Opinion

the Dallas Morning News, Inc. and Kevin Krause v. Lewis Hall and Richard Hall, Individually and on Behalf of Rxpress Pharmacies and Xpress Compounding

Court
Texas Supreme Court
Filed
Dec 21, 2017
Status
Published
Cited by
0 cases
Authority
More cited than 4.1%

declining to take judicial notice in part stating reluctance of appellate courts to take notice of matters when the trial court was not requested to do so and had no opportunity to examine the source material

How later courts described this case

  • declining to take judicial notice in part stating reluctance of appellate courts to take notice of matters when the trial court was not requested to do so and had no opportunity to examine the source material

Written by the judges who cited it.

The opinion

FILED

17-0637

12/21/2017 3:18 PM

tex-21442581

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’ RESPONSE TO PETITION FOR REVIEW

______________________________________________________________

Robert J. Myers MYERS ✯LAW

State Bar No. 14765380 2525 Ridgmar Blvd., Ste. 150

rmyers@myerslawtexas.com Fort Worth, TX 76116

John J. Shaw Tel: (817) 731-2500

State Bar No. 24079312 Fax: (817) 731-2501

jshaw@myerslawtexas.com

TABLE OF CONTENTS

Table Of Contents ..................................................................................................... ii

Index Of Authorities ................................................................................................ iii

Statement Of Facts .....................................................................................................1

A. Introduction......................................................................................................1

B. The Dallas Morning News Articles .................................................................2

C. The Aftermath of the Articles: The Lawsuit and Subsequent Search .............5

Summary Of The Argument ......................................................................................6

Argument....................................................................................................................8

I. Response to Issue 1: The Court of Appeals Correctly Applied the

Substantial Truth Test and the TCPA’s Burden-Shifting Framework ................8

A. The Court of Appeals did not err in holding the first gist was not

substantially true ..............................................................................................8

B. The Court of Appeals correctly applied the TCPA’s burden-shifting

framework ......................................................................................................10

II. Response to Issue 2: The Court of Appeals Correctly Applied the

“Ordinary Reader” Standard and the Substantial Truth Test .............................10

III. Review is not Warranted Based on a Bare Assertion that Respondents’

Evidence was “False” .........................................................................................13

Conclusion and Prayer .............................................................................................18

Certificate Of Compliance .......................................................................................20

Certificate Of Service...............................................................................................21

Index to Appendix ....................................................................................................22

