 A. Well, just maybe secondhand knowledge. I said,
15 well, if that's true, I know that you're -- you can't do
16 that, you know, but not -- but I don't know from my
17 personal knowledge that Brandon was doing that. I'm
18 saying what these people told me -- if somebody said,
19 well, Brandon did this or, you know, he knows this
20 person at the IRS and he's trying to get you indicted, I
21 said you can't -- you can't do that.
22 And -- but I -- but I don't know personally
23 that Brandon has done this or -- but secondhand I may
24 have said that -- that you can't do that. But I've
25 never said that he's a crook or I think that's he's
EXHIBIT 1
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1 firsthand knowledge, I don't -- I don't know.
2 Q. You just said that if if whatever the second
3 or thirdhand people are saying to you is true , that
4 whatever they said would be messed up?
5 A. Right. And -- and I don't know that they are
6 true. But I just said if they -- if that scenario is
7 correct, then that's not right.
8 Q. Did you ever think about picking up the phone
9 and calling Brandon?
10 A. Well, not at that point because I felt like,
11 you know, I kind of felt like he was out to get me . So
12 I didn't want to you know, I just felt like I -- I
13 didn't think that would be smart because I feel like he
14 didn't like me or was mad at me for something he
15 perceived that I did. So no, I didn't.
16 Q. What made you think that Brandon was out to get
17 you?
18 A. Wel 1, mainly this - - you know, this supposed
19 IRS person that -- that Brandon was personal friends
20 with, supposedly was -- and I don't know this. This is
21 secondhand knowledge, but I heard -- I've heard this,
22 you know, more than once.
23 Q. Who did you hear it from?
24 A. I've heard it from two attorneys.
25 MR. DAVID BELL: Don't tell anything that
EXHIBIT 1
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1 you've heard from any attorneys, please.
2 THE WITNESS: Okay. And 1 et me think for a
3 second. And just that strange conversation that I had
4 at Hillstone with those -- with that guy.
5 Q. (BY MR. JAMES BELL) List for me all your
6 attorneys since 2015.
7 MR. DAVID BELL: Objection. I'm not going
8 let him answer any questions about who his attorneys are
9 or were.
10 Q. (BY MR. JAMES BELL) You're going to refuse to
11 answer my question regarding who your attorneys have
12 been since 2015?
13 A. Based on advice of my counsel, yes.
14 a. Okay. Who drafted your motion for protective
15 order?
16 A. Mr. Bell (indicating).
17 Q. There were Two motions filed; one by Mr. Bell
18 and one you filed pro se, correct?
19 MR. DAVID BELL: Objection; form.
20 THE WITNESS: Correct. But -- well, he
21 wrote it.
22 Q. (BY MR. JAMES BELL) So it's your sworn
23 testimony that Mr. Bell wrote the motion for protective
24 order that you signed pro se?
25 MR. DAVID BELL: I'm not going to allow him
EXHlBIT 1
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1 to answer any questions about his attorney/client
2 relationship.
3 Q. (BY MR. JAMES BELL) So you're going to refuse
4 answer my question about who drafted your motion for
5 protective order that you filed in this case?
6 A. Yes.
7 Q. And you're going to refuse to answer my
8 question when you first met with Mr. Bell?
9 A. Yes.
10 Q. Did any other attorneys, other than Mr. Bel 1,
11 have anything to do with the motion for protective order
12 that you filed in this case?
13 MR. DAVID BELL: I'm not going to allow him
14 to answer any questions about any relationship, meeting,
15 or anything to do with any attorney.
16 Q. (BY MR. JAMES BELL) Sir, are you going to
17 refuse to answer my question whether or not any other
18 attorneys helped you draft the motion for protective
19 order that you filed in this case prior to the motion
20 that Mr. David Bel 1 affixed his signature to?
21 A. To
22 MR. DAVID BELL: I'm not going to allow to
23 testify -- I'm sorry for interrupting.
24 MR. JAMES BELL: I just need to get -- let
25 me get a refusal from him.
EXHIBIT 1
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1 MR. DAVID BELL: I'm not going to allow him
2 to answer any question that relates to any conversation,
3 meeting, with any attorney.
4 MR. JAMES BELL: I don't want to know the
5 sum and substance of your meetings.
6 Q. (BY MR. JAMES BELL) The question
7 MR. DAVID BELL: James, I'm not
8 MR. JAMES BELL: I'm sorry for speaking
9 while you're interrupting me.
