Filing # 30300321 E-Filed 07/30/2015 03:28:41 PM UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION GAWKER MEDIA, LLC and GREGG D. THOMAS, Plaintiffs, Case No.: 8:15-cv-01202-SCB-EAJ vs. THE FEDERAL BUREAU OF INVESTIGATION and THE EXECUTIVE OFFICE OF UNITED STATES ATTORNEYS Defendants. ______________________________________/ CONFIDENTIAL DECLARATION OF GREGG D. THOMAS IN SUPPORT OF PLAINTIFFS’ OBJECTIONS I, Gregg D. Thomas, pursuant to 28 U.S.C. § 1746, hereby declare under penalty of perjury that the following is true and correct: 1. The statements made in this Declaration are based on my personal knowledge. 2. I am a partner at Thomas & LoCicero PL, counsel for plaintiffs in the above- captioned matter, along with the law firm of Levine Sullivan Koch & Schulz, LLP. 3. My firm, along with the Levine Sullivan firm, also serves as counsel for Gawker Media, LLC and other related parties in connection with the related case Bollea v. Clem, et. al., No. 12012447-CI-011, currently pending in state court in Pinellas County, Florida (referred to herein as the “Florida Litigation”). The plaintiff in that case is Terry Gene Bollea, the celebrity widely known as “Hulk Hogan” (“Hogan”). The Florida Litigation arises out of an article published by Gawker in October 2012 reporting on a controversy involving video footage of Hogan having sexual relations with Heather Clem, the wife of his best friend, radio shock jock Bubba the Love Sponge Clem. 1 4. I submit this supplemental Confidential Declaration in further support of Plaintiffs’ Objections to Defendant Agencies’ FOIA Responses and Vaughn Indexes and Declarations. The primary purpose of this Confidential Declaration is to put before this Court certain information that Hogan has designated as “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” under the protective order in the Florida Litigation. A. The FBI Investigation 5. For Gawker’s FOIA Requests and its Objections to make sense, some basic background about the FBI investigation is needed. Before turning to the specific issues raised by Gawker’s Objections, I set forth that background here in the hope that it will aid the Court in addressing the issues presented. 6. As the Court knows, after Gawker published its report about the Hogan sex tape, Keith Davidson, a Los Angeles attorney, attempted – unbeknownst to Gawker at the time – to facilitate the sale of several sex tapes featuring Hogan and Heather Clem in exchange for payment from Hogan. Hogan complained to the FBI, which, in consultation with the United States Attorney’s Office, investigated Davidson and his “client” for extortion, culminating in a sting operation and arrest at the Sand Pearl Hotel in December 2012. 7. At the time it published the report about the sex tape, Gawker did not know of Davidson’s existence, let alone his subsequent conduct. Gawker only learned about Davidson during the course of discovery in the Florida Litigation, long after the sting operation and the Government’s decision not to prosecute Davidson. 8. Even though they have been substantially redacted, the documents produced by the FBI and EOUSA (including audio and video footage) make plain that a primary concern of Hogan’s in pursuing the FBI investigation was his desire to hide the fact that, on one of the 2 DVDs at issue, he made deeply racist comments. Since learning of these comments and Hogan’s knowledge that the tapes included those comments, Gawker has come to believe that the Florida Litigation against it was filed for the same purpose, including to send a message to Gawker and anyone else that might receive that footage (it was not part of what Gawker received) not to publish it.1 Although it is not necessary for this Court to weigh in on the correctness of Gawker’s belief, which is an issue to be addressed in the Florida Litigation, I explain these facts here because they provide the context for understanding Gawker’s position with respect to many of the missing, unaccounted-for and withheld documents, as well as for its request to obtain additional records in unredacted form – a topic about which the Court asked several times at the last hearing. 9. Attached hereto as Exhibit 36-C is a copy of a so-called “agreement” reached between Hogan, on the one hand, and Davidson and his client, on the other, and produced to Gawker in the Florida Litigation. Exhibit B to that agreement (pages BOLLEA 001210 – 001214) contains a summary transcript of the three DVDs. In that summary transcript, Hogan is referred to as “Bostick,” the alias he used to sign the agreement (see pages BOLLEA 001215 – 001216, identifying “Bostick” as Hogan); Bubba Clem is referred to as “TAC,” reflecting his prior name, “Todd Alan Clem”; and Heather Clem is referred to as “F” for “female.” 10. Based on Hogan’s contention in the Florida Litigation that the Davidson transcript found at “Exhibit B” to the agreement was unsubstantiated hearsay and that no party had ever 1 In that regard, Gawker always questioned Hogan’s motivation for filing suit over the brief and almost indecipherable video excerpts it published when (a) the video footage at issue had been the subject of consistent news coverage and public discussion, including by Hogan himself, for almost seven months before Gawker’s publication and (b) he had publicly discussed the graphic details of his sex life for years. Attached hereto as Exhibit 35-C is a true and correct copy of the Statement of Undisputed Material Facts submitted by Gawker in the Florida Litigation detailing that prior public discussion and media coverage (see Paragraphs 33-112). 3 seen the footage itself, the Florida state court ordered that the parties redact the racist language from the transcript. To comply with that order, the redacted version of Exhibit B removing the racist language is submitted herewith. 11. Attached hereto as Exhibit 37-C is a draft of Exhibit B produced by the FBI. It appears to be identical except that Bollea is referenced as “Doe” rather than “Bostick,” and the FBI has redacted other people’s names. (As addressed below, even though the FBI took custody of the full agreement, the final version of Exhibit B has been omitted from the FBI’s production.) Again, to comply with the state court’s order described above, we have redacted the racist language (in addition to the FBI’s own redaction of the identities of persons other than Hogan and Heather Clem). It is our understanding that an unredacted copy of the documents has been provided to the Court, and should the Court wish to review the full document, it is found in the FBI’s production at GAWKER 175-179. The FBI should also be able to make available, if it is has not done so already, a copy of the unredacted DVD itself from which the transcript is made. 12. According to the transcript, Hogan is heard on the tapes to say words to the effect of the following (with the racist language redacted pursuant to the state court’s order): My daughter jumped sides on me [vis-à-vis my ex-wife]. I spent 2-3 M on her music. I’ve done everything like a jackass for her. . . The one option Brooke had – Brooke’s career beside me is South Beach Records – [redacted] Billionaire guy – I don’t know if Brooke was fucking the [redacted] guy’s son . . . whatever … I mean I know what is going on – I mean I don’t have double standards – I mean I’m a [redacted] to a point. Fucking [redacted]. But then when it comes to nice people and shit whatever. I mean I’d rather if she was gonna fuck a [redacted] – I’d rather have her marry an 8 foot tall 100M basketball player. Cecil – fucking [redacted] – he had Jamie Fox coming in on the 22nd track…I didn’t even tell Brooke about it. Fuck her. Brooke and Cecil meet in Miami – Brooke fucks up a 10 M dollar deal I had with the Saudis – Brooke says Fuck You Dad. . . . 4 Exhibit 36-C (BOLLEA 001213); Exhibit 37-C (GAWKER 178). As also reflected therein, after Hogan leaves the room, Bubba Clem is depicted saying to Heather Clem, “If we ever did want to retire, all we have to do is use that footage of him talking about [redacted] people.” Id. 13. Attached hereto as Exhibit 38-C is a true and correct copy of the FBI’s case opening document. As reflected therein, Davidson first contacted David Houston, Hogan’s principal lawyer, on or about October 10, 2012, and the two men then spoke on October 12. When Hogan and Houston initiated the FBI investigation the following business day, they specifically recited that Davidson “stated that Bollea used racial epitaphs [sic] in one of the tapes and, if released, would damage Bollea’s career.” GAWKER-2. 14. Attached hereto as Exhibit 39-C is a true and correct copy of an FBI Form FD- 302 memorializing a statement to the FBI by Houston on October 15, 2012. As reflected therein, Hogan was present with Houston for this statement. As further reflected therein, in a conversation on October 12, 2012, Davidson told Houston “that he had reviewed the tapes and said one of the tapes contained racial epitaphs [sic] which could hurt BOLLEA’s career if released” (GAWKER-6 – GAWKER-7).2 15. Attached hereto as Exhibit 40-C are true and correct copies of texts between Hogan and Bubba Clem supplied to the FBI. As reflected therein, on October 12, 2012, Hogan texted Bubba Clem that “We know there’s more than one tape out there and a one that has several racial slurs were told. I have a PPV [pay-per-view] and I am not waiting for anymore surprises because we know there is a lot more coming” (GAWKER-45). 2 Please note that, for certain confidential exhibits (specifically, Exhibits 39-C, 45-C, 49-C, 53-C, 59-C, 61-C, and 75-C), in addition to the FBI’s redactions, we have redacted telephone numbers and other similar information to comply with the administrative rules governing ECF filing. Where this has been done, the redaction is indicated with the word “redacted,” rather than the blank box the FBI used for its redactions. 5 16. The FBI recorded multiple telephone conversations between Houston and Davidson, and those conversations included significant discussion of the racial slurs Hogan used on one of the DVDs. Attached hereto as Exhibit 41-C is a true and correct copy of excerpts from the transcript of a telephone conversation, recorded by the FBI with Houston’s consent, between Houston and Keith Davidson on October 22, 2012. As reflected therein, Houston asks Davidson, “What are we dealing with? Are these just straight up sex videos or are we dealing with something, I’ve heard there’s one with racial epithets involved” (GAWKER 727). After Davidson described the racist language on one of the DVDs, Houston says, “that would not be a good thing,” the “racial issue certainly could cost [Hogan] a great deal as far as sponsorships,” and he’s “a national guy and he’s got a certain image to maintain,” concluding by asking what he needs to do “to make sure that doesn’t happen” (GAWKER 738). 17. Attached hereto as Exhibit 42-C is a true and correct copy of a transcript of a telephone conversation, again recorded by the FBI with Houston’s consent, between Houston and Davidson on October 28, 2012. As reflected therein, Houston tells Davidson, in connection with the “video out there with what’s been said to be racial epithets on it and I think everybody is well aware that he is a public figure in a public marketplace and that would be very damaging to him” (GAWKER-750). 18. Eventually, in coordination with the FBI, Houston and Hogan entered into a written agreement with Davidson and his client to acquire the DVDs. See Paragraph 9 supra and Exhibit 36-C. Thereafter, Houston and Hogan arranged to meet Davidson and his client at the Sand Pearl Hotel on December 14, 2012 to consummate their agreement and then for the FBI to effectuate its arrest and seizure. 6 19. During this meeting, Hogan and Houston watched significant portions of the DVDs. Attached hereto as Exhibit 43-C is a true and correct copy of excerpts from the transcript of the FBI’s audio recording of the events and sting operation on December 14, 2012. As reflected therein, after watching one DVD, Houston asks “That’s the one that was released to GAWKER, correct?” Houston then says “I’d like to be able to at least [go to] the more damaging part of the tape with the language . . . so I know that’s actually on there” (GAWKER701). They then watch the portion with the racist content and the portion that follows where Bubba Clem makes his “if we ever wanted to retire” comment to Heather Clem (GAWKER702). 20. The FBI produced an audio file containing the FBI’s recording of the events of December 14, 2012. As reflected therein, the audio reveals Hogan, Houston and Davidson watching the DVDs, including the portion with the racist language and Bubba Clem’s “if we ever wanted to retire” comment. We have not filed a copy here because we would be required to redact the content at issue. It is my understanding that the FBI could provide a copy of this file to the Court if it has not done so already. The referenced portion appears at 3:04:45 to 3:08:50. 21. Attached hereto as Exhibit 45-C is a true and correct copy of an FBI Form FD-302 memorializing a telephone conversation between the FBI and Houston following the “sting operation” at the Sand Pearl. As reflected therein, “HOUSTON stated he, TERRY BOLLEA and [redacted] viewed the DVDs in [redacted]’s hotel room . . . . HOUSTON confirmed that the DVDs contained content that had previously been negotiated for within telephone calls and settlement agreements. . . . Further, [redacted] fast forwarded one of the DVDs to the section which contained racial epithets and played the section for BOLLEA and [redacted]” (GAWKER-345). 7 22. On February 4, 2013, Hogan reviewed the transcript of the December 14, 2012 audio file, making any corrections and affixing his signature to a copy of it. Attached hereto as Exhibit 46-C (GAWKER-800) is a true and correct copy of FBI Form FD-340c, indicating that Hogan reviewed and corrected the transcript, and signed and dated it. Attached hereto as Exhibit 47-C (GAWKER-803) is a true and correct copy of a covering page to that transcript, containing Hogan’s signature and the date. B. Missing and Unaccounted-For Documents 23. Video Footage of the December 14, 2012 meeting and sting operation. The FBI has not produced any video footage of the December 14, 2012 meeting and sting operation, nor is such footage reflected on any log of withheld documents. 24. Attached hereto as Exhibit 48-C is a true and correct copy of excerpts from Hogan’s deposition in the Florida Litigation. As reflected therein, before Davidson arrived, we had to get there really early because the FBI took us in the room and showed us – showed us where all the cameras were hidden, alarm clock or whatever. They had these secret cameras hidden all over the room. And then they showed us an adjoining room where there were ten or 12 or however many agents. There were a bunch of agents in an adjoining room with headphones and video equipment. Id. at 796:5-14.3 25. Attached hereto as Exhibit 49-C is a true and correct copy of closed circuit television authorizations signed by Hogan and Houston for the sting operation (GAWKER 945948). 3 This testimony is included here rather than in my non-confidential declaration because it has been designated as “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” by Hogan in the Florida Litigation. 8 26. Audio recording of November 27, 2012 telephone call between David Houston and a person who appears to be Keith Davidson. The documents produced to date reflect that a recording was made of this call, but no recording or other notes or transcripts of that call have been produced or reflected on any index of withheld documents. 27. Attached hereto as Exhibit 50-C is a true and correct copy of an FBI Form FD-302 memorializing a telephone call on November 27, 2012 between the FBI and David Houston in which Houston advises that “he had just made a consensually monitored telephone call to [redacted]. During the call, HOUSTON explained to [redacted] that it was necessary to simplify the settlement agreement and to make it more relevant to the specific facts. Further, both HOUSTON and [redacted] agreed on an approximate meeting date of December 14, 2012” (GAWKER-167). 28. Attached hereto as Exhibit 51-C is a true and correct copy of an FBI Form FD-1087 (GAWKER-209) listing as evidence “One original computer disk – 11/27/12” reflecting “consensual monitoring – Telephonic.” No recording or transcript of this telephone call was included in the FBI’s production. 29. Audio recording of December 5, 2012 telephone call between David Houston and a person who appears to be Keith Davidson. The documents produced to date reflect that a recording was made of this call, which the FBI then transcribed, but no audio recording of that call has been produced or reflected on any index of withheld documents. 30. Attached hereto as Exhibit 52-C is a true and correct copy of a transcript that appears to have been prepared by the FBI of a “consensual recording of a telephone call on December 5, 2012 between Dave Houston and [redacted].” The content of the call, as revealed 9 in the transcript, involves negotiation over the terms of the agreement, and therefore strongly indicates that the other party is Keith Davidson. 31. Communications between the FBI and Hogan and/or Houston. Attached hereto as Exhibit 53-C is a collection of true and correct copies of emails and other communications between the FBI and Hogan and/or Houston produced to Gawker in the Florida Litigation (they have been designated “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” by Hogan in the Florida Litigation). While Gawker obviously has these documents already from Hogan and Houston, their omission from the FBI’s production raises concerns about the completeness of that production. 32. Declination Letter. Attached hereto as Exhibit 54-C (GAWKER-456) is a true and correct copy of FBI Form FD-1057, which states that “on 7/19/13, AUSA [REDACTED] sent via e-mail a copy of the declination letter stating in part that ‘it has been determined that a prosecution is not appropriate in this matter.’ A hard copy letter will be placed in the case file once received.” This declination letter was not produced by either the FBI or the EOUSA, raising further questions about the completeness of the Government’s production and Vaughn indexes of withheld documents. 33. Agreement between Hogan and Davidson, and Drafts Thereof. Although the FBI took custody of the Agreement following the sting operation on December 14, 2012, the FBI’s production does not include the final version of “Exhibit B,” which is significant because it contains Davidson’s summary transcript of the three DVDs. See Paragraph 9 supra. 34. In addition, at least two drafts of the Agreement (version 4 and a redlined version 5) have been omitted from the FBI’s production. Specifically, attached hereto as Exhibit 55-C are documents reflecting that the FBI was provided with those drafts, and copies of 10 them were produced to Gawker in the Florida Litigation. Again, while Gawker obviously has these documents already from Hogan and Houston, their omission from the FBI’s production raises concerns about the completeness of that production. 35. An FBI Form FD-302 witness statement for Bubba the Love Sponge Clem. Attached hereto as Exhibit 56-C are excerpts from Bubba the Love Sponge Clem’s testimony in the Florida Litigation. As reflected therein (at pages 400-406), Clem testified that he met with the FBI in November 2012.4 36. Attached hereto as Exhibit 57-C are true and correct copies of handwritten notes of an interview conducted by the FBI and dated November 9, 2012 (GAWKER-933-939). The context, including references to “Being smartass on tape – about retirement,” see GAWKER 934, and his various references to “Heather,” strongly suggest that these are notes of an interview with Bubba Clem. They are significant because Hogan has maintained in the Florida Litigation that he did not know he was being recorded, and these notes suggest otherwise, including their references to “Knew being taped – all sides,” “talked about w/3,” “not concealed,” “obvious camera in play – Hulk knew, Heather, etc.” 37. Overdubbing the Audio of Hogan’s Racist Comments on the DVD Produced by the FBI. As described at the July 2, 2015 hearing, the audio did not match the video (or the Davidson transcript which was otherwise accurate) for the portion of the tape where Hogan makes the racist comments. Although the FBI has now confirmed that the reprocessed DVDs match the Davidson transcripts, see Exhibit 58-C (July 23, 2015 email from K. Stegeby to S. Berlin), the significant omission from the earlier production caused us to question why the DVD 4 Although this testimony was not designated as “CONFIDENTIAL” by Bubba Clem in the Florida Litigation, it was designated as “CONFIDENTIAL” by Hogan. Accordingly, it is included here rather than in my non-confidential declaration. 11 produced was defective and whether that there was any possibility that the audio had been removed deliberately. 38. Given the substantial irregularities in the FBI’s production – including the FBI’s failure to produce multiple telephone calls, a 302 for a key interview of Bubba Clem (which appears to include statements that dramatically undercut one of Hogan’s core contentions), and the production of a DVD with the audio track altered at a key moment – we believe the Court should require an explanation from the FBI concerning its production, both generally and in particular with respect to the altered DVD. C. Additional Information Confirming that Unredacted Production of Documents Will Not Constitute an Unwarranted Invasion of Personal Privacy. 39. In my non-confidential Declaration, I submit materials to demonstrate that the identities of various persons redacted by the FBI are known and therefore that producing unredacted versions of the documents would not constitute an unwarranted invasion of personal privacy. In providing examples of such improper redactions, I referred to the documents produced by the FBI, but Hogan has designated the FBI’s and EOUSA’s document productions “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in their entirety. Accordingly, attached hereto as composite Exhibit 59-C are true and correct copies of pages from the FBI production that are referenced in my non-confidential declaration. 40. I also supply information about Mark O’Brien’s representation of Bubba Clem, about which Bubba Clem testified at his deposition in the Florida Litigation. Bubba Clem did not designate his deposition or any portion of it as “CONFIDENTIAL,” but Hogan designated as “CONFIDENTIAL” the portion of the Bubba Clem’s testimony where he identified O’Brien as one of his lawyers in connection with the sex tape controversy. See note 4 supra. As reflected in Exhibit 56-C, he testified that he met with the FBI in November 2012, explaining that the 12 meeting was arranged through Mr. O’Brien, who was serving as his counsel. Id. at 400:19 – 401:16. Mr. Clem further testified that his meeting with the FBI, which took place “at Mark O’Brien’s office,” was also attended by “my agent, Tom Bean” and “a representative from Mr. Diaco’s office.” Id. Mr. Clem then clarified that both O’Brien and “Stephen Diaco” accompanied him to the meeting with the FBI. See id. at 402:15 – 403:1. Disclosing their identities in their capacity as counsel for Bubba Clem will not constitute an unwarranted invasion of personal privacy. 41. I also note that documents produced in discovery in the Florida Litigation reveal the identity of the other principal special agent working on the Davidson investigation to be Charlotte Braziel, but those documents have been marked CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” by Hogan under the Protective Order in the Florida Litigation and are therefore being submitted with this confidential declaration. As an example, attached hereto as Exhibit 60-C (Bollea 1160) is a true and correct copy of an email exchange between Jason Shearn and David Houston concerning the logistics of the “sting” operation that identifies Ms. Braziel as one of the agents who worked on the FBI’s investigation. Disclosing her role in performing official work for the United States Government on an investigation in which her role is known, she was not undercover and on which there is no realistic threat of violence or other repercussions does not constitute an unwarranted invasion of personal privacy. 42. The FBI has also redacted passing references by others to Hogan’s family members, even though they are otherwise identifiable from the description of their familial relationship to him. See, e.g., Ex. 61-C (GAWKER-12, referring to when “Bollea’s wife – [redacted] filed for divorce”). Redacting the word “Linda” from a sentence that otherwise identifies her as “Bollea’s wife” who “filed for divorce” makes no sense, and cannot in any 13 meaningful way be said to protect against an unwarranted invasion of personal privacy. The FBI has similarly redacted Hogan’s nickname “Hootie,” even though he has signed a privacy waiver. In addition to the materials attached to my non-confidential declaration, the testimony of Bubba Clem makes clear that Hogan’s nickname is “Hootie.” See Ex. 56-C at 222:21-24. This testimony is submitted in my confidential declaration because it has been designated as “CONFIDENTIAL” by Hogan in the Florida Litigation. 43. The FBI has also redacted K.C. Rosser’s name from every email she sent and received on David Houston’s behalf, despite the fact that her connection to Mr. Houston’s work was no secret, the emails were plainly sent and received on his behalf, and Hogan’s counsel was required to waive their privacy for their work on his behalf in connection with the FBI’s investigation. See, e.g., Ex. 62-C (GAWKER-76-77, redacted email exchange involving Rosser, noting that emails were sent on behalf of Houston and “dictated but not read” by Houston); see also Ex. 63-C (BOLLEA 1079-80, unredacted version of same email produced in state court litigation). Attached hereto as Exhibit 64-C is a true and correct copy of excerpts from the transcript of Houston’s deposition in the Florida Litigation. As reflected therein, Houston identified Rosser as “one of the girls that receives dictation.” Id. at 87:9-15. This portion of Houston’s deposition is included here because it was designated as “CONFIDENTIAL” by Hogan under the protective order in the Florida Litigation. D. Additional Information Demonstrating that the FBI’s Other Redactions Are Unjustified and Improper. 44. In Gawker’s Objections, at 14, Gawker explains the reasons why the notations on the documents produced by the FBI are insufficient to qualify as a proper Vaughn index. To illustrate this point, I attach hereto, as Exhibit 65-C, true and correct copies of documents produced by the FBI, bates labeled GAWKER-315, 325, 363, 422, 462, 930, 1101, and 1130. 14 These are examples of documents in which the FBI has not specified which redaction “code” applies to which redacted information. 45. In Gawker’s Objections, at 21-22, Gawker explains why the FBI appears to have improperly asserted Exemption (b)(3), which covers grand jury materials. To illustrate this point, I attach hereto, as Exhibit 66-C, true and correct copies of documents produced by the FBI, bates labeled GAWKER-449 and GAWKER-451. These documents concern toll records, and there does not appear to be any reason that grand jury secrecy should apply to them. 46. In Gawker’s Objections, at 23-24, Gawker explains why the FBI appears to have improperly asserted Exemption (b)(7)(E), covering material which, if disclosed, would reveal secret law enforcement techniques. To support this point, I attach hereto, as Exhibit 67-C, true and correct copies of documents produced by the FBI bates labeled GAWKER 18, 120-21; GAWKER 118, 420; and GAWKER 209, 227, which are “evidence entry” forms, “electronic communication” forms, and “evidence log” forms, in which the FBI, without explanation, has redacted information pursuant to Exemption 7(E). E. Gawker is Seeking Full and Unredacted Production Documents to Correct False Testimony and Representations in the Florida Litigation. 47. At the July 2, 2015 hearing, the Court asked my co-counsel, Seth Berlin, “an overall question” about why Gawker was seeking these documents and information when “a lot of it you already know, a lot of the redactions you’re fully aware of who it is.” July 2, 2015 Hrg. Tr. at 43:6-15; see also id. at 44:15-24 (THE COURT: asking why you need them “[i]f you can guess who it is”); id. at 44:24-25 (THE COURT: asking “why do you care? You know who it is.”). Mr. Berlin responded, but was limited in what he could say given the state court protective order: 15 Why do I want to know? Let me tell you about this, Your Honor. I have to pause a minute because I’m under, as Your Honor knows, I’m under an order in the state court and the state court order says that these documents are to be treated as confidential. . . . So I’m limited in what I can say in open court, so I’m going to proceed judiciously. Turns out, without getting into the specifics . . . that we have essentially under oath testimony to the FBI and we have under oath testimony in our case directly at odds with one another. So we have a situation . . . where the key participant, the plaintiff, is telling us one thing under oath and telling the FBI something else. So this is why we are asking – and you can’t use that document to impeach a person if there is a bunch of blanks in it. . . . Id. at 46:17 – 48:19; see also id. at 58:8-12 (“some of this requires some review of the records to be able to say more than I can say in court because the substance of this is [sealed]. I’ve got my hands tied so I am dancing a little bit here”). 48. Mr. Berlin was simply unable to provide a meaningful answer to the Court’s repeated question in open court. Without intending to provide an exhaustive account (which would be more involved than is necessary to litigate this FOIA action), below I attempt to answer the Court’s question so that it has the necessary context for adjudicating the FOIA requests. In short, the documents produced by the FBI demonstrate that Hogan and Houston have given false testimony in the Florida Litigation and Hogan’s counsel made material representations to the court on his behalf. Gawker seeks documents with as few redactions as possible to be able to use them to establish the truth in the Florida Litigation. 49. False Testimony and Misrepresentations Regarding the Existence of the DVD with the Racist Language. Even though, as described above, Hogan and Houston had personally viewed three DVDs, Hogan repeatedly sought in the Florida Litigation to hide the existence of the other two DVDs, including the DVD with the racist language. For example, attached hereto as Exhibit 68-C is a true and correct copy of Hogan’s sworn interrogatory 16 response in the Florida Litigation denying that there was more than one DVD, and stating under oath that he “does not know if any other clandestine recordings exist other than the video depicting [him] having relations with Heather Clem (which was excerpted and posted by Gawker Media on its website).” See Resp. to Int. No. 5. 50. Even though Hogan and Houston had viewed three DVDs, when Hogan was asked at his deposition: “Do you know whether the other encounters in the bedroom [i.e., other than the one excerpted by Gawker] were filmed?” he testified under oath, “I have no idea.” See Ex. 69-C (Hogan deposition excerpts) at 291:12-14. 51. After both Judge Case (the Discovery Magistrate) and Judge Campbell ordered Hogan to produce copies of his documents related to the FBI investigation, Hogan produced a copy of the agreement with Davidson, including Exhibit B setting forth summary transcripts of three DVDs, and a letter from Sara Sweeney referencing three DVDs. Gawker then filed a motion seeking to address his prior misrepresentations of the evidence. But Hogan and his counsel denied any misrepresentations. Attached hereto as Exhibit 70-C is a true and correct copy of Hogan’s opposition to that motion, in which he asserted: Only one video – the video produced by Gawker in discovery, and from which Gawker drew the one minute and forty-one seconds of “highlights” from the sexual encounter that it posted on its website, and which gave rise to this lawsuit – has actually been confirmed to exist. The documents created by an unknown extortionist purporting that there might possibly be as many as three different videos, are unauthenticated, lack foundation, are unreliable, and are hearsay. No party in this action is aware of any more than one video. . . . Moreover, the letter Gawker refers to from the Assistant U.S. Attorney makes reference to three discs, but they could be three copies of the same sex video . . . . Thus, there is no basis whatsoever for Gawker to “charge” Plaintiff or his counsel with “knowledge” of the purported existence of three videos. Ex. 70-C at 7. Hogan attempted to explain past misrepresentations by his lead litigation counsel (Charles Harder): 17 Plaintiff’s counsel did not know the true number of videos, and was discussing with the Court how the Court and the parties should treat any such new video or videos if they exist and were ever produced. None have been produced. . . . It may well be the case that none exist. Plaintiff and his counsel do not know. Ex. 70-C at 9 (emphasis added). 52. Attached hereto as Exhibit 71-C is a true and correct copy of excerpts from the transcript from the hearing on that motion, in which Hogan’s counsel – with Hogan present in person – argued that Gawker’s counsel [t]alks about how there exists certain other tapes. . . . Mr. Bollea has never seen any of those tapes. Nobody on either side of this table . . . has ever seen any of these supposed tapes. We don’t know if they exist or not. Nobody has seen them. Maybe they exist and maybe they don’t. 51:23 – 52:6. See also id. at 52:15 (“Nobody has seen them.”); id. at 72:9-18 (referencing “any other tapes that might exist” and asserting “We have never seen them. Maybe they exist. Maybe they don’t exist.”); id. at 78:4-8 (referencing Sara Sweeney’s letter referencing three DVDs, and stating, “Maybe it’s three copies of the same thing. We don’t know. We’ve never seen it.”). 53. Although the Court credited those misrepresentations and denied the motion, it required Hogan to appear for another deposition, at which he continued to assert that he had not seen the videos. As reflected in Exhibit 48-C, at 802:15-19, Hogan testified: Q. Did you view the DVDs obtained from Mr. Davidson that day? A. No, I didn’t. I saw my image on a screen and I said, that’s me. And that’s – I refused to watch the tape. 54. As reflected in the transcript of Houston’s deposition in the Florida Litigation, Ex. 64-C, also taken after the above-described hearing, Houston testified that Hogan viewed only “a very brief snippet before he understood . . . that he was present” in the DVD, id. at 202:20 – 203:6, and that Houston himself only viewed them each for a few seconds, id. at 212:1-6 (testifying that he viewed the first DVD the longest, for “maybe 10 or 15 seconds maximum”). 