ii

INDEX OF AUTHORITIES

State Cases

AOL, Inc. v. Malouf, 05-13-01637-CV,

2015 WL 1535669 (Tex. App.—Dallas Apr. 2, 2015, no pet.) .............................9

Basic Capital Mgmt., Inc. v. Dow Jones & Co., Inc.,

96 S.W.3d 475 (Tex. App.—Austin 2002, no pet.)................................................9

D Magazine Partners, L.P. v. Rosenthal,

529 S.W.3d 429 (Tex. 2017) ................................................................... 10, 11, 12

Freedom Communications, Inc. v. Coronado,

372 S.W.3d 621 (Tex. 2012) ......................................................................... 16, 17

Guyton v. Monteau,

332 S.W.3d 687 (Tex. App.—Houston [14th Dist.] 2011, no pet.) .....................17

In re Lipsky,

460 S.W.3d 579 (Tex. 2015) ............................................................................9, 10

In re Lowe's Home Centers, L.L.C., 13-16-00493-CV,

2017 WL 3205522 (Tex. App.—Corpus Christi July 28, 2017, no pet.) .............16

Inwood Forest Cmty. Improvement Ass'n v. Arce,

485 S.W.3d 65 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) ................14

KBMT Operating Co., LLC v. Toledo,

492 S.W.3d 710 (Tex. 2016) ............................................................................9, 10

Neely v. Wilson,

418 S.W.3d 52 (Tex. 2013) ..................................................................................12

Office of Pub. Util. Counsel v. Pub. Util. Com'n of Texas,

878 S.W.2d 598 (Tex. 1994) ................................................................................16

SEI Bus. Sys., Inc. v. Bank One Texas, N.A.,

803 S.W.2d 838 (Tex. App.—Dallas 1991, no writ) ...........................................15

Tran v. Fiorenza,

934 S.W.2d 740 (Tex. App.—Houston [1st Dist.] 1996, no writ) .......................17

iii

Turner v. KTRK Television, Inc.,

38 S.W.3d 103 (Tex. 2000) ..................................................................................12

State Statutes

Tex. Civ. Prac. & Rem. Code Ann. § 27.003 (West) ..............................................14

Tex. Civ. Prac. & Rem. Code Ann. § 27.005 (West) ..............................................10

Tex. Civ. Prac. & Rem. Code Ann. § 27.006 (West) ..............................................10

Tex. Civ. Prac. & Rem. Code Ann. § 27.008(a) (West) ..........................................14

Tex. Civ. Prac. & Rem. Code Ann. § 73.002(a); (b)(1)(A) (West) .........................13

Tex. Civ. Prac. & Rem. Code Ann. § 73.005 (West) ..............................................12

State Rules

Tex. R. Evid. 201(b).................................................................................................16

Texas Rule of Appellate Procedure 9.4(i)(1) ...........................................................20

Texas Rule of Appellate Procedure 9.4(i)(2) ...........................................................20

iv

STATEMENT OF FACTS

A. Introduction

Respondents are founders of RXpress Pharmacy (“RXpress”), a

pharmaceutical compounding company with headquarters in Tarrant County,

Texas. CR 566. Respondent Lewis Hall is a state-licensed pharmacist and has been

practicing pharmacy for over 40 years. CR 566. Respondent Richard Hall has

operated the business affairs of Lewis’ pharmacy business over the years. CR 566.

In 2013, the Halls determined to enter into a partnership/joint venture with

Scott Schuster and Dustin Rall. Both Schuster and Rall had experience in medical

sales and marketing. CR 381–82. The initial concept and structure of the venture

was straightforward, Rall and Schuster’s role in the venture was to sell the

compounded prescription product concept to doctors who would prescribe the

medication for their patients. CR 381. The business plan was for the pharmacy,

under Lewis's medical direction and Richard’s management, to fill the

prescriptions for patients, bill the insurance providers for the cost, and generate a

profit, which all four venturers would share in equally. CR 381.

Following the formation of the venture, RXpress experienced a sustained

period of successful operation and growth. Respondents became involved in a

dispute with their business partners about business practices and the handling of

fiscal matters. CR 569. Respondents sued the business partners in a public lawsuit.

1

Nothing in the lawsuit alleged or suggested that the Pharmacy was or is guilty of

any crime or criminal activity. Rather, the allegations of wrongdoing were leveled

at Respondents’ business partners and companies that they owned. CR 569.

Even before Respondents’ disputes with their partners had begun, the United

States Department of Defense had begun to investigate and even “raid” certain

unscrupulous pharmaceutical companies in Mississippi, Alabama and, eventually,

Texas. These investigations and raids were prompted by suspicion or proof of said

companies committing widespread fraud against the federal government.

“TriCare,” the effective benefits examiner arm of the federal government, was the

instigator of investigations where fraud was suspected. Needless to say, revelations

of “investigations,” much less the “raids,” were the death-knell of the targeted

companies. CR 80–89.

