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
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1 knowledge is what some -- something or somebody may tell
2 you, correct?
3 A. Correct.
4 Q. Okay. And you understand the difference
5 between a question that calls for yes-or-no answer
6 versus one that cal 1 s for a narrative, right?
7 MR. DAVID BELL: Objection; form.
8 THE WITNESS: I do.
9 Q. (BY MR. JAMES BELL) Okay. When did you meet
10 Brandon McCarthy?
11 A. I met him in a restaurant. I'm kind of bad
12 with dates, but I would say five, six years ago.
13 Q. Do you know when you met Brandon McCarthy?
14 A. The exact date?
15 Q. Do you know what year you met Brandon McCarthy?
16 A. I really don't remember. It was '09 or I 10,
17 Q. Did you meet Brandon while he was still an
18 Assistant United States attorney?
19 A. I believe, yes.
20 Q. Okay. And how many times have you had
21 in-person meetings with Brandon McCarthy?
22 MR. DAVID BELL: Objection; form.
23 THE WITNESS: By -- you mean where we were
24 both physically present at those meetings? Is that what
25 you mean by that?
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1 Q. (BY MR. JAMES BELL) My question is: How many
2 times have you been in the physical presence of Brandon
3 McCarthy?
4 A. Many times.
5 Q. How many?
6 A. Four or five.
7 Q. Okay. So the first meeting you had with
8 Brandon McCarthy was in either 2009 or 2010?
9 A. Well, it wasn't a meeting. I just -- that's
10 when I met him.
11 Q. Okay. How many meeting have you had with
12 Brandon McCarthy?
13 A. I believe two.
14 Q. When was the first meeting with Brandon
15 McCarthy?
16 A. It was at K&L Gates.
17 Q. How long did that meeting last?
18 A. Approximately an hour maybe.
19 Q. Okay. And when was the first meeting -- strike
20 that .
21 When did the first meeting at K&L Gates
22 take pl ace?
23 A. I don't remember the date, but it was right
24 when -- it was pretty close to when he had started
25 there.
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1 Q. Okay. When was your second and final meeting
2 with Brandon McCarthy?
3 MR. DAVID BELL: Objection; form.
4 THE WITNESS: It was at a hotel downtown
5 with my -- with a friend of mine. And there was another
6 gentleman there. I forget the name of the hotel.
7 MR. DAVID BELL: Just asked you when, I
8 be 1 i eve.
9 THE WITNESS: When, probably within --
10 within three or four months of the original meeting, the
11 first one.
12 Q. (BY MR. JAMES BELL) Would you say around
13 December 2015?
14 MR. DAVID BELL: Objection; form.
15 THE WITNESS: I don't know.
16 Q. (BY MR. JAMES BELL) Okay. And so you had two
17 meetings with Brandon McCarthy. Just so the record is
18 cl ear. One at K&L Gates and one at a hotel downtown.
19 Would that be a true statement?
20 A. Yes.
21 Q. Okay. No other meetings that you can think of
22 as you sit here right now?
23 A. Not that I can recall at this moment.
24 Q. And how long did the second meeting last?
25 A. Maybe an hour, hour and a half.
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1 Q. Okay. And at the second meeting you had
2 brought your friend, Ms. Sanchez; is that true?
3 A. No.
4 Q. What was the name of the friend that you
5 brought to the meeting?
6 A. Her first name is Brooke.
7 Q. What's her last name?
8 A. I don't recall.
9 Q. You - - so she's - - she's a friend of yours, but
10 you don't recall her last name?
11 A. Well , there were four people there, total . I
12 can't recall her last name right now.
13 Q. So you can't recall the name of the -- the last
14 name of the friend that you brought to the meeting at
15 the hotel; is that true?
16 MR. DAVID BELL: Objection; form.
17 THE WITNESS: I didn't know her very well.
18 I mean I had just gotten to know her and -- and we met
19 Brandon and another guy that was friends with Brandon,
20 another attorney. But I don't recall , no.
21 Q. (BY MR. JAMES BELL) Okay. And at the second
22 meeting you were there to discuss business involving
23 Protect My ID?
24 A. Yeah, I think it's protectmyid.org.
25 Q. And so you --
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1 MR. JAMES BELL: What is it?
2 MR. McCARTHY: It's keep My ID.
3 Q. (BY MR. JAMES BELL) And at the second meeting
4 you talked about keepmyid.com and potentially doing a
5 commercial or some social media for keepmyid.com; is
6 that true?
7 A. It's keepmyid.org. But we discussed, you know,
8 different marketing -- you know, how to market the
9 business and how to get it out there and, you know, kind
10 of like LifeLock does. But yes, pretty much marketing
11 type stuff.
