1 1 NO. 20140*BH02 2 DAVID EGILMAN, M.D. ) IN THE DISTRICT COURT OF ) 3 VS. ) ) BRAZORIA COUNTY, TEXAS 4 JONES, DAY, REAVIS & ) POGUE, ANNE LEATHER AND ) 5 KELLY STEWART ) 23RD JUDICIAL DISTRICT 6 7 8 VIDEOTAPED DEPOSITION OF 9 KELLY STEWART 10 November 20, 2002 11 12 13 14 15 16 ORAL/VIDEO DEPOSITION of KELLY STEWART, 17 produced as a witness at the instance of the 18 Plaintiff, and duly sworn, was taken in the 19 above-styled and numbered cause on November 20, 20 2002, from 10:21 a.m. to 12:25 p.m, before Roxanne 21 K. Carlisle, CSR in and for the State of Texas, 22 reported by stenography, at the offices of Fulbright 23 & Jaworski, 1301 McKinney, Suite 5100, Houston, 24 Texas, pursuant to the Texas Rules of Civil 25 Procedure. ESQUIRE DEPOSITION SERVICES (713) 524-4600 2 1 INDEX 2 PAGE 3 Appearances.................................... 4 4 TESTIMONY OF: KELLY STEWART 5 Examination by Mr. Lanier...................... 4 6 Changes and Signature.......................... 108 7 Reporter's Certificate......................... 110 8 9 10 11 12 13 14 EXHIBIT INDEX 15 EXHIBIT NO. DESCRIPTION PAGE MARKED 16 1 Notice of Deposition 95 17 2 Assertion of Privilege and Statement 96 18 of Objections to Document Requests 19 20 21 * * * * * * * * * * 22 23 24 25 ESQUIRE DEPOSITION SERVICES (713) 524-4600 3 1 2 A P P E A R A N C E S 3 4 FOR THE PLAINTIFF: 5 The Lanier Law Firm, P.C. 6810 FM 1960 West 6 Houston, Texas 77069 By: Mr. W. Mark Lanier 7 State Bar No. 11934600 -and- 8 Mr. Kevin Parker -and- 9 Mr. Bob Leone 10 11 FOR THE DEFENDANTS: 12 Fulbright & Jaworski 1301 McKinney, Suite 5100 13 Houston, Texas 77010 By: Mr. Robert S. Harrell 14 -and- Mr. Rick Rambo 15 16 ALSO PRESENT: 17 Mr. Jerry Sorsdal, Videographer 18 Dr. David Egilman Mr. Brian Toohey 19 20 21 * * * * * * * * * * 22 23 24 25 ESQUIRE DEPOSITION SERVICES (713) 524-4600 4 1 THE VIDEOGRAPHER: This is the start 2 of Tape 1. We're on the record at approximately 3 10:21 a.m. Would counsel please identify themselves 4 for the record? 5 MR. LANIER: I'm Mark Lanier. I'm 6 here for David Egilman. I've also got Kevin Parker 7 and Bob Leone from my office. And I've got 8 Dr. Egilman himself here in the room as well. 9 MR. HARRELL: I'm Bob Harrell 10 representing the defendants. Rick Rambo is here for 11 us and Brian Toohey who is with Jones Day. 12 KELLY STEWART, 13 having been duly sworn, testified as follows: 14 EXAMINATION 15 BY MR. LANIER: 16 Q You've been on Dr. Egilman's website 17 before, haven't you? 18 A I have. 19 Q Did you pay to get on? 20 A No. 21 Q How did you get on? 22 A What time period? I was on -- I've been on 23 Dr. Egilman's website many times. 24 Q You have? 25 A Yes. ESQUIRE DEPOSITION SERVICES (713) 524-4600 5 1 Q When was the first time you got on? 2 A In the fall of 2000 when it was open to the 3 public. 4 Q When was the last time you got on? 5 A Probably before the Staples case was 6 settled in November of 2001 was the last time I 7 remember being on the site. 8 Q Dr. Egilman's website was not open to the 9 public in November 2001, was it? 10 A It was. You did not need a password to get 11 into it the last time I got onto the website. 12 Q Have you ever gotten on when it was not 13 open to the public? 14 A I don't know. 15 Q You don't know if you've ever gotten on 16 Dr. Egilman's website when it was 17 password-protected? 18 A I don't know that. I've gotten on 19 Dr. Egilman's website with a password. I don't know 20 if it was password-protected or if a password was 21 even required to get into the website. 22 Q Where did you get the password? 23 A I received it from co-counsel in the 24 Staples case. 25 Q Who? ESQUIRE DEPOSITION SERVICES (713) 524-4600 6 1 A Doug Behr. 2 Q Staples was a case in Brazoria County, 3 wasn't it? 4 A Yes. 5 Q And you were defending a company in 6 Brazoria County in that case, weren't you? 7 A I was. 8 Q Dr. Egilman was an expert in that county, 9 wasn't he? 10 A He was an expert in that case that was 11 pending in Brazoria County, yes. 12 Q That's right. You had a chance to depose 13 him in a case, don't you? 14 A In the Staples case? 15 Q Yeah. In a lawsuit, you have the chance to 16 take depositions of the opposing experts, don't you? 17 A Normally, you do. 18 Q There's no reason you couldn't have taken 19 Dr. Egilman's deposition, is there? 20 A In the Staples case? 21 Q Yes, sir. 22 A We, in fact, started Dr. Egilman's 23 deposition and took his deposition for two days. 24 Q And you have a chance to ask for documents 25 in that case, didn't you? ESQUIRE DEPOSITION SERVICES (713) 524-4600 7 1 A Yes, we do. 2 Q Did you ask for documents in that case? 3 A I did on behalf of my client, yes. 4 Q Well, why were you getting into his 5 website? 6 A I was getting into his website to prepare 7 for his deposition. 8 Q Sir, did you have access to it yourself? 9 A Yes, I did. 10 Q Did you apply and try to get access and get 11 a password? 12 A Did I apply? 13 Q Yes, sir. 14 A Yes. We tried to get access at one point 15 or get a password at one point. 16 Q Did you try to legitimately sign on and get 17 a password? 18 A Yes. 19 Q Did you get one? 20 A No, we did not. 21 Q Because you used a bad credit card, didn't 22 you? 23 A No. 24 Q You think your credit card was good? 25 A Yes. ESQUIRE DEPOSITION SERVICES (713) 524-4600 8 1 Q So, you tried to get on legitimately; and 2 you were not successful; is that right? 3 A I actually got on legitimately many, many 4 times. We tried to get a password at one point by 5 paying Dr. Egilman the fee that he requested, and we 6 never followed up with that because Dr. Egilman 7 changed the cost structure at the same time that we 8 applied to get onto his website or applied to get a 9 password. 10 Q Sir, you applied to get a password; and you 11 were not successful, right? 12 A No. I disagree with that. 13 Q Did you get a password from Dr. Egilman? 14 A We did not get a password, but we didn't 15 ultimately ask for one because Dr. Egilman raised 16 his rates. And we decided not to pay the higher 17 rate. 18 Q So -- 19 A So, we did not get a password. 20 Q -- Dr. Egilman's got a website. You've got 21 to pay to get on it and get a password. And you 22 decided it cost too much money and you didn't want 23 to spend that much money. So, instead, you got the 24 password some other way; is that right? 25 A No. That's not right. ESQUIRE DEPOSITION SERVICES (713) 524-4600 9 1 MR. HARRELL: Objection, form. 2 Q (By Mr. Lanier) What's wrong with it? 3 A Because you could get into Dr. Egilman's 4 website without a password. You could get in. You 5 type in www.egilman.com, and you could get into 6 Dr. Egilman's website in the fall of 2000. You 7 couldn't get into certain areas of his website 8 without a password. So, you could legitimately get 9 onto his website in the fall of 2000. 10 Q Did you get into the privileged areas that 11 are password-protected? 12 A I don't know what areas were privileged. 13 And in the fall of 2000, no, I did not. 14 Q Did you at any time get into any 15 password-protected parts of Dr. Egilman's computer 16 or website? 17 A I don't know if I did or not. 18 Q You don't know if you ever typed in a 19 password? 20 A I typed in -- 21 MR. HARRELL: Objection. That's a 22 different question. Object to form. Go ahead. 23 A Do you want me to answer the question you 24 asked? I don't know -- 25 Q (By Mr. Lanier) Of course. That's why I ESQUIRE DEPOSITION SERVICES (713) 524-4600 10 1 asked it. 2 MR. HARRELL: Objection, form. 3 A Mr. Lanier, I typed in a password at one 4 point. I do not know if it was password-protected, 5 if anybody could get in or not. 6 Q (By Mr. Lanier) Well, why did you type in 7 a password? 8 A Because it required two passwords to get 9 into it in February -- I'm sorry -- in June of 10 2001. 11 Q Well, what do you think 12 "password-protected" means if it doesn't mean it 13 requires two passwords to get in? 14 A I did not believe it was password-protected 15 for two reasons, and I'm not sure that it did 16 require a password to get into it. 17 Q Well, you didn't get in without typing in 18 the passwords, did you? 19 A It depends on what time you're talking 20 about. 21 Q I'm talking about the time you just told 22 me. You said you typed in two passwords. 23 A In June of 2000 -- excuse me -- 2001, yes. 24 Q And where did you get those passwords? 25 A I answered that question earlier. ESQUIRE DEPOSITION SERVICES (713) 524-4600 11 1 Q You didn't give me a name. 2 A Yeah, I did. I said Doug Behr gave me 3 those passwords. 4 Q Who is Doug Behr? 5 A He's an attorney. 6 Q With who? 7 A Keller and Heckman. 8 Q And how do you know him? 9 A He represented -- he represents a 10 co-defendant in the Staples case. 11 Q All right. You were going to tell me why 12 it is that you had to type in a password to get into 13 parts of the website, but you don't think it's 14 password-protected. Can you explain that one, 15 please? 16 A I don't know if it were password-protected 17 at any point for two reasons. One, the password 18 that I was given was so generic and was guessed at 19 by somebody else that they got it. So, I don't even 20 know if there was a real password needed to get into 21 the site. And, two, I understand from Dr. Egilman's 22 other comments or other communications that he had 23 wanted Jones Day to get into his website. And, 24 therefore, I'm not sure if it was even -- if any 25 password could have worked. ESQUIRE DEPOSITION SERVICES (713) 524-4600 12 1 Q Okay. Let's get a couple things straight. 2 You are a lawyer, right? 3 A Yes. 4 Q You went to law school. 5 A Yes. 6 Q You understand what intellectual property 7 is. 8 A Generically, yes. 9 Q Did you take property? 10 A Yes. 11 Q Okay. Did y'all talk about there's real 12 property, there's personal property, there's 13 intellectual property? 14 A Probably. 15 Q Okay. So, where did you go to law school? 16 A In Oklahoma. 17 MR. LANIER: That could be a lot of 18 the problem. 19 MR. HARRELL: Objection. 20 THE WITNESS: Mr. Lanier, I don't 21 appreciate that. 22 MR. LANIER: That was a joke. 23 THE WITNESS: I don't care. I don't 24 appreciate it. 25 MR. LANIER: Well, I don't appreciate ESQUIRE DEPOSITION SERVICES (713) 524-4600 13 1 a lot of things you do, either; and I don't make an 2 issue out of them. 3 THE WITNESS: Well, you are making an 4 issue, so, please.... 5 MR. LANIER: Okay. We'll do it your 6 way. 7 THE WITNESS: I'm here to answer 8 questions. 9 Q (By Mr. Lanier) Sir, you mean to tell me 10 that someone guessed at the password and, so, you 11 thought it was okay to use? 12 A Not only do I not mean to tell you that. I 13 did tell you that, Mr. Lanier. 14 Q So, who guessed that? 15 A Doug Behr. 16 Q And how do you know he guessed that? 17 A He told me he guessed at it. 18 Q If someone guesses at the combination to a 19 safe at a bank, do you consider the money inside the 20 vault not password-protected and you have every 21 right in the world to just open that safe because 22 someone guessed at the combination and it happened 23 to be right? 24 MR. HARRELL: Objection, form. 25 A I don't know how to answer your question. ESQUIRE DEPOSITION SERVICES (713) 524-4600 14 1 Q (By Mr. Lanier) Well, "yes" or "no." 2 MR. HARRELL: Answer it the way you 3 want. 4 A Repeat it. I don't understand the 5 question. 6 Q (By Mr. Lanier) Okay. There's a bank 7 vault. It's got money inside, and it's got a door 8 to it. And someone comes up to you and says, "Hey, 9 I'm going to take a wild guess at the combination. 10 It's 6, 14, 32." Do you consider because they took 11 a wild guess, that the bank won't care if you open 12 that vault and if it works and you can just take out 13 all the money you want because it's an invitation 14 from the bank? Is that consistent with your 15 thinking? 16 MR. HARRELL: Objection, form. If you 17 can answer it, answer it. 18 A No. In your scenario, no, it's not 19 consistent with my thinking. 20 Q (By Mr. Lanier) Well, what's the 21 difference between my hypothetical and what you did 22 to Dr. Egilman's computer? 23 A I thought I was here to answer questions 24 and not compare hypotheticals. 25 Q That's my question; so, you answer it. ESQUIRE DEPOSITION SERVICES (713) 524-4600 15 1 A The difference, Mr. Lanier, is that we 2 don't know at this point whether his website was 3 even password-protected in June of 2001. Secondly, 4 we don't know if anybody -- people apparently knew 5 on the street that this "Brown Student" was the 6 password and that anybody could get into it. And, 7 also, we don't know if he baited us into getting 8 into that, whether that even means that it was 9 protected. We don't know that. So, I don't know 10 whether it was password-protected in June of 2001. 11 Q You gave me two reasons you didn't know if 12 it was password-protected. Reason No. 1 is someone 13 guessed at the password. And Reason No. 2 is you 14 thought he had invited y'all to come in. I want to 15 focus on Reason No. 1. 16 A All right. 17 Q And I want you to tell me how someone 18 guessing at the password is any different than 19 someone guessing at the combination to a safe or a 20 guessing at the combination to a garage door opener 21 to get into someone's house to steal their goods. 22 What's the difference? What right does it have 23 you -- give you to go into his website and use that 24 guess? 25 MR. HARRELL: Objection, form. Plus, ESQUIRE DEPOSITION SERVICES (713) 524-4600 16 1 you've already answered the question. Go ahead and 2 answer it again. 3 A I don't know how to answer your question 4 other than I think there's a difference between the 5 hypothetical you're talking about, about going into 6 a bank vault and taking money, and a website that is 7 not necessarily protected from the public and it has 8 information about my firm on it that says that my 9 firm paid and bought a state court judge in 10 Colorado. I think there's a huge difference in the 11 facts of your hypothetical. 