B. The Dallas Morning News Articles

From February through March 2016 The News published a series of articles,

many of which were almost exclusively about RXpress.

i. The February 5th and 6th Articles

The initial article was published on February 5, 2016 at 11:05 p.m. on the

Dallas Morning News website. The article was titled, “North Texas pharmacy in

federal probe is accused of paying kickbacks to doctors.” The article was

republished in the print version of the Dallas Morning News the following morning

2

on the front page under the title, “Drug kickbacks alleged; doctor-pharmacy ties’

legality questioned in lawsuits, investigations.” The continuation of the article on

page 2A carried the title, “Compounder faces scrutiny.” The articles continue to

make various statements that Respondents have conducted their business in the

same manner as others in the compounding industry that have been found to have

committed criminal and civil wrongs. CR 80–89.

ii. The February 9th, 10th, and 11th Articles

The February 9th article1 was published online in the “Crime” section,

specifically as part of the “Crime Blog.” The article primarily discusses a new

Texas law that enables pharmacy regulators access to pharmacy financial records.

The article makes one statement about RXpress: “RXpress Pharmacy of Fort

Worth is currently being investigated for possible violations of federal law by the

Department of Defense due to its use of Tricare money. Tricare is a health

insurance program for the military, similar to Medicare.” This particular online

version contained a hyperlink to the February 5th article. The February 10th

version 2 was featured in a different section online under a different title, but this

article contained no hyperlink to the February 5th article. The February 11th

version 3 was published in the print edition under yet another title.

1

CR 98.

2

CR 105.

3

CR 112.

3

iii. February 24th Article

The February 24th Article4 was published on The Dallas Morning News

Crime Blog. The article was entitled “Dallas firm that marketed compounded pain

creams busted in massive health care fraud, kickback case.” The article proceeded

to describe the indictment and arrest of the principals of a pharmaceutical

marketing company for a massive $65 million healthcare fraud scheme involving

TriCare. After describing the individuals, their criminal actions, and two

pharmacies implicated in the fraud, Petitioners included the following statement:

“It is the first federal indictment in North Texas in connection with the

government's largescale criminal investigation into compounding pharmacies and

their marketing operations that have received Tricare money. The Dallas Morning

News recently reported that a Fort Worth compounding pharmacy is under

investigation in connection with similar allegations.” The text in bold contained a

hyperlink to the defamatory February 5th article.

iv. The March 11th and 13th Articles

The March 11th article5 was published on The Dallas Morning News Crime

Blog. The article is titled, "North Texas compounding pharmacy under federal

scrutiny was booted from private network over fraud concerns." That article was

4

CR 115–122.

5

CR 129–36.

4

republished on March 13th 6 at B1 of the print edition of The Dallas Morning News

under the title "Pharmacies booted over fraud concerns; Audit reveals errors at

compounders under federal scrutiny.” The article generally mirrors the original

February 5th and 6th articles, only this article adds statements regarding

Respondent Xpress Compounding and its lawsuit involving a dispute with a

pharmacy benefits manager.

C. The Aftermath of the Articles: The Lawsuit and Subsequent Search

Following the publication of the series of articles, RXpress’s business

declined rapidly. RXpress went from filling hundreds of prescriptions per day to

only a few. CR 569. RXpress filed suit against The News on March 17, 2016. CR

6–21. The News filed a motion to dismiss under the Texas Citizens Participation

Act (“TCPA”). The trial court denied the motion and the court of appeals affirmed.

On September 15, 2016, almost eight months after publication of the first

article, the Defense Criminal Investigative Service of the Department of Defense

searched Respondents’ offices pursuant to a search warrant. 7 Respondents also

discovered that Petitioner Krause’s role in publishing the articles was less than

passive. As the hearing on The News’ motion had occurred, and without the ability

6

CR 138–41.

7

The News makes much about this event. However, no effort is made to cite any authority to

support the suggestion that subsequent events somehow make the eight-month-old publications

“true.” By the time the subsequent search occurred, the damage to Respondents was done and the

businesses effectively shut down. Moreover, this event happened at such a time after the hearing

on the motion to dismiss. The record in this case was set and the only thing remaining was for

the trial court to rule.