12 Q. So the purpose of the second meeting was to
13 market -- discuss marketing and get out the business of
14 keepmyid.org, correct?
15 MR. DAVID BELL: Objection; form.
16 THE WITNESS: Yeah, for the most part. I
17 mean that was the -- that was the reason for the
18 meeting, correct.
19 Q. (BY MR. JAMES BELL) Okay. Can you - - do you
20 remember anything else being discussed at that meeting,
21 at the second meeting?
22 A. Nothing that's relevant. Just, you know, what
23 people talk about when they're having a drink or
24 whatever. Just -- but, you know, nothing -- no other
25 kind of business or anything.
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1 a. Okay. As you -- as you sit here right now, can
2 you recall anything else you talked to Brandon McCarthy
3 about at the second meeting at the hotel downtown --
4 A. No.
5 a. where you --
6 Okay. Now, with respect the first meeting
7 at K&L Gates that lasted approximately one hour, is that
8 what you testified to?
9 A. Yes.
10 Q. Okay. You talked about a business you start --
11 started, White Collar Advisors; is that true?
12 MR. DAVID BELL: Objection; form.
13 THE WITNESS: We might have. But we talked
14 about other things. That wasn't the point of the
15 meeting.
16 a. (BY MR. JAMES BELL) Did you discuss White
17 Collar Advisors?
18 A. I mean I may have with him, I don't -- I don't
19 remember that.
20 a. Okay.
21 MR. DAVID BELL: Just tell him what you
22 remember. Don't tell him what you may have remembered,
23 please.
24 THE WITNESS: So can you repeat that?
25 a. (BY MR. JAMES BELL) Sure. What all did you
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1 say to Brandon at the first meeting at K&L Gates, the
2 first meeting you had with him?
3 A. Wel 1 , it was Gus He fl er and myself and we
4 talked about possibly doing a Qui Tam case against
5 Dustin Raul and Scott Shuster and however many companies
6 they have.
7 Q. And you discussed that with Brandon?
8 A. Yes.
9 Q. Okay. And what would be the basis for the
10 alleged Qui Tam case?
11 A. Possible criminal acts that -- that they were,
12 I guess, doing or conspiring to do.
13 Q. And you didn't have any personal knowledge of
14 that, correct?
15 A. Of what?
16 Q. Of any criminal acts that Scott Shuster Dustin
17 Raul were doing, true?
18 A. No, I didn't.
19 MR. DAVID BELL: Counsel, can we go off the
20 record for a second?
21 MR. JAMES BELL: No.
22 MR. DAVID BELL: Okay. So on the record, I
23 understand that represent Mr. Shuster and I'm perplexed
24 as to why you would you ask questions about Mr. Shuster,
25 if you do represent Mr. Shuster. I'd rather have this
EXHIBIT 1
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1 discussion with you off the record.
2 Q. (BY MR. JAMES BELL) So just -- so just so that
3 I'm aware, you -- you right now are on supervised
4 release. Would that be a true statement?
5 A. Correct.
6 Q. Okay. And part of your supervised release
7 standards are that you're not allowed to associate with
8 persons engaged in criminal activity, correct?
9 A. Correct.
10 Q. And you're not allowed to associate with folks
11 convicted of a felony, correct?
12 A. Correct.
13 Q. And you're not allowed to enter into any
14 agreements to act as an informer or special agent of a
15 law enforcement agency, correct?
16 A. Without permission, I'm not.
17 Q. That's right. Okay.
18 MR. DAVID BELL: Let me -- let me -- let
19 interject an objection here. I told you earlier that
20 I'm not going to allow the witness to testify about any
21 matters that aren't set out in your pleadings and I
22 don't see where any of these matters that you're asking
23 him for comments about, his criminal conviction or
24 anything else, are anywhere supported by anything in
25 your pleadings.
EXHIBIT 1
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1 MR. JAMES BELL: Okay.
2 Q. (BY MR. JAMES BELL) Have you ever gotten
3 special permission to act as an informer for the -- the
4 government?
5 MR. DAVID BELL: Objection. I'm not going
6 to allow him to testify about any matter that impedes
7 the attorney/client privilege. I'm not going to let him
8 testify about any meetings he had with any lawyer.
9 Q. (BY MR. JAMES BELL) Are you going to refuse to
10 answer that question?
11 A. Yes.
12 MR. DAVID BELL: And any other question
13 similar to the --
14 Q. (BY MR. JAMES BELL) Do you -- do you
15 understand what defamation is?
16 MR. DAVID BELL: Objection. Calls for a
17 legal conclusion. Objection; form.