18 As a result of claiming to have watched each DVD for only a few seconds, Houston testified as to the three DVDs, “Whether they be independent videos, to this day . . . I don’t know. It could be the same video copied. I don’t know. . . . Whether they were representative of separate videotapes would be up to someone who’s actually seen them.” 212:14:20; see also id. at 216:3-4 (“Whether they were different DVDs or one DVD and two copies remains to be seen, I guess.”). Despite having discussed both the racist language and Bubba Clem’s “if we want to retire” comment with Davidson and Hogan, Houston also testified, “I don’t think the audio was turned up, now that you mention it. I don’t remember hearing the audio.” Id. at 214:22-23; id. at 223:9-12 (“Q: On any tape that you viewed, did you ever hear the voice of Bubba Clem or the voice of who you believed to be Bubba Clem? A: No, I didn’t hear any voices.”). 55. Attached hereto as Exhibit 72-C is a true and correct copy of excerpts from the transcript of a hearing in the Florida Litigation on April 22, 2015, in which Hogan’s counsel advocated for an order requiring the redaction of racist language from the transcripts described above and from various other documents and testimony. As reflected therein, Hogan’s counsel (Charles Harder) represented to the state court that the “allegation of . . . a racial statement” has “never been substantiated. Allegedly, according to the extortionist, there is a tape that contains this. No one in this room or any of the parties has ever seen this tape, has ever received this tape, knows anything about this tape or than [that] an extortionist said it occurred.” Ex. 72-C at 70:23 – 71:23. 56. Attached hereto as Exhibit 73-C is a true and correct copy of excerpts from the transcript of the July 1, 2015 hearing in the Florida Litigation, in which Hogan’s counsel (Charles Harder) argued, with Houston sitting at counsel table with him, “There has also been this ongoing offensive language issue that’s been festering for awhile, and we didn’t hear any 19 evidence of it.” Ex. 73-C at 200:13-15. Rather than acknowledging that the original contained the racist language, Hogan’s counsel argued that the FBI’s production “calls into question all of the audio on all of the DVDs, because originally these DVDs came to the FBI by way of an extortionist, or an alleged extortionist. And if an extortionist is manipulating the audio on the DVDs – and we didn’t hear anything that they have been saying is on them. But even if something were to be on them, the audio problems call into question all of that.” Ex. 73-C at 200:13 – 201:2; see also id. at 201:5-11 (“even if there is another third DVD which allegedly has the things that they have been speculating might be on there, it could be an extortionist manipulating the audio through an impersonator, or who knows what, and adding things.”). 57. Given that Hogan and his counsel now appear to be poised to argue that the DVDs are unreliable because of the FBI’s faulty original production, Gawker requests a sworn explanation from the FBI as to how the DVDs were produced with incorrect audio in order to rebut such an arguments by Hogan. 58. The false testimony and misrepresentations are not limited to that key issue, but extend to numerous other aspects of the case, and Gawker seeks unredacted documents for use in demonstrating the truth about them as well in the Florida Litigation. 59. False Testimony Concerning Awareness of Cameras in Clem’s House. In the Florida Litigation, Hogan testified under oath that he was unaware that Bubba the Love Sponge Clem had cameras in his house. Specifically, he testified as follows: Q. Did you ever notice security cameras in Bubba’s house? A. No. Q. Did Bubba ever point his cameras out to you? A. Never. Q. Did Bubba – I assume, therefore, that Bubba never explained to you how his security cameras worked. 20 A. I never knew he had cameras. Ex. 69-C at 258:5-12. 60. Attached hereto as Exhibit 74-C is a true and correct copy of Hogan’s reply brief in Florida’s Second District Court of Appeal attempting, unsuccessfully, to have that Court reverse the Circuit Court’s order directing him and his counsel to provide privacy waivers to facilitate the FOIA requests at issue in this action. As reflected therein, he represented to the Court of Appeals that he “has consistently denied that he had any knowledge of the cameras in the Clems’ house.” 61. As reflected in Exhibit 75-C (GAWKER-15- GAWKER-16), however, he told the FBI the opposite, stating that, before Hogan had sex with Heather Clem, he had specifically asked whether Bubba Clem was filming the encounter: When BOLLEA arrived at the CLEM residence, H. Clem made advances on BOLLEA that were again encouraged by [redacted]. BOLLEA then agreed to have sexual intercourse with H. CLEM. While in the master bedroom, BOLLEA stated he recalled asking [redacted] “you aren’t filming this are you?” [Redacted] responded that he was not filming and that he would not do that to BOLLEA. BOLLEA was asked by interviewing Agents why he thought to ask about the filming. BOLLEA responded by stating [redacted] has surveillance cameras all over his residence and wanted to make sure he was not filming in the bedroom. Id. Although it is clear from the context that the redactions refer to Bubba Clem, Gawker seeks an unredacted version of this document to be able to use it to challenge Hogan’s directly contrary testimony in the Florida Litigation. 62. False Testimony by Bubba the Love Sponge Clem. Attached hereto as Exhibit 56-C are excerpts from the transcript of the deposition of Bubba the Love Sponge Clem in the Florida Litigation. As reflected therein, Bubba Clem testified emphatically in the Florida Litigation that he was only aware of one sexual encounter between Hogan and his wife, stating under oath that “the first and only time” the two had sexual relations “was the time that you guys 21 have the video tape of.” Id. at 322:5-8; see also id. at 322:18-20 (Q. And as far as you know, they only had sex one time? A. Yes.”). He further testified that the only time he ever burned a DVD of a his wife having sex involved the encounter depicted on the video ultimately received by Gawker. See id. at 214:20 – 215:25. 63. Two of the three DVDs produced by the FBI that I viewed on June 30, 2015 depicted Bubba Clem. A third, supplied to Gawker, also depicts Bubba Clem speaking. In addition, Mr. Stegeby, who was ordered to review the DVDs, advises that the re-processed DVDs recently produced to Judge Campbell match the transcripts prepared by Davidson, and those transcripts reflect that Bubba Clem is present in all three DVDs. See Ex. 58-C. Gawker seeks unredacted versions of the DVDs to use in the Florida Litigation to demonstrate that this testimony is false. 64. In addition, during his deposition, Mr. Clem repeatedly testified that Hogan did not know about the cameras in his house. See, e.g., id. at 238:15 – 239:1 (testifying that Hogan did not know about the cameras in the Clems’ house or bedroom and that Bubba Clem never discussed the cameras with Hogan). Mr. Clem also testified that Hogan did not know his sexual encounter with Heather Clem was being recorded. Id. at 327:14-24 (testifying that the “only person” involved “who didn’t know” the sexual encounter was being recorded was Hogan). In his interview with the FBI, Mr. Clem apparently told a very different story, stating that Hogan knew there were cameras in the Clems’ house and knew that his encounter was being recorded. See Ex. 57-C (GAWKER 933-39) (notes of Bubba Clem telling FBI agents that Hogan “Knew being taped – all sides,” “talked about w/3,” “not concealed,” “obvious camera in play – Hulk knew, Heather, etc.”). 22 65. False Testimony by Heather Clem. Attached hereto as Exhibit 76-C are excerpts from the transcript of the deposition of Heather Cole (f/k/a Heather Clem). As reflected therein, Ms. Clem emphatically denied any awareness that her husband was recording her sexual encounters with Hogan, testifying she learned about that after the fact. See id. at 18:14-20 (testifying that she was unaware the sexual encounter with Hogan was filmed until after the fact). The DVDs and transcripts, however, reveal that she was aware of the cameras, as she is depicted stating, in response to Bubba the Love Sponge Clem’s “if we ever wanted to retire” comment (which has been redacted by the FBI) that “I tried to get past the pain and enjoy it. You’ll probably see my face squirming . . . .” In addition, the handwritten notes of what appears to be the FBI’s interview with Bubba the Love Sponge Clem, see Paragraph 36 supra and Ex. 57-C, also addresses the truthfulness of Ms. Clem’s testimony that she was unaware and/or did not participate in the recording. Gawker seeks an unredacted version of the DVDs, including Bubba Clem’s immediately preceding comment about “this footage of him talking about [redacted] people,” as well as the Form 302 memorializing Bubba Clem’s interview and other similar documents, to use in the Florida Litigation to put Ms. Clem’s comments in context and to demonstrate that her testimony, that she was unaware that she was being recorded, was false. 66. There are numerous other examples where full production from the FBI, without redactions of publicly-known individuals, will enable Gawker to meaningfully expose false testimony and misrepresentations to the state court. I have tried to provide sufficient detail to answer the Court’s repeated questions to Mr. Berlin at the July 2 hearing without burdening the 23 Court with every such example. Should the Court request additional examples or find that they would be helpful in adjudicating this matter, I would be pleased to provide them. I, GREGG THOMAS, declare under penalty of perjury under the laws of the State of Florida that the foregoing is true and correct. Date of Execution: July 24, 2015 Place of Execution: Tampa, Florida s/ Gregg D. Thomas Gregg D. Thomas 24 Filing # 30300321 E-Filed 07/30/2015 03:28:41 PM EXHIBIT 36-C to the CONFIDENTIAL DECLARATION OF GREGG D. THOMAS IN SUPPORT OF PLAINTIFFS’ OBJECTIONS CONFIDENTIAL-ATTORNEY'S EYES ONLY SETTLEMENTAGREEMENTANDMUTUALRELEASE 1.0 IJIEPARJmS 1.t This SettlementAgreementandMutualRelease(hereinafter.tbiB''Agreement") is madeand deemedeffectiveas of the__ dayof November,2012.byandbetweenTARYN BOSTICK("TB"a pseudonytilwhosetrm :idOJltity will be ao.knowleclged on a Sideletter Agreementattachedheretoas "EXHIBITA"), on the one~ and JO WALSH,(JW), on the other part. This Agreementis enteredinto withreferenceto the facts and circumstances contain=)~ afterthedateof this Agreement,shellbe deemeda disolosureby1Win breachof the tenns of this Agreement entitlingTBto all rightsmidtetnedI€1$ set fotthherein. 4.2.5 1Wherebyirrevocablyagreesandcovenantsthat1Wshallnot.directlyor indb:ectly,publiclydisparage1Bt nor write,pnblisb,causeto be published~ or authori2;e, consult aboutor witho: otherwisebe involved:in'thowriting,pubJicatio~broadcast~transmission01' dissea:dnation of any book,memoir,letter,story,photogmph~ film,sorlpt,Images,mterview, article,essay, biography,diary.journal,documentary. or otherwritten,oral;digitalor visual -accountor desoriptionor depiationof anykindwhat$oeverwhetherfictionalizedornot, about defamatory,disparaging,deprecatingor .neutral, TB or herfamilyt whethertruthful,laudato.cy, JWfurtherwammts representsthat JWhas not and will not enter intoanywrittenor oral agteeme.ttt with any thirdparty purportedlyrequiringor obligatingJW to do .so. 4.2.6 AgreementBy TB Notto Disparpg~ IW. TB herebyagreesandcoveiwnts that he shillnot, dii:ecdyor mdirectlyipubliclydisparage'IW..nor wrlta)publish,causeto be .:published,. or autlior.ize, consultaboutorwithor otherwisebeinvolvedin the writing, publication.broadcast,transmissionor di$$emlnation of anybook,memoir,letter,story, photograph,film.soript,Images, Jnterview, article,essay,biography,diary,joumaJ. documentary,or oUierwritten,oral,digitalor visualaccountor desorlptionor depictionotany kindwhatsoeverwhetherfictionalizedor not,aboutJW's involvement:inor cmmectionwith (priorto 1bedate of this.Agreement), actualor allegedlm,.yeffortsto sell,licenseand/orany otherexploitationoftb.eImagesand/orProperty. · 4.3 ])isolosureOf Con:fi4entialInformationIs Prohibited:JW recognizesandagrees that substantialeffortand expensehavebeendedicatedto lhnittheeffortsof the press,o1her media,and thepublicto leamofpemonalandbusinessaffairsinvolvingTB. JWfurther that anyfuturedisclosureof Confidential Informationto any ThirdPartywould acknowledges constitutea.seriousand materialbreachof the termsof this Agceeme11t, and shall constitutea. breachof trustand confidence.Invasionof privacy,anda m~pproprlation of exclusin property rights,andmayalsoconstitutefraudand deceit. Someof theConfidentialInformationmayalso .. constitutesand.includes proprietarybusinessinformatioJl andtradesecretsw.biehhave independenteconomicvalue. IW acknowledges1hatany unauthorizeduse, dissertdnationor diseloSW'e of ConfidentialInformatio~or the fabricationand disseminationof falseand/or mis.leading information,aboutTB,wouldresultin hreparableinjury to TB, andwoutdbe injuriousto a reasonableperson,and/orwouldconstimt"an injuriousviolationof theright of privacyor publicizy, and/orwouldbe injurioustoTB's business,profession,personand/or career. JW aclmowledgesTB~ssubstantiroand valuablepropertyrights and otherproprietary interests.inthe exclusivep0ssession,ownetshipanduse of ConfidentialInfonnauon,and thatsuchConfidentialInfonnationis a proprietary,valuable, recognizesand acknowledges specle.1anduniqueassetwhichb~oogsto TB and to whichthe JW bas no claimof ownershipor otherinterest. #( 7 i f I' l l 11 jl I r1 BOLLEA 001202 CONFIDENTIAL-ATTORNEY'S EYES ONLY I i I 4.3.l DisclosuresPermittedBy JW. Notwithstanding the foregoing,JW shall Informationto anoiherpersonor entityonlyif onlybe permittedto discloseCofifidentlal cempelledto do so by validlegalprocess,includingwithow;limitationa subpoenaducestecum ot simllarlegalcompulsio~providedthat JWshallnot makeanysuchdisclosureunlessJWhas firstprovidedTB with notic~of such orderot legalproce$snot lessthan ten (l 0) daysin advance of'therequireddateof disclosurepw:suantto the WrittenNoticeprovisionsset forth hereinbelo-w, providingTB withan opportunityto interveneandwithfull and complete ooope~tionshouldshechooseto opposesuchdisclosure. 5.0 l' I REMEDIES 5.1 TB's Remedi!a$ for Breachof Agreement.Eachbreachor threatenedbreach(e.g., conductby JWreflectingthat saidpmon fatendsto breachthe Agreement),includingwithout limitationby breachof anyrepresentationor watnlllty,byfailingto deliverto TB all tangible or threateneddisclosureof any ConfidentialInformation Propertyas required,by the disolosure to any ThirdParty by JV! (herein"ProhibitedCommunication»), or otherwf.setsllaTIrend~ JW liableto TBfor anyand alldamagesandi.rtjuries incurredas a resultthereof,includingbut not limitedt-0the foUowing,a11of whichrights andremediesshallbe cumulative: r 5.1.1 Disa;otgement of Monies:In the eventan Arbitratordeterminestherehas been a breach orthreatenedbreachof thisAgreementby JW,JW$hall be obligatedto account to, and to disgorgeandtum overto TB any and all monies,profIts, or otherconsideration,or benefits,whichJW,or anyoneonJW's behalfor at JW's direction,d1rectlyor indirectlyderive tromanydisclosureor explQitation Qfanyof the ConfidentialInformation;ang 5.1.2 Liqajdat~ Damages;JWagreesthatanymaterialbreachor violationof thisAgreementby any of JW individuallyor the JW Croupby flliy'their unautltori:zed disclosure of anyo:fthe ConfidentialInformation(as definedin paragraphs4.1(a)~(b1(c),and (d)) to any ThirdParty,and/orany unauiliod.zed exploitationor prohibiteduseof the same, and/orby the breachof and/orby anyfalserepresentations andwammtiesset forthin this Agreement,, and/or anypubllodisparagement of TB by anyof JW (oollecttvely, the ''LD BreachTerms").,shall resultin substantialqamagesand injury to TB, the preciseamountof whichwouldbe extremely difficultor impracticableto deternune~ evenafterthe Partieshavemadea reasonableendeavorto estimat.efuir compensationfor such_potential lossesand dmnagesto TB. Therefore~ in addition ·· to disgorgement of the full a:tnOUilt of all moniesO:fotherconm.deration pursuantto paragraphS.1.2tin the eventan Arbitratordetenninestherehas beena breachof the LD Breach Termsof this Agreementby JW individuallyor the JW Group,JW shallalso be obligatedto pay, andagreeto payto TBthe sumof SixHundredThousandDollars($600t000)as e.r.easonable and fair amountof liquidateddamag~sto compensateTB for any loss or dumugeresultingfrom each breech. The Partiesagr~ethat such$Um bearsa reasonablemidpro:idmate relationshipto the actualdamageswhiohTB willor might suffer:fromeachbreachof the tcnns of this Agreement andthat1hlsamounti$not a penalty. Alternatively,at TB's solediscretion,TB mayseekto recoveractualdamagesproximatelycausedby each suchbreach,accordingto proo£ A».yother breachesnot a LDBreachTermsshallbesubjectto a claimfor actualdamagesaccordingto proof;and r I i i I il : I ; i ! l i r I· I r I 8 I BOLLEA 001203 CONFIDENTIAL-ATTORNEY'S EYES ONLY 5.1.3 IniunctiveRelief. JWaoknowledges andagreesthat anyunauthorized disclosureto ThirdPartiesof anyConfidential Information willcauseirreparableharmto TB, whichdamagesandhguriesw.illmostlikelynot bemeasurableor BUSCeptible to calculation.JW andfurtheracknowledges and agreesthat pnybreachor threatenedbreacl1 of thisAgreement due to the unauthorizeddisclosureor threateneddisoloBDre by JWto ThirdPartlestof any ConfidentialInformationshall entitleTI3to imtnedintelyObtafflt eitherfromthe Arbitratoror 'fromtheLosAngelesSuperiorCourtand/orothercourtof oompetentjtlriadietion, anex parfB isst1a11oe ofa testtainfngorderandpreliminaryinjunction(herein"InjunctiveRelief,)"Without c,f Confidential · advauoonoticeto anyof JW, preventingthe disclosureor anyfurtherd.isoloSUl.'e Infonnaiionprotectedby the teemshereof:pendingthe decisionof the Arbitratoror Court, The Partiesfurtheracknowledgeand agreethatin oonneotionwith anysuchproceeding;anyParty may obtam:fromthe Courtor Arbittatoron an ex paneapplicationor noticedmotionwithout opposition.an ordetsealingthe file :Inanysuchproceeding,andthe Partiesstipulat'eto the factualand legalbasisfor issuanceof an ordersealingthe file in any suohproceedings.The right$andremediess~tforth in this InjunctiveReliefSectiottate withoutprejudiceto anyother rightsor remedies,legal or equi1llble. that the Pattiesmayhaveas a result of any breachof this Agreement. r 5..2 Di,mute ;Resolution.In .recognition of themutualbenefitsto 'LBandJWof a volwitazy systemof alternative disputeresolution which:involves bindingconfidentialarbitration. of all disputeswhfohmay arisebetween. them,it is thclr intentionand agreementthatsoy and all arisingbetweenTB on the one hand,and JWon the otbet hand,$hallbe claimsor C011ttoversies resolvedby birullngconfidentialArbitrationto the greatestextentpermittedby law. Arbitration sbalJtakeplacebeforeJAMS.ENDISPUTE ("JAMS")pUffiJaltt to JAMSComprehensive ArbitrationRulesandProcedures(incluc'ling InterimMeasures)eJAMS Rllles")andCalifornia law,or beforeACTIONDISPUTERESOLUTION SERVlCES("ADRS''pursuantfo the ADRSRules(inoluding InterimMeasures)andCalifornia.law(whicheverthe claimantelects uponfiling.anarbitration),in Los Angeles,California.andwill be heardanddecidedby a sole, neutralcn"bitrator ('1.Atbitra~r'°)selectedeitherby agreeJMntof the Parties,or lf the Partiesare unableto agree,thenselectedunderthe Rulesof theselected arbitrationservice. The costsand feesassociatedw.ithanyArbitratorand/orArbitration .serviceshallbe split equally amongthe partiesto anySUQh di$J)Ute. ThePartiesshallhavethe rightto conduotdiscoveryin accordance with the Cali:fumia Codeof CivilProcedureSection1283.0Set.s1q.and the writtendiscovery ..requestsandresultsofdiscove.cy shallbe deemedto constituteConfidential Information.The Arbitratorshallhavethe right to imposeall legal andequitableremediesthat wouldbe available to any Partybeforeanygovernmental disputeresolutionforwnor courtof competent jurisdiction,includingwithoutlimitationtomponi.ry,preliminmyandpermanentizuunctivereil~ef, compensatorydama~ Jiquidateddamages,accountin~disgo.rge.D'lenli specificperfonnance, attorneysfees and co~ andpunitivedamages.It is understoodandagreedthateachof the Partiesshallbearhis/itsown attorneys'fees,expertfees~1Jonsulting fees,andotherlitigation costs(if any) ordinarily assoeiatedwith legalproceedings1akingplace .ina judicialforum, subj~ctto the Arb!trator*s .reassessment in favorof theprevailing party to the extentpermittedby CaliforniaJaw. Eaeh of the Parties understands, a"lmowledgesimd agrees tbat by agreeing to arbitration as provided herein, eae'hof the Parties is giving up any right that he/she/it may have to a Dial by judge or·jury with regard to the matters whieh are req11iredto be I r 1 I I i I I i I I 9 r BOLLEA 001204 CONFIDENTIAL-ATTORNEY'S EYES ONLY submittedto mandatory ;md bindingArbitration pursuant to the terms hereof. Each of the Parties further undentauds, acknowledge$ and agrees that there is no right to an appeal or a reviewof ap Arbitrator's award as there would be a right of appeal or reviewof a judge or jury's decision. 6.0 MUTUAL RELEAS:ES 6.1 Exceptfor the rights andobliglrtiomi of thePartiesset forlhin thisAgreement, 1B, forherself;and each of .herrepresentatives. agents$assigns,heirs,parmers,companies; affiliatedcompani~ employees,insnrea;andattomeys,absolutelyand foreverreleasesand dischargesJW,lndlvfduruly1 and.alloffW's 'heirs,andJW'sattorneys,and eachof them("TBJW Releasees''),of and from any andall claims,demands,damages.de~ liabilities!accounts, reckonin~~obligations~ costs(includingattomey's fees).expenses,liens,notionsandC!WSes of actionsQfeverykind and naturewhatsoever,whetherknownorunknown,fromthebeginningof includingwithoutlimitation any and all matters, timeto the effectivedateof thisAgreement., facts.claimsand/ordefensesassertedor whichcouldhave beenasserted in theMatter~ or which couldhavebeenassertedin anyother'legal®tionor proceeding,exceptas maybe provided herein(tlte('TB-JWR.clcasedCtaimsi. Notwithstanding anyof thefurego.l11g~ forcfority,the operatorsof anywebsiteor mediaoutletorphotoagency,and anyoneelsewho obtronedfromor whoJW gaveor tran.sfutredto a copyof the J>hotos and/otImagesan&orProperty are:not includedand expresslyomitted:fromthe TB-JWReleasees and TB-JW~!eased Claims. 6.2 Exceptfor the riglltsandobligationsof the Partiesset forthin this Agreement JW, for themselves,andJW's representatives, agents,gs.signs,he~ partners~companies, affiliatedcompanies.employees,insurersand attomoys,absolutelyand fureverreleaseand dischargeTB) individually,a.ttdeachof her representatives, agents,assign:i:J, heirs,partners~ attomeysisuccessors,insurers,3lld companies,affiliatedcompanies,subsidiaries,employees~ . eachof them("TBReleasee:t),of andfrommy and all chums,demands,damages,debts, liabilities,accowrts,reckonings,obligations~ costs(includingattorney'sfees1 expenses,liens. actionsandcausesof actionsof everykindal1d naturewhatsoever,whetherknowno,:unknown, ftom the beginningof time to thedate of 1hisAgreemem,.includingwithoutlimitationanyand all ma~ tacts, claimsand/ordefensesassertedor whichcouldhavebeenasserted .inthe Action~or whichcouldhave been assertedin any otherlegalactionor proceeding{the ''JW .. ReleasedClaims''). 6.3 . Thesubjectmatterreferredto in paragraphs6.1 and6;2, abova(i.e.,the TB-JW ReleasedClaimsand JW ReleasedClaims).are collectivelyreferredto aB the ··Released Matters.." 6.4 ThePartieshereto,and eachof them,herebywarrant,representandagreethat eaclt·orthetnis fullyawareof §1542of the Civilcode of theStateof California,which:provides asfollows: "A generalreleaseIBs not extendto claimswhichthe creditor TBs not know or suspectto exist in hisfavor at the time of 10 BOLLEA 001205 CONFIDENTIAL-ATTORNEY'S EYES ONLY I executingthe release,whichif .knownby himmusthavematerially affectedhis settlementwith the debtor." lf. i The Parties, and eaeh of th.em,voluntarilywaivethe provisionsof California.Civil Code § 1542, and anyother similar federal aod state law as to any and au clatw.s,d(imands, cam es of action, or charges of everykind ~nd nature whatsoever,whether known or unknown,snspcctedor unS1JSpected. i- 6•.5 F.,echof the Partiesheretoacknowledges ~ndagreesthat this Agreement constitutesa settlementandcompromise ofclaimsanddefensesin dispute,andsh.allnot be construedin anyfashionas an admissionof liabilityby anyparty hereto. 7.0 I CONFIDENTIALITY OF THIS AGREEMENT TheParties,respectively, shallnotto disclosethe torrnsof thisAgreement;eitherdirectly or indirectly,to the mediaor to anyoneelse otherthan theirrespectiveattor.ney.s ancl representatives and/orasmay berequiredby law. rwmaynot commentor makeanypress releasesor otherwisediscussilieresolutionof the subjectof thisAgreement, MISCELLANEOUS TERMS 7.1 EntireA2Ieement.ThisAgreelilllnt constitutestheentireagreementand understandingconcerningthe ReleasedMattershereofbetweenthe Parnesheretoand supersedes any and all prior negotiationsandpropo$edagreementand/oragreements,writtenand/ororal, betweenthe Patties. Baohof the Partieshereto acknowledgesthat neitherthey.,noranyother party, nor anyagentor attorneyof anyother partyhasmadeanypromise,representatlo~ or wafl'3iltywhatsoever,expressedor implied,writtenor oral,whichis not containedherein, concerningthe subjectmatterhereo~to induceit to ex~cuwthisAgreement,and eachof the Partiesheretoacknowledgesthatshe/hehas notexecutedthisAgreementin relianceon any promise,representation,und/o:rwarranty not containedherein. This Agreementshalllie binding on andinureto the benefitof the'Parties,theReleasees.andeachoftheir respe¢t:ive successors andassignsand designees. 7,2 CaliforniaLaw & Venue.'1'h.isAgreement and anydisputeor controversy tel.mingto thisAgreement,shall in all respectsbe construed,interpreted,oo:forced and governed ··bythe laws of the Stateof California.Venueandjurisdiotionwithte:;1pectto rmyaction,claimor otherproceeding,includingfor equitablerelief,arisingunderor in relationto this Agreement sh~l be excl11sivelyin the federaland/orstatecourtsand/orarbitrationtribunal,as applicable$ locatedin the Countyof Los Angeles,State ofCalifomia, WestDistrict,,or the UnitedStates DistrictCourtlocatedwithin the Countyof Los Angeles,Stateof Califomia,Cett1ralDistrict. 7.3 Attome}'S'Fees. Jnthe event of anydispu~ action, proceeding (I\' eoutroversy regardingthe existence,validity,interpretatio~performance.enforcement,claimedbreachor threatenedbreaQhof this Agreement,the prevailingparty in anyresultingarbitrationproceeding and/or courtproceedingshallbe entitledto recoveras mi elementof such Party's costs of suit. andnot as damages,all attorneys'fees,costsandexpenses mcUtTed or sustainedby such I i I j II l.' 11 rI BOLLEA 001206 CONFIDENTIAL-ATTORNEY'S EYES ONLY prevailingPartyin connectionwithsuch action,including.1 withoutHtnita:tfou, 1egalfeesand costs. 7.4 Waivers;Modification. ·ThisAgreementcannotbe modifiedor changedexcept by writteninstrumentsignedby an ofthe Partieshereto. No waiverof any of theprovisionsof thisAgreement$hallbe deemedto constitutea waiverof any otherprovision,whetheror not similar,nor shallany waiverconstitutea continuingwaiver. No waivershallbe bindingunless executedin writingby the partymaking1hewaiver. 1· I I 7.5 NoticeProvisions.Anynotice,demandor requestthat one Pmydesires1 or is requiredto give (includingservi<:e of anysubpoena,courtpleadings.summonsand/or complaint),to the otherPartymustbe promptlycommunicatedto the otherPariyby usingtheir respectivecontactinformation below,by both(i) e~mailor facsimile;and (:ii)telephone.Either Party may changehis or her contactinformationby notifyingthe otherPartyof said change(s) pursuantto the applicabletermsherein. r.. lI I 7.5.1 To TB fill follows: c/o DavidR. Houston 4.32CourtStreet I Reno, NV 89501 I Tel. 775.786.4188 L I i 7,5.2 To JW. as follows: cfo Keith M. Davidson,Esq. S383WilshireBoulevard,Suite510 BeverlyBills,CA 90211 tel. 323.658.5444 I Ill / Ill I I ··/// I ! f ! ll l i I iI I r 12 l I I BOLLEA 001207 CONFIDENTIAL-ATTORNEY'S EYES ONLY I I 7.6 '1111s Agreementmaybe executedwithone or moreseparatecounterparts,eachof which,whenso executedshallbe deemedto bijanoriginaland.togethershallconstituteand be oneandthesameinstrumen4 Any executedcopiesor signedcounfe:tl)arl:H of thisAgreement, the Deol$'.atlon., andany otherdooumentation maybe executedby scanned/printed pdf cop{e$of signaturesand/orfacsimilesignaturesjwhichshallbe deemedto have1hesameforceand effect as if they wereoriginal signatures. I I. . r I i lNWITNESSWHEREOF,bytheirsignaturesbelow,thePartieseachhaveapproved and executedthisAgreementas of the effectivedatefirstset furth above. IZ IZ.",_ ,2012 DATED: J I O r i)tg. (I#' , 2012 DATED: . f ! ! i I 1- 13 BOLLEA 001208 CONFIDENTIAL-ATTORNEY'S EYES ONLY ii ASSIONMBNT & TRANSFER OF COPYRIGHT !Forgoodandvaluableconsideration, the receiptendsufficiencyof whichis-hereby 11 (edged.JO WALSB ("JW".).herebyirrevocably sells,transfers.assigooand.et1nveys to TB ithroughoutthe universeand in perpetuity, the full, unencumbered and undividedintmstin all of (inc[uding,withoutlfmtt.ation, allocpyrightsand all extensionsat1drenewals title and Interest 'shfs),of whateverkind or naturein 1111d to iliaImages(s)any81lda11outtakephotoilflllgi$ pi (1he''Images")andany andall still phot0$(the"Photos") whfoltcaptureor femure1B either Md/orindividually(thelmllge$andPhotosandanyandall portionsthereofor .relatedmaterials . • e are collectivelyhereinreferredto as the "Property"- as furtherdefinedheteinbetow), withoutlimitation,l!lly andall derl%tiveworksattdBliyportion$or varmrionsthereof,in any , ediaa11dfuJma~ whetheror not snchrights arenow known,re<:ogtti?.ed or contemplated. withJ and ne lnclu andall IJ I1 I I I ~e Propertyincludes(in theh~ anyand allImages.andstill .inmteSthatexistofTB oracquiredin wholeor in partby JW 1 e priorto thedateof this agieement.SaidPropertyineludes,but nm:Umits:d to, all Images 'ticrenditionsby TB,withon any medimn.For the sake of cla:rlflcationy theiwsignmentherein inclu :eacltattdeveryImagesmid-artistio rendition,withoutlimimtion,that JWcreatedoracquired(in whole, '.rin part with TB) as of the dateof this e.safgoment whii;ih capturesor featutesTB; ilndis deamed effec · ' f n e momentof creation feachofthelm cs P m andtne Pm rtva.nd in~~d !anysub~quentlyc~ derivativeworks. toom) JW and/mindividuaUy. whiohwereeapitlredor er~ 1, !, 'I j I r.i,is ~er and assigmn~t of rights shall inclo~ but not be llmitedto, .allof the following righm: all rig[ttsto registerthe copyrightin the FropertywithfileU.S.CQpyrightOfiiot; (b) all of JW's '. entto and rights to display, publish,disseminateor exploittheIm~es1 Pflotosand/orProperty in any . • ry of the world,in anyandall media,andformats;(c) all doinesticand intematJonalrights,. includi withoutlimifatiOII,all rights purauab.t to anyEuropeanUnion directiveslllld/orenabling or fuennivemein impf &rtinglegislation,mwsorr~ations; and (d) any andall ofh~ rl8hi81hroughout ~sting or Sllbsequently enacted perpe J thatJW nowJulsorto which h@may becomeentitled11nder United .~ Jaw,any state fawor anyforelgoJaws.No rightofnnykind, natureor descriptionis res I f l j ibyIW. I '. herebyl'epres.ents !Utdwarrants and sWe$ underpenaltyof peljwy ihat JWhasnotb~tofure :r assignedortransferred,and will nothe.reaflor pt orassign or 1mnsfer.any right;,Jicen.se, title · in orto the Images,PhotQs or any of the PropMy,or anyportionfuereo~to any person,fu'Itl. 001:POOfflOilor otherenffl¥otherthanby ibisinstrument to TB. · II p ii ii ll lJ l · is instrument U1ay executedvia facsinrllesignaturesand/orpdf e1ectronio printed copy m1yof whichshallhave thesamefurooandefibcl ns ifits werea.r1 originalsignature. 1 I' aturebelow,this insfrumeiltis deemedapproved. and ~?(luted effeotiveas of the 2012. j !1 ii ,. li 0 WALSH ! i f I· 1 14 I I BOLLEA 001209 CONFIDENTIAL-ATTORNEY'S EYES ONLY EXHIBIT B TO SETTLEMENTAGREElvIENT • eeReels i ; • o 1stdated 7-3-07; 0 0 2nd dated 7-13-07 3rd undated I .IR.STTAPE I O 43:06inlength o Residential bedroom - four poster bed o · Starts out with g-string female embracing clothed BOSTICK o 0:09 - TAC enters walks in 111 BOSTICK- Good griefBubba 11 TAC- Isn't she beautiful • 1:16 - TAC puts music on -female gets on bed wearing only a thong & black pumps. BOSTICK takes his shirt off • 1:15 - TAC walks back in-BOSTICK says wow-this is my Christmas present- TAC responds I'm going to take a shower • 2:29 - BOSTICK standing on floor - femal begins performing oral sex on him. Penis is not visible as BOSTICK's back is facing camera. Continues tbru 4:48 11 4:48 - Hogan turns to camera with erect penis where female continues to perform oral on BOSTICK as he lays on his back. II TAC enters - OK I'm going to be in office watching lookout. Female responds OK - Continues blowing BOSTICK 11 10:16 - BOSTICK breathing heavy OhFuck Im gonna cum oh fucksuck my dick breathing heay moans, orgasms. Female continues more slowly 18 11 :48 - BOSTICK says oh thank you. Female continues hear kissing sounds as she kisses hls penis • F asks if BOSTICK likes her shoes -yes • F asks if she can turn shower on for him-yes 11 BOSTICK gets up shakes bis head & leaves the room. • 14:30 Female enters wearing nighty & no shoes- gets dressed gets on bed 11 BOSTICK reenters naked- F states - all three of us have to go away on a vacation - BOSTICK says no shit .... F or else just hang out here my fora week 111 11 15:48 -F asks about tension in BOSTICK's family-BOSTICK continues that it was a slap in the face for him to be at a hotel but his family at his house BOSTICK-there was all these things that added up .. .its not like she's l~ad.ing me on ... thanksgiving only daughter leaves ... Ex · it B To Set'JementAgreement Pag 11of 5 I BOLLEA 001210 CONFIDENTIAL-ATTORNEY'S EYES ONLY F remains cuddling in bed BOSTICK - wife is trying to establishresidency in LA... • 18: 15 - Im.just a dumb country bumpkin- my career is over & this is what I have to look forward to • 19:00-F tells story about trying to park car in a mall- God will reward those who do the right thing • 20:00 - F - you don't have to be anybodies doormat • BOSTICK getting dressed • 21:16F answersphone• 22:00 both leave room • 39:00 F enters - blows out candles - leaves at 40:00 • 43:06 end of tape • 11 i $ECOND TAPE 7-13-07 0 30:17inlength o Same Residential bedroom - four poster bed o Starts out with BOSTICK performing oral sex on F 11 • • • • • 11 • • • • • 11 • • • 11 • • 11 11 a She is moaning TAC says - hey you guys do your thing - I'll be in the office 0:38-F-I want you to fuck the shit out ofme today BOSTICK I'm so horny - I can't believe I'm here - I should be home 1:34 - BOSTICK standing- F laying on stomache on bed performing oral on BOSTICK while he reaches around :fingering her - she is loud Sounds of oral sex go tbru 4:40 where BOSTICK says You go ... suck my dick 5:00 BOSTICK-do you have a rubber F opens a drawer gets a rubber but continues giving oral before she :puts it on the standing BOSTICK. BOSTICK full :frontal- facing camera 6:40 BOSTICK slides onto his back in bed- she gets on top intercourse - loud. Kissing. 7:28 - BOSTICK begins smacking F's ass - she is loud -your big dick is so great8:21 LOUD F - I'm cnmmjng- fuck ya - give it to me 8:50 BOSTICK - orgasm 9:25 - BOSTICK- okaaay- it almost came off. F leaves room 10:20 - BOSTICK- I cant believe I have to drive back home F returns to a spent BOSTICK - would you like me to turn the shower on for you . 10:30 - BOSTICK I can't believe I just ate - I feel like a pig 12:35 - naked F reenters - crawls into bed. 13:27 - BOSTICK reenters - look at you ... you are out all cuddlyBOSTICK getting my bubba shirt back on ... crazy ... eating like a pig 10 minutes ago 14:20 BOSTICK gets dressed ... feel like I just got off a rollercoaster 15:00-Nick's girlfriend is only 17 she has a killer fucking body. E pit B To Settlement Agreement Pag j2of5 I I BOLLEA 001211 CONFIDENTIAL-ATTORNEY'S EYES ONLY • 11 The other night Nick is out & the dog's are plaing tug of war with.nick's & bis girls underwear... thennickhas another girl who is even hotter in Orlando -then she wants to be 1stto get me if I'm divorced.