10 MR. DAVID BELL: That's fine. That's fine.
11 MR. JAMES BELL: Okay.
12 MR. DAVID BELL: I'm not going to allow him
13 to answer any question dealing with any conversation,
14 meeting, anything to deal with any attorneys he's
15 consulted.
16 MR. JAMES BELL: Okay.
17 Q. (BY MR. JAMES BELL) I don't want to know the
18 sum and substance of any meeting, conversation or
19 anything you had with an attorney. What are the names
20 of the attorneys that you have met with?
21 MR. DAVID BELL: I'm not going to allow him
22 to answer that question for the same reasons, that those
23 are all privileged communications.
24 MR. JAMES BELL: I'm not asking for the
25 communications.
EXHIBIT 1
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1 MR. DAVID BELL: I know that. He's not
2 going to testify.
3 MR. JAMES BELL: So even though you know
4 that I'm not asking for the -- the communications, you
5 are still going to instruct the witness not to answer my
6 question?
7 MR. DAVID BELL: I'll be instructing the
8 witness not to answer any question relating to dealing
9 with, naming, anything to do with any conversation
10 you've had with my attorney, as those conversations are
11 all privileged.
12 Now, if you can show me some law.
13 MR. JAMES BELL: You're -- you're missing
14 the boat. I'm not asking --
15 MR. DAVID BELL: I know that. I know what
16 you're asking. The record is clear what you're asking.
17 I'm just saying that if you've got some law
18 that suggests that my understanding of the law is
19 contrary to what the law is --
20 MR. JAMES BELL: It is. But that's --
21 that's --
22 MR. DAVID BELL: But I --
23 MR. JAMES BELL: we'll take it up
24 MR. DAVID BELL: I'd be glad
25 MR. JAMES BELL: We're going to
EllIBITI
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1 MR. DAVID BELL: No problem.
2 MR. JAMES BELL: We're going to take it up.
3 We'll take it up. We'll take it. That's all.
4 MR. DAVID BELL: Let me finish. Let me
5 finish. I 11 be glad to - -
I
6 MR. JAMES BELL: I don't want to do the
7 filibuster.
8 THE REPORTER: I need you to not talk at
9 the same time, please.
10 MR. DAVID BELL: Yes. Don't talk at the
11 same time.
12 Go ahead, please.
13 a. (BY MR. JAMES BELL) Okay. You're going to
14 refuse to answer my question about whether or not any
15 attorney helped you draft the pro se motion for
16 protective order you filed in this case?
17 MR. DAVID BELL: I'm --
18 a. (BY MR. JAMES BELL) Are you going to refuse to
19 answer that question?
20 MR. DAVID BELL: I'm --
21 THE WITNESS: Based on advice -- based on
22 advice of my counsel, yes.
23 a. (BY MR. JAMES BELL) Okay. And in that motion
24 for protective order you asked for attorneys' fee,
25 correct.
EXHIBIT 1
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1 A. Correct.
2 Q. Okay. Whose attorney fees were you attempting
3 to collect when you filed that motion for protective
4 order?
5 A. Mr. Bell's.
6 Q. No other attorney?
7 A. Huh-uh, no.
8 a. Even though you filed a motion pro se and asked
9 for attorneys' fees at that point in time, it's your
10 sworn testimony that the attorneys' fee you were asking
11 for when you filed your pro se motion for protective
12 order was the attorney's fee for Mr. Bell. Would that
13 be a true statement?
14 A. Yes.
15 MR. DAVID BELL: You've gone almost an
16 hour. In the next 10 or 15 minutes take a short break.
17 MR. JAMES BELL: Surely. Take five
18 minutes.
19 (Break taken)
20 Q. (BY MR. JAMES BELL) Going back to the first
21 meeting with Brandon McCarthy, tel 1 me al 1 the things
22 that you had discussed?
23 MR. DAVID BELL: Objection; form.
24 THE WITNESS: Well, we -- what -- Mr.
25 Kepler and I were there and what we were interested in
EXHIBIT 1
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1 was possibly getting Brandon's help or knowledge on how
2 to get a Qui Tam case going against Ronald Shuster,
3 et cetera. From what I remember, Brandon said he had to
4 do some background checks or, you know, where you have
5 to see if their clients -- you know, run a -- whatever
6 that's called.
7 Q. (BY MR. JAMES BELL) Brandon said he had the
8 run a conflicts check?
9 A. Yeah.
10 Q. Do you remember what other names you gave to
11 them that -- that day in terms of potential Qui Tams?