12 Q (By Mr. Lanier) Do you know where that 13 website was located? 14 A No, I don't. 15 Q Do you know it was on his own home 16 computer? 17 A I don't know that. 18 Q Did you know that you went into his own 19 home and in his own home computer and got that 20 information? 21 A I don't know that. 22 Q Did you know you used this secret 23 guessed-at password to get into his house to get his 24 own personal intellectual property? 25 MR. HARRELL: Objection, form. ESQUIRE DEPOSITION SERVICES (713) 524-4600 17 1 A I don't know if that's true or not. 2 Q (By Mr. Lanier) Do you think people have a 3 right to guess at what the combination is to your 4 door at your house or what your security alarm 5 combination might be and if they guess right, they 6 can go in and take your intellectual property out of 7 your house? 8 A No. 9 Q You shouldn't have done that, should you? 10 A I disagree with that. 11 Q You think it was an okay thing to do? 12 A Given the circumstances, yes. Somebody 13 gave me the password; and given that we weren't sure 14 that it was password-protected, there's a huge 15 difference. 16 Q Sir, if it wasn't password-protected, how 17 were you going to get in without a password? 18 A I'd been in before and seen everything else 19 before and even after it without a password. 20 Q Sir, do you not understand that different 21 things go on his computer at different times and 22 they change? 23 A Oh, yes, very much. That's why we kept 24 track of his website, because it changed a lot. 25 Q Okay. So, if he put something on there ESQUIRE DEPOSITION SERVICES (713) 524-4600 18 1 that's sensitive to a case he's working on with me 2 or with someone else, you think you've got a right 3 to get in there and access that just because you got 4 on it when it didn't have that stuff earlier? 5 A If it's public, yes. 6 Q Did you ever have a party at your house? 7 A Sure. 8 Q Did you ever invite people in to the party 9 at your house? 10 A Sure. 11 Q Did you ever feed them some food? 12 A Yes. 13 Q Okay. So, if someone comes into your house 14 to eat your food during the party, does that give 15 them carte blanche any time they want to to go into 16 your house and just eat any other food you've got 17 because they got to do it before? 18 A No, Mr. Lanier, it doesn't. 19 Q Because there are times where your food in 20 your house is private, right? 21 A Correct. 22 Q There are times where your food in your 23 house is public, correct? 24 A Correct. 25 Q There were times Dr. Egilman's website was ESQUIRE DEPOSITION SERVICES (713) 524-4600 19 1 public, right? 2 A I don't know that. 3 Q You told me at the start of your deposition 4 that there were times where it was not 5 password-protected and could be accessed. 6 A I thought you said "private." 7 Q No. I said "public." 8 A Yes. There are times when it's public. 9 Q Okay. So, there's times Dr. Egilman's 10 website was public. You can go in there and 11 meander and eat his food all you want to, couldn't 12 you? 13 A You could get onto his website, yes. 14 Q Then there were times when you could not 15 get in there without a password, right? 16 A Correct. 17 Q And those times you took the password that 18 you weren't willing to pay for, right? 19 A No, that's not true. 20 Q Sir, you weren't willing to pay for the 21 password, were you? 22 A I got a password from somebody else in June 23 of 2001. 24 Q Did you pay him for it? 25 A No. ESQUIRE DEPOSITION SERVICES (713) 524-4600 20 1 Q Did you pay Dr. Egilman for it? 2 A No. 3 Q You knew it cost money to get a password, 4 didn't you? 5 A Not at that point, I didn't. I knew in the 6 fall of 2000 that it did. 7 Q Sir, you tried in -- times before that to 8 get on, at least one time, didn't you? 9 A I'm sorry. Times before -- 10 Q Sir, y'all gave us a bunch of documents. 11 That's got a Bates stump number of 153. Do you see 12 it? 13 A Yes. 14 Q That's Dr. Egilman's course website 15 registration page. Do you see that? 16 A Yes. 17 Q I'm assuming you filled this out; am I 18 right? 19 A No. 20 Q Who filled it out? 21 A One of our librarians, Anne Leather. 22 Q Okay. Did she put your name in there? 23 A Yes. 24 Q Why did she do that? 25 A Because I asked her to do so. ESQUIRE DEPOSITION SERVICES (713) 524-4600 21 1 Q Okay. Whose credit card? 2 A It was a Jones Day credit card. 3 Q So, she -- this librarian lady is the one 4 who said she wanted to purchase access for an 5 individual lawyer? 6 A She was purchasing access -- we were 7 attempting to purchase access at that point for me, 8 yes. 9 Q Why did you ask her to do it? 10 A Because you could get into Dr. Egilman's 11 website in the fall of 2000. There was information 12 there specifically that you couldn't get any further 13 into without the -- without a password. So, we 14 decided at that point that I would go ahead and pay 15 the $500 to get the password. 16 Q Who made that decision? 17 A I did. 18 Q Did you run it by anybody? 19 A No. 20 Q Were you going to bill any files for it? 21 A Yes. 22 Q Which file? 23 THE WITNESS: Can I disclose that? 24 Q (By Mr. Lanier) You can disclose which 25 file. ESQUIRE DEPOSITION SERVICES (713) 524-4600 22 1 MR. HARRELL: Let's go off the record 2 a minute. 3 MR. LANIER: I'll assert it doesn't 4 waive any attorney/client privilege in any other 5 answer. 6 A I was going to bill Occidental Chemical, 7 the company I represented in that lawsuit. 8 Q (By Mr. Lanier) That's the Staples case -- 9 A Yes. 10 Q -- that was pending in Brazoria County. 11 A Yes. 12 Q Against me. 13 A Not against you. 14 Q Against my client. 15 A Your client sued my client. It wasn't 16 against your client. 17 Q Well, sir, do you understand I was on the 18 other side of that lawsuit? 19 A Right. 20 Q You understand there's a "versus" in the 21 style? 22 A Mr. Lanier, the lawsuit wasn't against you 23 or your client. Your client had sued us. But, yes, 24 we were opposite parties. 25 Q Yeah. I was the adversary. ESQUIRE DEPOSITION SERVICES (713) 524-4600 23 1 A Correct. 2 Q "Against" can mean y'all are against each 3 other. You've never heard that phrase? 4 MR. HARRELL: Objection, form. 5 A Mr. Lanier, you know what I meant. 6 Q (By Mr. Lanier) I think you knew what I 7 meant, too; and you're playing games with me. 8 MR. HARRELL: Objection, form. 9 Q (By Mr. Lanier) All right. Well, let's 10 just get to it. 11 Sir, that's the lawsuit where I 12 represented the other side, true? 13 A Correct. 14 Q It was pending in Ben Hardin's court in 15 Brazoria County, wasn't it? 16 A It was. 17 Q You knew at that time for you to get access 18 to these secret places or password-protected places 19 or whatever you want to call it, you had to get a 20 password, didn't you? 21 A At what time? 22 Q The time we're talking about where you did 23 this Exhibit 153. 24 A It's got a September 2000 date on it. In 25 September 2000 I knew that there were portions of ESQUIRE DEPOSITION SERVICES (713) 524-4600 24 1 Dr. Egilman's website that required a password, yes. 2 Q You never got a password from Dr. Egilman, 3 did you? 4 A No, I did not. 5 Q You never paid for access to any private 6 parts, did you? 7 A No. 8 Q Yet, in June of the following year, you got 9 on and you got in some private parts you had to use 10 a password for, right? 11 MR. HARRELL: Objection, form. Go 12 ahead. 13 A I don't know if they were private, but I 14 did get into his website using a password. 15 Q (By Mr. Lanier) Well, sir, did you try to 16 get into them without the password? 17 A No. 18 Q Do you honestly think for a minute you 19 could have gotten into his website without using a 20 password to get to those private areas in June of 21 2001? 22 A I don't know. 23 Q How would you have done that? 24 A I don't know. I didn't -- I don't know. 25 Q So, you can't sit here and say, "Gee, it ESQUIRE DEPOSITION SERVICES (713) 524-4600 25 1 wasn't password-protected. I just typed that in for 2 grins." 3 MR. HARRELL: Objection, form. 4 Q (By Mr. Lanier) You typed it -- you typed 5 in the password to get to it, didn't you? 6 MR. HARRELL: Objection, form. 7 A Yes. 8 Q (By Mr. Lanier) You were never able to get 9 to it during June of 2000 without typing in the 10 password, were you? 11 A June 11th and 12th of 2000. I don't know 12 after that -- 13 Q Okay. 14 A -- if you could get into it without a 15 password or not. 16 Q June 11th and 12th of 2000, you were not -- 17 2001, actually -- 18 A Right. 19 Q -- isn't it? 20 A Right. 21 Q June 11th and 12th of 2001, you were not 22 able to get into his website without a password, 23 true? 24 A I didn't try any other way to get into it; 25 so, I don't know if you can get into it any other ESQUIRE DEPOSITION SERVICES (713) 524-4600 26 1 way. I don't know. 2 Q You had no knowledge of any other way to 3 get into his website other than a password for June 4 11th and 12th of 2001. 5 A That's true. I have no knowledge of how 6 else to get into the website. 7 Q And you didn't pay for a password June 11th 8 or 12th of 2001, did you? 9 A No. 10 Q You never paid for a password, right? 11 A No. 12 Q Right? 13 A Right. 14 Q Okay. When you say "no" to that, it 15 actually doesn't make sense if we read it. 16 So, you don't pay for a password. You 17 don't know of any way to get in but with a password. 18 So, you get a password from this other fellow. I 19 forgot his name. I'm sorry. What's his name again? 20 A Doug Behr. 21 Q Doug Behr? 22 A Uh-huh. 23 Q Can you spell that for her, please? 24 A B-e-h-r. 25 Q What did you do to make sure Doug Behr ESQUIRE DEPOSITION SERVICES (713) 524-4600 27 1 hadn't stolen? 2 A I didn't do anything. 3 Q Well, I mean, did you think Doug Behr had 4 paid money to get on Dr. Egilman's website? 5 A No. Doug Behr told me he guessed and 6 guessed at the password. 7 Q Where did y'all have this discussion? 8 A The communication -- I would have been in 9 Dallas, and I assume he was in his office in D.C. 10 Q And you just took his word for it -- 11 A Yes. 12 Q -- that he guessed? 13 A Yes. 14 Q Did you say, "Hey, this could be wrong. We 15 probably shouldn't be doing this"? 16 A No. 17 Q Did it occur to you that it might be wrong? 18 A At the time, no. 19 Q Have you apologized to Dr. Egilman since? 20 A I don't believe I have anything to 21 apologize for. So, the answer is, no, I haven't 22 apologized to Dr. Egilman. 23 Q Sir, you broke into his website illegally. 24 MR. HARRELL: Object to form. That's 25 not a question. ESQUIRE DEPOSITION SERVICES (713) 524-4600 28 1 Q (By Mr. Lanier) Wouldn't you apologize 2 over that? 3 MR. HARRELL: Object to form. 4 A I don't agree that I did anything wrong. 5 So, I'm not -- I don't believe I have anything to 6 apologize for. 7 Q (By Mr. Lanier) Does Jones Day have 8 private stuff on a computer that's Internet 9 accessible? 10 A Sure. 11 Q Do you think if I can figure out or guess 12 at the passwords and stuff to get in to Jones Day's 13 private computer files, it's okay for me to do? 14 A No. 15 Q What -- okay. Let's go to the second 16 reason. 17 The second reason you thought it was 18 okay to do is because y'all thought Dr. Egilman 19 wanted you in there. Now, what gave you the 20 impression Dr. Egilman wanted you on his private 21 website? 22 A I get that impression from things that have 23 been said after June 11th and June 12th where 24 Dr. Egilman has said that he had wanted us to get 25 into the website because either the Massachusetts ESQUIRE DEPOSITION SERVICES (713) 524-4600 29 1 attorney generals had told him to do this or -- I 2 don't recall specifically whether it came up in the 3 context of the Colorado Brush-Wellman lawsuit or 4 where I had heard this. But that's my impression 5 after the fact. 6 Q Did you ever take Latin? 7 A No. 8 Q Are you familiar with the idea of trying to 9 justify behavior by something that's happened and 10 you learned after the behavior? 11 A Sure. 12 Q What you're telling me is you were okay 13 breaking in on the 11th and 12th because you found 14 out later that he probably wanted you to. 15 A That's not what I said. 16 MR. HARRELL: Object to the form. 17 A That's not what I'm saying because I don't 18 know if I broke in or not. 19 Q (By Mr. Lanier) Okay. You were okay using 20 a password you had not bought gaining access to a 21 private area of Dr. Egilman's computer because later 22 on you found out that you think maybe he wanted you 23 to. 24 A If that's the case, that may be true. 25 Because if he wanted us to get into it and it didn't ESQUIRE DEPOSITION SERVICES (713) 524-4600 30 1 require a password or the password was available, 2 any password would have worked. It's not 3 necessarily private. And so, I don't know at this 4 point without discovery from Dr. Egilman whether it 5 was password-protected, whether he wanted us to get 6 on the website, whether it was there for everybody 7 to see. We don't know that at this point. And I'm 8 not agreeing with your premise yet, Mr. Lanier. 9 Q Okay. Well, let's just assume -- because 10 I'm taking your deposition first. Let's just assume 11 it was password-protected and he did not want you on 12 the website. You should not have been on it, 13 agreed? 14 MR. HARRELL: Object to form. 15 A If it were truly password-protected and it 16 were truly a password that -- not like "Brown 17 Student," a generic password or any password that 18 could have worked, then I should not have used the 19 password. But I don't know that at this point. So, 20 I can't agree with the premise of your questions. 21 Q (By Mr. Lanier) What makes "Brown Student" 22 an obvious password? 