(from gawker)... hot commodity 18:30I got in trouble at OZ- coast guard ga.ys-they give him a bracelet. Buy each other beers. Then they buy a yeagermeister.They challengeBOSTICK to fight. I :fightthese four muther.fuckers. • They fucked with my car. Theyput a lit cigarettein my gas tank. • • • • Fuck this - I don't care if it is on the front page of the USA today- go back to OZ- get security footage -they piss on car - scratch car -to make a long story short- cab driver interviewed by cops. • At 4AM police arrest the 4 guys 23: I 0- 0 kim out you are awesome - F- so are you 30:11-tape ends ·APE 3 - UNDAIED o 50:03 IN LENG1H o Residential bedroom- four poster bed o Starts out with voices of TAC BOSTICK & F talking o TAC excuses himself • F talks about off-road biking- nobody in frame • 2:07 enter F & BOSTICK clothed. • BOSTICKremoves her top • BOSTICK takes off his TAC shirt • They get on bed · • 3:06-BOSUCK this is some weird shit. F says I guess so -just roll· with it • 3:56 - F turns BOSTICK around he is facing_camera and she performs oral as he sits on edge of bed. • 6:00 BOSTICKlays back in bed as she goes nuts giving oral. • 6:55 BOSTICKputs condom on • 7:30 BOSTICKperforms oral • 8:00 BOSTICK intercourse • F it feels so good • F - fuck me so good. Iii F - oh you are so big- Loud • F - let me get on top of you • BOSTICK continues • 9:15 F - oBOSTICKhim gonna cum loud • 10:00 F - oh you gotta stop -you are killing me -your dick is so big -BOSTICK slows down 11 11:00 F leaves - BOSTICKremains on back naked in bed • 11:50 she returns - washes BOSTICK's penis • 12:50the couple cuddles - naked on bed it B To SettlementAgreement E Pag 3 of5 BOLLEA 001212 -. REDACTE EYES ONLY 13:30 I?m a little worried about you 14:00 you know you can come over here whenever you want chill out BOSTICK I appreciate that 17:09 BOSTICK I should probably try to head home 85 try and beat Nick home. There is so much BS in my life, I want to try not loose everyone. 17:30 I feel bad for Brooke - she is making some real bad decisions now. 18 :20 would you like to take a shower? BOSTICK that would be cool let me rinse off real quick. 19:40 - both leave room 20:34 returns clothed goes to leaves again 21 :00 makes bed 22:00 small talkre furniture, etc. 22:52 BOSTICK puts Bubba shirt on 23:20 MTV called my wife said they were going to sue her. My Wife texted me to say Happy ather?s day because she won?t talk on the phone anymore 24:00 enters (the three ofthern are now in the room). BOSIICK talking about wife?s contractual issues with MTV. 25 :00 BOSTICK Brooke you better get off your ass get your mom in gear. I understand having an edge I know how to work a gimmick. 26:22 TAC talking about Linda Hogan you should go on Oprah, Ellen, etc. 27:00 BOSTICK talking about Linda ?icking up MTV show 27:55 my daughter Brooke jumped sides on me. I spent 2-3 on her music. I?ve done everything like a jackass for her. TAC those fuckers don?t realize if the old man (BOSTICK) cuts 28:40 The one Option Brooke had - Brooke?s besides me is South Beach Records Billionaire guy I don?t know if Brooke was fucking the guy?s son. . .whatever. . .I mean I know what is going on I mean I don?t have double standards I mean I?m a to a point. Fucking But then when it comes to nice people and shit Whatever. I mean I?d rather if she was gonna fuck a I?d rather have her many an 8 foot tall 100M basketball player. We all are a little bit. BOSTICK Cecil fucking he had Jamie Fox coming in on the 22ml track. . .I didn?t even tell Brooke about it. Fuck her. 30:54 BOSTICK Brooke Cecil meet in Miami Brooke fucks up alOM deal I had with the Saudis Brooke says Fuck You Dad. She?s never said that . she ?ipped a bird at me. 32:00 BOSTICK I have this huge tucking home in My family never came home. They went to LA fuck em Exhibit To Settlement Agreement Page 4of5 BOLLEA 001213 REDACTE EYES ONLY 34:00 MTV programming ad buys - Linda fucking quit. And she tried to put it on me. 35:00 BOSTICK Brooke was pissed because didn?t set her up? WTF thankless. 36:00 Linda is fucking nuts. She wants to duplicate our FL house in LA she is ?icking crazy. 36:55 Palms place in Vegas 4 I bought it for 4.25 it is worth 5M. If I get divorced Linda will make me sell it. But fuck it cecil will buy it and give it back to me after the divorce. 38:00 you can think whatever the fuck you want about me but I will never give Brooke the opportunity again to publicly disrespect me h/c I don?t trust her. 38:50 TAC OBOSTICK I have something for you whose your - check it out. (Oakley inscribed glasses). 40:30 BOSTICK dude the only thing I?ll ask you I don?t know how you?ll pull this off is Iflm ever on my death bed don?t let Linda come see me. 41 :00 TAC Wife then give BOSTICK a thank you card to LBOSTICK to give to Linda for the wedding. 42:00 BOSTICK - VII-1 wanted me to do abig thing go back to the house I grew up in so we knock on the door a big lives there now. The half was enamored with Linda. 43:38 BOSTICK to . I love you baby. TAC BOSTICK leave in bed. 49:00 TAC re-enters Says if we ever did want to retire, all we have to do is use that ?icking footage of him talking about people. 49:45 TAC want to watch the tape. his dick hurt so ?icking bad you?ll probably just see my face squirming I just tried to get past the pain to enjoy it 50:03 ?tape ends Exhibit To Settlement Agreement Page BOLLEA 001214 CONFIDENTIAL-ATTORNEY'S EYES ONLY SIDE LETTER AGREE1\1ENT TO THE MUTUAL CONFIDENTIAL SETTLEMENTAGREEMENTAND RELEASE OF ALL CLAIMS WITTHATTACHMENTS "A" & "B" DATED I I 2012. To Whom It May C~mcem: This Side Letter agreement is entered into by and on behalf of the Parties with respect to the Confidential Settlement Agreement and Mutual Release entered into by and between them on or about 2012 ("Settlement Agreement"), in whlch LORI BURBRIDGEis referred to by the pseudonym, "JO WALSH," and TERRY BOLLEA is referred to by the pseudonym "TARYN BOSTICK." It is understood and agreed that the true name and identity of the person referred to as "TARYN BOSTICK" in the Settlement Agreement and its' attachments thereto is Terry Bollea, and that any reference or designation to TARYN BOSTICK shall be deemed the same thing as referring to Mr. Terry Bollea by bis true name as identified herein. It is understood and agreed that the true name and identity of the person referred to as "JO WALSH" in the Settlement Agreement is Lori Burbridge, and that any reference.or designation to "JO WALSH" shall be deemed the same thing as referring to Ms. Lori Burbridge by her true name as identified herein. It is further acknowledged and agreed by the parties that notwithstanding the provisions of Paragraph 7.1 of the Settlement Agreement (whlchprovides that the Settlement Agreement constitutes the entire agreement between the Parties with respect to the matters herein and in supersedes all prior and contemporaneous oral and written agreements and discussions pertaining to the matters herein), this Side Letter agreement shall be deemed part of the agreement between the Parties: Accordingly, Paragraph 8.1 of the Settlement Agreement is hereby amended via supplanting to provide as follows: "7.1.1 Integration. The Side Letter agreement entered into by the Parties concurrently with their entry into this Agreement shall be deemed part of this Agreement, and this Agreement and the Side Letter agreement together constitute the entire agreement betwee~ the Parties with respect to the matters herein and supersedes all prior ~i?BOLLEA LO~GE BOLLEA 001215 CONFIDENTIAL-ATTORNEY'S EYES ONLY and contemporaneous oral and written agreements and discussions pertaining to the matters herein." For avoidance of doubt, it is :further agreed that this Side Letter agreement shall constitute Confidential Information as de.fined in the Settlement Agreement, that neither this Side Letter agreement nor any portion hereof may be disclosed to anyone except as and to the extent expressly provided in the Settlement Agreement, and that any ·unauthorized disclosure or use of this Side Letter agreement or any portion hereof shall constitute a material breach of the confidentiality provisions of the Settlement Agreement. It is further agreed that neither party shall keep a copy of this document, and that only Keith M. Davidson, Esq. and David Houston, Esq. shall maintain possession of it or access to this Side Letter agreement. This Side Letter agreement may be executed in counterparts and when each Party has signed and delivered one such counterpart to the other Party, each counterpart shall be deemed an original, and all counterparts taken together shall constitute one and the same Agreement, which shall be binding and effective as to the Parties. The Agreement may be executed by facsimile or electronic PDF signatures, which shall have the same force and effect as if they were originals. By signing below, each of the Parties signifies their agreement to the terms hereof and each of their respective counsel signify their approval as to the form of this letter agreement. LORIBURBR.IIX3E a.k.a. ~)date &6 Keith M. Davidson, Esq. .d r,v' (i--' , . II l LORI BURB GE BOLLEA 001216 Filing # 30300321 E-Filed 07/30/2015 03:28:41 PM EXHIBIT 37-C to the CONFIDENTIAL DECLARATION OF GREGG D. THOMAS IN SUPPORT OF PLAINTIFFS’ OBJECTIONS EXHIBIT B TO SETTLEMENT AGRErnvlENT & Three Reds o l st dated 7-3-07· o 211d dated 7~13~07 o fu undated • FIRSTTAPE o 43:06 in length o Residential bedroom - four poster bed o Starts out with g-string female embracing clotheliDOE o 0:09 Jntersw·aiks.... i... u-----. is DOE -Good gri~ . 111 Isn't she beautiful 111 • uts musk on - female gets on bed ~···earing only a thong -~=1.m~1.ps. DOE takes hlsshirt off !8 valks back in - DOE.says \VOW "- tllis is my Christmas respondsI'm going to take a shov;,'er present· !I 2:29 - DJ standing on floor-· fomalbegh1s performingoni.! sex on him, Penis isnot visible as DOE's back is .faCingcamera.Continues thru 4:48 111 4:48 ---Hogan turns to camera ,vith erect penis \Vherefemale continues .,!Q..QQ·form oral on DOE as he Iavs on his back. m L..Jenters - OK I'm going to be in rnyot1:ke \Vatchinglookout Female responds OK .~Contirmes blmving DOE 11 lO;16···DOE breathingheavy Oh Fuck hn gomrncum oh fuck ·--suck my dick breathing heay moans, orgasms;Femalecontinues more shwdy l& 11;48 -· DOE says oh thank ytm. Female continues hear kissing sounds as she kiss(!Shis penis .. F asks if DOE Hkesher shoes ---yes 18 F asks if she can turn sho\ver on for him -· yes 11 DOE gets up shakes his head & !eaves the roorn. m 14:30 Female enters wearing nighty & no shoes - gets dressed gets on i I b6 -2 b7C -2 bed DOE reenters naked - F states - aUthree of us have to go avvayon a vacation - DOE says no shit. ... For else just hang out here for a week 88 15:48 - F asks about tension in DOE's family····DOE continues that it ,vas a slap in the face for him to be at a hote 1but his family at his house 111 DOE- there was all these things that added up .. .its not like she•s leading me on ... thanksgiving only daughter leaves..,. ,. F remainscuddling in bed a Exhibit B To Settlement Agreem.ent Page 1 of 5 175 DOE - vvife i:drylng to establish residency in LA". 18: 15 - fm just a dumb country bumpkin - my career is over&; this is what ! have to look forward to !& 19:00 - F tells story about trying to park car in a mall - God re,vard those vo/l10do the right thing .. 20:00 ... F - you don't have to be anybodies doormat 18 DOE getting dressed .. 21; 16 F answers phone ... m 22:00 both lea ./e room 111 39:00 F enters~ blows out candles·- leaves al 40:00 111 43:06 end of tape 18 m ,vm 1 • SECONDTAPE 7-13-07 o o o 30: l 7in length Same Residential bedroom·- four poster bed Starts outwith DOE performing oral sex on F m 111 B .. .. She is moaning LJays ... hey you gi;ys do your thing ...PU be in the office 0:38 ····f ..1 ,vant you to thck the shit out of me today DOE I'm so horny ·-1 can't believe I'm here - I should be home 1:34 ''"DOE standing --·F laying on sto.macheon bed performing oral on DOE,.vhilehe 1-e:aches around fingering her ....she is loud Sounds of ornl sex go thrtt 4:40 vvhere DOE says You go,, ,suck. my dick 18 5:00 DOE - do you have a rubber fil F opens·adnnver gets a rubber but continues giving oral before she puts it on the standing DOE. DOE fu H frontal ---facing camera RI 6:40 DOE slides onto his back in bed - she gets on top - i.nterCl)Urse --loud.Kf ssing. 18 7:28-' DOE begins smacking F's ass--· she is loud- your big dick ls so great• 8:21 LOUD F - rmc.mmning-foc.k ya-"·give it to me II> 8:50 DOE ... orgasm "' 9:25 .....,DQE---okaaay ....it almost came off. F !eaves n)om .. 10:20 - DOE - I cant believe 1 have to drive back ho.me 111 F returns to a spent DOE ~-\.\'ould you like me to tum the shO\:veron .fi)ryou RI 1():30-· DOE 1 can't believe I just ate - l foel like a pig 18 12:35 ....naked F reenters - crawls into bed. & B:27 - DOE reenters~ look at vou ... vou are out all cuddlv ... 81 DOE getting m~ jhirtba;k en .. ~crazy, .. eating like a' pig 10 minutes ago 111 14:20 DOE ttets dressed ... feel like I just got off arollercoaster ftloqse everyt">t:1~; • r---- 17::30ffeelba~(thethree of themare uowin theroom),I)()E talk:in~3bo.tt\wite's con.irac\lµl:lis_s_ µ_eH·N·i-Jh MT_. v._• __ .. ·_·.·_·· . ·_·· ..·._·_.·_ • 111 2$:00 -DO~ you bettetgetoffyour.ass & getyout.motn in ~at~clh:indn.·r·~ anedge-lknQ\.V11_.o,vt_o_•·.w. or_k_·_._._ .. _n_._.mi~k. • 26:2 ,~Jkingabol,l_ ypu should go on Optab, thJ g~aro.... ·.···· .· • I I a. gh .. ~.llen,~_c; __ .. · cklttgup MTV shotv _ _ _jml:lpedjides c>rtm,e,rs~riti~~ ·Mon.hc:tmusjc.rvedoneeverytmglikeajackassfof:her. r--lthose fuck~rs (}qn'tr~alize.... •.ifthetild~iI (D.·_. •·.OEJc····.uts. h... ··.a···.it.: '. ~he oneopt10d !.hadJ .. la~eer fy~'i1desme1s. SolithB¢acbRecpfds = _ BilHonaireguy-1 dorft knowifl· ........,.. _ __. wasfuckingthe . guy'sJ'!Qn.. ,what¢yer;iJ me~n1k-µow"'thatis .gojngon,...f fri:eanJ. dbri?t have double. standards -~t meanFin a · tc.r~point Fu~king .·. . J3iµfth¢ntyh¢nifco111es to nfoepeople,and .shit whatever. I meat1I'd rath~r if shewa.sgQnn~ fuck a '""'rd f{itherhave her m~rry1-µ)8foot tall•I OOMbasketball player; •_F = \,\l~ li·t·tl.~-b-·.1.J; DOB-L_J fucking - b¢ h.adf __ !c;omii1g inm:i the izricttrack.• J didn't bout it Fuckhe1\ 3Ck54DOE~ · I eetm M:iami~c=::=JlitcksapaJQM dqallh~dwith theSaUdts 'aysfucl{YoiC._Jsht~~nev~r saidlhJt..sh~J1ipp~dahird at1ne. 12;00 OOE havethbhug¢.ftJckit1gll9mefoMiami.My fafuily n¢Vercatne home.They wentto Lr\--~f~ 34:PQ-MTV programm,irig""adbµys ..L__Juck:in,g quit.Artd she triedto pi.itit onme. 3~:{JO ,-~DOEf j,va., pissed hecause"I d.kln'tset hetup~~\VTF~ 2,f;(}()...DOEta}kJµg.al:,6 • 27:55 -DOfr-triy daughte • ii • •• • • • • b6 -2, b7C -2, 4 4 ev '·;l thankless. •• 36:04 pstu.ekingnuts..$he wantstQduplicate:puf'J"l:.,hcmt5ein LA,~she islltckihg crazy. Exh.ibhB To Settlement Agreement .Paoe-4of5 · .':>... . GAWKER-178 3&%"$5&% JM,. ::,." ...6.:55.-; P.alm. s.tace in! V.··.·.ega. S..... ··- 1.·· b.ou·g··· ..···.ht for.··.· ..4.· ... •... -~5 ... >..--.· _itis ,vorth ·I·T·.· I get divorced• wt!! makeme sen tt.·ButJuck n ~v1H buy it and give back to nie after thedivorce, . .·.·. ..·. .·.·. ... . .... . ..... !.·.·1····.··•· .. h 3w1H ..8.··;· O.f.,l···.····D .. 0..• E..~.;.• ..:-.·y.~- . . . ·.1 ..nk.opportumty \.}·.·.r.hat.eve~.t.lie fl.u·. ·.ck·Y· .'.C.iU..\~...·.·an·t· a~01.1: ..t. m·e. ··.bu·t···· ..I·· never g1vtci___Jhe ag1un to pubhdy disrespect me don't trust heL .. b/c.I 38:50! !ODOE I have something for you--,vh()seyour checkH out {Oakley inscribed glasses). 4{}:3Q DOE""'dude the only thing l'U ask you I don'tkno.v how you'llpuilthisoffis-lflm everon my death bed dQn'tJetj come & see me. & ! \.'.ifoth_en ..gi.ve.D.o...···E·:··· a..than·k·yo•t..lcm. ·dto LDOE.to give the ,ve b7C -2 5 b6 -2 b7C -2 D DH: D DH: D DH: D DH: D DH: D DH: Ah I heard of something like that you know through other channels. That's not in any of my tapes. I think that was allegedly with some other male other than your client. b6 -2 b7C -2 Okay yeah that's kind of the drift I got but I wasn't sure and I just wanted to make sure the three that you have·there's not, you know, for instance three :rµoreof Terry out there so again we're not solving a problem. You know my goal is to solve a problem not simply make his bank account lighter so we can have the entertainment value of possessing something that really doesn't do us any good just because of the obvious damage that's out there and you know quite frankly damage is costly to him. Yeah I agree. Ah I think as far as, because we started off we assurance, so let me shoot some other ideas out there um you know there can be a declaration by my client that he, how he came, the possession of it, what he's done with it since he came into possession with it, in fact that no other copies are out there, that he made no other copies. Sign that under penalty of perjury um we could do a polygraph or just a declaration. Dis /// b6 -2 b7C -2 there anything out there ... we can also. Is there anything out there that presents· that level of reliability, i.e. how he came to possession of them so that we know that we don't have some intervener out there-or is that something you can or can't do? b6 -2 b7C -2 I think it's something we can do and he can prove, you know ah, I'll have to check with him but I think he can prove how he purchased the material, how he was ah you know, it was a good faith purchase or what have you. Okay. Then I think there's the last thing we can do is, assuming that there is a financial acquisition or settlement between our client that's confidential and that involves a non disparagement and all that kind of stuff, is we can put in um if my client is less than truthful we could put in a disgorgement clause. We could put in .... How do we get the money? (Chuckles) It's been my-experience once you give money over, disgorgement clause, unless somebody is pretty well heeled, is not worth a lot. You know what I mean? I mean that money can be out of the country. Yeah. b6 -2 b7C -2 In an immediate wire transfer. 6 bG _ 2 b7c -2 D DH: D DH: D DH: D DH: D DH: D DH: D Yeah I hear you but no one wants a judgment against them or someone running against or you know coming, coming after them. The other thing I think is the last thing you should probably do is spread out the payments so that ifthere is a breach or threatened breach then all payments stop. b6 -2 b7C -2 Right. That there is a return bf money that has already been paid then it can maybe get into a disgorgement of other profits, should he say sell this material twice or liquidate the damages. Well and I guess ... And other than that like a, so I guess what just in review what we've talked about is a declaration under per{alty of perjury, disgorgement, punitive damages, um so um periodic payments spread over time and in the case of breach, a threatened breach um stop with your payments and return of money that's already been paid. b6 -2 b7C -2 Right. .Other, other than that I, I don't know how we can assure, I mean I, in all these cases at some point both sides have to take a leap of faith. Well here's a question for you that, that kind of was something I had wanted to talk to you about. There have been other websites, besides Gawker of course, I can't even remember who they are. I know um supposedly the Dirty.com was approached.about these things and if, if you believe them, and there's some other website out there that claims they've got them as well. And I didn't know whether that was something; that you were aware of or whether there's somebody else with these um particular tapes out there. It's nothing that I'm aware ofum you know I think it's something that, that we, we can find out um. b6 -2 b7C -2 Okay. You know if there are other copies I can tell you that the way that I viewed them was, was through a ah through like a streaming service. Right. . So I never fully acquired a copy of it so perhaps that's how other people may have viewed it, I'm not sure. 7 b6 -2 b7C -2 DH: I know that in, in some of these instances that folks will go out to different ah you know internet service places and say okay well here's a snippet of it to try to build ~e sorl of, of market for it or something in the event that, let's, like the L__Jor ! thing where if you believe them initially they were going to fight it but then of course it came out enough to the point where they kind of threw their hands up and said oh well I might as well sign off and commercialize this and you know rightfully so. They've made a lot of money. But I guess my question is, is your guy or girl or whomever your clients may be um folks that may have been going around trying to give people snippets of this so that they had a marketplace out there or do you know? D D DH: No I don't know. I didn't ask the question because quite frankly I don't, I don't want to know at this point um and, and I ~hinkthat if we knew it would probably hinder resolution between you and I. Well maybe and maybe, I'll tell you why not because that's honestly! !what I'm worried about is we've got other folks out there that are trying to market this to other websites and I know at one point in time !over at Vivid got the call because um he actually had sent me an inquiry as to whether or not Terry would sign off because somebody was trying to sell him these tapes and you know if I know that your people are the ones that are doing the attempt at selling to other folks that at least I know that I don't have three or four ditferent teams of players out there that are, you know, all in possession of this. And you know I can't imagine how that many people would get in possession of it but, you know, these are questions Terry's been, you know, sort of been hitting me between the eyes with so I'm just hoping you'll give me some guidance on it. I D DH: D DH: b6 -2, 4 b7C -2, 4 b6 -2 b7C -2 b6 -2, 4 b7C -2, 4 . b6 -2 b7C -2 Right. Cause then it means that there's a viable product, otherwise it's a copy of, potentially a copy of a copy of a copy and you know I get back to the idea of financial issues and what they're worth and what they're worth to-him and how do I stop the damage that he's getting hit with because of these tapes. And what I'm looking for I think is pretty much the same thing you've t~lked about and that is to try to achieve some final resolution here. Yeah I hear ya, I hear ya loud and clear and I understand your goal and all that but you know but I, I think at this point you know I'm, I don't know the answer to that question and um even appreciating what you've just said I still don't want to know the answer to that question. Right. 8 b6 -2 b7C -2 r. D I'm certainly not gonna um you know walk my client into a lawsuit you know that's. DH: Right. D That's, that's not what I'm here for. What, what I do know is that I have. I never knew this client before this matter. DH: Right. D And I feel that you never know I mean sometimes (IA) is your own worst enemy. DH: Sure I've had those. D (Chuckles) But um I have you know as a condition ofmy employment I have you know told them that they are to speak to no one about this and they are to do nothing with the product so long as I'm involved. DH: DH: (IA) D Um that I am the only person that they are talking to. D b6 -2 b7C -2 Right. Um in, in order so that we can control the flow of information and everything else and they have assured me. DH: b6 -2 b7C -2 b6 -2 b7C -2 (IA) and a good question comes up from that, you, you indicated as long as you're involved you've got them kind of under control. Ah what if something breaks down here. Let's say we don't reach a deal, what are they, what's their next step? b6 -2 b7C -2 I don't know. DH: I mean are they planning to try to release more and just break, break him down to the point where he signs off commercially to produce this thing or I mean in order words he's asking me exactly these questions. If he doesn't reach a deal what happens next and I don't have an answer for him. D Yeah I don't either. I mean I.think it's probably speculative. DH: Well can you talk to 'em? D That's really not something I would discuss. DH: Okay. 9 b6 -2 b7C -2 D DH: D I don't, frankly I mean I, I mean I don't want to know. Right. What if Terry wants to ... D It's not my business, my, my business is to, to the extent possible um advise them as to their rights. DH: Right. DH: D DH: Okay. What ... That's my goal here. What ifTerry wants to look at the tapes? What's our shot at doing that or a chance of doing that? DH: (UI) D I don't mean to be ... DH: I don't know, honestly I don't know. D Yeah. DH: -2 b7C -2 b6 Why? I mean I, I. D -2 b7C -2 b6 Um and inform you what, what I believe my clients rights are and to, to negotiate a transfer of those rights. D DH: -2 b7C -2 Okay. What if ah ... DH: D b6 You know um you know that kind of if, if or, you know, if, if it serves me no productive purpose. -2 b7C -2 b6 And I guess one of the reasons would be in h~sbrain if he's been with her six times and he sees the tapes then maybe he gets the idea okay well maybe I was only with three times cause I actually did two of the things I thought I did on one tape as opposed to two different tapes. You know I mean I don't know. I asked him the same question. He really doesn't have an.answer other than he probably wants to make sure it's him, number one and number two. b6 Yeah. -2 b7C -2 That he's trying to put together in his brain how many times he could have been taped and you know how people think okay well I did, and you know meaning no disrespect to my client, but I did this sort of circus act on this tape and maybe I did a different one on this next tape. Ifhe sees the tape and they're both on one 10 I tape then he's figured out okay well maybe there aren't two se~arate events because again we're going back over six years. I think you know that. D DH: D And that's part of our problem. This is not current events stuff so that's why he's trying to figure out what the heck is on them and what essentially he's paying for cause I don't imagine they come cheap and if that's the case I think at least he ought to be able to see the tapes in order to justify whatever he's going to pay. I, I don't know anybody who would, you know, buy a pig in a poke cause again what if there's nothing on the tapes? What its some actor portraying him and he's paid a bunch of money, gets some tapes and it's a Hulk Hogan lookalike cause we don't know what's on them. See what I'm saying? Yeah maybe I could make some sort of offer of proof or something like that. Let me think about that, talk to my client um um but I, I hear what you're saying and I, I'll, I'll, I'll give it earnest, some earnest thought to that and, and um present that to my client. DH: Yeah it's just a ... D Well I guess I can. DH: Here's, here's one thing ... D DH: D DH: D DH: b6 -2 b7C -2 Yeah, yeah. b6 -2 b7C -2 I can talk to you a little bit about the, you know my impression of the tapes. Okay. Um one, she's a very attractive girl. b6 -2 b7C -2 Yes. That was the first thing that struck me. (Chuckles) Yes she is very attractive, she is very attractive. D Two, she's um you know she's, she's very sexual. D Um there, there are not close ups. The camera is stationary. DH: DH:. D b6 -2 b7C -2 b6 -2 b7C -2 Yeah. Right. I think what you saw on Gawker is what, is you know everything I saw um and. . . 11 b6 -2 b7C -2 DH: Yeah and there's no question. D Um other than, there's no wild sex by the way, I mean there was no a, you don't, it was. DH: This will help. You bring up something that helps me and probably gets a point across to him. One of the things he was concerned about the tapes and their authenticity meaning are they genuinely him but one of the things that he knows is the tape leaked by Gawker is him and. D DH: b6 -2 b7C -2 b6 -2 b7C -2 Yeah. If you guys are the ones that gave it to Gawker then I can pretty much tell him hey the Gawker has what Gawker has and that came from the folks we're dealing with so it's pretty reliable that that's ~ou on those tapes Terry and that helps me out as well cause you know of course anybody could call anybody and say hey I've got tapes of your client and um you can't look at them until you buy "em but once you buy "em you may see that its some guy that looks like Hulk Hogan and isn't. If that's the Gawker leak tape then that's a genuine Terry Bollea tape, no question. Yeah. b6 -2 b7C -2 (Unknown sound in the background) But I can't tell you, you know, who, who did not leak it to Gawker. What I can tell you the tapes that I have seen are the same, you know, actors and the same cave and the same camera and the same bedroom that was on Gawker. DH: Right. D Um you're, she seems very, the situation was, was weird. Um now I'm talking about the footage, alright, so the situation was weird um there are times during the sex, before, during and a~er the sex where um ~s walking in and out of the bedroom and chatting um you know with his wife and his best friend as they're having sex and they're chatting bacl,c Um the sex is pretty straight. I mean there is no, there's, there's nothing that would be even remotely unusual or fetish like. It was pretty straight sex um. · DH: Right. D ·Oral sex both ways um him on top, her on top and that's it um there's never even bG - 2 b7C -2 an occasion where he was behind. DH: Right. I 12 b6 -2 b7C -2 D And then you know I think that it's pretty clear that, that he wa~ going through and let me tell you too and I, I've been a fan of your client for years um. DH: Well he needs (IA) D (UI) DH: . . . which is not a graphic self ... D (Laughs) Yeah he seems like just a really, really nice guy who was going through a really bad part in his life. DH: Yep. D Um he, he confides in, mostly her so it's just talk a little the conversation is between your client and what's her name? Clem? DH: Yeah Heather Clem, yeah. D b6 -2 b7C -2 !_ __. b6 -2 b7C -2 Yeah so he confides in Clem about the deteriorating condition of his marriage and you know the ins and outs of his marriage and he had some choice words for his ex-wife. b6 -2 b7C -2 DH: D DH: D (Chuckles) Yeah. Um and ah at one ·point he complains and confides in Clem about the deteriorating condition between the relationship between he and his daughter um and at some point you know they talk about that for an extended period of time. Right. Um but both him, Cl~m and then after they have sex ah! ~omes in and, and all three of them are talking about her and ~t some point its discussed that she is a thankless bitch, that she's choosing sides, she's going with her mother and they move to L.A. and there was some Thanksgiving where they had um Thanksgiving dinner and didn't invite him and um it was really heartbreaking for him and um you know someone mentioned something about throwing her to the, to the curb. DH: Wow that would seem to authenticate the tape that it's him that's for sure. Because I mean a lot of what you're talking about I've sort of heard that same story. I've repped with him for about six years now so. D Yeah. b6 -2 b7C -2 13 b6 -2 b7C -2 DH: D DH: D DH: D DH: D DH: D (Sighs) I've, I've heard the same discussions you know in reference to the issues and he·problems with the kids and you know, every, in the divorce courts everybody tries to pick sides or parents try to get kids to pick sides so that (IA) Then there was just some more discussion um seell1:slike he has a very close relationship or had a very close relationship with his son and he was constantly mentioning his son and, and wanting to keep him close and'happy and satisfied. Um there was some discussion about his son's girlfriend's sister calling him or texting him and, and wanting to um date him if his, if Hulk's marriage did in fact fall apart. b6 -2 b7C -2 Right. Um and then she was seventeen or eighteen. b6 -2 b7C -2 Yeah I think that, I think they put that one out on TMZ too but that came from (IA) And then the other um discussion really the, probably the most noteworthy thing or from your perspective is talking about, the same conversation where they're !was. He's talking about how much talking about um how thankless! money he invested into her music career and I think he said it was something around two million. b6 -2, 4 b7C -2, 4 Right. And that there was some billionaire in Miami who I get the impression that he was black. b6 -2, 4 b7C -2, 4 Right. Um and that he thought.that! !was fucking this guy's son because he caught them kissing or cuddling or something like that and he's like his, look I'm driving I don't have my notes so don't quote me on this but the conversation went so~ething like, now I'm not an outrageous, you know I don't care if you fuck, I mean I'm not two-faced like that you now fuck all you want. Um but I'd rather not you fuck a nigger and if you're gonna fuck a nigger ah you, you just assume I'd rather have you fuck a nigger that was a seven foot tall NBA .um not you know, not some piece of shit seventeen year old kid. DH: Right. D And he said something abqut you know I'm not a racist um well maybe I am but no more than anybody else and they all got a chuckle out of that. 14 b6 -2 b7C -2 DH: Right. D And that was pretty much the gist of that conversation. DH: Yeah that would not be a good thing. D So (pause) so there it is. I mean other and you know other than the methods I spoke about earlier _asfar as assurance um I don't have any other ideas. DH: Right. D DH: b6 -2 b7C -2 b6 -2 b7C -2 And the tape is, you know, it is what it is. Well a couple of things come to mind. I mean referencing and assurances, you now, I and I haven't talk to you about money but I do want to talk to you about that because it may be so far out of our bar, our, our ballpark that you know it's just something I may have to say you know let you guys roll with it and do what they do with it but if we're in a situation where money is paid up then obviously we want to be in a situation to know that they're not going to be leaking other information from other tapes that we haven't bought. That would certainly be one concern and I, I need some assurance from them that as, as far as what they possess, they possess these three, that's only these three. They've got no more, we're not gonna hear about a fourth one that inadvertently showed up later after we cut some sort of a deal, that this would have to be. you know, all inclusive as referenced anything they have now or anything they get in the ~ture cause I really don't want to be in that situation where somebody held one back or said oh no we just found this or this one just came up. And the other issue of course would be if, if we're talking money I know that ah there's a value to these. l_just don't know in your mind what that value is. I haven't seen them, you have. I haven't had the luxury of being able to access the potential damage impact if these things get out and certainly you have and I'm assuming if there's conversation such as what we just talked about referencingJ and you know who she's dating, that the racial issue certainly could cost him a great deal as far as sponsorships. I mean he's a national guy and he's got a certain image to maintain so I guess what I'm looking for here is what are we talking about money to make sure that doesn't happen. I D DH: Look I, I don't care how you respond to my next question but I need you to start, start the negotiation off. ! (Chuckles) Well then I'm negotiating against mysel~...._ ....I mean there's no 15 b6 -4 b7C -4 b6 -2 b7C -2 D No, no, no you're not, you're, you're just starting, I don't care if you say a dollar. b6 -2 b7C -2 Alright then I'll say a dollar. DH: D (Chuckles) And I'm not trying to be ... DH: D Oh well don't. Alright. I'm not trying to be flippant. I just need to know whether. DH: D b6 -2 b7C -2 No I understand, I understand but I don't want to get in a position where you know it comes back later that we demanded X and, and you never countered so now that you kno~, we started a negotiation per acquisition of my client's right. DH: Right. No I mean. D So. DH: As, as far as I'm concerned. D b6 -2 b7C -2 I think we can talk later. (Unknown sound in background) I'm, I'm in anuncomfortable position for two reasons. Number one, I've never seen them. I don't know how damaging they are, like I said, I think you do. You certainly are better off in that sense than I am. Number two, I am in the comfortable position knowing something about his finances. I'm not his accountant by any means but I have some knowledge as to contracts and I'll be straight up with you. He's lost two major contracts since this thing broke open, one with Rent-A-Center and another with this health food vitamin company that . was gonna sign him· for a, a pretty good contract, they've pulled back and they pulled back because of these leaks that are out there so obviously if the leaks are gonna get worse in the event that we don't deal with it then that's certainly the incentive for him to want to deal with it but you know. I mean money is relative. Some people think that a million bucks is a lot of money, some people think it isn't. I frankly think it is and that's why I'mj-µst trying to get some ballpark from you of where your head's at or your client's head at as far as the value of these things to them. As I keep saying, our goal is to make sure that this stuff doesn't get out there. This hurts him dramatically. I think everybody appreciates and knows that and that's what we're buying and essentially I don't know what value your client places on that. DH: 16 - -------- D DH: Well I think we would counter with, with a million dollars. And I'm assuming a million dollars is negotiable? Or is it not? Yes. D nis. DH: -2 b7C -2 D DH: b6 Okay. Now, from the perspective of involving Terry, I mean do you want me just to go with him and say look they're talking a million bucks, we're _gonnahave another phone call, you sit down with me Terry and this way certainly I can give him an I've idea of what is on these tapes in the sense of the discussions about! talked to him and I, I know I mentioned the racial issue to him and he was kind of blank on that like it wasn't ringing a lot of bells. This gives me the opportunity to at least present him with that information and maybe if you could, if, if you can look at these things and try to give me a better heads up as far as what we're seeing out there because you know I've told you my purpose here is to avoid the damage and stop the bleeding, literally. And if you can say to me hey Dave, you know, look there's some other stuff on here it allows me to at least advise him what I consider that value to him. Commercially, that value may or may not be, · you know, in terms with what you guys are asking and I know we haven't reached a bottom line figure and you haven't hit that point where you said hey that's it, it doesn't get any lower than that but is that something you can do? I D DH: D DH: D I would think so I mean, for, as far as viewing the tapes um you know at some point we're gonna have to have a show and tell. I could probably make an offer of proof of what exactly what it is. I think um then we can agree on price um then ah so long as the material is what I told you it is. b6 -4 b7C -4 -2 b7C -2 b6 Right. You know we close the deal and if the material is anything other than what I told you it was then you know-the agreement that we had is off. Okay. Um and, and look I don't mean to put myself in your shoes or how you talk to your client or what kind of relationship you have but I hope that you and I are dealing in a professional way that is truthful, open, candid. Um and I hope that ah I know that I appreciate that. I hope you do and I hope your client does and um it's not my intention here um to hold anybody over the fire um, um you know I hope I'm part of the solution here. 17 b6 -2 b7C -2 1 DH: Can, can I ask you a question and you don't have to tell me the answer to this but this certainly helps me come to any understanding of whether this is maybe a copy of the original or the original. If! signature is on the CDs or whatever it is, DVDs, that suggests to me that those are originals. Now I don't think! !and a, you know again! don't know but I don'~ think! !went around and make a bunch of copies and handed them out to people. But how do rame is in his handwriting? you, are you comfortable believing tha1 I D DH: D DH: D DH: Yeah. b6 -2 b7C -2 And if we go on that theory is there any way you can let me know, just even in general, how your clients got a hold of "em. Is it something they were given or how did they wind up with 'em so again it goes back to whether these may be originals or might be a bunch of in a series of copies. Yeah it, they, they purchased them um from a, from another individual, not, not from I, Okay I mean is that person close to ... ! __ put you on the spot I I !do you know? And I'm not trying to I, I believe he is yeah, I believe, I believe that the seller ah was close tq___ _. b6 -2 b7C -2 Okay, alright. D By the way I, I think you're, I think you're entitled to, to know exactly how this happened um you know before that check is cashed. DH: Well and that's something I'm assuming you can fill us in on as how this happened, whose done what and that, you know. I mean look it's no secret that we filed a lawsuit against Gawker trying to get this thing off the air and you know. D Right. DH: Again the last thing I want to do is to be chasing every potential internet out there because we've put Gawker down, next thing you know we got three other sites sh9wing this stuff and that's why I was concerned as to whether your clients were potentially taking this around and ah it, I don't know. You know I'm getting the impression from you you're telling me they're not but what, can you tell me that? Is that something you can share with me? D b6 -2 b7C -2 Well it's not me. I mean I, I can tell you what I've told them. I've told them to speak to no one ah to do nothing with those things ah put them in a safety deposit box. 18 b6 -2 b7C -2 DH: D DH: Qkay and I mean. They, they have assured, then they have assured me that they've done that. Now do you think that that was something they might have done beforehand because I'm not saying its current as far as current events but I know somebody was shopping these two different sites for a while and if it was befor~ this whole thing b:oke open I don't have a problem with it and I thin_kmost of it was. I would just like to know and maybe you can talk to your people and find out if it was them. That gives me a higher level of security to be able to tell Terry, Terry I know it went to other internet sites but in all probability it w~s the same folks that we're dealing with now. We don't have another team out there trying to get internet sites interested cause they've got them too. You know cause if somebody else has got 'emLJobviously, they've got very little if any value to us. D Agreed, agreed. DH: And that's why I'm trying to get some sort of feel here for what's up out there. D Yeah you know it's, it's my understanding that these are the original tapes and that there are no other copies out there. DH: D DH: D <- b6 -2 b7C -2 Okay well that makes me feel a lot better. I think then we've got something to talk about. Um what I'd like to do is you know I'm meeting with him later. I'd like to be able to get back with you once we have an opportunity to figure out what, you know and I, and I tell you one thing I hate. I hate this constant back and forth where somebody says you know I'll give you a dollar, you ·say a million. I say we'll give you a hundred thousand, you say nine, you know there's gotta be a point where there's a value in your head and I don't know whether we can get to that point on this call or not but if we can its gonna save a lot of the back and forth. I, I'd kind of rather go on with everybody's bottom line and say this is what it costs, let's not waste a lot of time, you're either in or you're but, meaning talking to Terry. And I'm very much a straight shooter with him. I don't usually you know waste a lot of time going back and forth in negotiations with him. I'll say look this is worth to them. It doesn't matter what you think its worth, this is what its worth to them. Can you do that for me? I don't think that this conversation I can do that. You know I still need to talk to my people. b6 -2 b7C -2 Okay. Ah and ·thei:iI think you know like look, you know we're not asking for two million, you know, you know that, you know that a million isn't firm, you know 19 --------------- ----- we're not asking for ten million so you know, knowing that our counter to your one dollar settlement was, was a million and it's not firm I think you should see if, you know, if we're, if we're (IA) so you know let's, let's put a little time aside ah let's have the people in authority within your shot. DH: D Right. b6 -2 b7C -2 And, and then maybe in the next phone call let's see ifwe can't, can't get this done. DH: Okay do me favor and I'd like to offer some asswance to your folks and tell them we are interested um I don't want to out of frustration thinking they've gotta go out and do something to ah you know get our attention would be the best thing um that's not necessary. We get it, we're interested. We, as I've told you, are certainly well aware of the value to him in reference to his reputation and things like that and frankly I think his reputation has taken enough of a-hit to get that point across just by what's going on in the news. Ah so please let them know that. It's a good faith dealing and ifl had a, a definite figure I could give you certainly a quicker l;lllswerbut I realize you gotta talk to them and see where they're coming from as well but just let them know that we're trying to accomplish is really get a chance to get some facts and figures together so that we can meet up, that we can talk, that we can see the tapes and I don't know how long that's gonna take to get there but you can imagine that you know it's pretty important to him because he's trying to get on with his life. D Yeah, right I get it. D I, I look forward to, I look forward to hearing back from you $id um I think it's regrettable um that your client has taken a hit on this already. (UI) DH: Yeah no kidding I mean he, he, I think you've summed it up, he's a good man. It's unfortunate but hey we all do dumb things but as far as getting taped though, that's a whole different story to me. I, I would hope that never happened to me. DH: D DH: D DH: b6 -2 b7C -2 Okay now is this. Um yeah I (clears throat) I find the, the behavior of, ofl...._ __.~o be detestable actually after watching it. b6 -2 b7C -2 Yeah me too. So. Hey is, hey can you give me a cell number so I can get you if I've gotta get you after hours? 20 r REDACTED (FLA. R. JUD. ADMIN 2.425) D Yeah I I b6 -2 t b7C -2, DH: 4 4 D DH: D DH: D ....,r Okay and you've got mine obviouslQso need me after hours don't hesitate to use it. Alright? 1.....- _______ if you You now I actually don't think I do. DH: Oh here, you got a pen handy? Or can you do while you're driving? D Sure, yeah, yeah, hold on one second. Alright, shoot. DH: It's D -2 b7C -2 b6 -2 b7C -2 b6 Yeah. DH: D DH: Yeah. Two eight seven four (2874) and then I think you've got the office number too. D Right. Alright thanks David DH: Alright sir we'll be talking. D Alright, bye. DH: b6 b6 -2 b7C -2 -2 b7C -2 Alright, bye. Q.3ndof recording) 21 GAWKER-744 Filing # 30300321 E-Filed 07/30/2015 03:28:41 PM EXHIBIT 42-C to the CONFIDENTIAL DECLARATION OF GREGG D. THOMAS IN SUPPORT OF PLAINTIFFS’ OBJECTIONS 12/06/2012 The following is a draft transcript of a consensual recording of a telephone call on October 28, 2012 between Dave Houston and! I This draft transcript, in its current form, is for ~he sole purpose of review by the prosecuting attorneys and should' not be construed as a final verbatim transcript. Further review may be necessary for trial purposes. (ID 2) 1 b6 -2 b7C -2 DH: Dave Houston b6 -2 b7C -2 Typing Key: AV: Automated Voice Auto: Automated Message UI: Unintelligible PH: Phonetic IA: Inaudible PH: Phonetic ////: Speaking simultaneously (10/28/2012) (00:06:31) D Hello. DH: Hi, .... D Yes. DH: D DH: ! __ ____. b6 -2 b7C -2 Hi this is DA VE HOUSTON. How are ya? Good DAVID. How are you? I'm trying to get over a cold um anyway I wanted to get back to you (UI) real b6 -4 quick. I talked toD um I've got some issues referencing a hearing that was supposed to go away that looks like now we're gonna have to do it so I'm gonna b7C -4 be pretty well caught up for about the next three days, meaning next week, not Friday, it's a holiday here. So that puts me out completing that byWednesday. I've got some things on the injunctive relief issue concerning Tampa that's supposed to take place on Thursday or Friday. Um I was gonna have the other counsel cover it because it looked like I was gonna be tied up but I may be able to finish what I'm doing by Wednesday which puts me in the ability area of talking with TERRY one-on-one. What I would like to do is ah try to get some idea from you where we stand and at the same point in time I talked to him last night and of course his primary concern is ah original, a4thentication, original authentication and I didn't really have much of an answer because I knew we hadn't made any 2 .. sort of a plan for that but if we can think about those two things I'd like to try to close this thing out one way or another. D Yeah I agree um I don't really have anything more to add as far as original authentication other, other than the fact that ah I'm quite sure when you get the material you realize that, that it is authentic and my client um you know he can only, he can only ah he can only attest to what, what he's done with the material since its been in his possession. You know whatever happened with it before he hands doesn't know but he's under the impression that it went :from um into his own um. I DH: Okay. D That there weren't you know too many other um parties involved, if any. DH: Okay well and that all sounds. D D So. DH: D b6 -2 b7C -2 I Right um. D I Ah it's my, it's my understanding also that there's his handwriting are on the DVDs and when I say his it'~ DH: DH: b6 -2 b7C -2 And I don't, you know, I haven't even given a second's thought to how we can put this together, ah transfer it to the extent of TERRY bei~g able to at least see what's there. b6 -2 b7C -2 Mmhm. I think we talked about that before it's and the reason is maybe not surprisingly at one point in time, a long time ago, there was some HULK HOGAN impersonation out there. I don't know whether you're aware of that one but um there was ·um some stuff going on and you don't :frankly if you really looked at if you could tell the difference. But of course he's asked me to somehow figure out that ah we're not dealing with a situation like that. And again, I, its, its reasonable questions and concerns :from him without trying to throw rocks at anybody. It's that situation where he wants (chuckles) to make sure that he's not in a situation buying something that's not even him and then he looks at it and goes oh my God what have I done. I mean literally he's gonna be looking at me saying on my God what did you do. No yeah I get it but you now what, what I've done in situations like these is, you know, I'll, I'll have ah you know like an offer of proof ah exactly how many tapes, how long, the contents of each um and you know at, at the closing if you 3 b6 -2 b7C -2 will, um, you'll have an opportunity to view it and if it is what I told you it was then the deal closes. If its not what I told you it was then the deal doesn't close. DH: Okay well that's fair. D Yeah. DH: And if you would. Oh go ahead I'm sorry: b6 -2 b7C -2 D And then I think from, from this point um what might be helpful for our next conversation cause I agree with you I don't want to go back and forth a hundred times and, and this and that. Um at least if, if ah if I can get a floor from my client and you can get a ceiling from your client I'm quite sure that, that um you and I as reasonable people will be able to figure this thing out in our next conversation. DH: Okay and I think for the, just the purposes of the next conversation I know that he's gonna ask me questions regarding how we're gonna do it, an how we can view then, thing like that. D DH: D DH: D DH: D b6 -2 b7C -2 Yeah. And how we can authenticate them and all that stuff and hopefully you and I can talk about that. I'm hoping as early as Thursday but I'm figuring realistically · Friday. I'm gonna try to fly to Tampa on Thursday so I can meet with him and this of course is one of the reasons. Mmhm. And at the same point in time he able to talk with you on Friday and I knowO was looking for some time so um between all ofus we can put it together and we'll have a, hopefully, a very constructive, very close to final conversation on Friday. b6 -2, 4 b7C -2, 4 b6 -2 b7C -2 Great. Alright? Thank you very much. I'll get back to you at a time that works. I appreciate the call and um and then you know as far as to assurances for your client um everything that I said on a prior occasion stands, like representations and warranties and, and the agreement. DH: Right. D Periodic payments, if there's a breach, payment stopped, disgorgement all of that kind of stuff. 4 b6 -2 b?c _ 2 DH: D DH: D And ... Lie detector, whatever, whatever you guys want is fine. And that helps and you know really I've never failed to tell you this. I don't think it's bad. Mmhm. DH: Negotiation to tell you this. My client is aware there's some sort of video out there with what's been said to be racial epithets on it and I think everybody is well aware that he is a public figure in a public .marketplace and that would be very damaging to him so I know there's been the word out there oh this tape exists and we're gonna get it soon, some of these Internet sites are at least implying that and I'm hopeful.. D Mmhm. DH: Your client recognizes the harm that would do. D DH: ·o DH: b6 -2 b7C -2 Ah you never know how long, I mean by no means is this a threat, you never know how long a good relationship with a client is' gonna last um I'm in a good place with my client now. I don't see putting um our negotiation off. I think we're on a good track um and, and I can virtually assure you that my client control lasts another week. Okay that sounds great. AlrightD we'll be in touch. Thank you. b6 -2 b7C -2 Thanks, yeah, bye. Bye. (Sound of phone being hung up_ (End of recording) 5 Filing # 30300321 E-Filed 07/30/2015 03:28:41 PM EXHIBIT 43-C to the CONFIDENTIAL DECLARATION OF GREGG D. THOMAS IN SUPPORT OF PLAINTIFFS’ OBJECTIONS TB: That's wher~....__ ....!comes in at the end. (IA voices in background) b6 -2 b7C -2 DH: That's the one that was released to GAWKER, correct? D You know I don't quite frankly know. And I don't think the entire. I don't think it was entirely sent, it was just a clip. DH: Right. D Alright so you leave, she stays. DH: b6 -2 b7C -2 Where doe~ !come in on this, is that number two or number three or does he show his face on this? Okay. D There's one. DH: Now there's no copies ah with this? As far as. D b6 -2 b7C -2 No this is, we, we believe that these are the originals that met and that no copies exist. DH: Okay so in other words nobody has made any copies. D Correct. DH: That you just don't have. TB: I just have a hard time believing that .... ! __ DH: Well I have a hard time believing that wouldn't make a copy of it, a:tleast to keep it somewhere in the event something happened to the originals. You'd think it would be more reasonable that they would make a copy. I mean I'd put one one place and one another place so in case something happened. I mean they valued this which they obviously did. And you're sure she's telling, I mean have you ever asked her! !well it makes sense if you've got something valuable like that you'd make a copy and keep somewhere else or. D b6 -2 b7C -2 ....!would make a copy of this shit. b6 -2 b7C -2 No but I, I've never gone that far but I've asked her and like you, look I want you, we all want you to pass this polygraph. DH: Right. D So are there any other copies and she said absolutely not. These are the originals, no copies were ever made and I said so if the polygrapher asks you, cause he'll b6 -2 b7C -2 just ask you yes or no questions. Is it true that every copy, to the best of your knowledge, that every copy of this material. DH: D DH: (Coughs) Is now in the possession of your attorney is that true, she'll say yes. b6 -2 b7C -2 I stole them from as far as whether he would have Do you know wherd if"F!--=L,!had copies at that point? access to the copies .... D Um DH: I mean physically their location? b6 -2 b7C -2 Nah I, I don't know that. I, I assumed that it was ... (IA voices from video in background) At his office. DH: ! Okay so I mean possible tha~ access to wherever it was would have would have had them? included copies i~ ! Yes. (IA voices from video in background) b6 -2 b7C -2 A little baby wife, huh? DH: Mm. Nice body. TB: Definitely me. DH: Working out. (IA voices from video in background) DH: ·D I mean that's a set stage, right there under the candles. Hidden behind, you know, a plant. DH: Yeah. TB: Hm. DH: Yeah but really it's a set stage, nobody. (IA voices from video in background) b6 -2 b7C -2 b6 -2 b7C -2 DH: Normally has their room like that. (IA voices from video in background) D DH: D DH: D So I don't think this is the one where he comes in. Mm. I'd like to be able to at least the more damaging part of the tape with the language (IA) so I know that's actually on there. (Clears throat) Is that a number two or three? I thought it was two. Of course these, I don't know if we're playing these in order. DH: Yeah I was gonna say we all know which is which but. D That would have been the third tape that was undated. DH: D DH: D DH: That's the one we haven't seen yet. Okay. Well we can talk to her depending on how well she does on polygraph b6 -2 TERRY about this copy issue thing and ah you know ask her if she didn't make b7C -2 copies, why and wasn't she worried about it and things like that, just try' to get (IA) that's all we can do. Cause we get back to that original thing abou~.____ ...., not giving a damn about her and that's what worries me. This is two on it, lasts eighteen seconds, we'll just skip over that one. Right this is fifty two minutes. This is tape three. b6 -2 b7C -2 That's. Here's!,__ __ ...., (IA voices from video in background) D (IA) (IA voices from video in background) DH: D b6 -2 b7C -2 Right, third tape. (IA voices from video in background) DH: b6 -2 b7C -2 How do we run that? Do you want to fast forward it? b6 -2 b7C -2 .j, \, DH: No I just wanted (IA) I don't know where it is. (IA voices from video in background) I'll fast forward it to ... (IA voices from video in background) Alright this is where he says .... ! __ DH: Yeah .... !_ b6 -2 b7C -2 ....KJA) ____.!walks you out TERRY. (IA voices from video in background) D I think she's just watching TV. DH: Oh I was gonna say, who's that? In, in a second._!__ _,!isgonna come back in. b6 -2 b7C -2 (IA voices from video in background) See this is where up until this point you never really knew that she was in on it. DH: Yeah. D And then he sees I want to watch the tape, she says you'll probably see my face in pain. TB: Hm. DH: Yeah I'd say she's in on it. TB: Wow. Can I use your bathroom? D Yep. b6 -2 b7C -2 DH: My God. TB: Gee. DH: That's bad. TB: That's hard for me to watch thinking that that guy was my friend all those years. DH: Yeah. It's one thing to hear about it and it's one thing to. TB: I mean it's just like. b6 -2 b7C -2 Filing # 30300321 E-Filed 07/30/2015 03:28:41 PM EXHIBIT 44-C to the CONFIDENTIAL DECLARATION OF GREGG D. THOMAS IN SUPPORT OF PLAINTIFFS’ OBJECTIONS As reflected in Paragraph 20 of my Confidential Declaration, the FBI has a complete audio recording of the events of December 14, 2012, which it should be able to provide to the Court. If it does not, Gawker will produce its redacted version as Exhibit 44-C. Filing # 30300321 E-Filed 07/30/2015 03:28:41 PM EXHIBIT 45-C to the CONFIDENTIAL DECLARATION OF GREGG D. THOMAS IN SUPPORT OF PLAINTIFFS’ OBJECTIONS - 1 of FD-302 (Rev. 5-8-10) 1 - UNCLASSIFIED//FOUO FEDERAL BUREAU OF INVESTIGATION Date of entry DAVID HOUSTON, was contacted After being advised and the nature of the interview, information: redacted telephonically at cell phone number of the identity of the interviewing HOUSTON provided the following l HOUSTON stated he, TERRY_B_O_L_L_E_A_a_n_d_.l _________ .. viewed ._______ __.!hotel room while._! _______ __,!took her polygraph confirmed that the DVDs contained content that had previously negotiated for within telephone calls and settlement agreements. HOUSTON confirmed the identity of BOLLEA in the tapes engaged with HEATHER CLEM. HOUSTON the tapes to the bow, but fast forwarded epithets and 12/17/2012 Agent the DVDs in exam. HOUSTON been Further, in sex acts b6 -2 b7C -2 stated~! ____ __.!made a comment while in the hotel room watching the effect of "the tapes that were released were the shot over not the shot that would take the ship down." Further, ~I _____ one of the DVDs to the section which contained racial played the section for BOLLEA and!.__ ____ __, .. UNCLASSIFIED//FOUO Investigationon File# 12/14/2012 at Clearwater, 9B-TP-2534791 Florida, United States (In Person) Date drafted 12/17/2012 b6 -1 b7C -1 by""===============~----------------------------------~ This document contains neither recommendations nor conclusions of the FBI. It is the property of the FBI and is loaned to your agency; it and its contents are not to be distributed outside your agency. GAWKER345 Filing # 30300321 E-Filed 07/30/2015 03:28:41 PM EXHIBIT 46-C to the CONFIDENTIAL DECLARATION OF GREGG D. THOMAS IN SUPPORT OF PLAINTIFFS’ OBJECTIONS d fD.340c(4-11-03) FileNumber Q(< /..LJ - IP - ZS:3'-/7 'l I -- ,0 )1.J 7P FieldOfticeAcqulrlngJMdence--•------------------- (CJvJ iAZ~ DateRecelved _z-i/ ..:f........ /.... /3__________________ Serial# of OriginatingDocument I From --,-;:: c Dr I DoI\,: _ q, l (NameofContrlbutorJintemewee) I 'l l . , I I (Address) l" ' (CityandState) Ml By . i ' b6 -1 ,J b7C -1 : i'"' Toije Retwned O Yes D No ReceiptQiven D Yes D No GrandJuryMaterial- Disseminate OnlyPursuantto Rule6 (e) FederalRulesof CriminalProcedure D Yes D No FederalTaxpayer Information (fTI) D No D Yes I G +o,/"h ·a f'1 Rererenre:~--------------------------------(Communication Enclosing Material) ~r. !) 0 Originalnotesre interviewof 11 LOrfeLh;p,zs u,y'L/~o.d« cg ·frt:i/17(".C~l'l t,J'; c1,,,_ 1-e/byi i i: b6 Title: ...-===----------....,...... Description: '' -2 b7C -2 Filing # 30300321 E-Filed 07/30/2015 03:28:41 PM EXHIBIT 47-C to the CONFIDENTIAL DECLARATION OF GREGG D. THOMAS IN SUPPORT OF PLAINTIFFS’ OBJECTIONS 12/17/2012 Tlie following is a draft transcript of a consensual recording of a meeting on December TE~Y BOLLEA, 14, 2012 between DAVID HOUSTON, I I I I I -------J I L.... This draft transcript, in its current form, is for the sole purpose of review by the prosecuting attorneys anc;lshould not be construed as a final verbatim transcript. Further review may be necessary for trial purpos~s. (ID 8) 1 bG - 2 , 4 b7C -2, 4 Filing # 30300321 E-Filed 07/30/2015 03:28:41 PM EXHIBIT 48-C to the CONFIDENTIAL DECLARATION OF GREGG D. THOMAS IN SUPPORT OF PLAINTIFFS’ OBJECTIONS Con?dential 7 3 5 IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA, IN AND FOR PINELLAS COUNTY TERRY GENE BOLLEA, professionally known as HULK HOGAN, Plaintiff, No. vs. HEATHER GAWKER MEDIA, LLC, aka GAWKER MEDIA, et al., Defendants. VOLUME 6 VIDEOTAPED DEPOSITION OF: TERRY GENE BOLLEA DATE: April 8, 2015 TIME: 2:19 p.m. to 4:53 p.m. PLACE: Riesdorph Reporting Group 601 Cleveland Street Suite 600 Clearwater, Florida PURSUANT TO: Notice by counsel for Defendants for purposes of discovery, use at trial or such other purposes as are permitted under the Florida Rules of Civil Procedure REPORTED BY: Susan C. Riesdorph, RPR, CRR Notary Public, State of Florida Pages 735 835 Riesdorph Reporting Group, Inc. (813) 222-8963 Con?dential 736 APPEARANCES: CHARLES J. HARDER, ESQUIRE Harder Mirell Abrams, LLP 1925 Century Park East Suite 800 Los Angeles, California 90067 and KENNETH G. TURKEL, ESQUIRE Bajo Cuva Cohen Turkel, P.A. 100 North Tampa Street Suite 1900 Tampa, Florida 33602 and DAVID R. HOUSTON, ESQUIRE Law Office of David R. Houston 432 Court Street Reno, Nevada 89501 Attorneys for Plaintiff MICHAEL SULLIVAN, ESQUIRE Levine Sullivan Koch Schulz, LLP 1899 Street, N.W. Suite 200 Washington, D.C. 20036 and PAUL J. SAFIER, ESQUIRE Levine Sullivan Koch Schulz, LLP 1760 Market Street Suite 1001 Philadelphia, 19103 Attorneys for Defendant Gawker Media, LLC ALSO PRESENT: Honorable James Case Mike Byrd, Videographer Riesdorph Reporting Group, Inc. (813) 222-8963 Con?dential 796 Q. What did Mr. Houston say? A. I don't recall exactly what was said during that day. Q. How long did the meeting last? A. Oh, God. Seemed like seemed like forever, because we were in the room originally, and we had to get there really early because the FBI took us in the room and showed us showed us where all the cameras were hidden, alarm clock or whatever. They had these secret cameras hidden all over the room. And then they showed us an adjoining room where there were ten or 12 or however many agents. There were a bunch of agents in an adjoining room with headphones and video equipment. And they explained to us they were going to come through they were going to come through the side door and through the front door when the exchange happened. And so that took forever. We were there early. And then I remember waiting for Davidson. It felt like it took forever. And then when they asked us to leave, we went down to the restaurant. And that seemed like it took forever. And then by the time we finished going back to the room and after the lie detector test, it just seemed like it took forever before there was an exchange made for this briefcase and I don't know if it was a check or a Riesdorph Reporting Group, Inc. (813) 222-8963 Con?dential 802 backwards, do you know roughly how many weeks or months that would have been before this meeting at the Sand Pearl? A. No. Q. Okay. It would appear that in this e?mail, Mr. Shearn or Agent Shearn is setting up the arrangements for the meeting that was going to take place at the Sand Pearl. Is that your understanding? A. Yes. Q. And he indicates there a few lines up from the bottom, he says, we will bring a portable DVD player to View the tapes. Do you see that? A. Yes. Q. Did you View the DVDs obtained from Mr. Davidson that day? A. No, I didn't. I saw my image on a screen and I said, that's me. And that's I refused to watch the tape. Q. When so he did bring a DVD player? A Who's he? Q. Agent Shearn. A. I don't recall if he did or not. Okay. But the tapes were played at some point; you identified your image briefly? Riesdorph Reporting Group, Inc. (813) 222-8963 Con?dential 833 CERTIFICATE OF OATH STATE OF FLORIDA COUNTY OF HILLSBOROUGH I, the undersigned authority, certify that TERRY GENE BOLLEA personally appeared before me and was duly sworn . WITNESS my hand and official seal this 13th day of April, 2015. Susan C. Riesdorph, RPR, CRR, CLSP Notary Public State of Florida My Commission Expires: 6/10/17 Commission No.: FF 023522 Riesdorph Reporting Group, Inc. (813) 222-8963 Con?dential 834 CERTIFICATE STATE OF FLORIDA COUNTY OF HILLSBOROUGH I, Susan C. Riesdorph, RPR, CRR certify that I was authorized to and did stenographically report the deposition of TERRY GENE that a review of the transcript was requested and that the transcript is a true and complete record of my stenographic notes. I further certify that I am not a relative, employee, attorney, or counsel of any of the parties, nor am I a relative or employee of any of the parties' attorney or counsel connected with the action, nor am I financially interested in the outcome of the foregoing action. Dated this 13th day of April, 2015, IN THE CITY OF TAMPA, COUNTY OF HILLSBOROUGH, STATE OF FLORIDA. Susan C. Riesdorph, RPR, CRR, CLSP Riesdorph Reporting Group, Inc. (813) 222-8963 Con?dential 8 3 5 PLEASE ATTACH TO THE DEPOSITION OF TERRY GENE BOLLEA, VOLUME 5 TAKEN ON APRIL 8, 2015 IN THE CASE OF BOLLEA V. GAWKER, ET AL. PAGE LINE CORRECTION AND REASON THEREFOR I HAVE READ THE FOREGOING PAGES AND, EXCEPT FOR ANY CORRECTIONS OR AMENDMENTS INDICATED ABOVE, I HEREBY SUBSCRIBE TO THE ACCURACY OF THIS TRANSCRIPT. DATE TERRY GENE BOLLEA WITNESS TO SIGNATURE DATE Riesdorph Reporting Group, Inc. (813) 222-8963 Filing # 30300321 E-Filed 07/30/2015 03:28:41 PM EXHIBIT 49-C to the CONFIDENTIAL DECLARATION OF GREGG D. THOMAS IN SUPPORT OF PLAINTIFFS’ OBJECTIONS FD-472 (Rev. 3-10-2011) cz-f,~r ):zocation} __,_) ..... c:___,s:::.._:C:.,.__,,t_}S..c..==~=--\<-1\~<:...._=..;c.;.,~------~--residing at, (Nanie) I, __ redacted _ 1 .,_, _.,~'-1'"-IW''--_..*===.'-,t 1,:..•..l,,ULIAU...:..J• '4'vl.. sc::>.r+ dee/' wck.r (List address,Name/LocationofHote,or Descriptionof vehicleetc.,.orstate·"on~onsentin9 party") to view (If not "oli consentingparty,"-describearea to tie viewed(i.e. residencekitchenarea; restaurantrear table etc.)) and/or Other (Specify):-------------,--,---,---,---,-,-------,-- (Note: "Other" categorymay not be usedto documentconsentfor the monitorin/fofcomputerelectronic communications.For consent/authorizationto monitorcomputercommunications,includingthe .communications ofa computertrespasser,refer to the FD-1070and/orFD-1071,as appropriate.) for the purpose ofmonitorin , viewin , listenin to, and/or recording·any activity I may have with L------------which I may have on or about ) ......................... --J----------'-- and.others as yet unknown u ~ec s tl-ciliate) \_ '-\(] 'Z-_ and continuing thereafter until such a time as either I revoke my permission or the FBI terminates the investigation. I-understand· that I must be a party to any communication in order to record or monitor that communication. I-therefore agree not to leave the recording or monitoring equipment unattended or take any action which is likely to result in the recording or monitoring of communications to which I am not a party. AND/OR b6 -2 b7C -2 Install a Pen Register and/or Trap and Trace device in conjunction with the,approprfate provider(s) of electronic or wire communications service and/or long distance carrier for the .purpo~eof identifying telephone numbers c11llingand being called by telephone number ______ --,-________ located at/subscribed to by _________ _ ----------------,------------which is used by me. (Address) I have given this written permission to the above-named SpeciaLAgents voluntarily, and'without threats or promises of any kind. .