12 MR. DAVID BELL: Objection; form.
13 THE WITNESS: I don't.
14 Q. (BY MR. JAMES BELL) Do you remember the fact
15 you did give him some additional names? Like a
16 Southwest. Did you talk about Southwest?
17 Let me ask it a different way.
18 A. Is Southwest a business or a name?
19 Q. Do you recall discussing with Brandon McCarthy
20 the names of other businesses where you would like to
21 potentially pursue other Qui Tams?
22 A. I may have mentioned Donson Brooks. Maybe if
23 you can refresh my memory, I can -- I just don't
24 remember, you know, if -- if I mean I may have mentioned
25 Donson . He's -- he's a local guy that -- that I know
EXHIBIT 1
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1 has ripped off millions of dollars in -- you know, I may
2 have mentioned him because the dollar amount. But
3 unless you can refresh my memory, I don't.
4 Q. Did you discuss Progen at that meeting?
5 A. It's possible.
6 Q. As you sit here right now, you don't recall
7 discussing the name Progen at that meeting, correct?
8 A. I mean we discussed -- you know, I know that
9 there's a lot of different names, but I don't recall
10 Progen.
11 Q. So as you sit here right now, you don't recall
12 discussing Progen at that the first meeting with Brando
13 Mc Ca rt hy?
14 A. Correct.
15 Q. You don't recall discussing Progen with Brandon
16 McCarthy at the second meeting, correct?
17 A. Correct. I've never discussed Progen with
18 Brandon McCarthy.
19 Q. So -- just so the record is clear. You've
20 never discussed Progen with Brandon McCarthy, true?
21 A. True.
22 Q. And you were at the meeting trying to find out
23 how Qui Tams work, correct?
24 A. Correct.
25 Q. And did you have any direct evidence of any
EXHIBIT 1
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1 wrongdoing by anybody when you went to that first
2 meeting with Brandon McCarthy?
3 MR. DAVID BELL: Objection; form.
4 Objection; calls for a legal conclusion.
5 THE WITNESS: No.
6 Q. (BY MR. JAMES BELL) So when you showed up at
7 the first meeting with Brandon McCarthy, you had no
8 direct evidence, knowledge or facts to suggest that
9 anybody had committed any criminal or wrongful acts,
10 correct?
11 A. Correct.
12 Q. And the purpose of the meeting was to give the
13 names of folks that you and Gus potentially thought
14 might be engaging in criminal conduct, but y'all just
15 didn't have any evidence, correct?
16 MR. DAVID BELL: Objection; form.
17 Objection; calls for a legal conclusion.
18 THE WITNESS: Correct.
19 Q. (BY MR. JAMES BELL) And so at that meeting you
20 didn't give Brandon McCarthy any evidence of any
21 wrongdoing committed by Shuster, Raul, or anybody else
22 at that meeting, correct?
23 A. Correct.
24 Q. You didn't give Brandon McCarthy at that first
25 meeting, or any meeting for that matter, any evidence of
EXHIBIT 1
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1 criminal conduct, illegal conduct, unethical conduct, or
2 wrongful conduct of any kind,
3 MR. DAVID BELL: Objection; form. Calls
4 for a legal conclusion.
5 THE WITNESS: Correct. Again, correct.
6 None - -
7 Q. (BY MR. JAMES BELL) That --
8 A. -- none whatsoever. We didn't -- no, correct.
9 You're correct.
10 Q. We didn't - - you were going to say we didn't
11 have - - you and Gus had no evidence, correct?
12 A. Correct.
13 Q. And at that meeting you didn't discuss any - -
14 at that meeting you didn't discuss any facts or - - or
15 evidence about any wrongful conduct any parties that
16 that you that potentially would have been Qui Tam
17 defendants, correct?
18 MR. DAVID BELL: Objection; form.
19 Objection asks for a legal conclusion.
20 THE WITNESS: Correct.
21 Q. (BY MR. JAMES BELL) At that time neither you
22 nor Gus discussed any specifics with Brandon McCarthy
23 about any alleged wrongful conduct by Schuster Raul or
24 anybody or any other entities that you had brought up at
25 that meeting, correct?
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1 MR. DAVID BELL: Objection; asks for a
2 legal conclusion.
3 THE WITNESS: Correct.
4 Q. (BY MR. JAMES BELL) And Brandon told you he
5 had to run a conflicts check, correct?
6 A. Correct.
7 Q. And before he told you -- he had to run a
8 conflicts check before he could potentially or his firm
9 could potentially take on any case against anybody,
10 correct?