18 THE WITNESS: Defamation, no.
19 Q. (BY MR. JAMES BELL) What is your understanding
20 of defamation?
21 A. I don't have an understanding.
22 Q. Okay. Have you ever made any false statements
23 about Brandon McCarthy?
24 A. No.
25 Q. Okay. Do you have any direct evidence or
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1 knowledge of facts that Brandon McCarthy has committed
2 any illegal conduct?
3 A. No.
4 Q. Do you have any direct evidence knowledge or
5 facts to support the position that Brandon McCarthy has
6 engaged in unethical conduct?
7 MR. DAVID BELL: Calls for a 1 egal
8 conclusion. Objection; form.
9 THE WITNESS: Meaning from myself
10 personally or people that I've spoken to on the phone
11 or
12 Q. (BY MR. JAMES BELL) I'm talking about direct
13 knowledge, sir.
14 A. From -- from a person that I know that called
15 me and told me what --
16 Q. I'm not asking your what a person called and
17 told. Remember we talked about direct knowledge versus
18 indirect?
19 A. Well, I don't have any direct knowledge, no.
20 Personally.
21 Q. I'm talking about what your personal knowledge
22 is. Okay. And that way we can keep - - we probably can
23 shorten this deposition a bunch. Is much that fair?
24 A. Yeah. That's cool.
25 Q. All right. That way maybe you can get out of
EXHIBIT 1
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1 here and your lawyer can get out of here.
2 So you don't have in direct evidence that
3 Brandon McCarthy engaged any wrongful conduct, true?
4 MR. DAVID BELL: Objection; calls for a
5 legal conclusion. Objection; form.
6 THE WITNESS: No.
7 Q. (BY MR. JAMES BELL) Well, maybe I asked you a
8 double negative. It would be a true statement to say
9 that you don't have any direct knowledge that Brandon
10 McCarthy engaged in any unlawful conduct. That would be
11 a true statement, correct?
12 MR. DAVID BELL: Calls for a legal
13 conclusion. Objection; form.
14 Q. (BY MR. JAMES BELL) Correct?
15 A. That would be correct.
16 Q. (BY MR. JAMES BELL) You don't have any direct
17 knowledge or evidence that Brandon McCarthy engaged in
18 any unethical conduct, correct?
19 MR. DAVID BELL: Calls for a legal
20 conclusion. Objection; form.
21 Q. (BY MR. JAMES BELL) Correct?
22 A. Give me a second to think. No, I don't.
23 Q. You don't have any direct knowledge or facts to
24 suggest that Brandon McCarthy engaged in any strike
25 that.
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1 You don't have any direct knowledge or
2 evidence that Brandon McCarthy breached any duties to
3 anybody, correct?
4 MR. DAVID BELL: Objection; form.
5 THE WITNESS: I do not.
6 Q. (BY MR. JAMES BELL) You don't have any direct
7 evidence or knowledge to suggest that Brandon McCarthy
8 defamed anybody, correct?
9 MR. DAVID BELL: Objection; form. Calls
10 for a legal conclusion.
11 THE WITNESS: That's correct.
12 Q. (BY MR. JAMES BELL) You don't have any direct
13 knowledge that Brandon McCarthy wasn't faithful to any
14 of hiss clients, correct?
15 MR. DAVID BELL: Objection; calls for a
16 legal conclusion. Form.
17 THE WITNESS: I do not.
18 Q. (BY MR. JAMES BELL) You don't have direct
19 knowledge that Brandon McCarthy harmed any of his
20 clients, correct?
21 A. I do not.
22 Q. You don't have direct evidence or kn owl edge
23 that Brandon McCarthy was deceptive towards any of his
24 client, correct?
25 MR. DAVID BELL: Objection; calls for a
EXHIBIT 1
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1 legal conclusion. Objection; form.
2 THE WITNESS: I do not.
3 a. (BY MR. JAMES BELL) You don't have direct
4 knowledge that Brandon McCarthy cheated any of his
5 clients, correct?
6 MR. DAVID BELL: Calls for a legal
7 conclusion. Objection; form.
8 THE WITNESS: No.
9 MR. JAMES BELL: Do you want a running
10 objection?
11 MR. DAVID BELL: No, I prefer to do it this
12 way. Thank you.
13 Q. (BY MR. JAMES BELL) You don't have any direct
14 evidence or knowledge that Brandon McCarthy defrauded
15 anybody, including any of his clients, correct?
16 MR. DAVID BELL: Objection; form. Calls
17 for a legal conclusion.
18 THE WITNESS: Correct.
19 Q. (BY MR. JAMES BELL) You don't have direct
20 knowledge that Brandon McCarthy betrayed any of his
21 clients or anybody, correct?