-§' ...,,, V f , b6 -1 b7C -1 Privacy Act Statement: Any information coll~ctedfrom you on this form, along with any other.deviceprovided to you for use on your·person, vehicle, or other object, or for use at the designated location listed on this form, will collect informationabout you, as authorized by law, and will be used to support FBI .a<;tivities.Your.consent to providing informationon this form and to the silbseq{!entcollectionof informationin the manner outlined on this form is voluntary. This information is maintained in the system ofrecords FBI-002, FBI·C<,ntralRecprds System, and may be disclosed in accordance with published routine·uses for the system. The text ofFBI-002 and its routine.uses may be found on the FBI internet site at http://www.fbi.gov/foia/privacy-act/systems-records. Filing # 30300321 E-Filed 07/30/2015 03:28:41 PM EXHIBIT 50-C to the CONFIDENTIAL DECLARATION OF GREGG D. THOMAS IN SUPPORT OF PLAINTIFFS’ OBJECTIONS - 1 of FD-302 (Rev. 5-8-10) 1 - UNCLASSIFIED//FOUO FEDERAL BUREAU OF INVESTIGATION Date of entry 11/28/2012 DAVID HOUSTON contacted writer telephonically for the purpose of reporting he had just made a consensually monitored telephone call to ...______________ ___.!During the call, HOUSTON explained to ..! _____ that it was necessary to simplify the settlement agreement and to make more relevant to the specific facts. Further, both HOUSTON and! agreed on an approximate meeting date of December 14, 2012. b6 -2 b7C -2 _. it ! UNCLASSIFIED//FOUO Investigationon File# 11/27/2012 9B-TP-2534791 at Clearwater, Florida, United States (Phone) Date drafted 11/28/2012 b6 -1 b7C -1 This document contains neither recommendations nor conclusions of the FBI. It is the property of the FBI and is loaned to your agency; it and its contents are not to be distributed outside your agency. 167 Filing # 30300321 E-Filed 07/30/2015 03:28:41 PM EXHIBIT 51-C to the CONFIDENTIAL DECLARATION OF GREGG D. THOMAS IN SUPPORT OF PLAINTIFFS’ OBJECTIONS FD-1087 (Rev. 5-8-10) UNCLASSIFIED FEDERAL BUREAU OF Evidence Event Approved Drafted Case (U) tp-2534791 Title: INVESTIGATION Log - E03381750 Date: 12/04/2012 By: By: (U)I..._~~~~~~~~ 9B-TP-2534791 ID#: UNSUB(S); TERRY BOLLEA (VICTIM); I (VICTIM) ; l__ (VICTIM); EXTORTION - ALL OTHER NONAGGRAVATED THREATS !on 12/04/2012 Acquired By: Acquired From: (U) I-TACC Receipt Given?: No Holding Office: TAMPA No Details Details: Item 10 Type Provided Description (U) One original computer disk - 11/27/12 Acquired On: 12/04/2012 ELSUR Evidence Type: Consensual Intercept Type: Consensual Monitoring - Telephonic Intercept Identifier: 12-cm-tp-118 Media Type: Computer Disk Original Type: Original •• UNCLASSIFIED This document contains neither recommendations nor conclusions of the FBI. It is the property of the FBI and is loaned to your agency; it and its contents are not to be distributed outside your agency. b6 -1, b7C -1, b7E -2 2 I 2, 4 4 Filing # 30300321 E-Filed 07/30/2015 03:28:41 PM EXHIBIT 52-C to the CONFIDENTIAL DECLARATION OF GREGG D. THOMAS IN SUPPORT OF PLAINTIFFS’ OBJECTIONS i' .. ,· 12/07/2012 The following is a draft transcript of a consensual recording of a telephone call on December 5, 2012 between: Dave Houston and I I· This draft transcript, in its current form, is for the sole purpose of review by the prosecuting attorneys and should not be construed as a final verbatim transcript. Further review may be necessary for trial purposes. (ID 6) 1 b6 -2 b7C -2 DH: Dave Houston b6 -2 b7C -2 Typing Key: AV: Automated Voice Auto: Automated Message UI: Unintelligible PH: Phonetic IA: Inaudible PH: Phonetic ////: Speaking simultaneously (12/05/2012) (00:21:14) DH: D DH: b6 -2 b7C -2 ___ IDAVE HOUSTON. Hey buddy, how you doing? I'm doing well man. I got ah your email. Sorry I couldn't get back sooner. I had court this morning. D No problem. DH: Anyway I'm assumi!}g you got my red-line version of the agreement. D b6 -2 b7C -2 Yep I got two quick comments. DH: Okay, go ahead. D Alright they're in the first, I think they're just the first two changes that you made. Do you have the agreement irt front of you? DH: D Okay, yeah I do um recital point 2.1 ah we had to without his consent or knowledge, because quite frankly it's true (IA) Right. 2 b6 -2 b7C -2 DH: As it concerns GAWKER then I had taken out thatOclaims that she's been damaged by T.B's alleged threats against her. I didn't know what threats and he denies any such claim. I couldn't even figure out how that was relevant in this so I just took that out. D (IA) DH: But I did add .. D Let me ta~k, let me talk to that though um sub paragraph 2.2 is really the, the main thing that you and I already are gonna be talking about. DH: D DH: D Alright (clears throat) this is a mutual release. Your client is acquiring a copyright and he's releasing any claims that he has against my client. Sure. D And then you know make sure that justice is done and, and put people in jail. DH: And ... b6 -2 b7C -2 Even, even if you disagree that my client has claims or doesn't have claims against your client, I think it makes the, you don't have to admit that its true and you can say that my client's against yours are completely bullshit but there's got to be some mutuality and then I think it would, it strengthens the agreement and if, if that weren't in here and then the next thing you added, absent of payment by T.B. in the settlement so she's threatened t9 release this unless she gets money? DH: Okay well maybe we can do'this. I, I get your point. D So what Ill D -2 b7C -2 b6 But there's got to be some mutuality and you and your client have threatened to ah get to the bottom of this, to sue was ever involved. (Chuckles) DH: -2 b7C -2 Oh okay. DH: D b6 b6 Ill Ifwe could address ... -2 b7C -2 Let me just finish. The last thing I guess I'm saying is you adding the second part and taking away the first part you're almost asking my client to admit that she's an extortionist. 3 DH: D DH: . Okay I get it um how about this, because the only,the, the reason that troubled me was because of course the first thing I'm thinking is physical threats or something of that nature. claims she has been damaged by T.B.'s Ifwe added language to the effect ofD alleged threats, can we put an as it concerns? And then set forth what they may In other words what I'm doing is I'm taking it out of be, at least according toD the scope of any idea that he's threatened any sort of physical violence, duress or you know any of the intimidation factors that kind of popped into ... D Sure,yeah,yeah,yeah. DH: ... my frame (IA). D DH: D . DH: D DH: D DH: D DH: D DH: D b6 -2 b7C -2 Right. I get it alright so how aboutO alleged. · b6 -2 b7C -2 claims that she has been damaged by T.B.'s Threats (IA). Why don't we just do this? Why don't. b6 -2 b7C -2 Okay . She has been damaged by T.B.'s alleged actions related to this claim. Perfect, no problem with that. Hold on, let me write that down, actions, hold on, related. T.B.'s alleged actions related to this claim. b6 -2 b7C -2 Okay, got it, I'll switch that, alright that should take care of then of everybody's concern about 2.2. Okay then we're talking of sentence T.B. alleges-that Dis transferring license blah blah blah confidentially. threatening, selling, Right. . All without the knowledge, consent or authorization ofT.B, agreed. Then you add absent payment by T.B. in settlement and for purchase of all rights (UI) b6 -2 b7C -2 Right. What does that, the, the red line that you added, what does that really add to the . agreement? 4 DH: D DH: D DH: D DH: D DH: Um a couple of things; number one I'll tell you what the greatest fear here is, or at least from TERRY' s perspective. The greatest fear is two things; number one that we go through with this, that[:) whomever that may be, continues to have copies or has caused something to be in the works that's gonna make he or she money and as a consequence goes forward and actually then presents this information and then comes back at a later point and says well gee you know really that wasn't what the sum and substance of our agreement was about. Really he was only getting the, the copyright information, and again we go back to that ·concept of damages and you know he's a public persona. On top of that they were already out there with GAWK.ER, they've already seen it and minimizing the situation and I'm trying to pump it up to the point where it is absolutely clear that what we are doing is preventing the continued dissemination or exploitation and we're doing it by virtue of payment of money to her or him by virtue of p~chasing all the right, title and interest in the video that she holds, or he holds. And so I'm trying to pump it up for his security because that's his biggest complaint and actually my conversations with him resulted in that addition and I mean he's .. Okay if, if you feel strongly about that language ah I'm okay with it but what I would like to add is T.B. and so the start of that second sentence, T.B. alleges. b6 -2 b7C -2 b6 -2 b7C -2 Okay, where? Go ahead. Ando denies. So that's it. Yeah but now I'm changing your language. I think that ah but that's, that's a change in your language that really, my language is an add-on and TERRY is involved in this simply because of the potential threat these things are gonna hit the Internet and that's what he wants to be able to enforce, that to him is the sum and substance .. Agreed . . . . of this agreement so if I start taking that out which he hasn't denjed or he hasn't denied because they've admitted they've gone to GAWK.ER with it then you know I'm sort of going cross purposes with what I've already discussed with him and I, I will tell yo~ !this has not been easy. Yeah. I mean if you saw some oflanguage he wanted ah you know and he's coming from just ah straight street guy kind of persona on this um (sighs) I, I'm trying to keep a balance here and keep it as mild as I possibly can. He actually appr<::ciated 5 b6 -2 b7C -2 your language and wanted me simply to add to it that the sole reason he's really getting involved in this is cause he wants to stop that. .. D DH: D b6 -2 b7C -2 Right, right. .. by virtue of the settlement for the purchase of all right, title and interest in the video and make it explicit as to the terms of its enforcement ifhe ever had to. The way, the way this second sentence reads right now. DH: (Coughs) D admission of criminal My client puts, puts a signature on this, I think it's ffi?wrongdoing. I can't, I can't have him sign that. DH: You mean (sighs) D b6 -2 b7C -2 That, that so that just so HOUSTON and his client are alleging that client has threatened to sell transfer or (UI) I I DH: How about this, absent payment it is alleged by T.B. , absent payment and settlement for and purchase of all ~ight, title. and interest, how about it is alleged by T.B. absent payment how about that? D Yeah that's fine. DH: Okay so where it says authorization ofT.B. I will put it is alleged by T.B. D DH: So you're gonna start that sentence with. Actually it would read now, hold on a minute, um well actually does say T.B. alleges at the very beginning (chuckles) D Mm yeah. D Yeah. DH: b6 -2 b7C -2 So it's kind of non admission because it's his allegation that you're repeating. b6 -2 b7C -2 DH: Right? So why am I adding it again? D Yeah. Dlf: I think when you drafted it certainly you covered it by the T.B. alleges. It's not an admission. It's acknowledgement of his allegation. D So but if you allege it and we deny it how does that hurt? 6 b6 -2 b7c -2 DH: Well because in TERRY's world the statement of the denial causes him a great deal more concern and confusion. He doesn't want her to deny it. He wants him or her to agree, and I'm using her cause you have. He wants him or her to agree that in fact the threat of selling, transferring or licensing or disseminating or exploiting is going to cause a great deal of problem for him and I thought that's kind of what you were trying to set forth and it's really then tied in ~o the fact that he's agreed as he alleges to make the payment to purchase all of the right, title and interest in the video to stop it and that becomes then an injunction issue. You may be aware we've run into some significant prob_lemsre the judge in Tampa concerning the injunction against GAWKER because of this First Amendment nonsense. D Yeah. DH: b6 -2 b7C -2 That the judge seems to hold as the more sacred thing in the world and he's, TERRY, aware of what's going on. We don't want to be face·d with that again that there's a First Amendment issue and injunction issues. I cannot convince him .___ __,!that this isn't gonna come back in the sense that this is gonna pop up again um to the extent that I c~'t guarantee him that and that this deal doesn't quote g~arantee him that. What I'm trying to do .is um salve it or solve or salve rather his feelings enough to where I'm giving him what appears to be very proficient tools of enforcement. D Okay. DH: And he enjoyed your language and that's why ... D Yeah hold o~ one seco~d. So we're gonna leave basically the first sentence. DH: (Coughs) Right. D .Which is my client's claims against yours. DH: Right. D So really all the second sentence is doing, my, the first sentence lays out my claim against you. The second sentence lays out your claims against me. DH: Pretty much. D I, I'm okay with it. I'm okay with it as is as long we change that first (IA). DH: Alright change that. You saw also I added business interests, reputation, correct? D Yes no, no problem with that. 7 b6 -2 b7C -2 b6 -2 b7C -2 b6 -2 b7C -2 DH: D DH: ·D DH: Okay you don't have a problem with that I'm assuming. And again you know and I hate, I hate to keep beating the dead horse in paragraph E or D rather under 2.3 but again you see what I'm saying, an allegation that T.B. was not grievously harmed b~ !r_eleaseof information. In other words TERRY is like well what if she ge~s lip or he gets up and says you know he hasn't even been harmed. It's already happened and I said well. No problem. b6 -2 b7C -2 Look it's a blank space, I'll add it. Yep, yep no problem. Um the one thing in 2.4 and I may have misstated it but I think I got the point desires to sell transfer and across where it says T.B. desires to acquire and turn over to T.B. any and all I added the word original because I'm believing that has originals. T.B. has or excuse mQ D D Yes, no problem. DH: And it should be comma tangible copies, etc. D Yep, no problem. DH: Okay (sighs) let me go to par, page two. Any issue on page two would be 3.1 C. D DH: b6 -2 b7C -2 Okay and I put in the date._!_ ___,!December 14th. I didn't, you had it blank but I figured that would be the day. No, no problem. DH: Does that sound good to you? D Yeah no problem. DH: Okay. D And I know, I saw that you added um 3 .3. DH: I'm sorry? DH: b6 -2 b7C -2 b6 -2 b7C -2 Nope. D D b6 -2 b7C -2 b6 -2 b7C -2 b6 -2 b7C -2 No problem. Okay. 8 D DH: D DH: D DH: D Hold on let me catch up to you. Okay let's see going to 4 and um this oh good I'm glad we got here. On page 4 at the very top of the paragraph where I added um TERRY again has asked me because you know until the point is proved to him otherwise, he's not sure that your person is the one that's actually gone to GA WK.ER. He wanted them to agree that they are the people that gave the video to GAWKER, TMZ and the other media outlets so there's not gonna be this problem with somebody else out there doing this that your client has, at least orally professed to having done, but then when it comes time to it there's no real statement of it so I added that. Yeah, yep okay I mean we'd rather not have it in but if, if you want it that's no problem. Right, right, right, right. So I have no clue whether that was a cover story or otherwise but quite frankly I wanted to make sure he had that protection. D And then that's it. Um yeah if you go to 4.22 um I added some language on paragraph A. Confidential information and/or property including damages created and you had by T.B. originally but of course he didn't create that so I scratched T.B. and put by others or of any other images by HEATHER CLEM and! Dbecause obviously those are the three that I'm talking about. I DH: D DH: b6 -2 b7C -2 Got it um paragraph 7 you changed. That's my mist~e, no problem. Okay. D b6 -2 b7C -2 Well his big worry is of course GAWKER is coming up with that article, I don't know whether you've read it, where they're kind of describing this scenario as it concerned this other person um who I guess lived in Florida that claimed they got it at a garage sale or some nonsense like that. DH: DH; b6 -2 b7C -2 Then we're going on to. Yeah. I don't think there's any other tapes. No problem. b6 -2 b7C -2 (Sighs) Um finally on E and I know there's not a lot that can be done. I again put this in because it kind of assisted in my discussions with TERRY. 9 b6 -2 b7c -2 D DH: D DH: D D DH: DH: D DH: Mm run. D agrees and warrants that they will contact all media outlets with whom they have provided images and request to cease and desist as (UI) their publication. I realize they don't control it that's why it's not a success oriented paragraph that they warrant that they'll cause them to be pulled cause I know they can: Right. But ah TERRY had requested just their assistance because if we're trying to get them to take it off and some of these entities, specifically GA WK.ER,were saying oh no, you know the people who gave it to us they never said anything to us. · TERRY just asked that they exercise their ability to say hey we're saying to you if we have any say take it off. Right got it, no problem. Okay then I think that's pretty much it, isn't it? b6 -2 b7C -2 Yeah. Oh no I changed the liquidated damage provision. You saw that on 8, right? b6 -2 b7C -2 Yeah I saw that, yeah. Yeah I didn't think-that was going to be an issue. I doubt your clients would (UI) but um I took out the part about T.B. may disclose this agreement to the officials of the HYATT, I knew that was probably just a. D Yeah that was just from a prior case, sorry about that. DH: Yeah not a problem um that's it. D Good. I think we're good to go. DH: b6 -2 b7C -2 b6 -2 b7C -2 Okay now what I will do is I'm gonna go-ahead and do .this in final. I will circulate it to you and really I think, wow, I think we're pretty much in final now. D I think we are too. I mean there's. DH: Other than, yeah, aren't we pretty much. D I think we changed one, one word, really. -DH: Yeah let's go back over that and figure out where that is cause I scratched out most ofit. 10 b6 -2 b7C -2 D DH: That was paragraph 2.2. D Alleged actions related to this case or this claim. D How about this matter? That's, that's I think better, more appropriate. DH: DH: D DH: D Yeah related, you want me to say related to this case, claim or matter or does it concern you? Yes that works. Okay I'm gonna start trying to look for flight reservations. Here, here is my plan. Okay. Um I was gonna try to get out of there on the afternoon of the 14th. D Okay. Yeah no problem. Even if you wanted to do it. DH: I thought that ~ould be a good time. DH: b6 -2 b7C -2 For the obvious reasons I'd rather be home for the weekend and as a consequence I'm gonna try to see whether we can arrange flight times here for me to at least be able to get in late '.fhursday um. I usually am able to do that and fly out late in the afternoon on Friday, leaving open like Friday morning or something, around 10:00 or so and I'll provide you more detail on that as things g~t going but. D D b6 -2 b7C -2 Alright and then finally can we confirm with you the day of the 14th7Is that gonna work? DH: DH: b6 -2 b7C -2 Yeah where we were putting alleged actions, yeah okay let me make that correction. b6 -2 b7C -2 I plan on doing the same thing so even if you want to start um earlier that's fine with me·too. I mean we (UI) Okay and I'll talk to the polygrapher. I've been talking to a fella um in Tampa who has agreed to become involved and as a consequence I'm gonna have to arrange with him payment and the whole story so I've got a, he's already blocked out the time but it would be the morning of the 14th.sothat seems to work perfectly. Um he's indicated to me. 11 » D These polygraphers they're, they're a little different um some have one issue test, some have five but basically the issues are um do you believe that you possess the originals and that there are no copies, yes. DH: Right. D Um and have you retained a copy or given a copy or made a copy of, of these materials and given them to any, anyone else, no. And is ah it your belief and understanding that every copy that exists in the world of this material is now in the possession of your attorney, yes. DH: Perfect. D DH: D DH: I, he, yeah he had told me you know and I gave him a partial briefing but he said he felt he could do that at max four to five questions so. b6 -2 b7C -2 Yeah, yeah okay perfect. I think that'll be okay and I had asked him ifwe could have aQ. opportunity to review his questions on the morning before. He indicated that it probably wouldn't be a problem as long as he didn't feel it would compromise his ability to do the polygraph. In other words,he didn't want somebody talking to the individual and giving them the information as to the questions in advance and so I suggested to him that maybe you and I could just meet with him and kind of go over it to get your agreement as to the structure and if we needed. Yeah, yeah no problem. DH: To fine tune anything would that be a problem and he said no. D No, no problem at all um if, what airport are you flying into? DH: I usually fly into Tampa. D D And ah between ah DH: AMERICAN and USAIR, they have some pretty good flights. D b6 -2 b7C -2 I mean that's basically it right? D DH: • b6 -2 b7C -2 Okay. b6 -2 b7C -2 And you ... Okay and um do you have an office there? Are we gonna use an office or a hotel suite or. 12 b6 -2 b7C -2 • f • " DH: D -DH: D I, you know, I'm probably just gonna rent a hotel. I usually stay at the HYATT or the SAND PEARL and I'll see whose available and ah we have to have a separate room for the polygrapher for him to be able to take whomever in and get that done so um other that advising TERRY I've gotta rent a suite (chuckles) I don't know how that's gonna go over. Yeah. b6 -2 b7C -2 But ah you know hey its gonna get it done. Well if you, if you'd like here's what we, what I would propose um why don't you and I stay in the same hotel. I will vacate my room and um leave it for the polygrapher and then ah any business that needs to be done can be done in yoru: room. DH: Right, okay. Well let me find out what's going on with that. D Yep. DH: D DH: D DH: D DH: D b6 -2 b7C -2 I don't know whether my office had already tried to make a reservation at one or not but if they haven't I'll certainly present that as an alternative. I talked to TERRY last night and basically said TERRY I'm gonna have to rent a suite, a suite and like I say he wasn't real happy about it but I think he okayed it. I don't most of that so I don't know what she's done but really handle that.Ohandles if she hasn't I'll just alert her to kind of stand down. I'll talk to her as soon as get off. Okay. Yeah I mean (UI) b6 -2 b7C -2 Alrighty? Yeah whatever, whatever you think is, is appropriate. I'll, I'm on board. Okay and you know for obvious reasons I'm also trying to keep this pretty reduced in scope. I don't want TERRY walking around on the street with a group of people headed anywhere because that draws a lot of attention to him. I can im, only imagine. You know I'm trying to get that ease of ah anonyrriity here and I think that's possible. It's just a matter of, I initially thought of trying to do it in some office with some of the counsel I've worked with but the problem was the obvious. I mean he's like walking around with one of the BEATLES. (Chuckles) 13 b6 -2 b7C -2 DH: And pretty soon everybody is watching and paying attention. D Yeah, okay, perfect. DH: D b6 Alright sir I'll be in touch. Now is this your cell number DAVID just so I have it? DH: Yeah and do you, you have my office number as well, correct? D I do. DH: D DH: D DH: D DH: -2 b7C -2 Actually I'm sitting here in my office on this one·because I had your number bG - 2 b7C -2 programmed into it but. Okay. If you, you've got my office, anything comes up just get a hold of me. Alright. Thanks D.AVE. Alright I'll send this to you in a couple of minutes. b6 -2 b7C -2 You got it. Thanks, bye. Okay, bye, bye. (Sound of phone being hung up) (End of recording) 14 Filing # 30300321 E-Filed 07/30/2015 03:28:41 PM EXHIBIT 53-C to the CONFIDENTIAL DECLARATION OF GREGG D. THOMAS IN SUPPORT OF PLAINTIFFS’ OBJECTIONS CONFIDENTIAL-ATTORNEY'S EYES ONLY Kristy Rosser From: Sent: To: Subject: Shearn, Jason R. Monday, November 26, 2012 6:44 AM Kristy Rosser RE: 11.14.12 Settlement Matters KC/David- I hope everyone's Thanksgiving was good and the food coma has wore off. I am wondering if we have received any updates from Mr. Davidson. I believe we were waiting on his revisions to the settlement which may not have happened with the holiday. Further, I realize that writing this, David may be off this week. Can you please confirm David's schedule so I can plan going forward?? Thanks, SA Jason R. Shearn Tampa Division, Pinellas RA Office 727-796-7055 From: Kristy Rosser [mailto:krosser@houstonatlaw.com] Sent: Thursday, November 15, 2012 12:48 PM To: Shearn, Jason R. Subject: Fwd: 11.14.12 Settlement Matters Hereu go Sent from my Verizon Wireless 4G LTE DROID -------- Original Message -------Subject: RE: 11.14.12 Settlement Matters From: Keith Davidson To: Kristy Rosser CC: I will be in the Southeast for Thanksgiving. Any chance we could be in Tampa the Monday following Thanksgiving? From: Kristy Rosser [mailto:krosser@houstonatlaw.com] Sent: Wednesday, November 14, 2012 3:28 PM To: Keith Davidson Subject: 11.14.12 Settlement Matters 11/14/2012 3:27 PM Dear Mr. Davidson: I have not heard from you in quite some time and wanted to check in. I am looking at my calendar trying to find a time when I may be able to go back to Tampa for the purposes of concluding all matters. 1 BOLLEA 001150 ,·.. CONFIDENTIAL-ATTORNEY'S EYES ONLY As you know, Mr. Bolleais goingto want to view the items in your clients possessionand as you also know, from previous correspondenceMr. Bolleawould want to take advantageof a polygraphas it concernsyour client beingthe individualwe should be dealing with. Pleaseget a draft settlementto me based upon my last commentsas soon as you can. If I cannot set this up for the first or secondweek of December,I am afraidwe are going to start runningout of time. The Thanksgivingweek of course is eaten up by the holiday. The followingweek I have trial commitmentswhich then leaves me the first and secondweek of Decemberto try to make this work. I know all parties are anxiousto put this matterto rest and thereforewould appreciateyour response. Sincerely, David R. Houston /kc Kc Rosser, Business Manager to David R. Houston, Esq. 432 Court Street Reno, NV 89!501 n5- 786-4188 · n5-786-!5091 FAX The informalloncontainedIn this transmissionmaycontainprlvffegedandconfidentialinformation.II ls Intendedonlyfor the use of Iha person(s)namedabove. If you ara not the Intendedrecipient,you are herebynotffladlhal any review,disseminalion, distribullonor dupllcallonof this communicationis strictlyprohibited.If you are not the intendedrecipient,pleasecontactIhasenderby replyemailand destroyall copiesor Iha originalmessage. (includingany TaxAdviceDisclosure:To ensurecompliancewith reguiremenlsImposedby the IRSunderCircular230, weInformyou lhal any U.S.federallax advicecontainedIn this communication allachmenls),unlessotherwisespecificallyslated,was not Intendedorwrillen to be used,andcannotbe used,for !he purposeof (1) avoidingpenaltiesunderthe InternalRevenueCode;or (2) promoting, marketingor recommendingto enolherpartyany mailersaddressedherein. 2 BOLLEA 001151 Kris? Rosser From: Sent To: Subject: Thanks Dave has the dial?in instructions. if he?d like to speak before talking to Keith, I?m available. You get to work early! 5! SA Jason R. Shearn Tampa Division, Pinellas RA Office 727-796-7055 EYES ONLY Shearn, Jason R. Wednesday, December 05, 2012 7:06 AM Kristy Rosser RE: 12.4.12 Settlement Agreement From: Kristy Rosser Sent: Wednesday, December 05, 2012 9:50 AM To: Shearn, Jason R. Subject: FW: 12.4.12 Settlement Agreement Kc From: Keith Davidson Sent: Tuesday, December 04, 2012 6:29 PM To: Kristy Rosser Subject: RE: 12.4.12 Settlement Agreement we are close. a two minute phone call will wrap this up. other than 1:30 through 3:00 PST, I'm free anytime tomorrow. than ks. Keith - redacted - From: Kristy Rosser Sent: Tuesday, December 04, 2012 3:09 PM To: Keith Davidson Subject: 12.4.12 Settlement Agreement 12/4/2012 3:08 PM Dear Keith: have taken the liberty of making certain changes to the settlement agreement in order to better reflect our agreement and provide more protection for Mr. Bollea. The changes would commence at paragraph 2.1. am providing you a redline of my changes although not voluminous, nonetheless important. You will note have deieted certain language and added additional language again not dramatically changing our understanding but nonetheless providing what I believe to be a clearer picture of our agreement. BOLLEA 001 156 CONFIDENTIAL-ATTORNEY'S EYES ONLY Kristy Rosser From: Sent: To: Cc: Subject: Shearn, Jason R. Tuesday, December 11, 2012 12:51 PM orrpoly@gmail.com; David Houston Braziel, Charlotte F. Thursday/Friday Jim, Dave (our CW) ... Dave, Jim (our Polygrapher)Now that we have the formalities out of the way, I wanted to shoot out an email with information regarding our meeting on Thursday. We will meet on Thursday, 12/13 at 5:00 PM at the Tampa FBI Office. The address is 5525 West Gray Street, Tampa, FL 33609. Dave - Please mapquest or put into Terry's gps (much easier than me trying to give you directions). The office is within 5 minutes of the airport. Dave - Please bring a check for $600 for Jim's polygraph exam. Also, please bring a trust account check for the "payment" of the tapes. We will bring a portable DVD player to view the tapes. Let me know if anything comes up. Thanks again for your help. SA Jason R. Shearn Tampa Division, Pinellas RA Office 727-796-7055 1 BOLLEA 001160 EYES ONLY Kris? Rosser From: Shearn, Jason R, Sent: Monday, January 07, 2013 12:31 PM To: David Houston Subject: 1 Phone I r?cTaot?a A BOLLEA 001 161 CONFIDENTIAL-ATTORNEY'S EYES ONLY Kristy Rosser From: Sent: To: Subject: Shearn, Jason R. Tuesday, January 08, 2013 1:31 PM David Houston Tomorrow DaveSara has a conflict tomorrow morning and may not have time to call before our meeting. We will give you a call when we are done, and if you are not available we will do it another time. I'm thinking 12:00/1:00 EST? SA Jason R. Shearn Tampa Division, Pinellas RA Office 727-796-7055 1 BOLLEA 001162 CONFIDENTIAL-ATTORNEY'S EYES ONLY Kristy Rosser From: Sent: To: Subject: Shearn,Jason R. Monday, January14, 201310:36 AM David Houston Schedule Hi Dave- I hadn't heard back from you and was wondering if you had an idea about travel/authenticating the tapes. Let me know. Thanks, SAJason R.Shearn Tampa Division,PinellasRA Office727-796-7055 1 BOLLEA 001163 CONFIDENTIAL-ATTORNEY'S EYES ONLY Kristy Rosser From: Sent: To: Subject: Shearn,JasonR. Monday, January28, 2013 8:57 AM Kristy Rosser Re:1.28.13 Terry Bollea Thanks. Tell Dave I got his message and will be calling Terry soon. From: Kristy Rosser To: Shearn,Jason R. Sent: Mon Jan 28 11:17:52 2013 Subject: 1.28.13 Terry Bollea 1/28/2013 8:17 AM Jason Terry is back in town. He will be the.r~f9r 9 days.. He would like to meet with you. Please call him directly. Sincerely, David R. Houston /kc Kc Rosser, Business Manager to David R. Houston, Esq. 432 Court Street Reno, NV 89501 n5-786-41as n5-786-5091 FAX The informationcontainedIn this transmissionmaycontainprivilegedandconfidentialinformation.It ls Intendedonly for the useof the person(s}namedabove.tr you are notthe Intendedrecipient,you are herebynotifiedthatany review,dissemination, distributionor dupllcaUon or this communlcalionis strictlyprohibited.If you are not the Intendedrecipient,pleasecontactthe senderby replyemalland destroyall copiesof the originalmessage. Tax AdviceDisclosure:To ensurecompliancewith requirementsimposedby the IRS underCircular230,we informyou that any U.S.federaltax advicecontainedIn this communication(Includingany atlachments),unlessotherwisespecifically.stated, was not Intendedor writtenlo be used,and cannotbe used,for the purposeof (1) avoidingpenaltiesunderthe tntemalRevenueCode;or (2) promoting, marketingor recommending lo anotherpartyany mattersaddressedherein. 1 BOLLEA 001164 CONFIDENTIAL-ATTORNEY'S EYES ONLY Kristy Rosser From: Sent: To: Subject: Shearn,JasonR. Tuesday,July 23, 2013 5:36AM David Houston USAOContactInformation DavePer our conversation, any questions regardingthe casedeclination should be directed to Bob Mosakowski,813-2746129. He is the supervisor of the EconomicsCrime Section and SaraSweeney'sboss. Pleaseget me your expensesasap so I can get the request in the system. Regards, SAJasonR.Shearn Tampa Division, PinellasRA Office 727-796-7055 1 BOLLEA 001165 EYES ONLY Kris}! Rosser From: Shearn, Jason R. Sent: Tuesday, December 04, 2012 7:49 AM To: David Houston Subject: RE: Settlement Dave- Do me a When you call to inquire as to availability at the Sand Pearl lets see if we can book both Thurs and Fri night to give ourselves enough time. 2 nights, 2 rooms/suites next to each other. Let me know cost. Thanks, SA Jason R. Shearn Tampa Division, Pinellas RA Office 727~796~7055 From: David Houston Sent: Monday, December 03, 2012 4:04 PM To: Shearn, Jason R. Subject: FW: Settlement From: Keith Davidson Sent: Monday, December 03, 2012 11:55 AM To: David Houston Subject: RE: Settlement Checking status on the most recent version of the agreement. I am looking forward to, hogefully, closing this up on 12/14. Keith Aredact?ed From: David Houston Sent: Thursday, November 29, 2012 4:42 PM To: Keith Davidson Subject: RE: Settlement Thanks. I will look forward to the same. From: Keith Davidson Sent: Thursday, November 29, 2012 4:36 PM To: David Houston Subject: Re: Settlement BOLLEA 001 174 CONFIDENTIAL-ATTORNEY'S EYES ONLY Working on it tonight. You'll have a cleaned up copy in the AM. Hoping to keep the 14th. Keith Davidson Sent from my mobile device. On Nov 29, 2012, at 4:25 PM, "David Houston 11 wrote: Dear Keith: I haven't heard anything from you regarding proposed Settlement Agreement. lfwe are trying to do this for December 14, 2012, we are getting close on time. Please advise ASAP. Sincerely, David R. Houston /at 2 BOLLEA 001175 CONFIDENTIAL-ATTORNEY'S EYES ONLY Kristy Rosser From: Sent: To: Cc: Subject: Shearn, Jason R. Tuesday, December 11, 2012 12:51 PM orrpoly@gmail.com; David Houston Braziel, Charlotte F. Thursday/Friday Jim, Dave (our CW) ... Dave, Jim (our Polygrapher)Now that we have the formalities out of the way, I wanted to shoot out an email with information regarding our meeting on Thursday. We will meet on Thursday, 12/13 at 5:00 PM at the Tampa FBI Office. The address is 5525 West Gray Street, Tampa, FL 33609. Dave - Please mapquest or put into Terry's gps (much easier than me trying to give you directions). The office is within 5 minutes of the airport. Dave - Please bring a check for $600 for Jim's polygraph exam. Also, please bring a trust account check for the "payment" of the tapes. We will bring a portable DVD player to view the tapes. Let me know if anything comes up. Thanks again for your help. SA Jason R. Shearn Tampa Division, Pinellas RA Office 727-796-7055 1 BOLLEA 001182 CONFIDENTIAL-ATTORNEY'S EYES ONLY Kristy Rosser From: Sent: To: Subject: Shearn,JasonR. Wednesday,July 24, 2013 10:32AM Kristy Rosser RE:7.23.13Terry DaveI have passedthis on to the USAO. We are working toward accomplishingyour below suggestionsas we speak. It may take some time, but it is our intention to bring the best caseresolution forward. We will be in touch. SAJasonR. Shearn Tampa Division, PinellasRA Office 727-796-7055 From: Kristy Rosser[mailto:krosser@houstonatlaw.com] Sent: Tuesday,July 23, 2013 7:03 PM To: Shearn,Jason R. Subject: 7.23.13 Terry Dear Jason: To say the news receivedwas disappointingwould be an understatement. Certainly Terry and I had put in a lot of work and effort in order to try and prevent this type of thing from occurring but obviously the US Attorney's Office does not agree with us in referenceto our success. As a consequenceof the USA's failure to prosecute,I am concernedas to the dispositionof the tapes. It certainly was not purposeto go through all of this so the tapes would be returnedto Mr. Davidsonfor the purposeof then marketing them once again. Hopefullythe Governmentis likeminded. My suggestionis as follows: The tapes should be returnedto Mr. Bollea. As you know, Bubba Clem signed off on all right, title and interest as it concernedthe tapes when he settled his litigationwith Terry Bollea. Terry therefore is the lawful owner. Heather Clem has never expressedan interest at it concernsthe tapes nor claimed ownership. Further,the individual,Mr. Davidsonobviouslywas acting only as an agent and thereforethe tapes should not be returned to him. Finally, the young lady present during the course of negotiationswith Davidson,admitted she was only an intermediary and thereforethe tapes could not be returnedto her. This leaves only the infamousMr. X. Obviously,we do not how Mr. X may be, and therefore absent coming forward Mr. X certainly cannot make a claim. It is my suggestionthe tapes be returnedto Mr. Bollea immediatelyand therefore avoid any further embarrassmentand emotional strife to be suffered in the event the Governmentallows them to be literally auctioned off to the highest bidder. I am hopefulyou will pass my thoughts to Assistant US Attorney so as avoid any further expenseor litigationin reference to our efforts to recoverthese tapes from the Government. Sincerely, David R. Houston DICTATEDBUT NOT READ /kc 1 BOLLEA 001188 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Kristy Rosser From: Sent: To: Subject: Shearn, Jason R. Monday, December 10, 2012 2:35 PM Kristy Rosser RE:12.10.12 FW: Agreement Good to go SA Jason R. Shearn Tampa Division, Pinellas RA Office 727-796-7055 From: Kristy Rosser [mailto:krosser@houstonatlaw.com] Sent: Monday, December 10, 2012 5:15 PM To: Shearn, Jason R. Subject: 12.10.12 FW: Agreement Hi Jason: This is the latest change from Mr. Davidson - Para 4.2(b) - let DRH know your thoughts Kc Kc Rosser, BusinessManager to David R. Houston, Esq. 432 Court Street Reno, NV 89501 775-786-4188 775-786-5091 FAX The information contained in this transmission may contain privileged and confidential information. It is intended only for the use of the person(s) named above. If you are not the intended recipient, you are hereby notified that any review, dissemination, distribution or duplication of this communication is strictly prohibited. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of the original message. Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. fede.-al tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code; or (2) promoting, marketing or recommending to another party any matters addressed herein. From: Vilma Duarte [mailto:vilma@kmdlaw.com] Sent: Monday, December 10, 2012 1:44 PM To: Keith Davidson; Kristy Rosser Subject: Agreement Please find attached Versions 4 and the newly revised Version 5 of the agreement. The only notable change between versions 4 & 5, occurred in paragraph 4.2(b), where Mr. Davidson realized that version 4's language made no sense and did not reflect the understanding. I have attached version 4's pdf & a redlined version 5. Thank you, Vilma Duarte Vilma Duarte I Davidson & Associates, PLC 8383 Wilshire Boulevard - Suite 51 OIBeverly Hills, CA 90211 Phone (323) 658-54441 Fax (323) 658-5424 www.KmdLaw.com I Email: vilma@kmdlaw.com 1 DH 001 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY The infonnation in this electronic mail message is confidential and for use of only the named recipient. The information may be protected by privilege, work product immunity or other applicable law. If you are not the intended recipient the retention, dissemination, distribution or copying of this e-mail message is strictly prohibited. If you receive this message in error please notify us immediately at (323) 658-5444 or by e-mail at vilma@kmdlaw.com 2 DH 002 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Kristy Rosser From: Sent: To: Subject: Shearn, Jason R. Tuesday, November 27, 2012 5:47 AM Kristy Rosser RE:11.26.12 Tele Conf Call KcI received a message at my desk from Dave I believe from last night. Dave should have my cell# 727-207-9546. As far as today is concerned, please advise when Dave is available. I don't assume our call will last longer than 15 minutes, but I am going to be in and out of appointments throughout the day. The best time for me would be about 1:00 EST/11:00 PSTalthough I can be available before or after that. Thanks, SA Jason R. Shearn Tampa Division, Pinellas RA Office 727-796-7055 From: Kristy Rosser [mailto:krosser@houstonatlaw.com] Sent: Monday, November 26, 2012 5:23 PM To: Shearn, Jason R. Subject: RE: 11.26.12 Tele Conf call Will do - he is still in court Kc Kc Rosser, BusinessManager to David R. Houston, Esq. 432 Court Street Reno, NV 89501 775-786-4188 775-786-5091 FAX The informationcontainedin this transmissionmay contain privilegedand confidentialinformation. It ls intendedonlyfor the use of the person(s)named above. If you are not the intendedrecipient,you are hereby notrriedthat any review,dissemination,distributionor duplicationof this communicationis strictly prohibited.If you are not the intendedrecipient,please contact the sender by reply email and destroy an copies of the original message. Tax Advice Disclosure:To ensure compliancewith requirementsImposedby the IRS under Circular 230, we inform you that any U.S. federal tax advice containedIn this communication(includingany attachments),unless otherwise specificallystated, was not intended or written to be used, and cannot be used, for the purposeof (1) avoidingpenaftiesunder the InternalRevenueCode; or (2) promoting, marketingor recommendingto anotherparty any mattersaddressedherein. From: Shearn, Jason R. [mailto:Jason.Shearn@ic.fbi.gov] Sent: Monday, November 26, 2012 2:23 PM To: Kristy Rosser Subject: RE: 11.26.12 Tele Conf call Hi Kc... I will be leaving the office shortly. Tell David he can call me, or I will be available tomorrow to speak. Regards, SA Jason R. Shearn Tampa Division, Pinellas RA 1 DH 008 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Office 727-796-7055 From: Kristy Rosser[mailto:krosser@houstonatlaw.com] Sent: Monday, November26, 2012 4:21 PM To: Shearn,Jason R. Subject: RE: 11.26.12 Tele Conf Call Will do - should be soon Kc Kc Rosser, Business Manager to David R. Houston, Esq. 432 Court Street Reno, NV 89501 n5-786-4188 775-786-5091 FAX The informationcontainedIn this transmissionmay contain privileged and confidentialinfonnation. It is intendedonly for the use of the person(s)named above. If you are not the intendedrecipient,you are hereby notified that any review, dissemination,distributionor duplicationof this communicationis strictly prohibited.If you are not the intendedrecipient, pleasecontact the sender by reply email and destroy all copies of the original message. Tax Advice Disclosure:To ensure compliancewith requirementsimposedby the IRS under Circular 230, we inform you that any U.S. federal tax advice containedin this communication(includingany attachments),unless otherwisespecificallystated,was not intended or written to be used, and cannot be used, for the purposeof (1) avoidingpenaltiesunder the Internal RevenueCode; or (2) promoting, marketingor recommendingto anotherparty any matters addressedherein. From: Shearn,Jason R. [mailto:Jason.Shearn@ic.fbi.gov] Sent: Monday, November26, 2012 1:21 PM To: Kristy Rosser Subject: RE: 11.26.12 Tele Conf Call Pleasehave Dave call me when he can. 727-207-9546 SAJason R.Shearn Tampa Division, PinellasRA Office 727-796-7055 From: Kristy Rosser[mailto:krosser@houstonatlaw.com] Sent: Monday, November26, 2012 4:17 PM To: Shearn,Jason R. Subject: FW: 11.26.12 Tele Conf Call 11/26/2012 1:17 PM Jason: David wanted to know if you could get him another spoofer number so that he can get in touch with Mr. Davidson. Thank you. Talk with you soon. Kc Kc Rosser, Business Manager to David R. Houston, Esq. 432 Court Street Reno, NV 89501 n5-786-4188 n5- 786-5091 FAX The infonnationcontainedin this transmissionmay contain privileged and confidentialinfonnation. It is Intendedonly for the use of the person(s)named above. If you are not the intendedrecipient,you are hereby notified that any review, dissemination,distribution or duplicationof this communicationis strictly prohibited.If you are not the intendedrecipient, please contact the sender by reply email and destroy all copies of the original message. Tax Advice Disclosure:To ensure compliancewith requirementsImposedby the IRS under Circular230, we inform you that any U.S. federal tax advice containedin this communication(includingany attachments),unless otherwisespecificallystated, was not intended or written to be used,and cannot be used, for the purposeof (1) avoidingpenaltiesunder the Internal RevenueCode; or (2) promoting, marketingor recommendingto anotherparty any matters addressedherein. 2 DH 009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY From: Kristy Rosser Sent: Monday, November 26, 2012 1:16 PM To: Keith Davidson (Keith@kmdlaw.com) Subject: 11.26.12 Tele Conf Call 11/26/2012 1:15 PM Hello Mr. Davidson: I did give your message to Mr. Houston. He has been in court most of today and may not be able to call you this afternoon. Would tomorrow work for you? Please let me know as soon as you can so that I can set something up for you and Mr. Houston to discuss the settlement paperwork you forwarded to him last week. Thank you so much. Sincerely, Kc Rosser Kc Rosser, BusinessManager to David R. Houston, Esq. 432 Court Street Reno, NV 89501 775-786-4188 775-786-5091 FAX The information contained in this transmission may contain privileged and confidential infonnation. It is intended only for the use of the person(s) named above. If you are not the intended recipient, you are hereby notified that any review, dissemination, distribution or duplication of this communication is strictly prohibited. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of the original message. Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we infonn you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code; or (2) promoting, marketing or recommending to another party any matters addressed herein. 3 DH 010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Kristy Rosser From: Sent: To: Subject: Shearn,Jason R. Monday, November26, 2012 2:23 PM Kristy Rosser RE:11.26.12Tele Conf Call Hi Kc... I will be leaving the office shortly. Tell David he can call me, or I will be available tomorrow to speak. Regards, SAJason R. Shearn Tampa Division, PinellasRA Office 727-796-7055 From: Kristy Rosser[mailto:krosser@houstonatlaw.com] Sent: Monday, November261 2012 4:21 PM To: Shearn1 Jason R. Subject: RE: 11.26.12Tele Conf call Will do - should be soon Kc Kc Rosser, BusinessManager to David R. Houston, Esq. 432 Court Street Reno, NV 89501 775-786-4188 775-786-5091 FAX The infonnationcontainedIn this transmissionmay contain privileged and confidentialinfonnation. It is intendedonly for the use of the person(s)named above. If you are not the intendedrecipient, you are hereby notified that any review,dissemination,distributionor duplicationof this communicationis strictly prohibited.If you are not the intendedrecipient,pleasecontact the sender by reply email and destroy all copies of the original message. Tax Advice Disclosure:To ensure compliancewith requirementsImposedby the IRS under Circular230, we infonn you that any U.S. federal tax advice containedin this communication(includingany allachments), unlessotherwise specificallystated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penaltiesunder the InternalRevenueCode; or (2) promoting, marketingor recommendingto anotherparty any mailers addressedherein. From: Shearn1 Jason R. [mailto:Jason.Shearn@ic.fbi.gov] Sent: Monday, November261 2012 1:21 PM To: Kristy Rosser Subject: RE: 11.26.12Tele Conf call Pleasehave Dave call me when he can. 727-207-9546 SAJason R. Shearn Tampa Division, PinellasRA Office 727-796-7055 From: Kristy Rosser[mailto:krosser@houstonatlaw.com] Sent: Monday, November261 2012 4:17 PM To: Shearn,Jason R. Subject: FW: 11.26.12Tele Conf Call 11/26/2012 1:17 PM 1 DH 011 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Jason: David wanted to know if you could get him another spoofer number so that he can get in touch with Mr. Davidson. Thank you. Talk with you soon. Kc Kc Rosser, Business Manager to David R. Houston, Esq. 432 Court Street Reno, NV 89501 775-786-4188 n5- 786-5091 FAX The informationcontainedin this transmissionmay contain privileged and confidentialinformation. It is intendedonly for the use of the person(s)named above. If you are not the intended recipient,you are hereby notified that any review, dissemination,distributionor duplicationof this communicationis strictly prohibited.If you are not the intendedrecipient,please contact the sender by reply email and destroy all copies of the original message. Tax Advice Disclosure:To ensure compliancewith requirementsImposedby the IRS underCircular 230, we Informyou that any U.S. federal tax advice containedIn this communication(includingany attachments),unless otherwise specificallystated, was not intended or written to be used, and cannot be used, for the purposeof (1) avoidingpenaltiesunder the Internal Revenue Code; or (2) promoting, marketing or recommendingto anotherparty any matters addressedherein. From: Kristy Rosser Sent: Monday, November 26, 2012 1:16 PM To: Keith Davidson (Keith@kmdlaw.com) Subject: 11.26.12 Tele Conf Call 11/26/20121:15 PM Hello Mr. Davidson: I did give your message to Mr. Houston. He has been in court most of today and may not be able to call you this afternoon. Would tomorrow work for you? Please let me know as soon as you can so that I can set something up for you and Mr. Houston to discuss the settlement paperwork you forwarded to him last week. Thank you so much. Sincerely, Kc Rosser Kc Rosser, Business Manager to David R. Houston, Esq. 432 Court Street Reno, NV 89501 775-786-4188 775-786-5091 FAX The informationcontainedin this transmissionmay containprivileged and confidentialinformation. It is intendedonly for the use of the person(s)named above. If you are not the intendedrecipient,you are hereby notified that any review, dissemination,distributionor duplicationof this communicationis strictly prohibited.If you are not the intendedrecipient,please contact the sender by reply email and destroy all copies of the original message. Tax Advice Disclosure:To ensure compliancewtth requirementsImposedby the IRS underCircular 230, we inform you that any U.S. federal tax advice containedin this communication(includingany attachments),unlessotherwise specificallystaled, was not Intendedor written to be used, and cannot be used, for the purposeof (1) avoidingpenaltiesunder the Internal Revenue Code; or (2) promoting, marketing or recommendingto anotherparty any matters addressedherein. 2 DH 012 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Kristy Rosser From: Shearn, Jason R. Monday, November 26, 2012 1:21 PM Kristy Rosser RE: 11.26.12 Tele Conf Call Sent: To: Subject: Please have Dave call me when he can. 727-207-9546 SA Jason R. Shearn Tampa Division, Pinellas RA Office 727-796-7055 From: Kristy Rosser [mailto:krosser@houstonatlaw.com] Sent: Monday, November 26, 2012 4:17 PM To: Shearn, Jason R. Subject: FW: 11.26.12 Tele Conf Call 11/26/2012 1:17 PM Jason: David wanted to know if you could get him another spoofer number so that he can get in touch with Mr. Davidson. Thank you. Talk with you soon. Kc Kc Rosser, Business Manager to David R. Houston, Esq. 432 Court Street Reno, NV 89501 n5-7S6-41BB n5-786-5091 FAX The informationcontainedin this transmissionmay contail privileged end confidentialinformation. It is intendedonly for the use of the person(s)named above. If you are not the intended recipient,you are hereby notified that any review,dissemination,distributionor duplicationof this communicationis strictly prohibited.If you are not the intendedrecipient,please contact the sender by reply email and destroy all copies of the original message. Tax Advice Disclosure:To ensure compliancewith requirementsImposedby the IRS underCircular230, we inform you that any U.S. federal tax advice containedin this communication(includingany attachments),unless otherwise specificallystated, was not Intendedor written to be used, and cannot be used, for the purposeof (1) avoiding penaltiesunder the InternalRevenueCode; or (2) promoting, marketingor recommendingto anotherparty any matters addressedherein. From: Kristy Rosser Sent: Monday, November 26, 2012 1:16 PM To: Keith Davidson (Keith@kmdlaw.com) Subject: 11.26.12 Tele Conf Call 11/26/20121:15 PM Hello Mr. Davidson: I did give your message to Mr. Houston. He has been in court most of today and may not be able to call you this afternoon. Would tomorrow work for you? Please let me know as soon as you can so that I can set something up for you and Mr. Houston to discuss the settlement paperwork you forwarded to him last week. Thank you so much. Sincerely, Kc Rosser Kc Rosser, Business Manager to David R. Houston, Esq. 1 DH 013 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY 432 Court Street Reno, NV 89501 775-786-4188 775-786-5091 FAX The information contained in this transmission may contain privileged and confidential infonnalion. II is intended only for the use of the person(s) named above. If you are not the intended recipient, you are hereby notified that any review, dissemination, distribution or duplication of this communication is strictly prohibited. If you are no! !he intended recipient, please contact the sender by reply email and deslroy all copies of the original message. Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we infonn you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was nol intended or written lo be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code; or (2) promoting, marketing or recommending lo another party any matters addressed herein. 2 DH 014 Filing # 30300321 E-Filed 07/30/2015 03:28:41 PM EXHIBIT 54-C to the CONFIDENTIAL DECLARATION OF GREGG D. THOMAS IN SUPPORT OF PLAINTIFFS’ OBJECTIONS FD-1057 (Rev. 5-8-10) UNCLASSIFIED FEDERAL BUREAU OF Electronic Title: (U) To update From: for Communication case declination Date: 07/23/2013 TAMPA TP-PRA Contact: Approved Drafted Case case INVESTIGATION By: !_________ ___, S SRA ... !__________ By: ... ID#: __. u 9B-TP-2534791 b6 -1, 2 b7C -1, 2 b7E -2 TERRY B LLEA VI TIM); EXTORTION - ALL OTHER NONAGGRAVATED THREATS Synopsis: (U) To update case for case declination. Details: On 7/15/2013, USAO had declined AUSA ... ! _______ prosecution in !informed writer captioned matter. verbally that b6 -3 b7C -3 the I On 7/19/2013, AUSA !sent via e-mail a copy of the declination letter stating in part that "it has been determined that prosecution is not appropriate in this matter." The hard copy letter will be placed in the case file once received. On 7/22/2013, Terry Bollea to USAO. Writer notified attorney David Houston as notify them of the declination of prosecution Once all evidence will be closed. issues are considered UNCLASSIFIED and disposed of, well as by the the case a Filing # 30300321 E-Filed 07/30/2015 03:28:41 PM EXHIBIT 55-C to the CONFIDENTIAL DECLARATION OF GREGG D. THOMAS IN SUPPORT OF PLAINTIFFS’ OBJECTIONS From: Sent: To: MomJav oecern6ec 10,2012s:15 PM Subject: Attachments: 12.10.12 FW: Agreement ·12 7 12 Settlement Agreement v-5.doc;· 12 7 12 Settlement Agreement v-4.pdf I b6 -1, 4 b7C -1, 4 !Lest ~ts is the change fro, Para 4.2{b} - !et DRHknow your thoughts ................................................. ..;................a.....,,.... .................... to David R. Houston, Esq, 432 Court Street Rtno, NV 89501 775~786~4188 775-786-5091 FAX Tn{j h~t\:i~1ati-Ot1 .~1t~t~d tn tra~:;;~11~~.sh·1rrmay c~~ii!af:,·'1 p(.tifecy~1 y..;.1nfi-..~ti.~! ~t'(Prm~~lcrili·{~L'!for.~'l CtF1ty f~ ti'"\~·u~e c~the ~tsor~{s) ns:i:rt't(!.~ a~vu. !~YQU rM~ not ~h,aii~i~~1,.,cftwj ~~ciptar~t:. ym.~ are herairr n~1\ti~ ~'k~ ~ny·.r¢WeW:· dis.s~fru.n...~t~•11, <.B.~tribtlfoAn cw·~~~p;k;~faJri o-ftKi~i::omn}u11ic~t/cn ~$ ~t;f~tty p-;a~ .messag~, ·· Tax /1,.dv]f'..a O~~cl:o)sur·~~ Tc en~~m CQn!plfar~oo.,i,•i!.f"I. :'eq1.Ji:en)1:1-nt~ lJrJpO·S$id b:y tt'l~ !RS w•'.d~rCtn... '}J.iar.2Jn.,..,"e inf~m you t~at ~f'I)' t_f$ ..fod~r~i k,tX~1'.-'i?e(:Ontsinecbntt':i~:~rn~N":k:r~~..-i·:.~t~ted.~$ not l0t~n~~ or wrt~~Gnto be:.:-.·:..i·~d, t.anff.~· t;r, ust1.d,fDr·ths ?tlr~os~ of p}BYvkh-'Jg~Uss und~f the !n?G~ri~iRever.i.._;:i,:; ~1'3; or {2}1':t-rornot:n~. m~rk~~it19~r t*Wn)mf.-nd1fl.3 ~o-~:J~f1~{ p~rtr.a:-iy ma~t~rs a,:-Jdi°f.'S$ect OOi~rt /. ~:r; From: .......... ..,... ..................... .,......,.....,......,......,.....,......,......,......,.....,... Monday.December 10,2UP(44 PM ............... Subject: Agreement Please find attached Versions 4 and the newiy revised Version 5 of the agreement The only notable change between verslons 4 & 5, occurred in paragraph 4.2(b), wher1 .______ 4's language made no sense and did not reflect the understanding. I have attact1ed version 4's pdf & a redlined version 5, !realized thatverslon _, b6 -2, 4 b7C -2, 4 Pw:ne Thdnfonnatfon in thi.s e.lectronic mai! message is confidential and for use of only the named recipient. Thdnformation may be protected by privilege, work prndu<:timmunity or other applicable law, If you are not the inte.ndedrecipient the retention, dissemination, ctl~trjhntiou or <:t)ying of this e-maj!me~.&age h strictlv1rnhibited. if yoti receive this message in error please..tt0tify us immediately r by e-mail at! . ai i HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Kristy Rosser From: Sent: To: Subject: Shearn, Jason R. Monday, December 10, 2012 2:35 PM Kristy Rosser RE:12.10.12 FW: Agreement Good to go SA Jason R. Shearn Tampa Division, Pinellas RA Office 727-796-7055 From: Kristy Rosser [mailto:krosser@houstonatlaw.com] Sent: Monday, December 10, 2012 5:15 PM To: Shearn, Jason R. Subject: 12.10.12 FW: Agreement Hi Jason: This is the latest change from Mr. Davidson - Para 4.2(b) - let DRH know your thoughts Kc Kc Rosser, BusinessManager to David R. Houston, Esq. 432 Court Street Reno, NV 89501 775-786-4188 775-786-5091 FAX The information contained in this transmission may contain privileged and confidential information. It is intended only for the use of the person(s) named above. If you are not the intended recipient, you are hereby notified that any review, dissemination, distribution or duplication of this communication is strictly prohibited. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of the original message. Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. fede.-al tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code; or (2) promoting, marketing or recommending to another party any matters addressed herein. From: Vilma Duarte [mailto:vilma@kmdlaw.com] Sent: Monday, December 10, 2012 1:44 PM To: Keith Davidson; Kristy Rosser Subject: Agreement Please find attached Versions 4 and the newly revised Version 5 of the agreement. The only notable change between versions 4 & 5, occurred in paragraph 4.2(b), where Mr. Davidson realized that version 4's language made no sense and did not reflect the understanding. I have attached version 4's pdf & a redlined version 5. Thank you, Vilma Duarte Vilma Duarte I Davidson & Associates, PLC 8383 Wilshire Boulevard - Suite 51 OIBeverly Hills, CA 90211 Phone (323) 658-54441 Fax (323) 658-5424 www.KmdLaw.com I Email: vilma@kmdlaw.com 1 DH 001 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY The infonnation in this electronic mail message is confidential and for use of only the named recipient. The information may be protected by privilege, work product immunity or other applicable law. If you are not the intended recipient the retention, dissemination, distribution or copying of this e-mail message is strictly prohibited. If you receive this message in error please notify us immediately at (323) 658-5444 or by e-mail at vilma@kmdlaw.com 2 DH 002 Kristy Rosser From: Sent: To: Subject: Attachments: Vilma Duarte Monday, December 10, 2012 1:44 PM Keith Davidson; Kristy Rosser Agreement 12 7 12 Settlement Agreement v-5.doc; 12 7 12 Settlement Agreement v-4.pdf Please find attached Versions 4 and the newly revised Version 5 of the agreement. The only notable change between versions 4 & 5, occurred in paragraph 4.2(b), where Mr. Davidson realized that version 4's language made no sense and did not reflect the understanding. I have attached version 4's pdf & a redlined version 5. Thank you, Vilma Duarte Vilma Duarte I Davidson & Associates, PLC 83 83 Wilshire Boulevard - Suite 51O[Beverly Hills, CA 90211 Phone (323) 658-54441 Fax (323) 658-5424 www.KmdLaw.com I Email: vilma@kmdlaw.com The information in this electronic mail message is confidential and for use of only the named recipient. The information may be protected by privilege, work product immunity or other applicable law. If you are not the intended recipient the retention, dissemination, distribution or copying of this e-mail message is strictly prohibited. If you receive this message in error please notify us immediately at (323) 658-5444 or by e-mail at vilma@kmdlaw.com 1 CONFIDENTIAL-ATTORNEY'S EYES ONLY BOLLEA001293 SETTLEMENT AGREEMENT AND MUTUAL RELEASE 1.0 THE PARTIES 1.1 This Settlement Agreement and Mutual Release (hereinafter, this "Agreement") is made and deemed effective as of the __ day ofNovember, 2012, by and between TARYN BOSTICK ("TB" a pseudonym whose true identity will be acknowledged on a Side Letter Agreement attached hereto as "EXHIBIT A"), on the one part, and JO WALSH, (JW), on the other part. This Agreement is entered into with reference to the facts and circumstances contained in the following recitals. 2.0 RECITALS 2.1 Prior to entering into this Agreement, JW came into possession of certain "Confidential Information" pertaining to TB which was filmed without TB's consent or knowledge, as more fully defined below, some of which is in tangible form, which includes, but is not limited to certain videographic images depicting TB (collectively the "Property", each as more fully defined below but which all are included and attached hereto as Exhibit "B"). 2.2 JW claims that she has been damaged by TB's alleged actions related to this matter. TB denies any such claim. TB alleges that JW has threatened the selling, transferring, licensing, publicly disseminating and/or exploiting the Images and/or Property and/or other Confidential Information, all without the knowledge, consent or authorization of TB absent payment by TB in settlement and for purchase of all rights, title and interest in all video held by JW. The parties herein stipulate, understand and agree that public dissemination of information, true, accurate or not would without any doubt damage TB's business interests, reputation, personal relationships and ability to earn a living in the future. 2.3 Further, the parties hereto further stipulate that in the event of a breach or alleged breach by JW, the following defenses/mitigations shall be unavailable: (a) public figure; (b) newsworthiness; (c) Lack of Damage; (d) An allegation that TB was not grievously harmed by JW's release of information. 2.4 TB desires to acquire, and JW desires to sell, transfer and tum-over to TB, any and all original, tangible copies of the Property, and any and all physical and intellectual property rights in and to all of the Property. As a condition of TB releasing any claims against JW related to this matter, JW agrees to sell and transfer to TB all of each of her rights in and to such Property. JW agrees to deliver each and every existing copy of all tangible Property to TB (and permanently delete any electronic copies that can not be transferred), and agrees that she shall not directly or indirectly disclose convey, transfer or assign Property or any Confidential Information to any Third Party, as more fully provided herein. 2.5 It is the intention of the Parties that Confidential Information, as defined herein, shall remain confidential as expressly provided herein below. The Parties expressly acknowledge, agree and understand that the Confidentiality provisions herein and the 'l'B JW CONFIDENTIAL-ATTORNEY'S EYES ONLY BOLLEA001294 representations and warranties made by JW herein and the execution by her of the Assignment & Transfer of Copyright are at the essence of this Settlement Agreement and are a material inducement to TB 's entry into this Agreement, absent which TB would not enter into this Agreement. 2.6 The Parties wish to avoid the time, expense, and inconvenience of potential litigation, and to resolve any and all disputes and potential legal claims which exist or may exist between them, as of the date of this Agreement, regarding the Claims against JW as relates to JW having allowed, whether intentionally, unintentionally or negligently, anyone to become aware of the existence of and content of the Property, to have gained possession of the Property, and to JW's having engaged in efforts to disclose, disseminate and/or commercially exploit the Images and/or Property and/or Confidential Information, and any harm suffered by TB therefrom. 2.7 These Recitals are essential, integral and material terms of this Agreement, and this Agreement shall be construed with respect thereto. The Parties enter into this Agreement in consideration of the promi'ses, covenants and conditions set forth herein, and for good and valuable consideration, the receipt of which is hereby acknowledged. NOW, THEREFORE, the Parties adopt the foregoing recitals as a statement of their intent and in consideration of the promises and covenants contained herein, and further agree as follows: 3.0 SETTLEMENT TERMS 3.0.1.1 TB SHALL PAY TO JW $300,000.00 AS FOLLOWS: 3.0.1.1.1 $125,000.00 USD upon execution of this Agreement; 3.0.1.1.2 $75,000.00 USD on the Nine-Month anniversary of execution of this Agreement; and 3.0.1.1.3 $100,000.00 USD on the Fourteen-Month anniversary of execution of this Agreement; 3.1 Undertakings & Obligations by JW. JW will do each of the following by December 14, 2012: (a) JW shall execute this Agreement and return a signed copy to TB: (b) JW shall transfer and/or assign any and all rights in and to the Property to TB (as set forth herein below), and execute an Assignment & Transfer of Copyright, in the form attached hereto, and return a signed copy of same to TB' s counsel; (c) JW shall deliver to TB every existing copy of all tangible Property at issue and originals. JW shall completely divest herself of any and all interest in the subject of dispute. JW shall transfer all physical, ownership and intellectual property rights to TB; TB 2 JW CONFIDENTIAL-ATTORNEY'S EYES ONLY BOLLEA001295 (d) JW shall not, at any time from the date of this Agreement forward, directly or indirectly disclose or disseminate any of the Property or any Confidential Information (including that it exists, and/or confirming any rumors as to any such existence)to any third party, as more fully provided herein. 3.2 Transfer of Property Rights to TB. In further considerationfor the promises, covenants and considerationherein, JW hereby transfers and conveys to TB all of JW's respective rights, title and interest in and to the Property, and any and all physical and intellectual property rights related thereto. Without limiting the generality of the foregoing, JW TBs hereby sell, assign, and transfer to TB, her successors and assigns, throughout the universe in perpetuity, all of JW entire right, title, and interest (including, without limitation, all copyrights and all extensions and renewals of copyrights),of whatever kind or nature in and to the Property, without reservation, condition or limitation, whether or not such rights are now known, recognized or contemplated,and the complete, unconditionaland unencumberedownership and all possessory interest and rights in and to the Property, which includes, but is not limited to the originals, copies, negatives, prints, positive, proof sheets, CD-roms, DVD-roms,duplicates, outtake and the results of any other means of exhibiting, reproducing, storing, recording and/or archiving any of the Property or related material, together with all rights of action and claims for damages and benefits arising because of any infringementof the copyright to the Property, and assigns and releases to TB any and all other proprietary rights and usage rights JW may own or hold in the copyright and/or Property, or any other right in or to the Property. JW assigns and transfers to TB all of the rights herein granted, without reservation, condition or limitation, and agrees that JW reserves no right of any kind, nature or description related to the Property and contents therein. Notwithstandingthe foregoing, if any of the rights herein granted are subject to termination under section 203 of the CopyrightAct, or any similar provisions of the Act or subsequent amendmentsthereof, JW hereby agrees to re-grant such rights to TB immediately upon such termination. All rights granted herein or agreed to be granted hereunder shall vest in TB immediatelyand shall remain vested in perpetuity. TB shall have the right to freely assign, sell, transfer or destroy the Property as she desires. TB shall have the right to register sole copyright in and to any of the Property with the US Copyright Office. TB shall also have the right, in respect to the Property, to add to, subtract from, change, arrange, revise, adapt, into any and all form of expression or tangible communication,and the right to combine any of the Property with any other works of any kind and/or to create derivative works with any of the Property, and to do with it as she so deems. To the fullest extent allowable under the applicable law, JW shall irrevocably waive and assign to TB any of JW's so-called "moral rights" or "droit moral" (laws for the protection of copyrights outside of the United States), if any, or any similar rights under any principles oflaw which JW may now have or later have in the Property. With respect to and in furtherance of the above, JW agrees to and shall execute and deliver to TB an "Assignment & Transfer of Copyright", in the form attached hereto as Exhibit "A". 