5

to conduct meaningful discovery, RXpress had only one choice but to notify the

trial court of facts that had come to light implicating The News’ role, along with

Nathan Halsey, the primary source for the news reports, by filing an advisory to

the court and parties. CR 979–1086. It became apparent that the stories were

nothing more than a ruse to assist Halsey, with the help of a lawyer from a law

firm that previously represented RXpress, in filing what he hoped would become a

lucrative qui tam lawsuit involving RXpress.8

SUMMARY OF THE ARGUMENT

This defamation case arises from a series of articles written by Dallas

Morning News reporter Kevin Krause and published in both the online/electronic

and print editions of the paper in February and March 2016. Petitioners have truly

avoided what is and should be central to this Court's de novo review—what is the

gist of the stories? Despite Petitioners’ statements to the contrary, accurately

reporting third-party allegations by weaving them together into a cloth that casts a

substantially false and defamatory shadow over Respondents is still actionable.

8

The News asserts that Respondents’ “advisory” was bizarre and unsupported. Respondents have

just discovered court records and testimony from a lawsuit initiated by a former K&L Gates

lawyer, which directly supports the factual matters stated in Respondents’ Advisory. Concurrent

with this response, Respondents are filing a Conditional Motion for Judicial Notice of Court

Records. 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. Those records are also included here as Appendix Tabs A–E. For ease of reference,

Tab E is simply excerpts of the most relevant portions of the rather voluminous records.

6

The series of DMN articles catapulted Respondents to the forefront of an

alleged controversy in which they previously had no involvement. Overnight,

Respondents found themselves falsely associated with pharmacies and drug

companies that had been found culpable for producing unsafe prescriptions and

accused of committing criminal healthcare fraud related to Tricare. The truth and

reality, however, is that at the time of publication, Respondents’ only fault was

owning and operating a successful business in an industry that had recently come

under scrutiny. There was absolutely no basis for Petitioners to drag Respondents

into the spotlight and falsely paint them with the same brush as the "bad apples" of

the industry actually found to have committed various criminal and civil violations

primarily related to Tricare fraud. Neither the Texas or U. S. constitutions, nor

Texas statutory law, shields Petitioners from cherry-picking "allegations" from

unrelated civil lawsuits and juxtaposing those "facts" with unsupported allegations

of criminal conduct and call it privileged or true.

The court of appeals applied the correct legal and evidentiary standards in its

de novo review of the trial court’s denial of The News’ motion to dismiss. As there

is not error, The News’ petition should be denied and this case remanded back to

the trial court to continue in the normal course.

7

ARGUMENT

I. RESPONSE TO ISSUE 1: THE COURT OF APPEALS CORRECTLY APPLIED THE

SUBSTANTIAL TRUTH TEST AND THE TCPA’S BURDEN-SHIFTING

FRAMEWORK

The News goes to great lengths to ignore the fact that the court of appeals set

forth and applied the relevant legal standards applicable to this case. Op. at 7–10.

The News further misconstrues the court of appeals’ opinion regarding its analysis

of the evidence on the issue of whether the first “gist” of the stories is substantially

true. Pet. at 9–11. The court of appeals’ analysis of the evidence properly

considered and applied applicable precedent in reaching its conclusion that

RXpress presented clear and specific evidence that the publications are not

substantially true. Op. at 15–20.

A. The Court of Appeals did not err in holding the first gist was not

substantially true

The News argues that the February 2016 Search Warrant alone establishes

the substantial truth that RXpress was under investigation.9 As the court of appeals

recognized, however, the inquiry does not end there. Op. at 16–20. A

determination of whether the “gist” of a publication is substantially true is

determined by an evidentiary analysis. The News argues that the media are

accorded “breathing space” to report on official proceedings. Pet. at 8. While such

a general statement may be true, the authorities The News cites in support are

9

This is an about face from The News’ consistent position in the courts below that the Search

Warrant established the “literal” truth of the statement.

8

distinguishable. KBMT Operating Co., LLC v. Toledo, 492 S.W.3d 710 (Tex.