22 MR. DAVID BELL: Objection; form.
23 Objection; calls for a legal conclusion.
24 THE WITNESS: Correct.
25 Q. (BY MR. JAMES BELL) You don't have any
EXHlBIT 1
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1 knowledge -- strike that.
2 You don't have any direct knowledge or
3 evidence or facts to suggest that Brandon McCarthy
4 wasn't loyal to anybody or any of clients, correct?
5 MR. DAVID BELL: Objection; calls for a
6 legal conclusion. Objection; form.
7 THE WITNESS: Correct.
8 Q. (BY MR. JAMES BELL) You don't direct knowledge
9 that that or evidence that Brandon McCarthy didn't
10 have act with the utmost good faith towards any of his
11 clients, correct?
12 MR. DAVID BELL: Objection; form. Calls
13 for a legal conclusion. Objection.
14 THE WITNESS: Correct.
15 Q. (BY MR. JAMES BELL) You don't have any direct
16 knowledge and direct evidence that Brandon McCarthy
17 didn't act with candor towards any of his clients,
18 correct?
19 MR. DAVID BELL: Objection; calls for a
20 legal conclusion. Objection; form.
21 THE WITNESS: Correct.
22 Q. (BY MR. JAMES BELL) You don't have any direct
23 evidence that Brandon McCarthy engaged in any
24 self-dealing of any kind towards any of his clients or
25 anybody, correct?
EXHIBIT 1
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1 MR. DAVID BELL: Objection; form. Calls
2 for a legal conclusion.
3 THE WITNESS: Correct.
4 Q. (BY MR. JAMES BELL) You don't have any direct
5 knowledge that Brandon McCarthy didn't act with
6 integrity of the strictest kind towards any of any of
7 his clients or anybody, correct?
8 MR. DAVID BELL: Objection; form.
9 Objection; calls for a legal conclusion.
10 THE WITNESS: Correct.
11 Q. (BY MR. JAMES BELL) You don't have any direct
12 evidence that Brandon McCarthy wasn't fair to any of his
13 clients, correct?
14 A. Correct.
15 MR. DAVID BELL: Objection; form.
16 Q. (BY MR. JAMES BELL) You don't have any direct
17 evidence that Brandon McCarthy didn't act with the
18 utmost honest in dealing with his clients or anybody
19 else, correct?
20 MR. DAVID BELL: Objection; calls for a
21 legal conclusion. Objection; form.
22 THE WITNESS: Correct.
23 Q. (BY MR. JAMES BELL) You don't have any direct
24 evidence that Brandon McCarthy didn't fully disclose all
25 of the facts to all of his clients or to anybody else,
EXHIBIT 1
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1 correct?
2 MR. DAVID BELL: Objection; form.
3 Objection; calls for a legal conclusion.
4 THE WITNESS: Correct.
5 a. (BY MR. JAMES BELL) You don't have any direct
6 evidence or knowledge or facts to suggest that Brandon
7 McCarthy didn't act with fidelity towards his clients or
8 anybody else, correct?
9 MR. DAVID BELL: Objection; form.
10 Objection; calls for a legal conclusion.
11 THE WITNESS: Correct.
12 a. (BY MR. JAMES BELL) You don't have any direct
13 evidence that -- or facts to suggest that Brandon
14 McCarthy didn't act with care when he help dealt with
15 his clients or anybody else, correct?
16 MR. DAVID BELL: Objection; form.
17 Objection; calls for a legal conclusion.
18 THE WITNESS: Correct.
19 a. (BY MR. JAMES BELL) You don't have any direct
20 evidence or facts to suggest that Brandon McCarthy
21 wasn't fair and equitable in his dealings with any of
22 his clients or anybody else, correct?
23 MR. DAVID BELL: Objection; form.
24 Objection; calls for a legal conclusion.
25 THE WITNESS: Correct.
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1 Q. (BY MR. JAMES BELL) You don't have any direct
2 evidence strike that.
3 You don't have any direct evidence --
4 strike that.
5 You don't have any direct evidence or
6 knowledge to suggest that Brandon McCarthy made any
7 misrepresentations to any of his clients or anybody
8 else, correct?
9 MR. DAVID BELL: Objection; form.
10 Objection; calls for a legal conclusion.
11 THE WITNESS: Correct.
12 Q. (BY MR. JAMES BELL) You don't have any direct
13 evidence that Brandon McCarthy engaged in any type of
14 fraud, correct?
15 MR. DAVID BELL: Objection; form.
16 Objection; calls for a legal conclusion.
17 THE WITNESS: Correct.
18 Q. (BY MR. JAMES BELL) You don't have any direct
19 evidence that Brandon McCarthy breached any fiduciary
20 duties to any of his clients or anybody else, correct?