3.2.1 Notwithstandingthe foregoing paragraph 3.2, and without in anyway limiting or diminishing from the full transfer and assignmentof rights therein without reservation, the Parties understand the purpose of the transfer ofrights is to provide TB the fullest possible ability and remedies to prevent and protect against any disseminationof the Property. TB 3 JW CONFIDENTIAL-ATTORNEY'S EYES ONLY BOLLEA001296 3.3 Delivery of the Property to TB. Concurrently upon execution of this Agreement, JW, as applicable, shall deliver to TB, by delivery to his counsel herein, all of the Property which is embodied in tangible form (all originals and duplicates), whether documents, canvasses, paper art, digital copies, letters, prints, electronic data, films, tapes, CD-Roms, DVD-Roms, Images recording tapes, photographs, negatives, originals, duplicates, contact sheets, audio recordings, Images recordings, magnetic data, computerized data, digital recordings, or other recorded medium or any other format of embodying information or data. Without limiting the generality of the foregoing, such tangible Property shall include all documents as defined by California Evidence Code §250 which contain any of the Property. JW represents and warrants that the materials delivered pursuant to the terms of this Paragraph 3.3 comprise the totality of all existing originals and duplicates of all Property in any tangible form, whether within their possession, custody or control, and including otherwise (and that JW knows ofno other copies or possible or potential copies not in JW's possession and control and delivered pursuant to this paragraph), and that upon such delivery to TB, JW shall not maintain possession, custody or control of any copy of all or any portion of any tangible Property. JW agrees they are the party that possessed the videos given or provided to Gawker, TMZ and other media outlets for publication. 3.3.1 This Agreement is conditioned on JW's compliance with each and every term of Paragraph 3.3 and the personal verification by TB of the Images and that the Images are comprised of and captures the content previously represented to his counsel to exist and be captured therein (i.e., the clear and identifiable as to TB, high quality, graphic intimate content and physical relations between TB and unknown female(s)), all of which terms are essential and material. 4.0 CONFIDENTIALITY & REPRESENTATIONS & WARRANTIES. 4.1 Definition of Confidential Information. "Confidential Information" means and includes each and all of the following: (a) All intangible information pertaining to TB and/or his family and/or friends learned, obtained, or acquired by JW, including without limitation information contained in the property; (b) All intangible information pertaining to the existence and content of the Property; (i) JW's Representations & Warranties Regarding Prior Disclosures of Tangible Confidential Information JW shall be responsible for any subsequent public disclosure of any of the Confidential Information (a) attributable directly to her any such future disclosure shall be deemed a breach of this Agreement by JW. 'IB 4 JW CONFIDENTIAL-ATTORNEY'S EYES ONLY BOLLEA001297 4.2 Representations & Warranties and Agreements. (a) Representations & Warranties and Agreements By TB. The following agreements, warranties and representations are made by TB as material inducements to JW to enter into this Agreement, and each Party acknowledges that she/he is executing this Agreement in reliance thereon: (b) TB warrants and represents that, as relates to or in connection with any of JW's attempts to sell, exploit and/or disseminate the Property prior to the date of this Agreement, TB and his counsel will refrain (i) from pursuing any civil action against JW, and/or (ii) absent a direct inquiry from law enforcement, from disclosing JW's name to the authorities. Notwithstanding the foregoing, if TB is informed: t-hat-orshould or if it isit be believed that either ofJW has possession, custody and/or control of any of the Property after the date of this Agreement and/or after the date of this agreement has transferred any copies to any Third Party, and/or it is believed that aey--ef-JW, whether directly or indirectly, intends the release, use, display, dissemination, disclosure or exploitation, whether actual, threatened or rumored, of Ii-RY fur-the Property, th~an TB and lter-his counsel shall be entitled to, at TB's sole discretion, (i) eon-taetthe respeetive member of .PN, inebding 1,vith legal demands and related statements of liability and legal aetionf:ile for injunctive reliefpursuant to Paragraph 5. l .3:, and/or (ii) a4v-anre a eivil aetion against the respeetive member of.lW, and/OF(iii) diselose any of.lW's name to the authoritiesbeein Confidential Arbitration pursuant to Paragraph 5.1.3. 4.2.2 Representations & Warranties and Agreements By JW. The following agreements, warranties and representations are made by JW as material inducements to TB to enter into this Agreement, without which TB would not enter into this Agreement and without which TB would not agree to pay any monies whatsoever hereunder, and with the express acknowledgment by that TB is executing this Agreement in reliance on the agreements, warranties, and representations herein which are at the essence of this Agreement, including, the following: (a) JW agrees and warrants and represents that JW will permanently cease and desist from any efforts to and/or attempting to and/or engaging in and/or arranging the use, License, distribution, dissemination or sale of any of the Confidential Information and/or Property, including the Images created by others, or of any other Images by; Heather Clem and Bubba Todd Clem. (b) JW agrees and warrants and represents that JW will permanently cease and desist from any posting or dissemination or display of the Confidential Information and/or Property, including the Images (including, but not limited to, to any media outlet, on any blog or posting board, on the Internet, or otherwise); (c) JW agrees and warrants and represents that JW will permanently cease and desist from using or disseminating or disclosing any information to any Third Persons (including, but not limited to, to any media outlet, on any blog or posting board, on the Internet, or otherwise) about any details of or as to the contents of the Confidential Information and/or TB 5 JW CONFIDENTIAL-ATTORNEY'S EYES ONLY BOLLEA001298 Property, including the Images, and/or as to any other personal details of or about or pertaining to TB and/or her family and/or friends; (d) JW agrees and warrants and represents that JW will pennanently cease and desist from and will not, at any time, make any use of or reference to the name, image or likeness of TB in any manner whatsoever, including without limitation, through any print or electronic media of any kind or nature for any purpose, including, but not limited to, on any websites; (e) JW agrees and warrants and represents that any and all existing copies of the Images and any have been turned over and provided to counsel; and JW further warrants and represents that the only copy of the Images that JW knows ofto have ever existed, at any time, has been turned over to TB's counsel pursuant to this Agreement, and the Images and any Property has never been transferred to or existed in any other form, including not in electronic form, nor on any computer, or electronic device and other storage media. JW agrees and warrants they will contact all media outlets with whom they have provided images and request a cease and desist as to their publication; (f) JW warrants and represents that JW has not provided any copies, whether hard-copy or electronic copies, of the Property to anyone other than her counsel; (g) JW warrants and represents that the infonnation JW is obligated to provide pursuant to the terms herein will be complete and truthful; (h) JW warrants and represents that JW has not knowingly omitted or withheld any information that JW is obligated to provide pursuant to the terms herein; (i) JW warrants and represents that JW has not assigned nor transferred, either in whole or in part, any purported rights in or to the Images and/or any Property to any other person or entity, other than to TB pursuant to this Agreement. 4.2.3 Agreements By JW Not to Disclose/Use Confidential Information and Not to Disparage TB. As further material inducements for TB to enter into this Agreement, JW agrees, represents and warrants that JW shall not directly or indirectly, verbally or otherwise, publish, disseminate, disclose, post or cause to be published, disseminated, disclosed, or posted (herein "disclose"), any Confidential Information to any person, group, firm or entity whatsoever, including, but not limited to, family members, friends, associates, journalists, media organizations, newspapers, magazines, publications, television or radio stations, publishers, databases, biogs, websites, posting boards, and any other enterprise involved in the print, wire or electronic media, including individuals working directly or indirectly for, or on behalf of, any of said persons or entities ("Third Parties" and/or Third Party"). In no event shall any of JW be relieved of such party's confidentiality obligations herein by virtue of any breach or alleged breach of this Agreement. In no event shall any dispute in connection with this Agreement relieve any of JW from JW's confidentiality obligations arising pursuant to this Agreement, and any disclosure of Confidential Information in connection with any such proceeding or dispute shall constitute a breach of this Agreement, and JW shall use JW' s best efforts to prevent the TB 6 JW CONFIDENTIAL-ATTORNEY'S EYES ONLY BOLLEA001299 unauthorized disclosure of Confidential Information in connection with any such proceeding or dispute. 4.2.4 Any direct or indirect disclosure of Confidential Information to any Third Party by JW, her representatives, heirs, agents, employees, attorneys, transferors, transferees, successors or assigns, and/or any friend of any of JW (collectively "JW Group"), after the date of this Agreement, shall be deemed a disclosure by JW in breach of the terms of this Agreement, entitling TB to all rights and remedies set forth herein. 4.2.5 JW hereby irrevocably agrees and covenants that JW shall not, directly or indirectly, publicly disparage TB, nor write, publish, cause to be published, or authorize, consult about or with or otherwise be involved in the writing, publication, broadcast, transmission or dissemination of any book, memoir, letter, story, photograph, film, script, Images, interview, article, essay, biography, diary, journal, documentary, or other written, oral, digital or visual account or description or depiction of any kind whatsoever whether fictionalized or not, about TB or her family, whether truthful, laudatory, defamatory, disparaging, deprecating or neutral. JW further warrants and represents that JW has not and will not enter into any written or oral agreement with any third party purportedly requiring or obligating JW to do so. 4.2.6 Agreement By TB Not to Disparage JW. TB hereby agrees and covenants that she shall not, directly or indirectly, publicly disparage JW, nor write, publish, cause to be published, or authorize, consult about or with or otherwise be involved in the writing, publication, broadcast, transmission or dissemination of any book, memoir, letter, story, photograph, film, script, Images, interview, article, essay, biography, diary, journal, documentary, or other written, oral, digital or visual account or description or depiction of any kind whatsoever whether fictionalized or not, about JW's involvement in or connection with (prior to the date of this Agreement), actual or alleged, any efforts to sell, license and/or any other exploitation of the Images and/or Property. 4.3 Disclosure Of Confidential Information Is Prohibited: JW recognizes and agrees that substantial effort and expense have been dedicated to limit the efforts of the press, other media, and the public to learn of personal and business affairs involving TB. JW further acknowledges that any future disclosure of Confidential Information to any Third Party would constitute a serious and material breach of the terms of this Agreement, and shall constitute a breach of trust and confidence, invasion of privacy, and a misappropriation of exclusive property rights, and may also constitute fraud and deceit. Some of the Confidential Information may also constitutes and includes proprietary business information and trade secrets which have independent economic value. JW acknowledges that any unauthorized use, dissemination or disclosure of Confidential Information, or the fabrication and dissemination of false and/or misleading information, about TB, would result in irreparable injury to TB, and would be injurious to a reasonable person, and/or would constitute an injurious violation of the right of privacy or publicity, and/or would be injurious to TB's business, profession, person and/or career. JW acknowledges TB's substantial and valuable property rights and other proprietary interests in the exclusive possession, ownership and use of Confidential Information, and recognizes and acknowledges that such Confidential Information is a proprietary, valuable, TB 7 JW CONFIDENTIAL-ATTORNEY'S EYES ONLY BOLLEA001300 special and unique asset which belongs to TB and to which the JW has no claim of ownership or other interest. 4.3.1 Disclosures Permitted By JW. Notwithstanding the foregoing, JW shall only be permitted to disclose Confidential Information to another person or entity only if compelled to do so by valid legal process, including without limitation a subpoena duces tecum or similar legal compulsion, provided that JW shall not make any such disclosure unless JW has first provided TB with notice of such order or legal process not less than ten (10) days in advance of the required date of disclosure pursuant to the Written Notice provisions set forth hereinbelow, providing TB with an opportunity to intervene and with full and complete cooperation should she choose to oppose such disclosure. 5.0 REMEDIES 5.1 TB's Remedies for Breach of Agreement. Each breach or threatened breach (e.g., conduct by JW reflecting that said person intends to breach the Agreement), including without limitation by breach of any representation or warranty, by failing to deliver to TB all tangible Property as required, by the disclosure or threatened disclosure of any Confidential Information to any Third Party by JW (herein "Prohibited Communication"), or otherwise, shall render JW liable to TB for any and all damages and injuries incurred as a result thereof, including but not limited to the following, all of which rights and remedies shall be cumulative: 5.1.1 Disgorgement of Monies: In the event an Arbitrator determines there has been a breach or threatened breach of this Agreement by JW, JW shall be obligated to account to, and to disgorge and tum over to TB any and all monies, profits, or other consideration, or benefits, which JW, or anyone on JW's behalf or at JW's direction, directly or indirectly derive from any disclosure or exploitation of any of the Confidential Information; and 5.1.2 Liquidated Damages: JW agrees that any material breach or violation of this Agreement by any of JW individually or the JW Group by his/their unauthorized disclosure of any of the Confidential Information (as defined in paragraphs 4.l(a), (b), (c), and (d)) to any Third Party, and/or any unauthorized exploitation or prohibited use of the same, and/or by the breach of and/or by any false representations and warranties set forth in this Agreement, and/or any public disparagement of TB by any of JW (collectively, the "LD Breach Terms"), shall result in substantial damages and injury to TB, the precise amount of which would be extremely difficult or impracticable to determine, even after the Parties have made a reasonable endeavor to estimate fair compensation for such potential losses and damages to TB. Therefore, in addition to disgorgement of the full amount of all monies or other consideration pursuant to paragraph 5.1.2, in the event an Arbitrator determines there has been a breach of the LD Breach Terms of this Agreement by JW individually or the JW Group, JW shall also be obligated to pay, and agree to pay to TB the sum of Six Hundred Thousand Dollars ($600,000) as a reasonable and fair amount of liquidated damages to compensate TB for any loss or damage resulting from each breach. The Parties agree that such sum bears a reasonable and proximate relationship to the actual damages which TB will or might suffer from each breach of the terms of this Agreement and that this amount is not a penalty. Alternatively, at TB's sole discretion, TB may seek to recover actual damages proximately caused by each such breach, according to proof. Any other TB 8 JW CONFIDENTIAL-ATTORNEY'S EYES ONLY BOLLEA001301 breaches not a LD Breach Terms shall be subject to a claim for actual damages according to proof; and 5.1.3 Injunctive Relief. JW acknowledges and agrees that any unauthorized disclosure to Third Parties of any Confidential Information will cause irreparable harm to TB, which damages and injuries will most likely not be measurable or susceptible to calculation. JW and further acknowledges and agrees that any breach or threatened breach of this Agreement due to the unauthorized disclosure or threatened disclosure by JW to Third Parties, of any Confidential Information shall entitle TB to immediately obtain, either from the Arbitrator or from the Los Angeles Superior Court and/or other court of competent jurisdiction, an ex parte issuance of a restraining order and preliminary injunction (herein "Injunctive Relief') without advance notice to any of JW, preventing the disclosure or any further disclosure of Confidential Information protected by the terms hereof, pending the decision of the Arbitrator or Court. The Parties further acknowledge and agree that in connection with any such proceeding, any Party may obtain from the Court or Arbitrator on an ex parte application or noticed motion without opposition, an order sealing the file in any such proceeding, and the Parties stipulate to the factual and legal basis for issuance of an order sealing the file in any such proceedings. The rights and remedies set forth in this Injunctive Relief Section are without prejudice to any other rights or remedies, legal or equitable, that the Parties may have as a result of any breach of this Agreement. 5.2 Dispute Resolution. In recognition of the mutual benefits to TB and JW ofa voluntary system of alternative dispute resolution which involves binding confidential arbitration of all disputes which may arise between them, it is their intention and agreement that any and all claims or controversies arising between TB on the one hand, and JW on the other hand, shall be resolved by binding confidential Arbitration to the greatest extent permitted by law. Arbitration shall take place before JAMS ENDISPUTE ("JAMS") pursuant to JAMS Comprehensive Arbitration Rules and Procedures (including Interim Measures) ("JAMS Rules") and California law, or before ACTION DISPUTE RESOLUTION SERVICES ("ADRS") pursuant to the ADRS Rules (including Interim Measures) and California law (whichever the claimant elects upon filing an arbitration), in Los Angeles, California, and will be heard and decided by a sole, neutral arbitrator ("Arbitrator") selected either by agreement of the Parties, or if the Parties are unable to agree, then selected under the Rules of the selected arbitration service. The costs and fees associated with any Arbitrator and/or Arbitration service shall be split equally among the parties to any such dispute. The Parties shall have the right to conduct discovery in accordance with the California Code of Civil Procedure Section 1283.05 et. seq. and the written discovery requests and results of discovery shall be deemed to constitute Confidential Information. The Arbitrator shall have the right to impose all legal and equitable remedies that would be available to any Party before any governmental dispute resolution forum or court of competent jurisdiction, including without limitation temporary, preliminary and permanent injunctive relief, compensatory damages, liquidated damages, accounting, disgorgement, specific performance, attorneys fees and costs, and punitive damages. It is understood and agreed that each of the Parties shall bear his/its own attorneys' fees, expert fees, consulting fees, and other litigation costs (if any) ordinarily associated with legal proceedings taking place in a judicial forum, subject to the Arbitrator's reassessment in favor of the prevailing party to the extent permitted by TB 9 JW CONFIDENTIAL-ATTORNEY'S EYES ONLY BOLLEA001302 California law. Each of the Parties understands, acknowledges and agrees that by agreeing to arbitration as provided herein, each of the Parties is giving up any right that he/she/it may have to a trial by judge or jury with regard to the matters which are required to be submitted to mandatory and binding Arbitration pursuant to the terms hereof. Each of the Parties further understands, acknowledges and agrees that there is no right to an appeal or a review of an Arbitrator's award as there would be a right of appeal or review of a judge or jury's decision. 6.0 MUTUAL RELEASES 6.1 Except for the rights and obligations of the Parties set forth in this Agreement, TB, for herself, and each of her representatives, agents, assigns, heirs, partners, companies, affiliated companies, employees, insurers and attorneys, absolutely and forever releases and discharges JW, individually, and all of JW's heirs, and JW's attorneys, and each of them ("TBJW Releasees"), of and from any and all claims, demands, damages, debts, liabilities, accounts, reckonings, obligations, costs (including attorney's fees), expenses, liens, actions and causes of actions of every kind and nature whatsoever, whether known or unknown, from the beginning of time to the effective date of this Agreement, including without limitation any and all matters, facts, claims and/or defenses asserted or which could have been asserted in the Matter, or which could have been asserted in any other legal action or proceeding, except as may be provided herein (the "TB-JW Released Claims"). Notwithstanding any of the foregoing, for clarity, the operators of any website or media outlet or photo agency, and anyone else who obtained from or who JW gave or transferred to a copy of the Photos and/or Images and/or Property are not included and expressly omitted from the TB-JW Releasees and TB-JW Released Claims. 6.2 Except for the rights and obligations of the Parties set forth in this Agreement, JW, for themselves, and JW's representatives, agents, assigns, heirs, partners, companies, affiliated companies, employees, insurers and attorneys, absolutely and forever release and discharge TB, individually, and each of her representatives, agents, assigns, heirs, partners, companies, affiliated companies, subsidiaries, employees, attorneys, successors, insurers, and each of them ("TB Releasees"), of and from any and all claims, demands, damages, debts, liabilities, accounts, reckonings, obligations, costs (including attorney's fees), expenses, liens, actions and causes of actions of every kind and nature whatsoever, whether known or unknown, from the beginning of time to the date of this Agreement, including without limitation any and all matters, facts, claims and/or defenses asserted or which could have been asserted in the Action, or which could have been asserted in any other legal action or proceeding (the "JW Released Claims"). 6.3 The subject matter referred to in paragraphs 6.1 and 6.2, above (i.e., the TB-JW Released Claims and JW Released Claims), are collectively referred to as the "Released Matters." 6.4 The Parties hereto, and each of them, hereby warrant, represent and agree that each of them is fully aware of§ 1542 of the Civil Code of the State of California, which provides as follows: TB 10 JW CONFIDENTIAL-ATTORNEY'S EYES ONLY BOLLEA001303 "A general release TBs not extend to claims which the creditor TBs not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." The Parties, and each of them, voluntarily waive the provisions of California Civil Code § 1542, and any other similar federal and state law as to any and all claims, demands, causes of action, or charges of every kind and nature whatsoever, whether known or unknown, suspected or unsuspected. 6.5 Each of the Parties hereto acknowledges and agrees that this Agreement constitutes a settlement and compromise of claims and defenses in dispute, and shall not be construed in any fashion as an admission of liability by any party hereto. 7.0 CONFIDENTIALITY OF THIS AGREEMENT The Parties, respectively, shall not to disclose the terms of this Agreement, either directly or indirectly, to the media or to anyone else other than their respective attorneys and representatives and/or as may be required by law. JW may not comment or make any press releases or otherwise discuss the resolution of the subject of this Agreement. MISCELLANEOUS TERMS 7. I Entire Agreement. This Agreement constitutes the entire agreement and understanding concerning the Released Matters hereof between the Parties hereto and supersedes any and all prior negotiations and proposed agreement and/or agreements, written and/or oral, between the Parties. Each of the Parties hereto acknowledges that neither they, nor any other party, nor any agent or attorney of any other party has made any promise, representation, or warranty whatsoever, expressed or implied, written or oral, which is not contained herein, concerning the subject matter hereof, to induce it to execute this Agreement, and each of the Parties hereto acknowledges that she/he has not executed this Agreement in reliance on any promise, representation, and/or warranty not contained herein. This Agreement shall be binding on and inure to the benefit of the Parties, the Releasees, and each of their respective successors and assigns and designees. 7.2 California Law & Venue. This Agreement and any dispute or controversy relating to this Agreement, shall in all respects be construed, interpreted, enforced and governed by the laws of the State of California. Venue and jurisdiction with respect to any action, claim or other proceeding, including for equitable relief, arising under or in relation to this Agreement shall be exclusively in the federal and/or state courts and/or arbitration tribunal, as applicable, located in the County of Los Angeles, State of California, West District, or the United States District Court located within the County of Los Angeles, State of California, Central District. 7.3 Attorneys' Fees. In the event of any dispute, action, proceeding or controversy regarding the existence, validity, interpretation, performance, enforcement, claimed breach or threatened breach of this Agreement, the prevailing party in any resulting arbitration proceeding and/or court proceeding shall be entitled to recover as an element of such Party's costs of suit, TB 11 JW CONFIDENTIAL-ATTORNEY'S EYES ONLY BOLLEA001304 and not as damages, all attorneys' fees, costs and expenses incurred or sustained by such prevailing Party in connection with such action, including, without limitation, legal fees and costs. 7.4 Waivers; Modification. This Agreement cannot be modified or changed except by written instrument signed by all of the Parties hereto. No waiver of any of the provisions of this Agreement shall be deemed to constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver. 7.5 Notice Provisions. Any notice, demand or request that one Party desires, or is required to give (including service of any subpoena, court pleadings, summons and/or complaint), to the other Party must be promptly communicated to the other Party by using their respective contact information below, by both (i) e-mail or facsimile; and (ii) telephone. Either Party may change his or her contact information by notifying the other Party of said change(s) pursuant to the applicable terms herein. 7.5.1 To TB as follows: clo David R. Houston 432 Court Street Reno, NV 89501 Tel. 775.786.4188 7.5.2 To JW. as follows: clo Keith M. Davidson, Esq. 8383 Wilshire Boulevard, Suite 510 Beverly Hills, CA 90211 tel. 323.658.5444 •-------{Formatted: Indent: Left: O" Ill Ill Ill TB 12 JW CONFIDENTIAL-ATTORNEY'S EYES ONLY BOLLEA001305 7.6 This Agreement may be executed with one or more separate counterparts, each of which, when so executed shall be deemed to be an original and, together shall constitute and be one and the same instrument. Any executed copies or signed counterparts of this Agreement, the Declaration, and any other documentation may be executed by scanned/printed pdf copies of signatures and/or facsimile signatures, which shall be deemed to have the same force and effect as if they were original signatures. IN WITNESS WHEREOF, by their signatures below, the Parties each have approved and executed this Agreement as of the effective date first set forth above. DATED: _____ , 2012 TARYN BOSTICK DATED: _____ TB ,2012 JOWALSH 13 JW CONFIDENTIAL-ATTORNEY'S EYES ONLY BOLLEA001306 ASSIGNMENT & TRANSFER OF COPYRIGHT For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, JO WALSH ("JW''), hereby irrevocably sells, transfers, assigns and conveys to TB ("TB"), throughout the universe and in perpetuity, the full, unencumbered and undivided interest in all of JW's right, title and interest (including, without limitation, all copyrights and all extensions and renewals of copyrights), of whatever kind or nature in and to the Images(s) any and all outtake photo images therefrom (the "Images") and any and all still photos (the "Photos") which capture or feature TB either with JW and/or individually (the Images and Photos and any and all portions thereof or related materials and negative are collectively herein referred to as the "Property" -- as further defined hereinbelow), including, without limitation, any and all derivative works and any portions or variations thereof, in any and all media and formats, whether or not such rights are now known, recognized or contemplated. The Property includes (in the broadest terms) any and all Images and still images that exist of TB either with JW and/or individually, which were captured or created or acquired in whole or in part by JW at any time prior to the date of this agreement. Said Property includes, but is not limited to, all Images and artistic renditions by TB, with on any medium. For the sake of clarification, the assignment herein includes each and every Images and artistic rendition, without limitation, that JW created or acquired (in whole, or in part with TB) as of the date of this assignment which captures or features TB; and is deemed effective as of the tinge and moment of creation of each of the Images and Photos and the Property and includes any subsequently created derivative works. This transfer and assignment of rights shall include, but not be limited to, all of the following rights: (a) all rights to register the copyright in the Property with the U.S. Copyright Office; (b) all of JW's consent to and rights to display, publish, disseminate or exploit the Images, Photos and/or Property in any territory of the world, in any and all media, and formats; (c) all domestic and international rights, including without limitation, all rights pursuant to any European Union directives and/or enabling or implementing legislation, laws or regulations; and (d) any and all other rights throughout the universe in perpetuity that JW now has or to which he may become entitled under existing or subsequently enacted United States law, any state law or any foreign laws. No right of any kind, nature or description is reserved by JW. JW hereby represents and warrants and states under penalty of perjury that JW has not heretofore granted or assigned or transferred, and will not hereafter grant or assign or transfer, any right, license, title or interest in or to the Images, Photos or any of the Property, or any portion thereof, to any person, firm, corporation or other entity other than by this instrument to TB. •-------{ Formatted: Indent: First line: O" This instrument may be executed via facsimile signatures and/or pdf electronic printed copy signatures, any of which shall have the same force and effect as if its were an original signature. __ By the signature below, this instrument is deemed approved and executed effective as of the day of 2012. JO WALSH TARYN BOSTICK TB 14 JW CONFIDENTIAL-ATTORNEY'S EYES ONLY BOLLEA001307 SETTLEMENT AGREEMENT AND MUTUAL RELEASE 1.0 THE PARTIES 1.1 This Settlement Agreement and Mutual Release (hereinafter, this "Agreement") is made and deemed effective as of the __ day ofNovember, 2012, by and between TARYN BOSTICK ("TB" a pseudonym whose true identity will be acknowledged on a Side Letter Agreement attached hereto as "EXHIBIT A"), on the one part, and JO WALSH, {JW), on the other part. This Agreement is entered into with reference to the facts and circumstances contained in the following recitals. 2.0 RECITALS 2.1 Prior to entering into this Agreement, JW came into possession of certain "Confidential Information" pertaining to TB which was filmed without TB' s consent or knowledge, as more fully defined below, some of which is in tangible form, which includes, but is not limited to certain videographic images depicting TB (collectively the "Property", each as more fully defined below but which all are included and attached hereto as Exhibit "B"). 2.2 JW claims that she has been damaged by TB's alleged actions related to this matter. TB denies any such claim. TB alleges that JW has threatened the selling, transferring, licensing, publicly disseminating and/or exploiting the Images and/or Property and/or other Confidential Information, all without the knowledge, consent or authorization of TB absent payment by TB in settlement and for purchase of all rights, title and interest in all video held by JW. The parties herein stipulate, understand and agree that public dissemination of information, true, accurate or not would without any doubt damage TB's business interests, reputation, personal relationships and ability to earn a living in the future. 2.3 Further, the parties hereto further stipulate that in the event of a breach or alleged breach by JW, the following defenses/mitigations shall be unavailable: (a) public figure; (b) newsworthiness; (c) Lack of Damage; (d) An allegation that TB was not grievously harmed by JW' s release of information. 2.4 TB desires to acquire, and JW desires to sell, transfer and tum-over to TB, any and all original, tangible copies of the Property, and any and all physical and intellectual property rights in and to all of the Property. As a condition of TB releasing any claims against JW related to this matter, JW agrees to sell and transfer to TB all of each of her rights in and to such Property. JW agrees to deliver each and every existing copy of all tangible Property to TB (and permanently delete any electronic copies that can not be transferred), and agrees that she shall not directly or indirectly disclose convey, transfer or assign Property or any Confidential Information to any Third Party, as more fully provided herein. It is the intention of the Parties that Confidential Information, as defined herein, 2.5 shall remain confidential as expressly provided herein below. The Parties expressly acknowledge, agree and understand that the Confidentiality provisions herein and the representations and warranties made by JW herein and the execution by her of the Assignment & Transfer of Copyright are at the essence of this Settlement Agreement and are a material inducement to TB' s entry into this Agreement, absent which TB would not enter into this Agreement. cw CONFIDENTIAL-ATTORNEY'S EYES ONLY BOLLEA001308 2.6 The Parties wish to avoid the time, expense, and inconvenience of potential litigation, and to resolve any and all disputes and potential legal claims which exist or may exist between them, as of the date of this Agreement, regarding the Claims against JW as relates to JW having allowed, whether intentionally, unintentionally or negligently, anyone to become aware of the existence of and content of the Property, to have gained possession of the Property, and to JW's having engaged in efforts to disclose, disseminate and/or commercially exploit the Images and/or Property and/or Confidential Information, and any harm suffered by TB therefrom. 