23 A Somebody guessed at it and gave it to me. 24 If it's obvious enough that somebody could have 25 guessed, I don't know what password would have ESQUIRE DEPOSITION SERVICES (713) 524-4600 31 1 worked. 2 Q I've got a password on my Yahoo mail. Do 3 you want to guess on what it is? 4 A No, I don't. 5 Q I'll bet you you couldn't guess it in a 6 hundred years. What do you want to bet? 7 MR. HARRELL: Object to form. 8 A Is that a question? 9 Q (By Mr. Lanier) Yeah. 10 A I don't want to bet you, Mr. Lanier. I'm 11 here to ask [sic] questions, not bet you -- 12 Q No. You're here to answer questions. 13 A Answer questions, not whether I can guess 14 your password. 15 Q All I'm saying is -- 16 MR. HARRELL: Let him ask the 17 question. 18 MR. LANIER: Yeah. Thank you, Bob. 19 Q (By Mr. Lanier) All I'm saying is: Sir, 20 do you honestly think someone could just sit there 21 out of the thin air and just guess "Brown Student"? 22 A Yes. 23 Q Twelve letters and they're just going to 24 guess it. 25 A With the snaps, Mr. Lanier, that you're ESQUIRE DEPOSITION SERVICES (713) 524-4600 32 1 doing, yes. 2 Q Okay. 3 A They could. 4 Q I promise you, mine's only five letters. 5 You don't think you could guess it? And it's 6 obvious once I tell it to you. 7 MR. HARRELL: Object to the form. 8 A No, I don't think I can guess. 9 Q (By Mr. Lanier) Have you ever gone around 10 guessing passwords for things? 11 A No. 12 Q Have you ever in your life successfully 13 guessed passwords to anything? 14 A Not that I can recall. 15 Q And you just think this fellow is able to 16 just guess "Brown Student"? 17 A Yes. 18 Q It could have been a white student. 19 A It could have been a green monkey. I don't 20 know. 21 Q Yeah. Pretty lucky guess, wasn't it? 22 A Apparently. 23 Q This lawyer named Behr, what law firm is he 24 with? I think you told me, but it didn't register 25 in my brain. ESQUIRE DEPOSITION SERVICES (713) 524-4600 33 1 A He's with Keller and Heckman. 2 Q They're out of D.C.? 3 A Yes. 4 Q Sir, did you take -- when did you pass the 5 Texas Bar? 6 A In 1991. 7 Q Okay. Y'all had to take that professional 8 responsibility exam, too, didn't you? 9 A Yes. 10 Q And I assume you took that? 11 A Yes. 12 Q And I assume you passed it? 13 A Yes. 14 Q Sir, when you and I are in litigation 15 against each other -- and by that I mean I represent 16 someone and you represent someone and they're 17 opposite parties -- you understand what I mean by 18 "against each other"? 19 A Yes. 20 Q Okay. When you and I are in litigation 21 against each other as lawyers, do you think it's 22 ethical for you to carry on a conversation with my 23 expert witness without me there? 24 A No. 25 Q Do you think it's ethical for you to sneak ESQUIRE DEPOSITION SERVICES (713) 524-4600 34 1 your way into some of his files to look at in 2 litigation against me without going through proper 3 channels? 4 A It depends on what files you're talking 5 about. 6 Q Well, I'm talking about files related to 7 him as an expert in our case. 8 A If it's a publicly accessible website, I 9 don't think that's unethical at all to get on a 10 publicly accessible website. 11 Q Sir, this was not one that was publicly 12 accessible. This is one where you had to put in a 13 password, right? 14 MR. HARRELL: Objection, form. 15 A Not all the time. 16 Q (By Mr. Lanier) Well, in June of 2001, 17 11th and 12th of the month when you got on it, 18 right? 19 MR. HARRELL: Objection, form. 20 Q (By Mr. Lanier) We established that. 21 MR. HARRELL: Object to the form. 22 Q (By Mr. Lanier) Right? 23 MR. HARRELL: What's the question? 24 Q (By Mr. Lanier) Sir, this was not a 25 publicly accessed website. It had a password that ESQUIRE DEPOSITION SERVICES (713) 524-4600 35 1 you had to plug in in June 11th and 12th of 2001, 2 right? 3 A It had a password that needed to be plugged 4 in. I don't know if it was publicly accessible or 5 not. 6 Q Okay. Well, you'll find out it was not; 7 and the only way you got in was by typing in a 8 password. Okay? 9 MR. HARRELL: Objection, form. 10 Q (By Mr. Lanier) Do you think you have a 11 right to guess that maybe it's -- maybe any password 12 would work and so you'll go ahead and use the one 13 that you were given and see if you can get in and 14 see if you can access data from my expert in a case 15 that we have against each other without my okay and 16 without his okay? 17 MR. HARRELL: Objection, form. Mark, 18 you've now asked that now three or four times. 19 MR. LANIER: He hasn't answered it, 20 yet. 21 MR. HARRELL: He has. 22 MR. LANIER: Was it a "yes" or "no"? 23 I'll take your word for it, Bob. Was it a "yes" or 24 "no"? Is it okay to do that? 25 MR. HARRELL: He's answered your ESQUIRE DEPOSITION SERVICES (713) 524-4600 36 1 question, Mark. Go ahead one more time. 2 A Can I hear the question again -- 3 Q (By Mr. Lanier) Yeah. 4 A -- because it was very long. 5 Q Okay. And I'll break it apart and ask you 6 sentence by sentence if you'd rather, but I'll give 7 you a chance to say "no" to the whole thing. 8 Do you think it is okay and ethical 9 for you as a lawyer in a case opposite me as a 10 lawyer for you to go into a website of my expert 11 where you typed in a password you had no right to to 12 access that website and get that information from 13 that expert without talking to me, without going 14 through proper discovery channels, or anything like 15 that? Do you think that's okay? 16 MR. HARRELL: I object to the form. 17 Go ahead. 18 A It depends on whether the website is 19 publicly accessible or not. 20 Q (By Mr. Lanier) If the website is not 21 publicly accessible, is your -- is that okay? 22 A If it were truly not publicly accessible, 23 then -- was the question whether it's okay? 24 Q Yeah. Whether you ought not -- you ought 25 to be doing it. ESQUIRE DEPOSITION SERVICES (713) 524-4600 37 1 A I don't know. I don't know. 2 Q Sir, you didn't know that ethically you're 3 not supposed to be talking to my expert or going 4 into his files behind my back? 5 MR. HARRELL: Objection, form. 6 A Well, that's not what I believe I did. But 7 I agree with you in theory, that you're not supposed 8 to do that. 9 Q (By Mr. Lanier) Why do you say that's not 10 what you did? 11 A Because I don't know if the website was 12 publicly -- we've already been through this. 13 Q I'm telling you it was. Egilman will tell 14 you it was. I'll make a judicial admission right 15 now. 16 A I don't agree with -- 17 MR. HARRELL: Let him ask a question. 18 Q (By Mr. Lanier) Any other reason other 19 than the fact you did not know it was 20 password-protected? 21 MR. HARRELL: Object to the form. Any 22 other reason for what? 23 Q (By Mr. Lanier) Any other reason for why 24 you think it's okay for you to be talking to David 25 Egilman or looking at his files without my okay in a ESQUIRE DEPOSITION SERVICES (713) 524-4600 38 1 lawsuit, other than the fact you thought it was 2 public? 3 A I didn't talk to Dr. Egilman. Looking at 4 his files, you mean looking at things on his 5 website? 6 Q Yeah. Private things that he has posted 7 specifically for me in our case for me to be able to 8 look at and for me to be able to talk to that you 9 got on and looked at with a password that someone 10 guessed out of thin air. 11 MR. HARRELL: I object to the form. 12 A Mr. Lanier, I'm going to answer your 13 questions. You don't have to get so angry. 14 Q (By Mr. Lanier) Well, it infuriates me 15 because I just think it's unethical; and I would 16 have expected better from your law firm and better 17 from you. So, you'll have to excuse me for the fact 18 I get upset over this; but this isn't just something 19 silly that just happens. It's cavalier. It's 20 arrogant. I think it's illegal. And it infuriates 21 me that I'm in a lawsuit and you turn around and you 22 get into my expert's computer bank typing in some 23 stuff to try and get some secret information because 24 you don't have enough guts or knowledge to do it 25 straight. ESQUIRE DEPOSITION SERVICES (713) 524-4600 39 1 MR. HARRELL: Let's take a break. 2 Mark, this isn't going to work, grandstanding for 3 your client. 4 MR. LANIER: I'm not grandstanding for 5 my client. He's seen me do a lot worse than this. 6 MR. HARRELL: Are you ready to go off 7 the record? 8 MR. LANIER: No, I'm not ready to go 9 off the record. 10 MR. HARRELL: Well, we're going to go 11 off the record unless -- 12 MR. LANIER: No, we're not going off 13 the record. 14 MR. HARRELL: -- you can control your 15 temper or quit giving speeches. 16 MR. LANIER: Well, if he's going to 17 say, "I don't like the tenor" -- he's asking me why 18 I've got it, and I'm telling him. 19 MR. HARRELL: He's going to answer 20 your questions. 21 MR. LANIER: We can do it here or we 22 can go down and do it in Judge Hardin's court. I 23 don't care. 24 MR. HARRELL: Well, if we need to do 25 that, we'll do it. ESQUIRE DEPOSITION SERVICES (713) 524-4600 40 1 MR. LANIER: All right. Well, let's 2 just do that. 3 MR. HARRELL: But we don't need your 4 speeches. 5 MR. LANIER: Well, let's just go down 6 and do it in front of Judge Hardin. Where do you 7 want to do it? Do you want to do it right now? Do 8 you want to do it tomorrow? Do you want to do it 9 next week? 10 MR. HARRELL: I want to finish the 11 deposition, but I want to do it without your 12 speeches. 13 MR. LANIER: Well, then, tell your 14 client just answer questions and quit making his 15 side comments like, "I don't like the tenor of the 16 way you're saying this." 17 MR. HARRELL: Well -- 18 MR. LANIER: I didn't ask it. "Do you 19 like the tenor of the way I'm saying this?" I 20 didn't ask that. 21 Q (By Mr. Lanier) Sir, what happened when 22 the librarian wasn't able to get -- wasn't able to 23 buy private access? 24 MR. HARRELL: Object to the form. 25 A We sent this document in to Dr. Egilman or ESQUIRE DEPOSITION SERVICES (713) 524-4600 41 1 to whatever, and we got an -- I got an e-mail back 2 from Dr. Egilman that said, "I have just become too 3 popular and my prices are now increased." And he 4 raised his prices. And we decided -- or I decided 5 at that point I wasn't going to pay the extra money, 6 and I just dropped it. 7 Q Dropped it until someone guessed the secret 8 words to get in? 9 MR. HARRELL: Object to form. 10 Q (By Mr. Lanier) Did you ever try to get in 11 it again until the time that someone guessed the 12 secret words and told you? 13 A His website was -- yes. Yes, we got -- 14 between September of 2000 and June of 2001, I got 15 onto his website because we did not need a password. 16 Q Okay. Did you ever get in any spots where 17 you needed a password? 18 A No. 19 Q Until you got the guess from Mr. Behr? 20 A Until June 11th or 12th of 2001, yes. 21 Q Why did you get in on June 11th and 12th? 22 A Because Mr. Behr had told me that -- 23 Dr. Egilman had -- 24 MR. HARRELL: Objection, form. And 25 this is one we need to discuss. I will let him ESQUIRE DEPOSITION SERVICES (713) 524-4600 42 1 answer the question, Mark, if you'll agree to a 2 nonwaiver. 3 MR. LANIER: I agree to a nonwaiver. 4 MR. HARRELL: Okay. 5 A Mr. Behr had indicated to me that 6 Dr. Egilman had put something about Jones Day on his 7 website, and that's why I got on on June 11th. 8 Q (By Mr. Lanier) So, when Mr. Behr gave you 9 the password, Mr. Behr already told you that the 10 password worked, didn't he? 11 A Yes. 12 Q So, he didn't give you a guessing password. 13 He gave you a working password, didn't he? 14 A He gave me a password that worked that he 15 had guessed at to get according to Mr. Behr. 16 Q Did you ask him, "How did you get the 17 password?" 18 A Yes. 19 Q And he said, "I just guessed"? 20 A He said, "I just guessed." 21 Q Have you warned him he's about to get sued 22 in Brazoria County over this? 23 MR. HARRELL: Objection, form. 24 A No. 25 Q (By Mr. Lanier) Have you talked to ESQUIRE DEPOSITION SERVICES (713) 524-4600 43 1 Mr. Behr about the fact you're giving this 2 deposition? 3 A I have. 4 Q Tell me about that discussion. 5 A I told him I was being deposed this week. 6 Q What did he say? 7 A Didn't really say anything. I just said, 8 "By the way, I'm being deposed next week in a 9 lawsuit involving Dr. Egilman." 10 Q Did you go over the story with him? 11 A No. 12 Q And he just said absolutely nothing? When 13 you said that, stone silence? 14 A It wasn't stone silence, but I don't 15 remember if he said anything. He didn't say 16 anything specific about the case. He said, "Okay. 17 Thanks for the heads up," if I remember -- that was 18 the tenor of what he said, "Thanks for letting me 19 know." 20 Q "Thanks for the heads up." 21 A Or that may be my words. That was the -- 22 that was the gist of what I got. 23 Q Well, when you got on on June 11th and 24 12th, what did you do? 25 A On June 11th, I believe I looked at the ESQUIRE DEPOSITION SERVICES (713) 524-4600 44 1 first page, printed the first page or first couple 2 of pages and then got out. 3 Q You-all have given some documents today to 4 me, and they've been Bates numbered 1 through 157. 5 I'd like you to show me which documents you ran out 6 that day, please. 7 A (Witness tenders documents) 8 Q Okay. You've handed me the documents with 9 Bates numbers 117 through 122; is that right? 10 A Yes. 11 Q It says, "Sign our guest book." Did you 12 sign the guest book? 13 A No. 14 Q It says "registration information." Did 15 you register? 16 A I don't know if I did. I don't think so. 17 Q What is this page 122? 18 A It's a page that came up. 19 Q Would you read the first line on that page, 20 please? 21 A It says, "You are not authorized to view 22 this page." 23 Q What page were you trying to look at you 24 weren't authorized to view? 25 A I don't know. ESQUIRE DEPOSITION SERVICES (713) 524-4600 45 1 Q Is that when you had to put in the 2 password? 