11 A. Correct.
12 Q. And you don't have any direct evidence that
13 Brandon McCarthy brought a Qui Tam or helped shop a Qui
14 Tam against Shuster Raul or any of those folks, correct?
15 MR. DAVID BELL: Objection; form.
16 Objection; asks for a legal conclusion.
17 THE WITNESS: Not -- correct. Not to my
18 knowledge.
19 Q. (BY MR. JAMES BELL) I want to make sure I got
20 a clear record because I ask double negatives and I
21 a pol ogi ze.
22 A. That's all right.
23 Q. Okay. You don't have any direct evidence,
24 knowledge or facts to suggest that Brandon McCarthy
25 shopped any Qui Tams against anybody, including, but not
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1 limited to Shuster Raul Express, R Express, Progen or
2 anybody, correct?
3 A. Correct.
4 MR. DAVID BELL: Objection; form.
5 MR. JAMES BELL: Pardon me?
6 THE WITNESS: Correct.
7 MR. JAMES BELL: Just give him - -
8 MR. DAVID BELL: Give me a little time
9 delay. One second.
10 THE WITNESS: All right.
11 Q. (BY MR. JAMES BELL) Did you or Kepler show
12 McCarthy any presentations at this meeting?
13 A. No.
14 Q. Did -- have you seen any -- actually, let me
15 back up. In your objections and motion for protective
16 order you said that you're a witness against Brandon
17 McCarthy in another matter. What matter are you
18 referring to? Especially if you don't have any personal
19 knowledge that he did anything wrong, what are you a
20 witness against Brandon McCarthy for?
21 A. We 11 - -
22 Q. If you don't know, you don't know.
23 A. Yeah. I don't know.
24 Q. Okay. So you don't know whether or not you're
25 a witness against Brandon McCarthy. True?
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1 A. I don't, no.
2 Q. It would be fair to say you don't know whether
3 or not you're a witness against Brandon McCarthy. True?
4 A. True.
5 Q. And when you said that, even though you said
6 you were a witness against strike that.
7 Even though you said you're a witness --
8 strike that.
9 What did you mean when you said you were a
10 witness against the plaintiff, meaning Brandon McCarthy,
11 in another matter? Or is that just a mistake that you
12 made in the pleading that you signed?
13 A. Wel 1 , I don't know of any you know, I don't
14 know of any what it potentially would be. But 1 i ke I
15 said, a 1 ot of it comes down to all of the stuff going
16 on with what I've been hearing about the IR I mean I
17 don't know. I guess I - - I don't know. So
18 Q. The IRS?
19 A. Well, I mean as far as what I've been hearing
20 that he's been trying to do to me. But as in a is in
21 another case or whatever, I don't know anything no, I
22 don't know that I'm a witness in any case against him.
23 Q. Okay. So you don't have any facts that he's --
24 well, let -- let me ask you this question.
25 Are you aware of the IRS investigating
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1 Brandon McCarthy?
2 A. No.
3 Q. Okay. So are you aware of any case against
4 Brandon McCarthy?
5 A. No.
6 Q. Are you aware of any investigation against
7 Brandon McCarthy?
8 A. Directly?
9 Q. (Indicates.)
10 A. No.
11 Q, Do you have any indirect knowledge against any
12 investigation against Brandon McCarthy, other than what
13 you learned at Hillstone and from that other guy?
14 A. No. Basically what that guy told me.
15 Q. So - -
16 A. I don't even know who the guy is. So it's
17 just - -
18 Q. Hearsay?
19 A. Yeah.
20 Q, So at - - as it stands right now -- you're not
21 aware of being a witness against Brandon McCarthy in
22 other matter, case, investigation. True?
23 A. True.
24 MR. DAVID BELL: Objection; form.
25 Q. (BY MR. JAMES BELL) You don't have any direct
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..
1 evidence that Brandon McCarthy is trying to get you
2 criminally prosecuted, correct?
3 A. Correct.
4 Q. Did you consider Brandon McCarthy your friend?
5 A. Yes.
6 Q. Do you think -- strike that.
7 Do you know whether or not Brandon McCarthy
8 has been harmed?
9 A. I don't know --
10 MR. DAVID BELL: Calls for a legal
11 conclusion. Objection; form.
12 THE WITNESS: I don't know because I don't
13 know the facts of everything. Like I said, all I've --
14 the stuff I heard is all from, you know, Carl Fleming,
15 the guy at Hillstone. Not directly.