2016), AOL, Inc. v. Malouf, 05-13-01637-CV, 2015 WL 1535669 (Tex. App.—

Dallas Apr. 2, 2015, no pet.), and Basic Capital Mgmt., Inc. v. Dow Jones & Co.,

Inc., 96 S.W.3d 475, 481–82 (Tex. App.—Austin 2002, no pet.) all involve fully

developed judicial or official proceedings involving the government. In this case,

at the time the articles were published, The News had only a picture of one

substantive page of a sealed search warrant that referenced Respondents. There

was no developed record. There were no direct or indirect allegations against

anyone mentioned in the Search Warrant.

The February Search Warrant was the only piece of evidence The News

relied upon to prove the “truth” of its reports. The News incorrectly argues that the

court of appeals applied the “ordinary reader” test to the February Search Warrant.

The court of appeals did no such thing. Recognizing the circumstantial nature of

the evidence, the court of appeals applied an evidentiary analysis guided by this

Court’s holding in In re Lipsky, 460 S.W.3d 579, 591 (Tex. 2015), and determined

that the February Search Warrant was some evidence of falsity. Op. at 16–17.

When considered along with the evidence submitted by RXpress, the court held

that the statement that RXpress was “under investigation” for healthcare fraud was

not substantially true.

9

B. The Court of Appeals correctly applied the TCPA’s burden-shifting

framework

The News’ argument that the court of appeals misapplied the TCPA’s

burden-shifting framework is less than clear. Under the TCPA, the burden shifts to

the nonmovant once the movant establishes that the TCPA applies to the legal

action at issue. Tex. Civ. Prac. & Rem. Code Ann. § 27.005 (West). The court of

appeals recognized that the parties did not dispute that the TCPA applies to this

case. Thus, the burden shifted to RXpress at the outset requiring RXpress to

present clear and specific evidence establishing a prima facie case for the elements

of its defamation claim. Id. It is difficult to see how the court of appeals misapplied

something that essentially occurred by operation of law. The court of appeals

merely conducted an evidentiary analysis that considered “the pleadings and

supporting and opposing affidavits stating the facts on which the liability or

defense is based” as required by the TCPA. See Tex. Civ. Prac. & Rem. Code Ann.

§ 27.006 (West). The burden had already shifted and the court of appeals properly

considered the matters required by the TCPA.

II. RESPONSE TO ISSUE 2: THE COURT OF APPEALS CORRECTLY APPLIED THE

“ORDINARY READER” STANDARD AND THE SUBSTANTIAL TRUTH TEST

The News hinges its argument on the assumption that this Court’s opinion in

KBMT Operating Co., LLC v. Toledo, 492 S.W.3d 710 (Tex. 2016) established a

new “ordinary reader” standard, while ignoring the more recent opinion in D

10

Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429 (Tex. 2017), reh'g denied

(Sept. 29, 2017), which the court of appeals applied. Moreover, The News takes the

position that the judicial proceedings privilege and “third-party allegations”

defense essentially operate as an absolute defense to a claim of defamation. Such

an assertion is contrary to long-standing precedent that a publication can “convey a

false and defamatory meaning by omitting or juxtaposing facts, even though all the

story's individual statements considered in isolation were literally true or non-

defamatory.” Neely v. Wilson, 418 S.W.3d 52, 64 (Tex. 2013). Respondents have

consistently maintained that that the “gist” of the publications was that

Respondents were accused and guilty of violating criminal healthcare fraud laws.

This is precisely what The News’ selective juxtaposition of “facts” achieved.