3 A No. 4 Q Are you sure? 5 A Yeah. 6 Q You're sure you didn't get to that site 7 first and then realized that you needed the password 8 and then crank in the password? 9 A Yeah, I'm sure. 10 Q You understand computers trace this stuff, 11 don't you? 12 A I assume they do, yes. 13 Q Which computer were you using at the time? 14 A My computer in my office in Dallas. 15 Q On Saturday night at 11:45 p.m.? 16 A Not likely. 17 Q Let's talk about which computers you have. 18 How many computers did you have back in -- access to 19 back in June of 2001? 20 A Well, I had access to my computer in my 21 office. 22 Q All right. And that's in Dallas? 23 A Yes. 24 Q At Jones Day? 25 A Yes. ESQUIRE DEPOSITION SERVICES (713) 524-4600 46 1 Q Did you have access to any other computers? 2 A The other Jones Day computers. At the firm 3 I could have used somebody else's computer. 4 Q All right. Any others? 5 A No. 6 Q You didn't have a computer at home? 7 A Not then, no. 8 Q No laptop? 9 A My laptop was my work -- I had a laptop -- 10 my work computer was my laptop. 11 Q So, you didn't have an independent terminal 12 in your office beyond the laptop. 13 A No. 14 Q So, you had a laptop at work. 15 A Right. 16 Q Could you take that home and use it at 17 home? 18 A Sure. 19 Q I mean, you had some type of internet 20 account where you could access the internet from 21 your house, AOL, Road Runner? 22 A No. 23 Q How would you access the internet from 24 home? 25 A I don't know if I was even doing it at that ESQUIRE DEPOSITION SERVICES (713) 524-4600 47 1 point or could do that at that point. 2 Q This is a year ago. 3 A It's been fairly recent that I've -- I 4 don't think I've ever accessed the internet at my 5 house. 6 Q Have you ever accessed it on the road in a 7 hotel room? 8 A No. 9 Q You've got a laptop, and you can't use it 10 anywhere but in your own office? 11 A I access Jones Day's website, if that goes 12 through the internet, then.... 13 Q Have you ever accessed the internet through 14 Jones Day? In other words, you've been away from 15 the office but somehow your computer's patched in to 16 Jones Day, you dial into Jones Day and -- 17 A No. And, Mr. Lanier, let me clarify. If 18 accessing Jones Day's website off-site means I go 19 through the internet, then, yes, I've accessed the 20 internet. But I don't get into sites with the "www" 21 other than Jones Day. I don't know how it works. 22 Q Do you have any e-mail addresses? 23 A No. At Jones Day I do. 24 Q And that's the only one? 25 A That's the only one. ESQUIRE DEPOSITION SERVICES (713) 524-4600 48 1 Q What's your e-mail address at Jones Day? 2 A Kellystewart@JonesDay.com. 3 Q All right. You gave me pages 117 through 4 122. They were stapled before I was given these. 5 Do you know why they were stapled, these pages, like 6 this? 7 A My attorneys produced them to you. I 8 assume they stapled -- they did the physical 9 stapling of that. It should have matched the 10 documents that I gave them in response to their 11 subpoena. 12 Q In other words, your document would have 13 been stapled; and when they Xeroxed them, they would 14 restaple them back together? 15 A Should have been, yes. 16 Q And do you have your original documents 17 here so we can look at them and make sure? 18 MR. HARRELL: They are here, yeah. 19 MR. LANIER: And we can do that maybe 20 at another moment on the record and won't waste the 21 time now. I just want to make sure they weren't 22 misstapled. 23 Q (By Mr. Lanier) Okay. You got this 24 information on June the -- what did we decide? 25 A I wrote at the top June 11th, the date I ESQUIRE DEPOSITION SERVICES (713) 524-4600 49 1 printed that out. 2 Q All right. So, on June 11th of 2001, you 3 accessed this information. You print it out. Had 4 you done any work to try and access Dr. Egilman's 5 account in the couple of days prior to June 11th? 6 A I don't recall, and I'm not sure what you 7 mean by any work. I don't recall accessing his 8 website in the days prior to June 11th. 9 Q Or trying to access it. 10 A No, I don't recall. 11 Q Okay. June 11th you'll find is a Monday. 12 I don't know if you remember that or not. 13 I'm going to show you a document 14 that's marked page 121 -- Bates marked 121, 15 www.egilman.com. -- 16 A Uh-huh. 17 Q -- ./new_Jones_Day/. Do you see that? 18 A Uh-huh. 19 Q It's a parent directory. 20 A Uh-huh. 21 Q It's got an entry for Saturday, June 9th at 22 11:45 p.m. You've got another entry for Friday June 23 8th at 6:05. Do you see those entries? 24 A Sure. 25 Q Do you have any clue what those entries ESQUIRE DEPOSITION SERVICES (713) 524-4600 50 1 would be referencing Egilman and Jones Day in the 2 days preceding? 3 A I printed this off of Dr. Egilman's 4 website. I believe this was on Dr. Egilman's 5 website. So, I don't know what it means. 6 Q Okay. You have no clue? 7 A No clue. 8 Q Okay. Now, you got these materials that 9 are Bates stamped 117 through 122. What did you do 10 after you signed off -- after you printed them and 11 signed off? 12 A With respect to the next time dealing with 13 Dr. Egilman's website? 14 Q With respect to Dr. Egilman in any way, 15 shape, form or fashion, including these documents. 16 A The next thing I remember is hearing from 17 Mr. Behr the next day, I believe, that he had 18 said -- 19 MR. HARRELL: Just a moment. Can we 20 have the same agreement? 21 MR. LANIER: I'll give you a running 22 agreement so you don't have to tune in to it. We're 23 not going to deem anything that's said here to be an 24 open waiver of an attorney/client privilege in any 25 other matter at all. ESQUIRE DEPOSITION SERVICES (713) 524-4600 51 1 MR. HARRELL: Okay. Just a minute. 2 What do you mean by "open"? It's not going to be a 3 waiver. 4 MR. LANIER: It's not going to be a 5 waiver. It's not going to say -- we're not going to 6 say, "Oh, gee, he answered this question. Because 7 you didn't object to that one, so, now it's opened 8 the waiver up for anything else." It's not a waiver 9 of anything at all. 10 MR. HARRELL: Okay. That would apply 11 to joint defense, attorney work product. 12 MR. LANIER: Joint defense, 13 attorney/client, work product, everything in the 14 letter. 15 MR. HARRELL: Okay. 16 A When you say in any other matter, do you 17 mean in the Staples matter? 18 MR. HARRELL: That would include the 19 Staples matter or any other matter. 20 MR. LANIER: Period, anything. 21 Q (By Mr. Lanier) Okay. Now, you were 22 answering my question. You said the next day, which 23 I guess is June the 12th, Mr. Behr -- and at that 24 point, you were interrupted. 25 A The next thing I remember with respect to ESQUIRE DEPOSITION SERVICES (713) 524-4600 52 1 Egilman or Egilman's website was the next day 2 Mr. Behr let me know that there was a statement on 3 Egilman's website that said that Jones Day had 4 bought the Colorado judge. 5 Q And do you know anything about the 6 beryllium case going on up in Colorado at this time? 7 A Vaguely, yes. 8 Q What do you know about it? 9 A I knew it was a case involving Dr. Egilman 10 and Dr. Egilman's conspiracy theories with respect 11 to beryllium and that -- I mean, I knew some of the 12 procedural -- what was going on procedurally and it 13 was in the middle of a trial. 14 Q So, when you got that information from 15 Mr. Behr, what did you do? 16 A I saw that he had -- Mr. Behr indicated 17 that Dr. Egilman had said that Jones Day had bought 18 a Colorado judge, and I got back onto Dr. Egilman's 19 website to see. 20 Q How did you get on that time? 21 A I used the password that I had been given. 22 Q By Mr. Behr? 23 A Yes. 24 Q Have you at any time in your life ever used 25 someone else's password to access anything? ESQUIRE DEPOSITION SERVICES (713) 524-4600 53 1 A I don't recall. It may have happened. I 2 just don't remember. I don't remember ever doing 3 that before. 4 Q All right. So, you signed back on with the 5 guessed-at password. What happens next? 6 A I saw the first screen that said, "Colorado 7 judge in Jones Day's pocket"; and I printed that 8 out. 9 Q Okay. You've got the documents in front of 10 you. Would you show me, please, what it was? 11 You've handed me -- 12 A It was that one (indicating). 13 Q And by "that one," you mean Bates numbers 14 123 through and including 126; is that right? 15 A Yes. 16 Q And I assume you ran these out at the time? 17 A Yes. 18 Q Is that your handwriting who put the date 19 up at the top? 20 A It is. 21 Q Why did you run this out? 22 A Because it said something defamatory about 23 my firm, and I wanted to print it off. 24 Q Did you bother e-mailing Dr. Egilman or 25 anybody else that represented -- that hired him or ESQUIRE DEPOSITION SERVICES (713) 524-4600 54 1 worked with him about this? 2 A No. 3 Q In other words, if Dr. Egilman was 4 preparing this website and password-protected it 5 because he did not want the public to get it until 6 some lawyers that he had retained looked at it and 7 decided whether or not it was okay to run it and 8 that's why he shut it in and protected it, did you 9 write to try and find out that kind of information 10 before you just started Xeroxing this stuff and 11 handing it out? 12 A Not before I printed it off, no. 13 Q Have you ever had a client or an expert 14 who's drafted a report for you? 15 A Yes. 16 Q Have you ever had one draft a report and 17 give it to you for you to look at before they put 18 their report in final form? 19 A Sure. 20 Q Do you think it would be right for someone 21 to secretly get a copy of that drafted report and 22 start passing it around? 23 A It depends on the circumstances. If it's 24 truly secret, no. If the whole world can see it, 25 then it's not -- yeah, that would be right. ESQUIRE DEPOSITION SERVICES (713) 524-4600 55 1 Q One person stealing is not right. But if 2 20 people are going to steal, it's okay. 3 A That's not what I said. 4 MR. HARRELL: Objection, form. 5 Q (By Mr. Lanier) Okay. Good. I want to 6 make sure that's not what you're saying. If it's 7 wrong, it's wrong whether one person does it or a 8 hundred people do it, right? 9 A Yeah. But that's not what I said in 10 response to your earlier question. 11 Q But you would agree with me if something is 12 wrong when one person does it, it should not make it 13 okay just because more people are doing it, right? 14 A In a vacuum, yes. 15 Q Okay. Now, sir, did it ever occur to you 16 that Dr. Egilman may have been communicating with me 17 or several other lawyers about whether or not it was 18 okay for him to post this for public access? 19 A No, I didn't. 20 Q Did it ever occur to you that this might be 21 some secret information he was planning on using in 22 another way or some other process and that's why he 23 had all of a sudden password-protected it? 24 A No, it didn't. 25 Q Sir, do you understand now looking at this ESQUIRE DEPOSITION SERVICES (713) 524-4600 56 1 if this is something Dr. Egilman purposely put 2 behind a password so the public could not access it 3 until some lawyers of his had signed off on it as 4 being okay, do you understand how wrong it would be 5 for you to take that and run it out and start 6 passing it around? 7 MR. HARRELL: Objection, form. 8 A Assuming the facts in your question are 9 true, then, yes, I understand how you could make 10 that argument or say that. 11 Q (By Mr. Lanier) Okay. Well, did you 12 bother talking to him or one of the lawyers he works 13 for saying, "Hey, does David mean for this to be 14 generally accessed," you know, or anything like 15 that? 16 MR. HARRELL: Objection, form. And, 17 Mark, he's answered that question now. Go ahead. 18 A No. I didn't talk to anybody about that. 19 Q (By Mr. Lanier) What did you do with these 20 pages after you ran them out? 21 A With respect to the June 12th pages, I sent 22 them to the attorneys at Jones Day who were working 23 on the Colorado Brush-Wellman case because of the 24 statement in there that said the Colorado judge is 25 in Jones Day's pocket. ESQUIRE DEPOSITION SERVICES (713) 524-4600 57 1 Q What right did you have to send these 2 papers to someone else? 3 A Are you asking me for a legal conclusion? 4 Q A legal, ethical, moral, any kind of right 5 you want to assert. Give me something. 6 A Dr. -- 7 MR. HARRELL: Object to the form. Go 8 ahead. 9 A Dr. Egilman had accused my firm of paying 10 or buying, as he says there, the Colorado judge. 11 And I believe that the attorneys working the -- 12 Jones Day attorneys working on that case needed to 13 know this information. 14 Q (By Mr. Lanier) Well, sir, he didn't 15 publicly do this. This was privately behind a 16 password-accessed page, right? 17 A I don't know that. You're telling me that. 18 That's a big assumption right now. 19 Q You -- the only way you got to it was using 20 a password, right? 21 A That's a different question. Yes, I got to 22 it using a password. 23 Q And you've never seen anybody get to this 24 page without a password, have you? 25 A The only time I've seen anybody get to the ESQUIRE DEPOSITION SERVICES (713) 524-4600 58 1 page is when I got to the page. 2 Q You've never heard of anybody getting to 3 the page without a password, have you? 4 A No. 5 Q Okay. So, you've got a page. The only way 6 you have ever seen, heard or accessed it is through 7 a password that was not bought. And you think 8 you've got a right to send that around? 9 MR. HARRELL: Object to the form. 10 A Yes, I do. 11 Q (By Mr. Lanier) Wow. Have you ever said 12 anything bad about someone? 13 MR. HARRELL: Object to the form. 14 A Sure. 15 Q (By Mr. Lanier) Have you ever said 16 anything bad about someone that you wanted to run 17 by people first before you just made a bad 18 accusation? 