16 Q. (BY MR. JAMES BELL) Well, he's no longer at
17 K& L Gates , r i g ht?
18 A. Right.
19 Q. Okay.
20 A. From what I heard.
21 Q. Okay. And did you have any -- did you --
22 strike that.
23 Let me ask you this question.
24 Have you had any contact with K&L Gates?
25 A. Yes.
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1 Q. Okay. And did you -- what did you tell K&L
2 Gates about Brandon McCarthy?
3 A. What I heard from Nathan Halsey.
4 Q. And how many times have you met with K&L Gates?
5 A. I've never met with them. This was on the
6 phone.
7 Q. Okay. How many ti mes have you had a - - been on
8 the telephone call with K&L Gates?
9 A. One time (indicating).
10 Q. Who did you speak to at K&L Gates?
11 A. I don't even remember.
12 Q. Who were you with on the phone call?
13 (Phone rang)
14 MR. DAVID BELL: I'm sorry.
15 (Pause in proceedings)
16 Q. (BY MR. JAMES BELL) Who was with you when you
17 were on the phone call with K&L Gates or did they call
18 you directly?
19 A. No, it was a set up call and two attorneys were
20 with me.
21 Q. What are the names of those attorneys?
22 MR. DAVID BELL: Don't answer any questions
23 about any attorneys that have represented you or given
24 you legal advice.
25 THE WITNESS: On the advice of counsel I'm
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1 going to
2 Q. (BY MR. JAMES BELL) Are you going to refuse to
3 answer the question about who you were on the call with
4 to K&L Gates regarding K&L Gates' investigation of
5 Brandon McCarthy?
6 MR. DAVID BELL: Objection; form.
7 THE WITNESS: Yes.
8 Q. (BY MR. JAMES BELL) What did Nathan Halsey --
9 strike that.
10 What did -- what did you tell K&L Gates
11 about what Nathan Halsey told you?
12 MR. DAVID BELL: Objection; form.
13 THE WITNESS: Nathan told me that Brandon
14 sent him -- that -- well, what was going on with Nathan
15 was this, was that he had
16 MR. DAVID BELL: Just answer his question.
17 THE WITNESS: Okay.
18 MR. JAMES BELL: That's all right. You can
19 start wherever you want.
20 MR. DAVID BELL: Just answer his question.
21 THE WITNESS: Okay. Repeat that one more
22 ti me.
23 Q. (BY MR. JAMES BELL) Sure. What did you tell
24 K&L Gates -- strike that.
25 You didn't have any personal knowledge of
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:
1 any wrongdoing to give to K&L Gates, correct?
2 A. Correct.
3 a. And so you discussed what Nathan Halsey
4 allegedly told you about Brandon McCarthy, right?
5 A. Correct.
6 a. Okay. What did Nathan Halsey tell you about
7 Brandon McCarthy?
8 A. That he sent him to the FBI to meet with an FBI
9 agents - - or agent and that he had been sent out to get
10 information on Shuster Raul, et cetera. And he said
11 that the third time that he went down there to get the
12 wire - - because they wanted more information that the
13 agent - - Nathan was real worried because he said the
14 agent was like we don't need you anymore, we don't have
15 any wires down there. And I said that's not true. They
16 got plenty of wires down there, Nathan.
17 And he, man, it's just weird because I was
18 giving them all this good information and then all of a
19 sudden they told me to go home. And I said -- I just
20 told him I wouldn't be messing with those people. I
21 said I don't know -- you know he was concerned about an
22 SEC case that he had and he was concerned about it going
23 criminal. And so, you know, I think he felt like he
24 needed to do something.
25 But he told me that -- that Brandon had
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1 directed him down there or maybe told him who to go to,
2 I'm not sure. Do but that's basically what Nathan told
3 me.
4 Q. It is possible that you could be confused about
5 who Nathan Halsey was getting wired up for? Is that --
6 let me state it a different way.
7 Are you aware or not aware that Nathan
8 Halsey was wired up, got a tape recording of Mr. Bob
9 Miller from Trilogy Pharmacy? Are you aware of that?
10 A. Is he Asian? The -- an Asian guy?
11 MR. JAMES BELL: If I don't know if he's an
12 Asian or not. Trilogy though.
13 THE WITNESS: Trilogy. I -- I don't
14 remember exactly, you know, because -- like I said,
15 those -- it all gets kind of convoluted to me. All
16 there's so many different companies and people. So ...