21 MR. DAVID BELL: Objection; form.
22 Objection; calls for legal conclusion.
23 THE WITNESS: Correct.
24 Q. (BY MR. JAMES BELL) You don't have any direct
25 evidence that Brandon McCarthy damaged any of his
EXHIBIT 1
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1 clients or anybody else, correct?
2 MR. DAVID BELL: Objection; form.
3 Objection; calls for a legal conclusion.
4 THE WITNESS: Correct.
5 Q. (BY MR. JAMES BELL) You don't have any direct
6 evidence that Brandon McCarthy acted with any ill will
7 towards of any of his clients or anybody else, correct?
8 MR. DAVID BELL: Objection; form.
9 Objection; calls for a legal conclusion.
10 THE WITNESS: Correct.
11 Q. (BY MR. JAMES BELL) You don't have any direct
12 evidence or knowledge to suggest that Brandon McCarthy
13 acted with any evil motive towards any of his clients or
14 anybody else, correct?
15 MR. DAVID BELL: Objection; form.
16 Objection; calls for a legal conclusion.
17 THE WITNESS: Correct.
18 Q. (BY MR. JAMES BELL) You don't have any direct
19 evidence that Brandon McCarthy acted with any kind of
20 malice towards any of his clients or anybody else,
21 correct?
22 MR. DAVID BELL: Objection; form.
23 Objection; calls for a legal conclusion.
24 THE WITNESS: Correct.
25 Q. (BY MR. JAMES BELL) You don't have any direct
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1 evidence or knowledge of any crimes Brandon McCarthy may
2 have allegedly committed, correct?
3 MR. DAVID BELL: Objection; form.
4 Objection; calls for a legal conclusion.
5 THE WITNESS: Correct.
6 Q. (BY MR. JAMES BELL) You don't have any direct
7 evidence that Brandon McCarthy was negligent in any way
8 towards any of his clients or anybody else, correct?
9 A. Correct.
10 MR. DAVID BELL: Objection; form.
11 Objection; calls for a legal conclusion.
12 Q. (BY MR. JAMES BELL) You don't have any direct
13 knowledge or evidence to suggest that Brandon McCarthy
14 was grossly negligent towards any his clients or anybody
15 else, correct?
16 MR. DAVID BELL: Objection; form.
17 Objection; calls for a legal conclusion.
18 THE WITNESS: Correct.
19 Q. (BY MR. JAMES BELL) You don't have any direct
20 evidence that Brandon McCarthy interfered with any
21 contractual relationships with any of his clients or
22 anybody else or any entities. That would be a true
23 statement, correct?
24 MR. DAVID BELL: Objection; form. Calls
25 for a legal conclusion. Objection.
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1 THE WITNESS: Correct.
2 Q. (BY MR. JAMES BELL) You don't have any direct
3 evidence that Brandon McCarthy willfully committed any
4 wrongful conduct, correct?
5 MR. DAVID BELL: Objection; form.
6 Objection; calls for a legal conclusion.
7 THE WITNESS: Correct.
8 Q. (BY MR. JAMES BELL) So can we -- is your basic
9 understanding of the word "defamation" it's a -- it's a
10 statement, whether written or oral, that tends to damage
11 somebody's reputation. Would -- would you agree with
12 that?
13 A. I would in sense that if it's a lie, correct.
14 Q. If it wasn't -- oh, I see. I see what you're
15 saying. Okay. Fair enough.
16 So it would be fair to say that you and I
17 can have an agreement that when we use the word
18 "defamation," it's -- it's a statement made by somebody
19 that causes harm to one's reputation, but -- but it's
20 not defamation it's if the truth?
21 A. That's my understanding.
22 MR. DAVID BELL: And I'm going to continue
23 to object that you're asking him to give a legal opinion
24 he's not qualified to make.
25 Q. (BY MR. JAMES BELL) Without giving a legal
EXHlBIT 1
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1 opinion, what is your understanding --
2 MR. DAVID BELL: So I'm objecting to your
3 question as to form.
4 MR. JAMES BELL: What is your understanding
5 of defamation based on our discussions and -- and your
6 living in world for I don't know how many years.
7 Thirty-three years, 34 years.
8 THE WITNESS: I wish.
9 MR. DAVID BELL: Objection; form.
10 Q. (BY MR. JAMES BELL) You're what?
11 A. Forty-six.
12 Q. Wow.
13 MR. DAVID BELL: How many did you say .
14 MR. JAMES BELL: I thought he was 33.
15 THE WITNESS: Appreciate that. My -- yeah,
16 my definition -- my definition would be, you know, to
17 say something about somebody that wasn't true.