19 Let me ask it this way. That's not a 20 good way to ask it. Let me ask you another way. 21 Have you ever accused anyone of 22 anything, at least in your own mind? 23 A Sure. 24 Q Have you ever out of fairness to those 25 people checked out the facts to see whether or not ESQUIRE DEPOSITION SERVICES (713) 524-4600 59 1 they were true before you accused them to their 2 face? 3 A Probably. I don't -- I'm not recalling any 4 specific incidents of that. 5 Q But it would be a reasonable thing to do, 6 wouldn't it? 7 A Perhaps. 8 Q I mean, you even know before you accuse 9 someone filing a lawsuit you should do an 10 investigation to see if you have a reasonable basis 11 for it, shouldn't you? 12 A Yes. 13 Q And we're trained to do that as lawyers, 14 aren't we? 15 A Yes. 16 Q We're trained before we accuse someone of 17 something to do a reasonable investigation to see if 18 it's true, aren't we? 19 A Yes. 20 Q Did it ever occur to you that Dr. Egilman 21 had put this together, had password-protected it 22 because he was only wanting folks who could look at 23 it to look at it because he was trying to do his 24 reasonable investigation to see if it were true? 25 A No. That never has occurred to me. ESQUIRE DEPOSITION SERVICES (713) 524-4600 60 1 Q Well, sir, you kind of blew his chance to 2 do that when you started sending this out around the 3 country, didn't you? 4 MR. HARRELL: Objection, form. 5 A I sent it to one person. It's not out 6 around the country. 7 Q (By Mr. Lanier) Sir, you sent it to Brett 8 Ross? 9 A Yes. 10 Q Brett Ross was staying at the Residence Inn 11 up in Colorado, wasn't he? 12 A I believe so. 13 Q You sent it to him immediately after you 14 pulled it off, didn't you? 15 A I did. 16 Q And did you know Brett Ross then took it to 17 the judge in Colorado? 18 A Somebody at Jones Day took it to the judge. 19 I doubt it was Brett. But a Jones Day attorney took 20 it to the judge, yes. 21 Q Did you know that this was -- 22 A Or something like this to the judge. I 23 don't know what was given to the judge. 24 Q Did you know Jones Day then used this as a 25 basis for having Dr. Egilman's testimony struck in ESQUIRE DEPOSITION SERVICES (713) 524-4600 61 1 that case? 2 A I believe it was part of the basis, yes. 3 Q Did you know that Jones Day then -- and not 4 only that judge -- by the way, did you know that 5 judge ordered Dr. Egilman not to ever testify there 6 again as part of a sanction? 7 A I know that. 8 Q Did you bother to go up there and tell the 9 judge, "Hey, your Honor, I had to use a password to 10 get to this; and I don't know of anybody who's ever 11 accessed it otherwise. And I've not run it by 12 Dr. Egilman to see if this is something he believes 13 or something he's investigating or anything like 14 that. You just need to know it's something that I 15 got with a secret password that someone guessed at"? 16 Did you tell the judge any of that? 17 MR. HARRELL: Objection, form. 18 A Because most of that's not true. But, no, 19 I did not talk to the judge in Colorado. 20 Q (By Mr. Lanier) Tell me any statement in 21 there that you know is untrue. 22 A I'm not sure all of those are true because 23 I'm not sure it was a secret password. I did not 24 talk to the judge. 25 Q You just said to me under oath -- she's ESQUIRE DEPOSITION SERVICES (713) 524-4600 62 1 typed it up. You said, "Not all of those statements 2 are true." You tell me which ones you know are 3 untrue. 4 MR. HARRELL: Objection, form. 5 A Can I hear my question back? 6 MR. LANIER: How's your eyes today? 7 (The requested portion of the record 8 was read) 9 Q (By Mr. Lanier) You said there were things 10 that were not true. What do you know is untrue in 11 that litany of facts? 12 MR. HARRELL: I object to the form. 13 A Well, I don't know anything in that litany 14 of reported facts were untrue. I don't know if all 15 of them are true. So, if I -- I'm not trying to 16 play games. I just don't -- I'm not agreeing that 17 all of those are true such as the secret password. 18 But the answer to your question is, no, I didn't go 19 to the judge and say anything about this at all. 20 Q (By Mr. Lanier) Do you understand that as 21 a result of this, Dr. Egilman's lost a lot of 22 employment? 23 A He claims to. 24 Q Well, have you not seen -- are you not 25 aware of the fact that the Colorado judge's rulings ESQUIRE DEPOSITION SERVICES (713) 524-4600 63 1 have been taken around the country to try and 2 disqualify Dr. Egilman from testifying? 3 A I would expect that they would have been. 4 I don't have any personal knowledge that they have 5 been, but that doesn't surprise me that they have 6 been. 7 Q It's foreseeable, isn't it? 8 A Certainly. 9 MR. LANIER: Let's take a break. How 10 long do y'all need? 11 MR. HARRELL: Five minutes. 12 THE VIDEOGRAPHER: Off the record at 13 approximately 11:20. 14 (Recess from 11:20 to 11:30) 15 THE VIDEOGRAPHER: We're back on the 16 record at approximately 11:30. 17 Q (By Mr. Lanier) Ms. Leather, that's the 18 name of the librarian? 19 A Yes, it is. 20 Q And that's the lady who filled out what we 21 were talking about 153 through 156 on your behalf? 22 A Yes. 23 Q 157, I think, is the rest of the sign-up. 24 A Well, it looks like it's just on page 153. 25 But, yes, she filled it out on my behalf. ESQUIRE DEPOSITION SERVICES (713) 524-4600 64 1 Q She was signing you up to have access, 2 right? 3 A Yes, she was. 4 Q At your specific request. 5 A Yes. 6 Q Why did she Xerox out or print out those 7 pages? 8 A I don't know why she did. 9 Q How did they come to your attention? 10 A In response to your subpoena I got copies 11 of them. 12 Q Okay. Do you know who had these in their 13 custody or control? 14 A Anne Leather did. 15 Q Sir, I'd like to direct your attention to 16 the drop-down portion as reflected on page 157 where 17 the type of access is being referenced for the Kelly 18 Stewart application, it says "not a lawyer or member 19 or law firm employee." That's not right, is it? 20 A Well, this isn't the Kelly Stewart 21 application, in your words. This, I think, was, I 22 believe, what Anne printed off as just here's the 23 screen we're going to fill out. I think then you 24 fill it out and you come to the drop-down and you 25 indicate what it is. ESQUIRE DEPOSITION SERVICES (713) 524-4600 65 1 So, I think this is -- my 2 understanding is this is just a blank. This is what 3 you get. She just printed it off, and this wasn't 4 the application. See, like it says visa credit 5 card, there's a drop-down. This is a blank form -- 6 my understanding this is blank form you could fill 7 out. 8 Q Okay. 9 A So, this is not something we're submitting 10 to Dr. Egilman. 11 Q Where is the drop-down screen that she 12 filled out? 13 A I don't know. 14 Q Would you be surprised to find out she 15 filled out that it was not a lawyer or member of -- 16 or law firm employee? 17 A I would -- 18 MR. HARRELL: Object to the form. 19 A I would be surprised. I've not seen that. 20 Q (By Mr. Lanier) Sure wouldn't be the 21 truth, would it? 22 A If that were on the application, then I 23 don't believe that's correct. 24 Q Do you know a fellow named Dr. -- a medical 25 doctor -- Lawrence Repsher, R-e-p-s-h-e-r? ESQUIRE DEPOSITION SERVICES (713) 524-4600 66 1 A No. 2 Q Do you know Jeffrey Saks? 3 A I know who he is. 4 Q Who is he? 5 A He's an attorney with Jones Day. 6 Q Which office? 7 A I don't know that. 8 Q Do you ever talked to him? 9 A No. 10 Q Okay. I'm not sure I have on the record 11 who Mr. Behr's client was in the Staples case. Who 12 was it? 13 A I believe it was SPI. 14 Q SPI? 15 A Yeah. And can I clarify something? I 16 don't ever recall talking to Jeff Saks. I think I 17 told you I'd never talked to -- I don't recall ever 18 talking to him. So, perhaps sometime I did. I 19 don't recall ever talking to him. 20 Q Have you had discussions with any Jones Day 21 lawyers about Dr. Egilman's website where you don't 22 remember their names? 23 A No. 24 Q So -- 25 A But, I mean, my point is I, perhaps, could ESQUIRE DEPOSITION SERVICES (713) 524-4600 67 1 have talked to Jeff Saks years ago on something 2 totally different. I don't know. That's my point, 3 is all. 4 Q And I appreciate that. What I'm driving at 5 is: Have you had any discussions with Jeffrey Saks 6 about Dr. Egilman or his website? 7 A No. 8 Q Who have you talked about Dr. Egilman and 9 his website in the past other than the lawyers that 10 represent you in this case? 11 A At Jones Day or just anybody? 12 Q Anybody. 13 A I have discussed Dr. Egilman and his 14 website with Brett Ross, with -- other Jones Day 15 attorneys would be Craig Simon and Roy Atwood. And 16 I discussed with it other Jones Day attorneys in the 17 context of the grievance filed against Jones Day 18 attorneys by Dr. Egilman in Colorado. 19 Q And who were those people you discussed it 20 with? 21 A Brian Toohey, Jones Day's attorney. 22 MR. HARRELL: I think the question was 23 who have you discussed it with other than your 24 attorneys. 25 THE WITNESS: Okay. ESQUIRE DEPOSITION SERVICES (713) 524-4600 68 1 Q (By Mr. Lanier) No. I mean, in reference 2 to the grievance filed in Colorado, who have you had 3 discussions with? 4 MR. HARRELL: The earlier question -- 5 THE WITNESS: Yeah. I'm sorry. 6 MR. LANIER: The earlier question. 7 Q (By Mr. Lanier) Other than the lawyers in 8 this case. 9 A The lawyers I believe for Jones Day in the 10 Colorado grievance were Brian Toohey, an attorney 11 out of Colorado -- I'll have to guess at his name. 12 He was outside counsel -- Rick Henessey. I'm not 13 sure of his name, though -- and another -- two other 14 Jones Day attorneys -- one other Jones Day attorney, 15 I'm sorry, Bob Hamilton. 16 Q All right. So, in a list of people that 17 you've had discussions with Dr. Egilman and/or his 18 website, we've got Brett Ross, Craig Simon, Roy 19 Atwood, Brian Toohey, Rick Henessey, Bob Hamilton. 20 Any others? 21 A Attorneys? 22 Q Yes, sir. 23 A I'm speculating. I may have talked to 24 Cathy Bjorck. 25 Q Can you spell her last name for the court ESQUIRE DEPOSITION SERVICES (713) 524-4600 69 1 reporter? 2 A B-j-o-r-c-k. I don't recall if I -- it's 3 just a possibility. I don't recall a specific 4 conversation with her. I talked to Jones Day 5 attorneys after this lawsuit -- this lawsuit here 6 was filed in connection with the lawsuit. 7 Q Okay. 8 A Do you want -- 9 Q I'm entitled to their names but not the 10 substance of the conversation. How many of them are 11 there? Go ahead and give me the names. 12 A Brian Toohey. 13 Q Right. 14 A Frank Hubach. 15 Q Can you spell his last name, please? 16 A H-u-b-a-c-h. And Terry Murphy. 17 Q T-e-r-r-y? 18 A Yes. 19 Q Any other attorneys you've had discussions 20 with about Dr. Egilman and/or his website? 21 MR. HARRELL: Other than the lawyers 22 who represent him. 23 Q (By Mr. Lanier) Other than the lawyers 24 that represent you in this case. 25 A I had discussions with various ESQUIRE DEPOSITION SERVICES (713) 524-4600 70 1 co-defendants' counsel in the Staples case and also 2 discussions with attorneys from your office, 3 Mr. Lanier, about Dr. Egilman -- maybe not his 4 website. But there were a lot of scheduling 5 discussions, document production -- I mean, so, 6 yeah, there were many people -- many co-defendants 7 and including your clients' attorneys at your firm 8 that we've talked about Dr. Egilman. 9 Q Which co-defendants in the Staples case did 10 you have discussions with? 11 A I have only talked to Doug Behr about 12 Dr. Egilman and the website and with my local 13 counsel Randy Moore or my client's local counsel, 14 Randy Moore. I haven't talked about his website or 15 I don't recall any conversations about his website 16 with any co-defendants' counsel. We have talked 17 about Dr. Egilman in the context of scheduling 18 depositions, getting two days to depose him, as I've 19 talked with Dara Hegar at your office about things 20 like that, setting up his document production -- I 21 mean, just in that context but not about the 22 website. 23 Q Randy Moore, where did these discussions 24 take place? 25 A I believe I talked to Randy -- and you're ESQUIRE DEPOSITION SERVICES (713) 524-4600 71 1 talking about Egilman and his website? 2 Q Correct. 3 A I would have been in Dallas, and he would 4 have been in his offices. 5 Q Did you also talk to him about it when you 6 were down in Brazoria County for a hearing? 7 A I don't recall. We talked about -- we had 8 several hearings that summer, summer of 2001, and 9 one of which was I believe on just getting time -- 10 getting two days of deposition time. So, I likely 11 talked to him about that but not the website. 12 Q Do not recall having a conversation with 13 Randy Moore and John Gilbert in that regard in 14 Brazoria County in the courthouse? 15 A I don't recall. 16 Q In John Gilbert and Randy Moore's office at 17 the time? 18 A I don't recall, no. 19 Q Would your time entries reflect whether or 20 not you had any discussion about this while in 21 Brazoria County? 22 A Likely not because I typically don't put 23 location -- where I was or where -- whoever I was 24 speaking with. So, maybe. I don't know that. 25 Q You don't have to put location. I mean, if ESQUIRE DEPOSITION SERVICES (713) 524-4600 72 1 you went and made a trip to Brazoria County, it's 2 going to be reflected if not in the billing 3 records -- I mean, you bill for your travel time, 4 don't you? 5 A Sure. The records will show that I went 6 for a hearing. It's not going to show who I talked 7 to or about what, necessarily. I just don't know 8 whether that would show it or not. 9 Q Okay. Would you go through the rest of 10 these documents with me? And let's see where you 11 got them and how you got them. Why don't we start 12 at the beginning. The first stapled group starts 13 with Bates number 1 and goes to Bates number 9. 