A. The Court of Appeals applied the correct “gist” standard

The News’ argument that the court of appeals applied the wrong “ordinary

reader” standard is based upon its assumption that Toledo established a bright-line

standard applicable to all cases. However, this Court’s opinion in D Magazine

Partners, L.P. is contrary to The News’ position.10 The News attempts to

circumvent the “gist” standard and focuses only on individual statements in

10

This should have been obvious to at least The News’ counsel given they filed an amici letter

advocating the very position they advocate on behalf of The News in this case, i.e., that the D

Magazine opinion is contrary to Toledo. This Court declined the opportunity to confirm The

News’ argument. Further, the amici on whose behalf counsel drafted the amici letter took a

starkly different position in seeking clarification on the Toledo holding in their amici brief filed

in the Tatum case referenced by The News. See Pet. at 14.

11

isolation rather than assessing the publication as a whole. In essence, to arrive at its

conclusion, The News “does the very thing of which it accuses the court of appeals:

it considers the article's statements individually instead of in context.” D Magazine

Partners, L.P., 529 S.W.3d at 439. The News cannot simply tack on qualifiers such

as “according to the lawsuit” or “as alleged” to escape liability. The standard for

determining whether a publication is defamatory requires construing “the article as

a whole in light of the surrounding circumstances based upon how a person of

ordinary intelligence would perceive it.” Turner v. KTRK Television, Inc., 38

S.W.3d 103, 114 (Tex. 2000). At the motion to dismiss stage, a determination that

at least one gist is capable of defamatory meaning is sufficient. See D Magazine

Partners, L.P., 529 S.W.3d at 439.

B. The Court of Appeals correctly applied the substantial truth standard

The truth defense now applies to “an accurate reporting of allegations made

by a third party regarding a matter of public concern” in actions brought against a

newspaper. Tex. Civ. Prac. & Rem. Code Ann. § 73.005 (West). However, this

rule does not dispense with the substantial truth doctrine in assessing the truth or

falsity of a publication. A publication can “convey a false and defamatory meaning

by omitting or juxtaposing facts, even though all the story's individual statements

considered in isolation were literally true or non-defamatory.” Neely, 418 S.W.3d

at 64. Accurately reporting isolated statements does not shield Appellants from

12

liability where the publication as a whole is not substantially true. This was stated

and applied by the court of appeals and was the central argument advanced by

Respondents at all stages of this case. To accept The News’ argument would be to

grant media defendants literal immunity from defamation liability so long as they

qualify a statement by attributing it to a third-party’s allegation.

Further, The News’ argument that “accuracy is the touchstone of the judicial

proceedings privilege” is simply wrong. The standard for the judicial proceedings

privilege requires that the report be a “fair, true, and impartial” account. See Tex.

Civ. Prac. & Rem. Code Ann. § 73.002(a); (b)(1)(A) (West). The court of appeals

correctly applied this provision in determining that by selectively reporting only

allegations of healthcare fraud from lawsuits that had virtually nothing to do with

healthcare fraud. The references to any healthcare fraud-like statements only

appeared in isolation among single filings among the entirety of the cases. Thus,

the accounts were not “fair, true, and impartial.”

III. REVIEW IS NOT WARRANTED BASED ON A BARE ASSERTION THAT

RESPONDENTS’ EVIDENCE WAS “FALSE”

The matter before this court is an interlocutory appeal from an order denying

a motion to dismiss under the TCPA. The TCPA sets forth a specific procedural

framework for dismissal of unmeritorious claims to which the statute applies. That

framework includes specific mandatory deadlines for filing a motion to dismiss,

hearing the motion, and ruling on the motion. The TCPA also establishes what the

13

courts must consider when ruling on a motion to dismiss and suspends all

discovery.

When a trial court permits limited discovery, as happened in this case, the

hearing on the motion must occur no later than 120 days after the motion was filed.

Tex. Civ. Prac. & Rem. Code Ann. § 27.003 (West). Petitioners’ filed their motion

to dismiss on May 23, 2017. CR 48. The trial court held the hearing on Petitioners’

motion to dismiss 116 days later on September 15, 2016. CR 647. The statute

requires the trial court rule on the motion no more than 30 days after the hearing,

which, in this case, was Monday, October 17, 2016.