18 Q. (BY MR. JAMES BELL) And harms their
19 reputation?
20 MR. DAVID BELL: Objection; form. Asks for
21 a legal conclusion.
22 Q. (BY MR. JAMES BELL) Or just saying a 1 i e about
23 somebody?
24 A. Yeah. If - - if somebody says that - - you know,
25 that Joe murdered somebody at the 7-Eleven last night
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1 and he really didn't and they print it in the paper
2 and and it was a lie, that to me is defamation. But
3 yeah.
4 Q. Okay. Are you aware of any defamatory
5 statements that Brandon McCarthy has made?
6 MR. DAVID BELL: Objection; form.
7 THE WITNESS: No.
8 Q. (BY MR. JAMES BELL) You don't have any direct
9 evidence of any misrepresentations Brandon McCarthy made
10 to anybody or any clients, correct?
11 MR. DAVID BELL: Objection; form.
12 Objection; calls for a legal conclusion.
13 THE WITNESS: Correct.
14 Q. (BY MR. JAMES BELL) Do you have any direct
15 evidence or knowledge that Brandon McCarthy breached any
16 contract towards any clients, anybody or any entity?
17 MR. DAVID BELL: Objection; form.
18 Objection; calls for a legal conclusion.
19 THE WITNESS: No.
20 Q. (BY MR. JAMES BELL) Have you ever had Brandon
21 McCarthy followed?
22 A. No.
23 Q. Have you ever had a private investigator on
24 Brandon McCarthy?
25 A. Absolutely not.
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1 a. Are you aware of anybody that's had a private
2 investigator on Brandon McCarthy?
3 MR. DAVID BELL: Objection to form.
4 THE WITNESS: No.
5 MR. JAMES BELL: Were you going to object
6 instruct not to answer that?
7 MR. DAVID BELL: No. Just
8 MR. JAMES BELL: Okay.
9 MR. DAVID BELL: You just don't have any
10 time in your question. You're asking all these
11 questions about what happened since the beginning of
12 time so I've had to object as to form.
13 Q. (BY MR. JAMES BELL) So you're not aware of any
14 private investigators that have investigated Brandon
15 McCarthy?
16 A. Private investigators? You mean like that are
17 privately hired in the public?
18 a. Sure.
19 A. No.
20 Q. Are you aware Of any other kind of
21 investigators?
22 A. Personally aware?
23 a. Yes.
24 A. No.
25 a. Okay. So you're not -- you're not aware of --
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1 okay. Are you -- so it would be fair to say that you've
2 never hired a private investigator to follow Brandon
3 McCarthy. That would be true?
4 A. Absolutely not. That's true. Absolutely true.
5 I've never hired anybody to do anything to Brandon
6 whatsoever.
7 Q. Okay. And do you wish i 11 wi 11 on Brandon?
8 A. No.
9 Q. Have -- are you aware of anybody that has hired
10 a private investigator on or did -- or somebody to
11 investigate Brandon McCarthy?
12 A. I am not.
13 Q. Okay. Do you have secondhand knowledge of
14 anybody privately investigating Brandon McCarthy or
15 publicly investigating Brandon McCarthy?
16 MR. DAVID BELL: Objection; form.
17 THE WITNESS: I mean had I an incident at a
18 restaurant where two guys walked up to me.and told me
19 that -- I was sitting there eating at Hillstone and this
20 guy put his hand on my shoulder and I kind of looked
21 around -- because it was kind of intimidating, you know,
22 he was real close to me and I looked like that
23 (indicating) and he said -- he said, Ryan, what's going
24 on? And I didn't know this guy. But I didn't want to
25 be rude because I thought maybe I do, you know, and he
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1 said I want you to know that Brandon McCarthy has a
2 connect at the IRS and this connect's going to get a guy
3 and they're going to investigate you. And and he
4 said don't worry, his own people are going to get him.
5 Don't worry about it. And walked off. And there was
6 another guy standing by the door and they both walked
7 off together (indicating). That's the only thing. It
8 was very strange.
9 Q. Did you get that person's name?
10 A. No.
11 Q. Okay. So -- just so that I understand the
12 facts. Somebody approached you in Hillstone restaurant
13 and said to you that Brandon McCarthy was having you
14 investigated? That's
15 A. They -- they specifically they said Brandon
16 McCarthy has a friend at the IRS, the friend won't be
17 doing the investigation, they're going to pass it to
18 another person and they're going to try to get you
19 fucked off. And he said don't worry about it because
20 Brandon's own people are going to get him and he walked
21 off. And I found -- I didn't know if he was trying to
22 intimidate me or if he was -- it was a very bizarre
23 conversation.