14 A Uh-huh. 15 Q Would you tell me what that is, please? 16 A It's a cover memo or fax cover sheet, I 17 should say, is number 1 for me to Brett Ross on June 18 12th. And the second page is the confirmation -- it 19 looks like the confirmation report. And what this 20 should be is what I think it is, is the pages that I 21 printed off on the 12th of June that I had faxed to 22 Brett Ross. 23 Q Okay. I'm going to show you -- the last 24 page of that is page No. 9. Can you read me the 25 last three words on page No. 9? ESQUIRE DEPOSITION SERVICES (713) 524-4600 73 1 A You mean copyright C and circle 2000? 2 Q Yeah. Did you bill any clients for taking 3 this copyrighted material off of the web and making 4 an unauthorized copy of it and transferring it up to 5 Colorado? 6 MR. HARRELL: Objection, form. 7 A I would have billed a client for the time I 8 spent obtaining the information on Dr. Egilman. I 9 disagree at this point that it was unauthorized or 10 whatever. But, yes, I would have billed a client 11 for time. 12 Q (By Mr. Lanier) Did you get -- I mean, you 13 know what a copyright indication is, right? 14 A Sure. 15 Q Okay. Do you just cavalierly go around 16 Xeroxing things that have copyrights and charging 17 clients for the Xeroxes and then sending them off to 18 some other place? 19 A Well, I'm not sure if Dr. Egilman's website 20 was accessible without a password; and I don't know 21 if he had copyright statements on that. But it 22 was -- so -- 23 Q Have you ever gone to the library? 24 A Yes. 25 Q Have you ever seen a book that's publicly ESQUIRE DEPOSITION SERVICES (713) 524-4600 74 1 accessible because it's at the library? 2 A Yes. 3 Q Have you ever seen a book that's got 4 "copyright" on it? 5 A Yes. 6 Q Do you think that allows you to make 7 Xeroxes and charge people for the Xeroxes and sell 8 them or send them out to be used by other people who 9 are charging for it? 10 A I don't know. 11 MR. HARRELL: Object to the form. 12 Q (By Mr. Lanier) I mean, just because it's 13 publicly available, does that allow you to infringe 14 on a copyright? 15 MR. HARRELL: Object to form. 16 A I don't know what the legal answer to that 17 is. But Dr. Egilman's other publicly -- 18 MR. HARRELL: You've answered the 19 question. 20 Q (By Mr. Lanier) Sir, did you bill your 21 client for the copies? Do y'all have a little 22 computer where you have to punch in before you make 23 a Xerox, computer codes for clients? 24 A We do. 25 Q Which client did you bill this work to and ESQUIRE DEPOSITION SERVICES (713) 524-4600 75 1 the copies to? 2 A I can tell you which client I was working 3 for. I don't know if they got billed for it or not. 4 Because when I print things off, if I just print 5 something off of the computer screen, it doesn't get 6 billed to a client. So, it may have been. It may 7 not have been. I don't know. 8 Q The Xeroxes would get billed, right? 9 A If we copied something from something I 10 printed off, yes. 11 Q I assume the faxes get billed, don't they? 12 A Some of them do. I don't know if we bill 13 for a five-page fax or not. I don't know. 14 Q Whose time were -- who was paying for your 15 work here? Which was the client you billed for this 16 work? 17 A Occidental Chemical. 18 Q That's in the Staples case? 19 A Yes. 20 Q How were you helping Occidental Chemical in 21 the Staples case by sending materials on Dr. Egilman 22 that were dealing with the beryllium case in 23 Colorado to the lawyers in Colorado? 24 A Sharing information. You know, I don't 25 know -- it had to be billed to somebody. Whether I ESQUIRE DEPOSITION SERVICES (713) 524-4600 76 1 billed it to the beryllium Brush-Wellman or whether 2 I billed it to Staples. This CAM number looks like 3 it was billed to Occidental Chemical. 4 Q Which is the Staples case. 5 A You know, I did not tell my secretary what 6 CAM to bill it to or what client number to bill it 7 to. It got billed; so, I don't know. 8 Q What about your time entries? Does your 9 secretary pick which client to bill those to? 10 A No. 11 MR. HARRELL: Objection, form. 12 Q (By Mr. Lanier) Do you specify? 13 A I specify. 14 Q Have you looked at your time book to see 15 who you were billing your time to for this? 16 A I billed my time on June 12th to Occidental 17 Chemical, or I should say I billed time on June 12th 18 to Occidental Chemical. 19 Q How were you working on the Occidental 20 Chemical case by sending this material up to 21 Colorado in the beryllium case? 22 A Any information I would have found out on 23 Dr. Egilman was done in preparation for his 24 deposition in the Staples case for Occidental. The 25 fact that I may have sent this on to other Jones Day ESQUIRE DEPOSITION SERVICES (713) 524-4600 77 1 attorneys and bill it to Occi, that's just -- we 2 have to bill it to somebody. 3 Q Okay. Let's keep going. The next 4 documents is a stapled group that's Jones Day page 5 13 through Jones Day page 42. Would you identify 6 those for me, please? 7 A These appear to be documents -- I believe 8 they're documents that I would have printed off of 9 Dr. Egilman's website whenever it was. They're 10 dated September of 2000. They were in my Egilman 11 file. I printed them off of Dr. Egilman's website. 12 Q When? 13 A The first page is September 2000, or it's 14 dated that. So, I don't know when I printed this 15 off. It's got a date on the bottom of September 16 2000. 17 Q Okay. Now, I skipped a couple of pages; 18 and I'm sorry to get out of order. Let's go to 19 Jones Day Bates numbers 10 through 12. And tell me 20 when you got those. 21 A I don't know for sure. I can tell you that 22 it would have -- this says, "Due to overwhelming 23 demand, we have instituted a new pricing policy 24 effective 9/24/00." So, it's likely it would have 25 been shortly after September 24th, 2000. But a date ESQUIRE DEPOSITION SERVICES (713) 524-4600 78 1 didn't print out on this one. So, I don't know 2 exactly when I got this one. 3 Q It's got another sentence after that, 4 doesn't it? 5 A Uh-huh. 6 Q It says, "If you already have a password, 7 this will not affect you. If not, you'll be 8 contacted by e-mail or you can contact us to confirm 9 your entries. No credit charges will be applied 10 until you approve"; is that right? 11 A That's what it says. And this was in the 12 same time or right about the same time we gave them 13 Jones Day's credit card number. 14 Q Well, Jones Day's credit card number looks 15 like it was submitted when? 16 A May I see it? 17 Q Yeah. 18 A This was printed off on the 19th -- or it's 19 got a date on it of the 19th. So, it would have 20 been around sometime in September of 2000. I'm 21 assuming right now the print-off means that's when 22 whoever printed it off the screen printed it off. 23 Sometimes the print-offs with dates showed up and 24 sometimes they didn't. 25 Q Sir, the print-off was at 12:19 p.m. on ESQUIRE DEPOSITION SERVICES (713) 524-4600 79 1 August -- September the 19th for your application, 2 correct? 3 A That's when it shows this was printed off. 4 I don't know if that means that's when it was 5 submitted or not. I don't know. 6 Q Well, sir, the sheet that you're telling me 7 was the sheet that Ms. Leather ran out for you to 8 fill out that preceded September 19th, 2000 has a 9 copyright date on it, too, doesn't it? 10 A Uh-huh. 11 Q If you look on page 157, it's revised 12 September 25th, 2000, isn't it? 13 A That's what it says. 14 Q So, in fact, this sheet that you're trying 15 to tell us Ms. Leather printed out for you to then 16 apply was printed out sometime over a week after 17 your application, wasn't it? 18 MR. HARRELL: Object to form. 19 A The dates -- yes, the date on this blank 20 form says "Revised September 25th." This form shows 21 September 19th. 22 Q (By Mr. Lanier) Uh-huh. 23 A I didn't print these out, nor did I fill 24 them out. Anne Leather filled them out for me. 25 So, I don't know when -- like I said, I don't know ESQUIRE DEPOSITION SERVICES (713) 524-4600 80 1 when she printed this stuff out. I'm going on my 2 knowledge as based on the number -- the dates on the 3 documents. 4 Q Let's go back to Dr. Egilman's website 5 that's shown on page 10. 6 A Uh-huh. 7 Q You'll see some underlined areas in bold 8 print that start out with "DOW" and "Jones Day." Do 9 you see that? 10 A I do. 11 Q Do you -- by the way, that's underlined. 12 You understand that's a link? Do you know that, the 13 computer word a "link"? 14 A Vaguely, yes. 15 Q In other words, you put the cursor on that 16 link, you click it and it will take you to a site, 17 right? 18 A Usually. 19 Q You've done that, haven't you? 20 A I have. 21 Q Okay. Let's look at this link "DOW," 22 "Jones Day." Do you see that? 23 A Yes. 24 Q That's your law firm, isn't it? 25 A Right. ESQUIRE DEPOSITION SERVICES (713) 524-4600 81 1 Q "Covington & Burling," "SPI." That's a 2 company represented by Mr. Behr, right? 3 A Yes. 4 Q "CMA," Chemical Manufacturer's Association; 5 "Swatonic," referencing Matthew Swatonic: "The 6 Vinyl Chloride CMA lawyer conspiracy comes crashing 7 to an end." Now vinyl chloride, that's what was at 8 issue in the Staples case, isn't it? 9 A Yes. 10 Q Mr. Staples is dying of brain cancer, and 11 we brought a suit saying the vinyl chloride monomer 12 caused the brain cancer, right? 13 A You did. 14 Q Okay. "Vinyl chloride lawyers conspiracy 15 comes crashing to an end 60 years and thousands of 16 bodies too late. At your request, Mr. Bernick" -- 17 do you know David Bernick? 18 A I think I know who he is. 19 Q A lawyer at Kirkland & Ellis in Chicago? 20 A Okay. 21 Q A real short guy? 22 A Okay. 23 Q "At your request, Mr. Bernick, the seals 24 are lifted, now open to DOW lawyers and registered 25 users." Do you see that? ESQUIRE DEPOSITION SERVICES (713) 524-4600 82 1 A I see that. 2 Q So, registered users had a right to access 3 that information, didn't they? 4 A Behind this link. 5 Q Yeah. 6 A I assume. 7 Q And Jones Day is being told registered 8 users have a right to access it, aren't they? 9 A It says that. 10 Q You had notice -- you ran it off your own 11 machine that you needed to be a registered user to 12 have access to that knowledge, didn't you? 13 A I printed this off that says you have to 14 have -- this link is apparently open to DOW lawyers 15 and people who are registered users. 16 Q And you never became a registered user, did 17 you? 18 A No. 19 Q And you never became a DOW lawyer, did you? 20 A No. 21 Q You had knowledge -- before you used "Brown 22 Student" to access the website, you had knowledge 23 that specific parts of the website were restricted 24 to registered users, didn't you? 25 A Specific parts of it, yes. ESQUIRE DEPOSITION SERVICES (713) 524-4600 83 1 Q And when -- 2 A And not this page but specific parts. 3 Q When you took the words "Brown Student" and 4 accessed, you were accessing a registered user area, 5 weren't you? 6 A Perhaps. I don't know that. 7 Q Did you have any knowledge that 8 professional hackers were behind getting the name 9 "Brown Student"? 10 A No. 11 Q Do you know anything about which computer 12 program was actually used and can be shown to be 13 used because of all the different variations that 14 went forward in attempts to sign on with all the 15 different names before "Brown Student" worked? 16 A This is the first time I've heard of that. 17 Q Let's go to the next documents, Jones Day 18 43 and 44. When and where did you get those? 19 A This was, I believe, in my file on 20 Dr. Egilman; and I likely would have printed it off 21 of Dr. Egilman's website. It's not dated. So, I 22 don't know when I got it at all. I don't remember. 23 Q All right. How about 45 through 47? What 24 are those, and where did you get them? 25 A It's, again, a print-off on Dr. Egilman's ESQUIRE DEPOSITION SERVICES (713) 524-4600 84 1 website; and I don't know when I got this. 2 Q Do you pass these things around with other 3 people? 4 A No. 5 Q Have you ever given any of this information 6 to anybody other than that Brett guy you faxed it 7 to? 8 A And my attorneys, no, I have not. 9 Q Well, when you say "and my attorneys," you 10 mean your attorneys in this lawsuit today? 11 A Yes. Oh, and Jones Day's attorneys in the 12 Colorado grievance action. 13 Q I'll give you a group that is put together 14 by a paper clip as opposed to a staple, Bates 15 numbers 48 through 84. Tell me what those are and 16 how you got them. 17 A (Witness peruses documents) These are 18 documents that would have been printed off of 19 Dr. Egilman's website at some point. I think these 20 were printed off in the fall of 2000 in preparation 21 for his deposition, and we didn't need a password to 22 get these. They're not -- none of them appear to be 23 dated. I didn't see a date, and I don't -- I recall 24 this being fall 2000 when I would have printed this 25 off I think. ESQUIRE DEPOSITION SERVICES (713) 524-4600 85 1 Q Okay. Next I want to show you documents 2 that are marked 85 through 93 and ask you what those 3 are and when you got them. 4 A (Witness peruses documents) Well, part of 5 these are -- they are documents printed off 6 Dr. Egilman's website. And some of them have a date 7 at the bottom of September 19th, 2000. But then 8 there's also this course registration page that 9 we've already talked about that's in here. The 10 answer is: The course registration page I would 11 have gotten from Anne Leather at some point, and 12 this may be what was in her file. I don't know. I 13 don't know. These are documents printed off his 14 website. I don't know when we got them other than 15 looking at some of the dates. 