By law, the trial court could not have considered any additional evidence

after October 17, 2016, even if wanted to. Nor could the trial court issue any kind

of ruling relative to the motion to dismiss after October 17, 2016, whether or not it

ruled on the motion. The 30-day deadline for the trial court to rule is mandatory

and gives the trial court no discretion to grant extensions of time. Inwood Forest

Cmty. Improvement Ass'n v. Arce, 485 S.W.3d 65, 70 (Tex. App.—Houston [14th

Dist.] 2015, pet. denied). The trial court’s options are to rule to dismiss or to not

dismiss the legal action. Id. If the trial court does not rule within 30 days, the

TCPA mandates the motion is considered denied by operation of law. Tex. Civ.

Prac. & Rem. Code Ann. § 27.008(a) (West).

14

Given the deadlines, the actual court records filed in a separate case five and

seven months after the hearing deadline could not have been before the trial court.

That the documents contain pleading allegations of an entity affiliated with

Respondents that may raise a fact question as to the knowledge or belief of

Respondents positions or arguments in this case makes no difference. This is not a

case in which an unjust judgment has been entered. Respondents are quite certain

that Petitioners will be free to explore these court records and the factual inferences

they raise in the normal course of discovery and trial upon remand should they

choose. But these matters are neither for this Court’s consideration nor appropriate

for remand to the trial court for a second bite at the TCPA apple. 11 See SEI Bus.

Sys., Inc. v. Bank One Texas, N.A., 803 S.W.2d 838, 841 (Tex. App.—Dallas 1991,

no writ) (denying request for judicial notice of certified records of the Secretary of

State that were not before the trial court, as doing so would essentially make the

court of appeals a court of general, rather than appellate, jurisdiction). Had it not

been for Respondents’ request for discovery, which resulted in Petitioners

acquiring an allegedly authenticated version of the entire search warrant, this

hearing and ruling would have come well before September 15, 2016. It appears

Petitioners will stop at nothing to avoid facing Respondents’ meritorious claims on

11

If Respondents’ allegations regarding Petitioners’ role in publishing the stories with

knowledge that the initial search warrant was essentially false prove to be true after discovery,

Respondents doubt they could claim that Petitioners withheld material information during the

TCPA phase. Petitioners chose to utilize the TCPA and its discovery stay then vehemently

opposed a request to depose Krause as was their right under the statute.

15

even playing field without the benefit of a statutory shield from discovery to hide

behind.

In re Lowe's Home Centers, L.L.C., 13-16-00493-CV, 2017 WL 3205522

(Tex. App.—Corpus Christi July 28, 2017, no pet.) for the proposition that false

testimony was the extraordinary circumstance that was the basis for the court in

that case to grant mandamus relief. First, the case is distinguishable in two obvious

respects: it is a mandamus proceeding that is decided under specific standards and

the case involves a venue challenge. Second, the basis for the court’s decision was

not the extraordinary circumstance of “false testimony.” The “extraordinary

circumstance” was a plaintiff non-suiting after a venue determination had been

made in one county and refiling the suit in another county. Indeed, the word

“false” appears only two times in the opinion.

“An appellate court may take judicial notice of a relevant fact that is either

(1) generally known within the territorial jurisdiction of the trial court or (2)

capable of accurate and ready determination by resort to sources whose accuracy

cannot reasonably be questioned.” Freedom Communications, Inc. v. Coronado,

372 S.W.3d 621, 623 (Tex. 2012) (citing Tex. R. Evid. 201(b) and Office of Pub.

Util. Counsel v. Pub. Util. Com'n of Texas, 878 S.W.2d 598, 600 (Tex. 1994) (per

curiam) (internal quotes omitted). “Under this standard, a court will take judicial

notice of another court's records if a party provides proof of the records.” Freedom