24 Because by the time I looked back to ask
25 who he was or figure it out, he was gone. And there was
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1 another guy standing by the door and they both walked
2 out together.
3 Q. Okay. So are you -- are you aware of Brandon
4 McCarthy trying to investigate you?
5 MR. DAVID BELL: Objection; form.
6 THE WITNESS: I mean I've heard from
7 numerous people that - -
8 Q. (BY MR. JAMES BELL) Let me say it a different
9 way.
10 A. Okay.
11 Q. Do you have any personal knowledge that Brandon
12 McCarthy is investigating you?
13 A. No.
14 Q. But you've heard from secondary sources that
15 Brandon McCarthy has -- is trying to investigate you or
16 is investigating you?
17 A. Yes.
18 Q, Who told you that?
19 A. A friend of mine named Carl Fleming called me
20 and said, hey, man, do you know Rob Castle and I said
21 no. And he said, we 11 , he's my attorney. And he said
22 he called me the other day and he was freaking out. And
23 I said okay. And he said, man, I need you to meet me
24 at this restaurant. I got to talk to you about Ryan
25 Reynolds and Carl is like I man, can we do it another
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1 time. He's like no, it's important. Right now.
2 So Carl said that he went down and met
3 whoever Rob Castle is and said he -- he seemed nervous
4 and seemed like this, you know, and he said, hey, man,
5 what's Ryan doing? We need some shit on him. We're
6 going to get him -- we're going to get him in trouble.
7 You know, give me some dirt on him. What's he doing
8 now? And Carl is like I have no idea.
9 And so I guess Rob worked -- I guess the
10 way I understood it was Rob was Carl 's attorney and then
11 Carl said, wel 1, can you help me with this matter - -
12 because I guess it was -- Rob wanted to talk about me
13 and he wanted to talk about some pending thing he had
14 going on. And Rob said, man, no, I'm -- you're --
15 you're fired. I'm not your attorney anymore. And he
16 goes, man, I just wanted to cal 1 you because that was
17 one of the weirdest things that -- that I've ever had
18 happened to me. And I say, man, I don't know. I don't
19 know Rob Castle, you know. So he goes do you know what
20 it and I -- and I told Carl, I said no.
21 Q. Are you -- strike that.
22 Do you have any direct evidence that
23 Brandon McCarthy failed to disclose any material
24 information or any information of any kind to any
25 clients or anybody else?
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1 MR. DAVID BELL: Objection; form.
2 Objection; asks for a legal conclusion.
3 THE WITNESS: No.
4 Q. (BY MR. JAMES BELL) Have you ever said that
5 Brandon McCarthy was a liar?
6 MR. DAVID BELL : Objection; form.
7 THE WITNESS: No.
8 Q. (BY MR. JAMES BELL) Have you ever said that
9 Brandon McCarthy has engaged in any unethical conduct?
10 MR. DAVID BELL : Objection; form. Calls --
11 no predicate. Calls for a legal conclusion.
12 MR. JAMES BELL: Let me ask it a different
13 way.
14 Q. (BY MR. JAMES BELL) Based on the fact that you
15 have no personal knowledge that Brandon McCarthy engaged
16 any unethical conduct, did you ever tell anybody that
17 Brandon McCarthy engaged in any unethical conduct.
18 MR. DAVID BELL: Objection; form.
19 THE WITNESS: I mean I've heard, you know,
20 what - -
21 MR. JAMES BELL : Answer my question,
22 please.
23 THE WITNESS: I don't know. I don't
24 remember. I mean maybe when these people have come to
25 me. I mean that's not the only story that I just told
EXHIBIT 1
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1 you about Cast 1 e. There's many more. So what I'm
2 saying is is I don't know if somebody comes to you and
3 says, hey, man, Brandon has got this hookup at the IRS
4 and be careful. You know, we heard this at a party from
5 these other IRS agents that he's going to get you -- you
6 know, try try to get you indicted. Could I have said
7 something then? Possibly. Do I remember, no.
8 Q. (BY MR. JAMES BELL) Okay. So just so I
9 understand -- and maybe deposition will be a lot shorter
10 than I thought.
11 MR. JAMES BELL: I'll object to my
12 side-bar. Do you want to sustain it?
13 MR. DAVID BELL: I don't have that power.
14 I would like to though. Thank you though.
15 MR. JAMES BELL: And I'll stipulate to --
16 if you object to my side-bar.
17 Q. (BY MR. JAMES BELL) So would you agree with
18 me, sir, that based on the fact -- strike that.
19 Based on the fact that you don't have any
20 personal knowledge or evidence that Brandon McCarthy
21 engage in any unethical or illegal conduct, you don't
22 recall ever saying that he engaged in any illegal or
23 unethical conduct. Would that be a fair statement?