16 Q Well, they've got dates in the lower 17 right-hand corner, don't they? 18 A Some of them do. The first two pages 19 don't. 20 Q Sir, let's look at those dates a little bit 21 and see if they tell the same story. Page 87 has 22 the date in the lower right-hand corner. The date 23 and time signature says what? 24 A September 19th, 2000. 25 Q 12:16 p.m., right? ESQUIRE DEPOSITION SERVICES (713) 524-4600 86 1 A Yes. 2 Q Now, we know, then, on September 19th of 3 2000, your law firm, you or the librarian you 4 directed, was accessing Dr. Egilman's website where 5 specifically DOW and Jones Day are mentioned, right? 6 A Yeah, assuming this print-out is -- I have 7 no -- I'm assuming that this shows up. That's the 8 correct time that it was printed off. I'm assuming 9 that, yes. 10 Q Yeah. The jury may not know this. Y'all 11 are not a little mom-and-pop law firm, right? 12 MR. HARRELL: Objection, form. 13 Q (By Mr. Lanier) Y'all are pretty big, 14 aren't you? 15 A We're a big law firm. 16 Q How many lawyers have y'all got worldwide? 17 A 16, 1700. 18 Q Can you think of any bigger law firm in the 19 United States of America than y'all? 20 A Skadden, Arps; Baker & McKenzie. 21 Q So, y'all are number three? 22 A It depends on what day you check. 23 Q So, you've got a big international law 24 firm, one of the three biggest in the United States. 25 Do you have any reason to think y'all's computers ESQUIRE DEPOSITION SERVICES (713) 524-4600 87 1 don't give the right time entries or time signatures 2 on them? 3 A Yeah, I do because some of the documents 4 print them out without them. So, I would expect 5 them to be accurate. I don't know. I didn't -- 6 when I print things off, I don't -- I'm so computer 7 illiterate, I wouldn't know how to do that. So, I'm 8 just not making an assumption. I mean, I am making 9 an assumption that it's true. 10 Q That's a pretty safe assumption, don't you 11 figure? 12 A Not necessarily. 13 Q Don't you figure your librarian knows -- is 14 computer literate? 15 A I hope so. 16 Q Don't you figure if she's running stuff out 17 and putting it permanently in your files and putting 18 a time and date on it, she's going to put one that's 19 accurate? 20 A Well, some of the things that were run out 21 don't have times on it. 22 Q Okay. But the ones that do, don't you 23 think she's going to put it accurate instead of lie 24 about it? 25 MR. HARRELL: Objection, form. ESQUIRE DEPOSITION SERVICES (713) 524-4600 88 1 A I don't think there's any lying here. When 2 I print things out, I don't look at that. I just 3 put them in the file. So, if it's off -- people 4 don't always check this. 5 Q (By Mr. Lanier) Let's just assume that 6 it's correct. 7 A Okay. I'll assume it's correct. 8 Q If we assume it's correct, we know on 9 September 19th of 2000, y'all were getting in. And 10 at the time, you were told specifically how to click 11 to register, right? 12 A To go deeper into the website, not -- 13 Q Correct. 14 A -- not to get these pages here. 15 Q Right. To go deeper into the website -- 16 A Right. 17 Q -- you had click here to register, correct? 18 A That's what it says. 19 Q And we also know at this time, three 20 minutes later at 12:19 p.m. on the same day, the 21 librarian seems to have clicked in to register you, 22 right? 23 A She's filled out this form and printed it 24 off. 25 Q This is the registration page, isn't it? ESQUIRE DEPOSITION SERVICES (713) 524-4600 89 1 A That's what it says. 2 Q Sir, it's a week later, seven days later on 3 the 26th, that we reach page 92, correct? 4 A According to the date stamps, yes. 5 Q Page 92 still says "click here to 6 register," doesn't it? 7 A To go deeper into it, not just to get this 8 page. 9 Q And that's the day when the page is run out 10 that says -- on the 26th that says "not a lawyer or 11 member of law firm, employee," correct? 12 A I don't think that's what we submitted to 13 Dr. Egilman. I think that's what was printed out on 14 September 26th. 15 Q Was that brought to your attention that you 16 were going to have to answer those kinds of 17 questions? 18 A Yes. Yes. And that's why this first page 19 says -- we say "law firm title" -- I mean, it would 20 not make sense to say we're a lawyer here and then 21 to leave this like this. 22 Q Where does it say "law firm"? I didn't see 23 that. 24 A "Organization: Jones, Day, Reavis & 25 Pogue." "Title: Associate attorney." ESQUIRE DEPOSITION SERVICES (713) 524-4600 90 1 Q Okay. So, "organization," it says "Jones, 2 Day, Reavis & Pogue." And everybody should know 3 that's a law firm, right? Is that what you're 4 saying? People who process visas and things -- visa 5 cards and things like that are supposed to know 6 that's a law firm? 7 A Well, we've given -- I say "associate 8 attorney" right above it. It's a pretty safe 9 assumption, yes. 10 Q Okay. Because you don't think attorneys 11 work for other companies or organizations? They 12 only work in law firms? 13 A Do what? 14 Q Have you not seen attorneys -- 15 A Yes, Mr. Lanier. 16 Q -- who work for, like -- 17 A Yes. 18 Q -- Ellen Noble is a PR firm. 19 A Sure. Attorneys work for companies other 20 than law firms. 21 Q Here's pages 94 through 111. Tell me what 22 those are and how you came by them. 23 A These would have been documents that I 24 printed off Dr. Egilman's website that were not -- 25 did not require a password to look at. ESQUIRE DEPOSITION SERVICES (713) 524-4600 91 1 Q 112 and 113 -- oh, by the way, when did you 2 print those out, 94 and following? 3 A There is not a date. But I vaguely 4 remember this as being in the fall of 2000, I think. 5 There's not a date. 6 Q 112 and 113, what are those? 7 A This is a document that I would have 8 printed off Dr. Egilman's website that did not 9 require a password to get to. And this would have 10 been done, I believe, in the summer of 2001. 11 Q Before or after the June -- 12 A After, I believe. 13 Q Is that one that required any password to 14 get in? 15 A No, it's not. 16 Q How do you know? 17 A Because the only time I used a password to 18 get in was on June 11th and June 12th. And after 19 that, the website was publicly -- it didn't require 20 a password to get into after that point -- or the 21 next time I logged on to it didn't require a 22 password. 23 Q Here's 114 and 115. Can you tell me what 24 those are? 25 A Same as the document before. I think this ESQUIRE DEPOSITION SERVICES (713) 524-4600 92 1 was a document I printed off the website in -- after 2 the June 11th, 12th time period. It did not require 3 a password but sometime certainly before 4 Dr. Egilman's August of 2001 deposition. 5 Q What is exhibit -- or Bates number 116? 6 When did you get it? 7 A This is a document that I would have 8 printed off of Dr. Egilman's website. Again, it did 9 not need a password. Would have done it before his 10 deposition, although this says -- I don't remember 11 when his deposition is. The date on this says 12 August 9th. But I printed this off August 9th of 13 2001. 14 I printed this off for -- in 15 preparation for his deposition, I believe, or -- if 16 8/9/01 is after his deposition, I would have printed 17 it off after his deposition. I don't remember when 18 his deposition was. It was the first week -- no, it 19 was mid-August. So, this would have been before. 20 Q Okay. Would you agree with me at the time 21 you used the password, "Brown" and "Student," you 22 thought you needed to to get into the website? 23 A I thought I needed to use a password? 24 Q Yes, sir. 25 A At the time, I didn't think about it. I ESQUIRE DEPOSITION SERVICES (713) 524-4600 93 1 just plugged the password in. So, I did not -- in 2 hindsight, I can tell you what I think. But at the 3 time, I simply -- someone gave me the password. I 4 plugged it in and did not think about it. 5 Q You assumed that you needed the password to 6 get in there at the time; isn't that true? 7 A Yes. Yes. 8 Q That's why you gave the password out, 9 right? 10 A I gave the password, I believe, to one 11 person, yes. 12 Q Yeah. You gave the password to who? 13 A I believe I gave it to -- I think I gave to 14 it Brett Ross. 15 Q Okay. Well, you gave it to Brett Ross 16 because you assumed you needed it to get in, right? 17 A Right. 18 Q And you didn't say to Brett, "Hey, I don't 19 think you need a password to get in. I think you 20 can just get in free just doing nothing." 21 And you said, "Hey, here's the 22 information. Here's the bad stuff. Here's the 23 password it says takes to get in," right? 24 A Well, that's not exactly the way I phrased 25 it. But I conveyed to him this fax that we've ESQUIRE DEPOSITION SERVICES (713) 524-4600 94 1 talked about or sent him his fax and then someone 2 communicated to him the password. 3 Q You told him the password to get in, didn't 4 you? 5 A Yes. 6 Q Did you do it in writing or verbally? 7 A I believe I did it verbally. I don't see 8 any records of giving it to him in writing. 9 Q Now, I assume a password screen comes up 10 when you're trying to get into the website. 11 A On June 11th and 12th, it did. 12 Q Yeah. 13 A The only other times I got into it, it 14 didn't come up. 15 Q You couldn't access on June 11th and 12th 16 this information without coming to the password 17 screen, right? 18 A Technically, I don't know the answer to 19 that. I didn't access it any other way. 20 Q You don't know any other way to access it. 21 A Personally, no, I don't have any other way 22 to access it. 23 Q Computer hackers may be able to figure out 24 how to get into it, but not you, right? 25 A They could perhaps. ESQUIRE DEPOSITION SERVICES (713) 524-4600 95 1 (Exhibit 1 marked) 2 Q (By Mr. Lanier) Now, I have various times 3 called these exhibit numbers and used the Bates 4 numbers. For clarity on the record, everything 5 we've talked about so far has been a Bates number as 6 opposed to an exhibit. I am going to put Stewart 7 Exhibit No. 1 on a document now, and I'd like you to 8 look at it. It's a notice for your deposition today 9 with some documents. Have you seen that before? 10 A I have. 11 Q You've probably sat through and produced 12 clients in hundreds of depositions, haven't you? 13 A Yes. 14 Q You know what a deposition notice is, don't 15 you? 16 A Yes. 17 Q And you know what it means to have to bring 18 documents that are in your custody and/or control, 19 right? 20 A Yes. 21 Q Did you bring me number one, all documents 22 reviewed by you in connection with the preparation 23 or execution of your affidavit supporting the motion 24 to transfer? 25 A I did. ESQUIRE DEPOSITION SERVICES (713) 524-4600 96 1 Q Did you bring me all documents downloaded 2 or printed by you, Mr. Saks or any person acting 3 pursuant to y'all's instructions or cooperation from 4 Dr. Egilman's website? 5 A With the exception of Mr. Saks, I brought 6 those documents. 7 Q Did you call Mr. Saks and try and get his 8 documents? 9 MR. HARRELL: You can answer that 10 "yes" or "no." 11 A No. 12 MR. HARRELL: And we've objected to 13 that. 14 MR. LANIER: Well, let's pull the 15 objections out, too; and we'll go through the two 16 side by side. That's probably a better way to do 17 it. 18 House-cleaning time, I don't need 19 that. I don't need that. I don't need that. 20 We'll mark your objections as No. 2. 21 (Exhibit 2 marked) 22 Q (By Mr. Lanier) Have you had a chance to 23 look at the objections? 24 A No. 25 Q Okay. Why don't you look at them. The ESQUIRE DEPOSITION SERVICES (713) 524-4600 97 1 first one objected to is this number two. And I 2 believe if memory serves me right, it says it 3 objects because it's overbroad and asks for 4 documents outside of your care, custody or control 5 or something to that effect. 6 A And that's what it says. 7 Q Do you have a right to call Jeff Saks? 8 A I've got the ability. I don't know what 9 you mean by the right to call him. 10 Q Well, it means has anybody told you you're 11 not allowed to talk to Jeff Saks? 12 A No. 13 Q Okay. If you and Jeff had something in 14 common you needed to work on a case, do you think 15 you'd have the right and ability to call him and ask 16 for a copy? 17 A If we were working together on a case, of 18 course I would call him if I needed to. 19 Q Okay. Did you even make any effort to get 20 Mr. Saks' documents before your deposition? 21 THE WITNESS: Can I disclose that 22 without disclosing privileged information? 23 MR. HARRELL: I think you've said you 24 did not talk to him. 25 Q (By Mr. Lanier) But my question was: Did ESQUIRE DEPOSITION SERVICES (713) 524-4600 98 1 you make any effort to get these documents before 2 you came here? 3 THE WITNESS: Can I answer this 4 without disclosing information? 5 MR. HARRELL: Let's get off the 6 record. Let me find out real quick. 7 MR. LANIER: Go ahead and change tapes 8 while we're doing this. 9 THE VIDEOGRAPHER: Okay. 10 MR. LANIER: Thanks. 11 THE VIDEOGRAPHER: We're off the 12 record at approximately 12:14, end of Tape 1. 13 (Recess from 12:14 to 12:16) 14 THE VIDEOGRAPHER: This is the start 15 of Tape 2. We're back on the record at 16 approximately 12:16. 17 Q (By Mr. Lanier) The question was: Did you 18 make any effort to try to get those documents? 19 A At the advice of counsel, I did not. 20 Q And Jeff Saks does still work for Jones 21 Day, right? 22 A I didn't check. I'm assuming he does. 23 Q To your knowledge? 24 A Yes. To my knowledge, he still does. 25 Q And you understand Jones Day is a party to ESQUIRE DEPOSITION SERVICES (713) 524-4600 99 1 this lawsuit as well as you individually? 2 A I do. 3 Q By the way, all these acts that you were 4 doing, were they in the course and scope of your 5 employment? 6 A Without looking at what the legal 7 definition of that is, I think they were. I mean, 8 to the extent you're asking me for a legal opinion, 9 I can't give that to you. But from a -- 10 MR. HARRELL: Just give your 11 understanding. 