16

Communications, Inc., 372 S.W.3d at 623. However, even where court records

themselves are properly before a court under this rule, a court “may not take

judicial notice of the truth of factual statements and allegations contained in the

pleadings, affidavits, or other documents in the file.” Guyton v. Monteau, 332

S.W.3d 687, 693 (Tex. App.—Houston [14th Dist.] 2011, no pet.); cf. In re

C.S., 208 S.W.3d 77, 81 (Tex.App.-Fort Worth 2006, pet. denied) (“It is

appropriate for a court to take judicial notice of a file in order to show that the

documents in the file are a part of the court's files, that they were filed with the

court on a certain date, and that they were before the court at the time of the

hearing.”).

Further, “appellate courts are reluctant to take judicial notice of evidence

when the trial court was not afforded the opportunity to examine and take into

consideration that evidence.” Tran v. Fiorenza, 934 S.W.2d 740, 742 (Tex. App.—

Houston [1st Dist.] 1996, no writ); see also Sparkman v. Maxwell, 519 S.W.2d

852, 855 (Tex. 1975) (declining to take judicial notice in part stating reluctance of

appellate courts to take notice of matters when the trial court was not requested to

do so and had no opportunity to examine the source material). Thus, “[a]s a general

rule, appellate courts take judicial notice of facts outside the record only to

determine jurisdiction over an appeal or to resolve matters ancillary to decisions

which are mandated by law.” Freedom Communications, Inc., 372 S.W.3d at 623

17

(citing SEI Business Systems, Inc., 803 S.W.2d at 841). No one has questioned this

court’s jurisdiction, and judicial notice for the reasons urged by Petitioners is not

proper.

CONCLUSION AND PRAYER

In this case, The News took a “shoot first and ask questions later” approach

and the resulting casualty was the Respondents’ business and nearly their

livelihood. Both the trial court and the court of appeals analyzed the evidence and

the law and determined that, at least at this early stage of the case, Respondents’

claims are meritorious and deserve to proceed in the normal course. Both sides

have uncovered evidence that was otherwise unavailable at the time of the hearing

on The News’ motion to dismiss. As two courts have determined that Respondents

have carried their burden, Respondents should be permitted to test their case with

the benefit of discovery to develop those matters which have only recently come to

light. The court of appeals has not misconstrued or misapplied the law. Rather, the

court of appeals applied all the precedent of this Court on the subject matter at

hand.

Respondents pray that The News’ petition be denied and that the case

continue in the trial court. Respondents so pray and pray for general relief.

18

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

19

CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing Respondents’ Response to Petition for

Review complies with the type-volume limitation of Texas Rule of Appellate

Procedure 9.4(i)(2) because it contains 4,449 words, excluding those parts

exempted by Texas Rule of Appellate Procedure 9.4(i)(1).

_____ ___________________________

John J. Shaw

20

CERTIFICATE OF SERVICE

I certify that on December 21, 2017, I used the Court’s electronic case filing

system to filed this Respondents’ Response to Petition for Review and served this

document on the following counsel in the manner stated below:

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

21

INDEX TO APPENDIX

Tab A – Plaintiff’s Original Petition

Tab B – Plaintiff’s Amended Petition

Tab C – Plaintiff’s Motion to Compel

Tab D – Supplement to Plaintiff’s Motion to Compel

Tab E – Excerpts from Supplement to Plaintiff’s Motion to Compel

22

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF11

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF12

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF13

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF14

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF15

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF16

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF17

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF18

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF19

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF20

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF21

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF22

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF23

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF24

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF25

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF26

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF27

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF28

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF29

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF30

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF31

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF32

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF33

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF34

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF35

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF36

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF37

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

-ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF38

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF39

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF40

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF41

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF42

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF43

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF44

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

ROUGH DRAFT OF RYAN REYNOLDS - NOVEMBER 10, 2017 - ROUGH DRAF45

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 text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.