24 MR. DAVID BELL: Objection; form.
25 Objection; calls for a legal conclusion.
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1 THE WITNESS: I don't know. I don't know
2 if I ever said, you know, maybe to all these people that
3 have been telling me these stories, I said, well --
4 well, I did to -- to Nathan Halsey.
5 a. (BY MR. JAMES BELL) What did you -- what did
6 you say to Nathan Halsey?
7 A. Well Nathan Halsey told me that Brandon sent
8 him to the FBI and had him wired up. I said, man, you
9 better be careful .
10 a. Okay.
11 A. I said you can't - - I - - I don't know if
12 Brandon did that or not. I'm not saying that he did.
13 I'm telling you what I heard secondhand. And I may have
14 said that's -- that -- you know, I may have said -- I
15 don't know if I've ever said anything I may have said
16 that's not right or whatever. But to be honest with
17 you, I always like Brandon as person. You know, I mean
18 I never -- I think he's a nice guy, you know. And so
19 this -- you know, when this whole thing got rolling,
20 whatever has been going on and -- and that thing, it
21 just seem to get crazier and crazier. And, you know, I
22 didn't -- you know -- but I don't know -- I don't recall
23 ever saying anything like, you know, Brandon's a crook,
24 criminal or anything like that. But I'm not saying I
25 haven't said, well, I -- I mean that's -- if that's
EXHIBIT 1
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1 true, that's not good. But never anything that I
2 rec a 11 .
3 MR. JAMES BELL: Sorry. I got to object as
4 nonresponsive, but I appreciate your answer.
5 Q. (BY MR. JAMES BELL) Let me just -- so that I'm
6 clear -- I can break this down. You've always liked
7 Brandon McCarthy, true?
8 A. I have.
9 Q. You always thought that Brandon McCarthy was a
10 nice guy irrespective of what you've heard from other
11 folks, at least based on your personal dealings with
12 him, correct?
13 A. Yes.
14 Q. And as you sit here right now, you don't recall
15 ever saying to somebody that Brandon committed any
16 criminal acts, correct?
17 A. No.
18 Q. I may have -- I'm wrong or did I ask a bad
19 question
20 A. No.
21 Q. a double negative. It could have been my
22 fault. And I apologize.
23 A. Say it one more time.
24 Q. Sure. You don't -- as you sit here right now,
25 you don't recall ever saying that Brandon engaged in any
EXHIBIT 1
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1 criminal conduct, saying that to anybody?
2 MR. DAVID BELL: Objection; form.
3 Q. (BY MR. JAMES BELL) Correct?
4 A. I have - - no, I - - correct. You' re correct.
5 Q. (BY MR. JAMES BELL) Okay. As you sit here
6 right now, you don't recall ever telling anybody that
7 Brandon has engaged in any unethical conduct based on
8 your personal knowledge, correct?
9 MR. DAVID BELL: Objection; form.
10 Objection; calls for a legal conclusion.
11 THE WITNESS: Not on my personal conduct,
12 but I - - but I - -
13 Q. (BY MR. JAMES BELL) Personal knowledge?
14 A. Well, just maybe secondhand knowledge. I said,
15 well, if that's true, I know that you're -- you can't do
16 that, you know, but not -- but I don't know from my
17 personal knowledge that Brandon was doing that. I'm
18 saying what these people told me -- if somebody said,
19 well, Brandon did this or, you know, he knows this
20 person at the IRS and he's trying to get you indicted, I
21 said you can't -- you can't do that.
22 And -- but I -- but I don't know personally
23 that Brandon has done this or -- but secondhand I may
24 have said that -- that you can't do that. But I've
25 never said that he's a crook or I think that's he's
EXHIBIT 1
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1 firsthand knowledge, I don't -- I don't know.
2 Q. You just said that if if whatever the second
3 or thirdhand people are saying to you is true , that
4 whatever they said would be messed up?
5 A. Right. And -- and I don't know that they are
6 true. But I just said if they -- if that scenario is
7 correct, then that's not right.
8 Q. Did you ever think about picking up the phone
9 and calling Brandon?
10 A. Well, not at that point because I felt like,
11 you know, I kind of felt like he was out to get me . So
12 I didn't want to you know, I just felt like I -- I
13 didn't think that would be smart because I feel like he
14 didn't like me or was mad at me for something he
15 perceived that I did. So no, I didn't.
16 Q. What made you think that Brandon was out to get
17 you?
18 A. Wel 1, mainly this - - you know, this supposed
19 IRS person that -- that Brandon was personal friends
20 with, supposedly was -- and I don't know this.
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