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                                                        1
                  NO. 20140*BH02
DAVID EGILMAN, M.D.       ) IN THE DISTRICT COURT OF
                          )
VS.                       )
                          ) BRAZORIA COUNTY, TEXAS
JONES, DAY, REAVIS &      )
POGUE, ANNE LEATHER AND   )
KELLY STEWART             ) 23RD JUDICIAL DISTRICT



              VIDEOTAPED DEPOSITION OF
                   KELLY STEWART

                 November 20, 2002




         ORAL/VIDEO DEPOSITION of KELLY STEWART,
produced as a witness at the instance of the
Plaintiff, and duly sworn, was taken in the
above-styled and numbered cause on November 20,
2002, from 10:21 a.m. to 12:25 p.m, before Roxanne
K. Carlisle, CSR in and for the State of Texas,
reported by stenography, at the offices of Fulbright
& Jaworski, 1301 McKinney, Suite 5100, Houston,
Texas, pursuant to the Texas Rules of Civil
Procedure.
                        INDEX
                                                 PAGE
Appearances....................................    4
TESTIMONY OF: KELLY STEWART
Examination by Mr. Lanier......................    4
Changes and Signature.......................... 108
Reporter's Certificate......................... 110




                   EXHIBIT INDEX
EXHIBIT NO.         DESCRIPTION          PAGE MARKED
    1           Notice of Deposition           95
    2    Assertion of Privilege and Statement 96
          of Objections to Document Requests

                * * * * * * * * * *




               A P P E A R A N C E S
      FOR THE PLAINTIFF:
         The Lanier Law Firm, P.C.
         6810 FM 1960 West
                                         Page 1
                                          1.txt
         Houston, Texas 77069
            By: Mr. W. Mark Lanier
                 State Bar No. 11934600
                      -and-
                 Mr. Kevin Parker
                      -and-
                 Mr. Bob Leone
      FOR THE DEFENDANTS:
         Fulbright & Jaworski
         1301 McKinney, Suite 5100
         Houston, Texas 77010
            By: Mr. Robert S. Harrell
                     -and-
                 Mr. Rick Rambo


      ALSO PRESENT:
         Mr. Jerry Sorsdal, Videographer
         Dr. David Egilman
         Mr. Brian Toohey

                * * * * * * * * * *




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




               CHANGES/SIGNATURE PAGE
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____________________________________________________
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____________________________________________________
     I, KELLY STEWART, have read the foregoing
deposition and hereby affix my signature that same
is true and correct, together with any and all
corrections, if any, that have been made on a
separate page and attached hereto.
                        ____________________________
                        KELLY STEWART

THE STATE OF____________)
COUNTY OF_______________)
         Before me,________________________, on this
day personally appeared KELLY STEWART, known to me
(or proved to me under oath or through
____________________)(description of identity card
or other document) to be the person whose name is
subscribed to the foregoing instrument and
acknowledged to me that they executed the same for
the purposes and consideration therein expressed.
         Given under my hand and seal of office this
________day of____________________,_________.


                       _____________________________
                       NOTARY PUBLIC IN AND FOR
                       THE STATE OF_________________

                   NO. 20140*BH02
DAVID EGILMAN, M.D.       ) IN THE DISTRICT COURT OF
                          )
VS.                       )
                          ) BRAZORIA COUNTY, TEXAS
JONES, DAY, REAVIS &      )
POGUE, ANNE LEATHER AND   )
KELLY STEWART             ) 23RD JUDICIAL DISTRICT
    CERTIFICATE TO DEPOSITION OF KELLY STEWART
                (November 20, 2002)
    I, Roxanne K. Carlisle, Certified Shorthand
Reporter in and for the State of Texas, hereby
certify to the following:

    That the witness, KELLY STEWART, was duly sworn
by the officer and that the transcript of the oral
deposition is a true record of the testimony given
by the witness;
    That the deposition transcript was submitted on
____________________________to the witness or to the
attorney for the witness for examination, signature
and return to me by______________________________;

    That the amount of time used by each party at
the deposition is as follows:
      Mr. W. Mark Lanier -- 1 hour 52 minutes
    That pursuant to information given to the
deposition officer at the time said testimony was
                                      Page 44
                                       1.txt
taken, the following includes counsel for all
parties of record:

      FOR THE PLAINTIFF:
         The Lanier Law Firm, P.C.
         6810 FM 1960 West
         Houston, Texas 77069
            By: Mr. W. Mark Lanier
                 State Bar No. 11934600
                      -and-
                 Mr. Kevin Parker
                      -and-
                 Mr. Bob Leone

       FOR THE DEFENDANTS:
         Fulbright & Jaworski
         1301 McKinney, Suite 5100
         Houston, Texas 77010
            By: Mr. Robert S. Harrell
                     -and-
                 Mr. Rick Rambo

    I further certify that I am neither counsel for,
related to, nor employed by any of the parties or
attorneys in the action in which this proceeding was
taken, and further that I am not financially or
otherwise interested in the outcome of the action.

    Further certification requirements pursuant to
Rule 203 of TRCP will be certified after they have
occurred.

    Certified to by me this_____day of_____________,
2002.



                ____________________________________
                Roxanne K. Carlisle, CSR No. 6290
                Expiration Date: December 31, 2004
                3401 Louisiana, Suite 300
                Houston, Texas 77002
                (713) 524-4600




      FURTHER CERTIFICATION UNDER RULE 203 TRCP

    The original deposition was/was not returned to
the deposition officer on__________________________;
    If returned, the attached Changes and Signature
page contains any changes and the reasons therefor;
    If returned, the original deposition was
delivered to_______________________________________,
Custodial Attorney;
    That $_______________is the deposition officer's
original charges to______________________________for
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                                       1.txt
preparing the original deposition transcript and any
copies of exhibits;
    That the deposition was delivered in accordance
with Rule 203.3, and that a copy of this certificate
was served on all parties shown herein and filed
with the Clerk.
    Certified to by me this______day of____________,
2002.


                ____________________________________
                Roxanne K. Carlisle, CSR No. 6290
                Expiration Date: December 31, 2004
                3401 Louisiana, Suite 300
                Houston, Texas 77002
                (713) 524-4600




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