12 A My understanding is yes. 13 Q (By Mr. Lanier) I mean, I'll ask Jones Day 14 if you were doing it; and I'll ask them, too. But I 15 just want to know from your perspective: Were you 16 doing something cavalier and off the reservation 17 that was not authorized, or were you doing work that 18 was authorized for your law firm? 19 MR. HARRELL: That's a different 20 question. Go ahead and answer it. 21 THE WITNESS: It was also two 22 questions. 23 MR. HARRELL: I object to form. 24 MR. LANIER: Then I object to form. 25 Now, go ahead and answer. ESQUIRE DEPOSITION SERVICES (713) 524-4600 100 1 A Was I doing something cavalier and off the 2 reservation? I don't understand that. I think -- 3 my understanding is what I did was in the course and 4 scope of my employment with Jones Day. Is that 5 where you're trying to go? 6 Q (By Mr. Lanier) Sure. Number three, all 7 documents downloaded or printed by Kelly Stewart, 8 Jeff Saks or any person acting pursuant to their 9 instructions or in cooperation with them from 10 Dr. Egilman's website and used by Jones Day in 11 Staples. Have you produced all those documents to 12 me that you have immediate control over? 13 A Yes, with the caveat as with number two, 14 except for Jeff Saks. 15 Q All right. Number four, any communications 16 with any person in Brazoria County referencing the 17 documents described above in paragraph 2. Have you 18 given me any of those? 19 A If I had them, I gave them to you, yes. 20 Q Number five, any -- or all communications 21 with any person, firm or company releasing or 22 providing copies of documents described in paragraph 23 2. If there are any of those, did I get them? 24 A If there are any -- if there are documents, 25 you got them. ESQUIRE DEPOSITION SERVICES (713) 524-4600 101 1 Q Number six, all communications by any 2 lawyer or employee of the Jones Day law firm 3 providing passwords or instructions for gaining 4 unauthorized access. Have you given me any of those 5 in writing if they exist? 6 A That were in my control, with the exception 7 of -- at the advice of counsel, I did not ask Jeff 8 Saks or anyone else. But, yes, I gave you 9 everything that I have. 10 Q All right. I need to know if you got 11 documents from anyone else at Jones Day other than 12 Saks. You got some you told me came from Anne 13 Leather. Did all the rest of these documents come 14 from you? 15 A I don't believe I got anything from Saks. 16 Is that what you're -- 17 Q No. I'm sorry. 18 A I misunderstood. 19 Q I want to know if you -- what kind of sweep 20 you did to get all of the Jones Day documents. 21 You've told me that you've given me yours. 22 A Yes. 23 Q That you gave me Leather's -- 24 A Yes. 25 Q Anne Leathers, and that you did not give me ESQUIRE DEPOSITION SERVICES (713) 524-4600 102 1 any Saks. 2 A Correct. 3 Q Okay. Have you done any other kind of 4 search to get any other kind of documents from 5 anybody else, this Brett fellow that you faxed to, 6 the people in Colorado in the ethics thing, if you 7 did any documents with them in regards to that? 8 Have you checked for anybody else's documents other 9 than Ms. Leather's and your own? 10 A Yes, because I checked the Staples 11 Occidental file and our files on Dr. Egilman which 12 are right.... 13 Q Okay. Other than the Staples file, any 14 others? 15 A I'm not sure where else any other documents 16 would be. So, I have checked every location, to my 17 knowledge, that would have potentially responsive 18 documents, with the exception of Mr. Saks or others. 19 And that was at the advice of my attorneys. 20 Q I'm almost through. I've got just a couple 21 of concluding question. They shade on an area that 22 I've talked to you about earlier, but I'm going to 23 word them differently. In case you get hit by a bus 24 and I have to play this deposition at trial, I think 25 I've got a prerogative to word them a bit ESQUIRE DEPOSITION SERVICES (713) 524-4600 103 1 differently. But I don't mean to be repetitive, and 2 I want to warn you about that. I should be through 3 within five minutes. 4 You remember I represented the 5 Staples, right? 6 A Yes. 7 Q Mr. Staples died of brain cancer at this 8 point in time, right? 9 A During the lawsuit, he died, yes. 10 Q And we ultimately settled that case, didn't 11 we? 12 A We did. 13 Q Did it ever occur to you that perhaps my 14 clients took less money than they deserved because 15 you had broken into Dr. Egilman's files and accessed 16 some information that tainted him as a witness? 17 MR. HARRELL: Object to the form. 18 A No. In fact, I don't think that's true at 19 all. But it didn't occur, no. 20 Q (By Mr. Lanier) That wouldn't be fair to 21 the Staples, wouldn't it? 22 A It didn't happen. 23 MR. HARRELL: Object to the form. 24 Q (By Mr. Lanier) That's not the way 25 litigation is supposed to take place, is it? ESQUIRE DEPOSITION SERVICES (713) 524-4600 104 1 MR. HARRELL: Object to the form. 2 A It didn't happen. 3 Q (By Mr. Lanier) Sir, you billed the time 4 to the Staples case for all this work you did to 5 discredit Dr. Egilman as a witness, didn't you? 6 MR. HARRELL: And I'm going to object 7 to you talking about the reason you did something 8 because that is protected. Ask him not to answer 9 that, the reason you did it. 10 Q (By Mr. Lanier) Sir, didn't you bill your 11 time to the Staples case when you sent all this 12 information up there that was used to strike 13 Dr. Egilman as a witness in Colorado? 14 A I billed time on June 12th to Staples. I 15 don't know what was used to strike Dr. Egilman in 16 Colorado. It may have been what I sent up. It may 17 not have been what I sent up. 18 Q You've never looked at the motions and 19 never looked at the record and hadn't talked to 20 anybody about it? 21 A I have, but I haven't looked -- 22 MR. HARRELL: Object to the form. 23 A I have not looked at what was directly 24 submitted to the judge. So, I don't know if what I 25 sent to Brett Ross was actually submitted to the ESQUIRE DEPOSITION SERVICES (713) 524-4600 105 1 judge up there. Perhaps. I don't know. I just 2 don't know that. 3 Q (By Mr. Lanier) You understand litigation 4 is not a game, right? 5 MR. HARRELL: Objection, form. 6 A Yes. 7 Q (By Mr. Lanier) And you understand when 8 people are dying from brain cancer, it's not 9 something to be toyed with and to be maneuvered. 10 It's a serious thing to try and derive the truth as 11 to what's happened, right? 12 A Yes. 13 Q And it's a serious thing to that family 14 when they try to put a value on their case to settle 15 it. Wouldn't you agree? 16 A Yes. 17 Q And that's why you've got ethical 18 responsibilities, right, as a lawyer? 19 A Attorneys have ethical responsibilities, 20 yes. 21 Q One of the ethical responsibilities you've 22 got is called candor to the tribunal, right? 23 A Yes. 24 Q You're supposed to be honest and square, 25 aren't you? ESQUIRE DEPOSITION SERVICES (713) 524-4600 106 1 A Yes. 2 Q Next area, will you agree with me that 3 using someone else's password to access a website is 4 wrong? 5 A No. 6 Q Do you think it's okay? 7 A I didn't say that. I just don't agree. In 8 this situation, I don't know legally whether it's 9 wrong or not. 10 Q Do you think it's right to receive stolen 11 property? 12 A In a vacuum, no, I don't think that's 13 right. 14 Q And it's not a legitimate excuse to say, 15 "Gee, I didn't know it was stolen," agreed? 16 MR. HARRELL: Object to the form. 17 A I assume legally that's not a legitimate 18 excuse. 19 Q (By Mr. Lanier) If someone's got something 20 that you know has to be paid for and it costs money 21 to get and they offer to give it to you for free, 22 does that arouse any suspicions in your brain? 23 MR. HARRELL: Object to the form. 24 A It's going to depend on the circumstances. 25 MR. LANIER: I'll pass the witness. ESQUIRE DEPOSITION SERVICES (713) 524-4600 107 1 MR. HARRELL: We'll reserve our 2 questions. 3 THE VIDEOGRAPHER: We're off the 4 record at 12:25, end of Tape 2, end of deposition. 5 (Deposition concluded at 12:25 p.m.) 6 7 * * * * * * * * * * 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ESQUIRE DEPOSITION SERVICES (713) 524-4600 108 1 CHANGES/SIGNATURE PAGE 2 PAGE LINE CHANGE REASON 3 ____________________________________________________ 4 ____________________________________________________ 5 ____________________________________________________ 6 ____________________________________________________ 7 ____________________________________________________ 8 ____________________________________________________ 9 ____________________________________________________ 10 ____________________________________________________ 11 ____________________________________________________ 12 ____________________________________________________ 13 ____________________________________________________ 14 ____________________________________________________ 15 ____________________________________________________ 16 ____________________________________________________ 17 ____________________________________________________ 18 ____________________________________________________ 19 ____________________________________________________ 20 ____________________________________________________ 21 ____________________________________________________ 22 ____________________________________________________ 23 ____________________________________________________ 24 ____________________________________________________ 25 ____________________________________________________ ESQUIRE DEPOSITION SERVICES (713) 524-4600 109 1 I, KELLY STEWART, have read the foregoing 2 deposition and hereby affix my signature that same 3 is true and correct, together with any and all 4 corrections, if any, that have been made on a 5 separate page and attached hereto. 6 ____________________________ 7 KELLY STEWART 8 9 THE STATE OF____________) 10 COUNTY OF_______________) 11 Before me,________________________, on this 12 day personally appeared KELLY STEWART, known to me 13 (or proved to me under oath or through 14 ____________________)(description of identity card 15 or other document) to be the person whose name is 16 subscribed to the foregoing instrument and 17 acknowledged to me that they executed the same for 18 the purposes and consideration therein expressed. 19 Given under my hand and seal of office this 20 ________day of____________________,_________. 21 22 _____________________________ 23 NOTARY PUBLIC IN AND FOR 24 THE STATE OF_________________ 25 ESQUIRE DEPOSITION SERVICES (713) 524-4600 110 1 NO. 20140*BH02 2 DAVID EGILMAN, M.D. ) IN THE DISTRICT COURT OF ) 3 VS. ) ) BRAZORIA COUNTY, TEXAS 4 JONES, DAY, REAVIS & ) POGUE, ANNE LEATHER AND ) 5 KELLY STEWART ) 23RD JUDICIAL DISTRICT 6 CERTIFICATE TO DEPOSITION OF KELLY STEWART (November 20, 2002) 7 I, Roxanne K. Carlisle, Certified Shorthand 8 Reporter in and for the State of Texas, hereby certify to the following: 9 That the witness, KELLY STEWART, was duly sworn 10 by the officer and that the transcript of the oral deposition is a true record of the testimony given 11 by the witness; 12 That the deposition transcript was submitted on ____________________________to the witness or to the 13 attorney for the witness for examination, signature and return to me by______________________________; 14 That the amount of time used by each party at 15 the deposition is as follows: 16 Mr. W. Mark Lanier -- 1 hour 52 minutes 17 That pursuant to information given to the deposition officer at the time said testimony was 18 taken, the following includes counsel for all parties of record: 19 FOR THE PLAINTIFF: 20 The Lanier Law Firm, P.C. 21 6810 FM 1960 West Houston, Texas 77069 22 By: Mr. W. Mark Lanier State Bar No. 11934600 23 -and- Mr. Kevin Parker 24 -and- Mr. Bob Leone 25 ESQUIRE DEPOSITION SERVICES (713) 524-4600 111 1 FOR THE DEFENDANTS: 2 Fulbright & Jaworski 1301 McKinney, Suite 5100 3 Houston, Texas 77010 By: Mr. Robert S. Harrell 4 -and- Mr. Rick Rambo 5 I further certify that I am neither counsel for, 6 related to, nor employed by any of the parties or attorneys in the action in which this proceeding was 7 taken, and further that I am not financially or otherwise interested in the outcome of the action. 8 Further certification requirements pursuant to 9 Rule 203 of TRCP will be certified after they have occurred. 10 Certified to by me this_____day of_____________, 11 2002. 12 13 14 ____________________________________ 15 Roxanne K. Carlisle, CSR No. 6290 Expiration Date: December 31, 2004 16 3401 Louisiana, Suite 300 Houston, Texas 77002 17 (713) 524-4600 18 19 20 21 22 23 24 25 ESQUIRE DEPOSITION SERVICES (713) 524-4600 112 1 FURTHER CERTIFICATION UNDER RULE 203 TRCP 2 3 The original deposition was/was not returned to 4 the deposition officer on__________________________; 5 If returned, the attached Changes and Signature 6 page contains any changes and the reasons therefor; 7 If returned, the original deposition was 8 delivered to_______________________________________, 9 Custodial Attorney; 10 That $_______________is the deposition officer's 11 original charges to______________________________for 12 preparing the original deposition transcript and any 13 copies of exhibits; 14 That the deposition was delivered in accordance 15 with Rule 203.3, and that a copy of this certificate 16 was served on all parties shown herein and filed 17 with the Clerk. 18 Certified to by me this______day of____________, 19 2002. 20 21 ____________________________________ 22 Roxanne K. Carlisle, CSR No. 6290 Expiration Date: December 31, 2004 23 3401 Louisiana, Suite 300 Houston, Texas 77002 24 (713) 524-4600 25 ESQUIRE DEPOSITION SERVICES (713) 524-4600