17 Q. (BY MR. JAMES BELL) I -- I get that there is
18 and I'm here is the deal. I get a chance to take
19 your depo, you' re under oath, I just want to
20 A. All right. Ask me one more time.
21 Q. If you don't know, it's cool.
22 A. Okay.
23 Q. I don't care and then I'm -- I'm moving on.
24 A11 right .
25 Is it possible that Nathan Halsey when he
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1 told you that he got wired up and was talking to the FBI
2 and made a recording, it was for -- it was of a man
3 named Mr. Bob Miller from Trilogy? Is that possible?
4 A. Ab sol utel y.
5 MR. DAVID BELL: Objection; form.
6 MR. JAMES BELL: What's that?
7 THE WITNESS: Absolutely.
8 MR. DAVID BELL: Objection; form.
9 Q. (BY MR. JAMES BELL) Okay. So if that's
10 possible, it's also possible that Nathan didn't tell you
11 that he was wired up for Shuster R Express, et cetera,
12 correct?
13 MR. DAVID BELL: Objection; form.
14 THE WITNESS: Correct.
15 Q. (BY MR. JAMES BELL) Okay. And so you don't
16 know whether or not Halsey was meeting with FBI
17 regarding the Trilogy case, correct?
18 A. Correct.
19 Q. You don't have any direct evidence that Halsey
20 was meeting with any law enforcement folks regarding
21 Raul Shsuter or any of those folks, correct? You don't
22 have direct knowledge of that, correct?
23 A. Well, I didn't -- the D.0.D. came to his house
24 and took his phone, but I wasn't there.
25 Q. You don't have any direct knowledge that --
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1 that Nathan Halsey was cooperating with law enforcement
2 regarding Shuster Raul or any of those folks, correct?
3 A. Correct.
4 Q. Okay. And are you aware, sir, that the reason
5 why the DOD came to his house and got his phone was for
6 a recording that he had with Mr. Bob Miller from Trilogy
7 Pharmacy? Were you aware of that?
8 A. No.
9 Q. Is that news to you?
10 A. Yes. He explained it differently to me. So
11 that's news to me yes, if that's true.
12 Q. Okay. And -- well, let me ask you this
13 question.
14 Is it possible that you remembered it
15 differently?
16 A. No, he -- I mean Nathan told me that DOD called
17 him he called Reid Prosper and said they wanted his
18 phone and Reid said, well, let me look at it and I'll
19 call you back. And he said the next morning at
20 5:00 a.m. they showed up and got his phone.
21 Q. With a search warrant?
22 A. Yes.
23 Q. And so
24 MR. JAMES BELL: I don't know -- I'm
25 bleeding right there.
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1 MR. DAVID BELL: It's self-inflicted, let
2 the record reflect.
3 Q. (BY MR. JAMES BELL) Okay. So - - so you're
4 not you don't have any direct evidence that Halsey
5 and Brandon were shopping a Qui Tam against Shuster Raul
6 or any of those folks, correct?
7 MR. DAVID BELL: Objection; calls for a
8 legal conclusion. Objection; form .
9 THE WITNESS: Correct.
10 Q. (BY MR. JAMES BELL) And at some in point in
11 time Halsey -- are you aware of whether or not Halsey
12 did file a Qui Tam case?
13 A. I'm not.
14 Q. Do you know whether or not Halsey filed a Qui
15 Tam case against the Trilogy Pharmacy?
16 A. Not that I'm aware of.
17 Q. Is it possible that you mixed up Trilogy,
18 Express, different pharmacies, just because there's a
19 lot going on, like you said earlier?
20 A. It's possible. But Halsey's deal was not -- he
21 was more worried about, you know, he showed me his
22 complaint with the SEC and I told him that in my opinion
23 this is a -- could possibly be referred to Department of
24 Justice. But he was more concerned with all of that I
25 mean than -- so the answer to your question is it's
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1 possible, I don't know what he was looking at doing.
2 But -- but from my perspective, he was more trying to
3 get himself out of trouble than anything else that
4 concerns any companies or any other individuals,
5 including a Qui Tam case.
6 Q. So Halsey was more concerned about getting
7 himself out of trouble with the SEC, right?
8 A. Wel 1 , and - - and not and - - and hoping that - -
9 you know, not be referred to the Department of Justice.
10 So both of those. I think -- so yes, correct, the SEC.
11 Q. And so -- and in terms of you repeating what
12 Halsey says, you would agree with me that it gets fuzz
This text is long and has been trimmed here. Open the source document for the complete record.