2.7 These Recitals are essential, integral and material terms of this Agreement, and this Agreement shall be construed with respect thereto. The Parties enter into this Agreement in consideration of the promises, covenants and conditions set forth herein, and for good and valuable consideration, the receipt of which is hereby acknowledged. NOW, THEREFORE, the Parties adopt the foregoing recitals as a statement of their intent and in consideration of the promises and covenants contained herein, and further agree as follows: 3.0 SETTLEMENT TERMS 3.0.1.1 TB SHALL PAY TO JW $300,000.00 AS FOLLOWS: 3.0.1.1.1 $125,000.00 USD upon execution of this Agreement; 3.0.1.1.2 $75,000.00 USD on the Nine-Month anniversary of execution of this Agreement; and 3.0.1.1.3 $100,000.00 USD on the Fourteen-Month anniversary of execution of this Agreement; 3.1 Undertakings & Obligations by JW. JW will do each of the following by December 14, 2012: (a) JW shall execute this Agreement and return a signed copy to TB: (b) JW shall transfer and/or assign any and all rights in and to the Property to TB (as set forth herein below), and execute an Assignment & Transfer of Copyright, in the form attached hereto, and return a signed copy of same to TB's counsel; (c) JW shall deliver to TB every existing copy of all tangible Property at issue and originals. JW shall completely divest herself of any and all interest in the subject of dispute. JW shall transfer all physical, ownership and intellectual property rights to TB; (d) JW shall not, at any time from the date of this Agreement forward, directly or indirectly disclose or disseminate any of the Property or any Confidential Information (including that it exists, and/or confirming any rumors as to any such existence) to any third party, as more fully provided herein. 3.2 Transfer of Property Rights to TB. In further consideration for the promises, covenants and consideration herein, JW hereby transfers and conveys to TB all of JW's respective rights, title and interest in and to the Property, and any and all physical and intellectual property rights related thereto. Without limiting the generality of the foregoing, JW TBs hereby TB 2 CONFIDENTIAL-ATTORNEY'S EYES ONLY JW BOLLEA001309 sell, assign, and transfer to TB, her successors and assigns, throughout the universe in perpetuity, all of JW entire right, title, and interest (including, without limitation, all copyrights and all extensions and renewals of copyrights), of whatever kind or nature in and to the Property, without reservation, condition or limitation, whether or not such rights are now known, recognized or contemplated, and the complete, unconditional and unencumbered ownership and all possessory interest and rights in and to the Property, which includes, but is not limited to the originals, copies, negatives, prints, positive, proof sheets, CD-roms, DVD-roms, duplicates, outtake and the results of any other means of exhibiting, reproducing, storing, recording and/or archiving any of the Property or related material, together with all rights of action and claims for damages and benefits arising because of any infringement of the copyright to the Property, and assigns and releases to TB any and all other proprietary rights and usage rights JW may own or hold in the copyright and/or Property, or any other right in or to the Property. JW assigns and transfers to TB all of the rights herein granted, without reservation, condition or limitation, and agrees that JW reserves no right of any kind, nature or description related to the Property and contents therein. Notwithstanding the foregoing, if any of the rights herein granted are subject to termination under section 203 of the Copyright Act, or any similar provisions of the Act or subsequent amendments thereof, JW hereby agrees to re-grant such rights to TB immediately upon such termination. All rights granted herein or agreed to be granted hereunder shall vest in TB immediately and shall remain vested in perpetuity. TB shall have the right to freely assign, sell, transfer or destroy the Property as she desires. TB shall have the right to register sole copyright in and to any of the Property with the US Copyright Office. TB shall also have the right, in respect to the Property, to add to, subtract from, change, arrange, revise, adapt, into any and all form of expression or tangible communication, and the right to combine any of the Property with any other works of any kind and/or to create derivative works with any of the Property, and to do with it as she so deems. To the fullest extent allowable under the applicable law, JW shall irrevocably waive and assign to TB any of JW's so-called "moral rights" or "droit moral" (laws for the protection of copyrights outside of the United States), if any, or any similar rights under any principles oflaw which JW may now have or later have in the Property. With respect to and in furtherance of the above, JW agrees to and shall execute and deliver to TB an "Assignment & Transfer of Copyright", in the form attached hereto as Exhibit "A". 3.2.1 Notwithstanding the foregoing paragraph 3.2, and without in anyway limiting or diminishing from the full transfer and assignment of rights therein without reservation, the Parties understand the purpose of the transfer of rights is to provide TB the fullest possible ability and remedies to prevent and protect against any dissemination of the Property. 3.3 Delivery of the Property to TB. Concurrently upon execution of this Agreement, JW, as applicable, shall deliver to TB, by delivery to his counsel herein, all of the Property which is embodied in tangible form (all originals and duplicates), whether documents, canvasses, paper art, digital copies, letters, prints, electronic data, films, tapes, CD-Roms, DVD-Roms, Images recording tapes, photographs, negatives, originals, duplicates, contact sheets, audio recordings, Images recordings, magnetic data, computerized data, digital recordings, or other recorded medium or any other format of embodying information or data. Without limiting the generality of the foregoing, such tangible Property shall include all documents as defined by California Evidence Code §250 which contain any of the Property. JW represents and warrants that the materials delivered pursuant to the terms of this Paragraph 3 .3 comprise the totality of all existing originals and duplicates of all Property in any tangible form, whether within their possession, custody or control, and including otherwise (and that JW knows ofno other copies or TB 3 CONFIDENTIAL-ATTORNEY'S EYES ONLY JW BOLLEA001310 possible or potential copies not in JW's possession and control and delivered pursuant to this paragraph), and that upon such delivery to TB, JW shall not maintain possession, custody or control of any copy of all or any portion of any tangible Property. JW agrees they are the party that possessed the videos given or provided to Gawker, TMZ and other media outlets for publication. 3.3.1 This Agreement is conditioned on JW's compliance with each and every term of Paragraph 3 .3 and the personal verification by TB of the Images and that the Images are comprised of and captures the content previously represented to his counsel to exist and be captured therein (i.e., the clear and identifiable as to TB, high quality, graphic intimate content and physical relations between TB and unknown female(s)), all of which terms are essential and material. 4.0 CONFIDENTIALITY & REPRESENTATIONS & WARRANTIES. 4.1 Definition of Confidential Information. "Confidential Information" means and includes each and all of the following: (a) All intangible information pertaining to TB and/or his family and/or friends learned, obtained, or acquired by JW, including without limitation information contained in the property; (b) All intangible information pertaining to the existence and content of the Property; (i) JW's Representations & Warranties Regarding Prior Disclosures of Tangible Confidential Information · JW shall be responsible for any subsequent public disclosure of any of the Confidential Information (a) attributable directly to her any such future disclosure shall be deemed a breach of this Agreement by JW. 4.2 Representations & Warranties and Agreements. (a) Representations & Warranties and Agreements By TB. The following agreements, warranties and representations are made by TB as material inducements to JW to enter into this Agreement, and each Party acknowledges that she/he is executing this Agreement in reliance thereon: (b) TB warrants and represents that, as relates to or in connection with any of JW's attempts to sell, exploit and/or disseminate the Property prior to the date of this Agreement, TB and his counsel will refrain (i) from pursuing any civil action against JW, and/or (ii) absent a direct inquiry from law enforcement, from disclosing JW' s name to the authorities. Notwithstanding the foregoing, if TB is informed that or should or if it is believed that either of JW has possession, custody and/or control of any of the Property after the date of this Agreement and/or transferred any copies to any Third Party, and/or it is believed that any of JW, whether directly or indirectly, intends the release, use, display, dissemination, disclosure or exploitation, whether actual, threatened or rumored, of any for the Property, than TB and her counsel shall be entitled to, at TB's sole discretion, (i) contact the respective member of JW, including with legal TB 4 CONFIDENTIAL-ATTORNEY'S EYES ONLY JW BOLLEA001311 demands and related statements of liability and legal action, and/or (ii) advance a civil action against the respective member of JW, and/or (iii) disclose any of JW's name to the authorities. 4.2.2 Representations & Warranties and Agreements By JW. The following agreements, warranties and representations are made by JW as material inducements to TB to enter into this Agreement, without which TB would not enter into this Agreement and without which TB would not agree to pay any monies whatsoever hereunder, and with the express acknowledgment by that TB is executing this Agreement in reliance on the agreements, warranties, and representations herein which are at the essence of this Agreement, including, the following: (a) JW agrees and warrants and represents that JW will permanently cease and desist from any efforts to and/or attempting to and/or engaging in and/or arranging the use, License, distribution, dissemination or sale of any of the Confidential Information and/or Property, including the Images created by others, or of any other Images by; Heather Clem and Bubba Todd Clem. (b) JW agrees and warrants and represents that JW will permanently cease and desist from any posting or dissemination or display of the Confidential Information and/or Property, including the Images (including, but not limited to, to any media outlet, on any blog or posting board, on the Internet, or otherwise); (c) JW agrees and warrants and represents that JW will permanently cease and desist from using or disseminating or disclosing any information to any Third Persons (including, but not limited to, to any media outlet, on any blog or posting board, on the Internet, or otherwise) about any details of or as to the contents of the Confidential Information and/or Property, including the Images, and/or as to any other personal details of or about or pertaining to TB and/or her family and/or friends; (d) JW agrees and warrants and represents that JW will permanently cease and desist from and will not, at any time, make any use of or reference to the name, image or likeness of TB in any manner whatsoever, including without limitation, through any print or electronic media of any kind or nature for any purpose, including, but not limited to, on any websites; (e) JW agrees and warrants and represents that any and all existing copies of the Images and any have been turned over and provided to counsel; and JW further warrants and represents that the only copy of the Images that JW knows of to have ever existed, at any time, has been turned over to TB's counsel pursuant to this Agreement, and the Images and any Property has never been transferred to or existed in any other form, including not in electronic form, nor on any computer, or electronic device and other storage media. JW agrees and warrants they will contact all media outlets with whom they have provided images and request a cease and desist as to their publication; (f) JW warrants and represents that JW has not provided any copies, whether hard-copy or electronic copies, of the Property to anyone other than her counsel; (g) JW warrants and represents that the information JW is obligated to provide pursuant to the terms herein will be complete and truthful; TB 5 CONFIDENTIAL-ATTORNEY'S EYES ONLY JW BOLLEA001312 (h) JW warrants and represents that JW has not knowingly omitted or withheld any information that JW is obligated to provide pursuant to the terms herein; (i) JW warrants and represents that JW has not assigned nor transferred, either in whole or in part, any purported rights in or to the Images and/or any Property to any other person or entity, other than to TB pursuant to this Agreement. 4.2.3 Agreements By JW Not to Disclose/Use Confidential Information and Not to Disparage TB. As further material inducements for TB to enter into this Agreement, JW agrees, represents and warrants that JW shall not directly or indirectly, verbally or otherwise, publish, disseminate, disclose, post or cause to be published, disseminated, disclosed, or posted (herein "disclose"}, any Confidential Information to any person, group, firm or entity whatsoever, including, but not limited to, family members, friends, associates, journalists, media organizations, newspapers, magazines, publications, television or radio stations, publishers, databases, biogs, websites, posting boards, and any other enterprise involved in the print, wire or electronic media, including individuals working directly or indirectly for, or on behalf of, any of said persons or entities ("Third Parties" and/or Third Party"). In no event shall any of JW be relieved of such party's confidentiality obligations herein by virtue of any breach or alleged breach of this Agreement. In no event shall any dispute in connection with this Agreement relieve any of JW from JW's confidentiality obligations arising pursuant to this Agreement, and any disclosure of Confidential Information in connection with any such proceeding or dispute shall·constitute a breach of this Agreement, and JW shall use JW' s best efforts to prevent the unauthorized disclosure of Confidential Information in connection with any such proceeding or dispute. 4.2.4 Any direct or indirect disclosure of Confidential Information to any Third Party by JW, her representatives, heirs, agents, employees, attorneys, transferors, transferees, successors or assigns, and/or any friend of any of JW (collectively "JW Group"), after the date of this Agreement, shall be deemed a disclosure by JW in breach of the terms of this Agreement, entitling TB to all rights and remedies set forth herein. 4.2.5 JW hereby irrevocably agrees and covenants that JW shall not, directly or indirectly, publicly disparage TB, nor write, publish, cause to be published, or authorize, consult about or with or otherwise be involved in the writing, publication, broadcast, transmission or dissemination of any book, memoir, letter, story, photograph, film, script, Images, interview, article, essay, biography, diary, journal, documentary, or other written, oral, digital or visual account or description or depiction of any kind whatsoever whether fictionalized or not, about TB or her family, whether truthful, laudatory, defamatory, disparaging, deprecating or neutral. JW further warrants and represents that JW has not and will not enter into any written or oral agreement with any third party purportedly requiring or obligating JW to do so. 4.2.6 Agreement By TB Not to Disparage JW. TB hereby agrees and covenants that she shall not, directly or indirectly, publicly disparage JW, nor write, publish, cause to be published, or authorize, consult about or with or otherwise be involved in the writing, publication, broadcast, transmission or dissemination of any book, memoir, letter, story, photograph, film, script, Images, interview, article, essay, biography, diary, journal, documentary, or other written, oral, digital or visual account or description or depiction of any kind whatsoever whether fictionalized or not, about JW's involvement in or connection with (prior to the date of this Agreement), actual or alleged, any efforts to sell, license and/or any other exploitation of the Images and/or Property. TB 6 CONFIDENTIAL-ATTORNEY'S EYES ONLY JW BOLLEA001313 4.3 Disclosure Of Confidential Information Is Prohibited: JW recognizes and agrees that substantial effort and expense have been dedicated to limit the efforts of the press, other media, and the public to learn of personal and business affairs involving TB. JW further acknowledges that any future disclosure of Confidential Information to any Third Party would constitute a serious and material breach of the terms of this Agreement, and shall constitute a breach of trust and confidence, invasion of privacy, and a misappropriation of exclusive property rights, and may also constitute fraud and deceit. Some of the Confidential Information may also constitutes and includes proprietary business information and trade secrets which have independent economic value. JW acknowledges that any unauthorized use, dissemination or disclosure of Confidential Information, or the fabrication and dissemination of false and/or misleading information, about TB, would result in irreparable injury to TB, and would be injurious to a reasonable person, and/or would constitute an injurious violation of the right of privacy or publicity, and/or would be injurious to TB's business, profession, person and/or career. JW acknowledges TB's substantial and valuable property rights and other proprietary interests in the exclusive possession, ownership and use of Confidential Information, and recognizes and acknowledges that such Confidential Information is a proprietary, valuable, special and unique asset which belongs to TB and to which the JW has no claim of ownership or other interest. 4.3.1 Disclosures Permitted By JW. Notwithstanding the foregoing, JW shall only be permitted to disclose Confidential Information to another person or entity only if compelled to do so by valid legal process, including without limitation a subpoena duces tecum or similar legal compulsion, provided that JW shall not make any such disclosure unless JW has first provided TB with notice of such order or legal process not less than ten (10) days in advance of the required date of disclosure pursuant to the Written Notice provisions set forth hereinbelow, providing TB with an opportunity to intervene and with full and complete cooperation should she choose to oppose such disclosure. 5.0 REMEDIES 5.1 TB's Remedies for Breach of Agreement. Each breach or threatened breach (e.g., conduct by JW reflecting that said person· intends to breach the Agreement), including without limitation by breach of any representation or warranty, by failing to deliver to TB all tangible Property as required, by the disclosure or threatened disclosure of any Confidential Information to any Third Party by JW (herein "Prohibited Communication"), or otherwise, shall render JW liable to TB for any and all damages and injuries incurred as a result thereof, including but not limited to the following, all of which rights and remedies shall be cumulative: 5.1.1 Disgorgement of Monies: In the event an Arbitrator determines there has been a breach or threatened breach of this Agreement by JW, JW shall be obligated to account to, and to disgorge and tum over to TB any and all monies, profits, or other consideration, or benefits, which JW, or anyone on JW's behalf or at JW's direction, directly or indirectly derive from any disclosure or exploitation of any of the Confidential Information; and 5.1.2 Liquidated Damages: JW agrees that any material breach or violation of this Agreement by any of JW individually or the JW Group by his/their unauthorized disclosure of any of the Confidential Information (as defined in paragraphs 4.l(a), (b), (c), and (d)) to any Third Party, and/or any unauthorized exploitation or prohibited use of the same, and/or by the breach of and/or by any false representations and warranties set forth in this Agreement, and/or any public disparagement of TB by any of JW (collectively, the "LD Breach Terms"), shall TB 7 CONFIDENTIAL-ATTORNEY'S EYES ONLY JW BOLLEA001314 result in substantial damages and injury to TB, the precise amount of which would be extremely difficult or impracticable to determine, even after the Parties have made a reasonable endeavor to estimate fair compensation for such potential losses and damages to TB. Therefore, in addition to disgorgement of the full amount of all monies or other consideration pursuant to paragraph 5.1.2, in the event an Arbitrator determines there has been a breach of the LD Breach Terms of this Agreement by JW individually or the JW Group, JW shall also be obligated to pay, and agree to pay to TB the sum of Six Hundred Thousand Dollars ($600,000) as a reasonable and fair amount of liquidated damages to compensate TB for any loss or damage resulting from each breach. The Parties agree that such sum bears a reasonable and proximate relationship to the actual damages which TB will or might suffer from each breach of the terms of this Agreement and that this amount is not a penalty. Alternatively, at TB's sole discretion, TB may seek to recover actual damages proximately caused by each such breach, according to proof. Any other breaches not a LD Breach Terms shall be subject to a claim for actual damages according to proof; and 5 .1.3 Injunctive Relief. JW acknowledges and agrees that any unauthorized disclosure to Third Parties of any Confidential Information will cause irreparable harm to TB, which damages and injuries will most likely not be measurable or susceptible to calculation. JW and further acknowledges and agrees that any breach or threatened breach of this Agreement due to the unauthorized disclosure or threatened disclosure by JW to Third Parties, of any Confidential Information shall entitle TB to immediately obtain, either from the Arbitrator or from the Los Angeles Superior Court and/or other court of competent jurisdiction, an ex parte issuance of a restraining order and preliminary injunction (herein "Injunctive Relief') without advance notice to any of JW, preventing the disclosure or any further disclosure of Confidential Information protected by the terms hereof, pending the decision of the Arbitrator or Court. The Parties further acknowledge and agree that in connection with any such proceeding, any Party may obtain from the Court or Arbitrator on an ex parte application or noticed motion without opposition, an order sealing the file in any such proceeding, and the Parties stipulate to the factual and legal basis for issuance of an order sealing the file in any such proceedings. The rights and remedies set forth in this Injunctive Relief Section are without prejudice to any other rights or remedies, legal or equitable, that the Parties may have as a result of any breach of this Agreement. 5.2 Dispute Resolution. In recognition of the mutual benefits to TB and JW of a voluntary system of alternative dispute resolution which involves binding confidential arbitration of all disputes which may arise between them, it is their intention and agreement that any and all claims or controversies arising between TB on the one hand, and JW on the other hand, shall be resolved by binding confidential Arbitration to the greatest extent permitted by law. Arbitration shall take place before JAMS ENDISPUTE ("JAMS") pursuant to JAMS Comprehensive Arbitration Rules and Procedures (including Interim Measures) ("JAMS Rules") and California law, or before ACTION DISPUTE RESOLUTION SERVICES ("ADRS") pursuant to the ADRS Rules (including Interim Measures) and California law (whichever the claimant elects upon filing an arbitration), in Los Angeles, California, and will be heard and decided by a sole, neutral arbitrator ("Arbitrator") selected either by agreement of the Parties, or if the Parties are unable to agree, then selected under the Rules of the selected arbitration service. The costs and fees associated with any Arbitrator and/or Arbitration service shall be split equally among the parties to any such dispute. The Parties shall have the right to conduct discovery in accordance with the California Code of Civil Procedure Section 1283.05 et. seq. and the written discovery requests and results of discovery shall be deemed to constitute Confidential Information. The TB 8 CONFIDENTIAL-ATTORNEY'S EYES ONLY JW BOLLEA001315 Arbitrator shall have the right to impose all legal and equitable remedies that would be available to any Party before any governmental dispute resolution forum or court of competent jurisdiction, including without limitation temporary, preliminary and permanent injunctive relief, compensatory damages, liquidated damages, accounting, disgorgement, specific performance, attorneys fees and costs, and punitive damages. It is understood and agreed that each of the Parties shall bear his/its own attorneys' fees, expert fees, consulting fees, and other litigation costs (if any) ordinarily associated with legal proceedings taking place in a judicial forum, subject to the Arbitrator's reassessment in favor of the prevailing party to the extent permitted by California law. Each of the Parties understands, acknowledges and agrees that by agreeing to arbitration as provided herein, each of the Parties is giving up any right that he/she/it may have to a trial by judge or jury with regard to the matters which are required to be submitted to mandatory and binding Arbitration pursuant to the terms hereof. Each of the Parties further understands, acknowledges and agrees that there is no right to an appeal or a review of an Arbitrator's award as there would be a right of appeal or review of a judge or jury's decision. 6.0 MUTUAL RELEASES 6.1 Except for the rights and obligations of the Parties set forth in this Agreement, TB, for herself, and each of her representatives, agents, assigns, heirs, partners, companies, affiliated companies, employees, insurers and attorneys, absolutely and forever releases and discharges JW, individually, and all of JW's heirs, and JW's attorneys, and each of them ("TBJW Releasees"), of and from any and all claims, demands, damages, debts, liabilities, accounts, reckonings, obligations, costs (including attorney's fees), expenses, liens, actions and causes of actions of every kind and nature whatsoever, whether known or unknown, from the beginning of time to the effective date of this Agreement, including without limitation any and all matters, facts, claims and/or defenses asserted or which could have been asserted in the Matter, or which could have been asserted in any other legal action or proceeding, except as may be provided herein (the ''TB-JW Released Claims"). Notwithstanding any of the foregoing, for clarity, the operators of any website or media outlet or photo agency, and anyone else who obtained from or who JW gave or transferred to a copy of the Photos and/or Images and/~r Property are not included and expressly omitted from the TB-JW Releasees and TB-JW Released Claims. 6.2 Except for the rights and obligations of the Parties set forth in this Agreement, JW, for themselves, and JW's representatives, agents, assigns, heirs, partners, companies, affiliated companies, employees, insurers and attorneys, absolutely and forever release and discharge TB, individually, and each of her representatives, agents, assigns, heirs, partners, companies, affiliated companies, subsidiaries, employees, attorneys, successors, insurers, and each of them ("TB Releasees"), of and from any and all claims, demands, damages, debts, liabilities, accounts, reckonings, obligations, costs (including attorney's fees), expenses, liens, actions and causes of actions of every kind and nature whatsoever, whether known or unknown, from the beginning of time to the date of this Agreement, including without limitation any and all matters, facts, claims and/or defenses asserted or which could have been asserted in the Action, or which could have been asserted in any other legal action or proceeding (the "JW Released Claims"). 6.3 The subject matter referred to in paragraphs 6.1 and 6.2, above (i.e., the TB-JW Released Claims and JW Released Claims), are collectively referred to as the "Released Matters." TB 9 CONFIDENTIAL-ATTORNEY'S EYES ONLY JW BOLLEA001316 6.4 The Parties hereto, and each of them, hereby warrant, represent and agree that each of them is fully aware of §1542 of the Civil Code of the State of California, which provides as follows: "A general release TBs not extend to claims which the creditor TBs not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." The Parties, and each of them, voluntarily waive the provisions of California Civil Code § 1542, and any other similar federal and state law as to any and all claims, demands, causes of action, or charges of every kind and nature whatsoever, whether known or unknown, suspected or unsuspected. 6.5 Each of the Parties hereto acknowledges and agrees that this Agreement constitutes a settlement and compromise of claims and defenses in dispute, and shall not be construed in any fashion as an admission of liability by any party hereto. 7.0 CONFIDENTIALITY OF THIS AGREEMENT The Parties, respectively, shall not to disclose the terms of this Agreement, either directly or indirectly, to the media or to anyone else other than their respective attorneys and representatives and/or as may be required by law. JW may not comment or make any press releases or otherwise discuss the resolution of the subject of this Agreement. MISCELLANEOUS TERMS 7 .1 Entire Agreement. This Agreement constitutes the entire agreement and understanding concerning the Released Matters hereof between the Parties hereto and supersedes any and all prior negotiations and proposed agreement and/or agreements, written and/or oral, between the Parties. Each of the Parties hereto acknowledges that neither they, nor any other party, nor any agent or attorney of any other party has made any promise, representation, or warranty whatsoever, expressed or implied, written or oral, which is not contained herein, concerning the subject matter hereof, to induce it to execute this Agreement, and each of the Parties hereto acknowledges that she/he has not executed this Agreement in reliance on any promise, representation, and/or warranty not contained herein. This Agreement shall be binding on and inure to the benefit of the Parties, the Releasees, and each of their respective successors and assigns and designees. 7 .2 California Law & Venue. This Agreement and any dispute or controversy relating to this Agreement, shall in all respects be construed, interpreted, enforced and governed by the laws of the State of California. Venue and jurisdiction with respect to any action, claim or other proceeding, including for equitable relief, arising under or in relation to this Agreement shall be exclusively in the federal and/or state courts and/or arbitration tribunal, as applicable, located in the County of Los Angeles, State of California, West District, or the United States District Court located within the County of Los Angeles, State of California, Central District. 7 .3 Attorneys' Fees. In the event of any dispute, action, proceeding or controversy regarding the existence, validity, interpretation, performance, enforcement, claimed breach or threatened breach of this Agreement, the prevailing party in any resulting arbitration proceeding and/or court proceeding shall be entitled to recover as an element of such Party's costs of suit, TB 10 CONFIDENTIAL-ATTORNEY'S EYES ONLY JW BOLLEA001317 and not as damages, all attorneys' fees, costs and expenses incurred or sustained by such prevailing Party in connection with such action, including, without limitation, legal fees and costs. 7.4 Waivers; Modification. This Agreement cannot be modified or changed except by written instrument signed by all of the Parties hereto. No waiver of any of the provisions of this Agreement shall be deemed to constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver. 7.5 Notice Provisions. Any notice, demand or request that one Party desires, or is required to give (including service of any subpoena, court pleadings, summons and/or complaint), to the other Party must be promptly communicated to the other Party by using their respective contact information below, by both (i) e-mail or facsimile; and (ii) telephone. Either Party may change his or her contact information by notifying the other Party of said change(s) pursuant to the applicable terms herein. 7.5.1 To TB as follows: c/o David R. Houston 432 Court Street Reno, NV 89501 Tel. 775.786.4188 7.5.2 To JW, as follows: c/o Keith M. Davidson, Esq. 8383 Wilshire Boulevard, Suite 510 Beverly Hills, CA 90211 tel. 323.658.5444 7.6 This Agreement may be executed with one or more separate counterparts, each of which, when so executed shall be deemed to be an original and, together shall constitute and be one and the same instrument. Any executed copies or signed counterparts of this Agreement, the Declaration, and any other documentation may be executed by scanned/printed pdf copies of signatures and/or facsimile signatures, which shall be deemed to have the same force and effect as if they were original signatures. IN WITNESS WHEREOF, by their signatures below, the Parties each have approved and executed this Agreement as of the effective date first set forth above. DATED: ------ , 2012 DATED: -----~ 2012 TB TARYN BOSTICK JO WALSH 11 CONFIDENTIAL-ATTORNEY'S EYES ONLY JW BOLLEA001318 ASSIGNMENT & TRANSFER OF COPYRIGHT For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, JO WALSH ("JW"}, hereby irrevocably sells, transfers, assigns and conveys to TB ("TB"}, throughout the universe and in perpetuity, the full, unencumbered and undivided interest in all of JW's right, title and interest (including, without limitation, all copyrights and all extensions and renewals of copyrights), of whatever kind or nature in and to the Images(s) any and all outtake photo images therefrom (the "Images") and any and all still photos (the "Photos") which capture or feature TB either with JW and/or individually (the Images and Photos and any and all portions thereof or related materials and negative are collectively herein referred to as the "Property" -- as further defined hereinbelow}, including, without limitation, any and all derivative works and any portions or variations thereof, in any and all media and formats, whether or not such rights are now known, recognized or contemplated. The Property includes (in the broadest terms) any and all Images and still images that exist of TB either with JW and/or individually, which were captured or created or acquired in whole or in part by JW at any time prior to the date of this agreement. Said Property includes, but is not limited to, all Images and artistic renditions by TB, with on any medium. For the sake of clarification, the assignment herein includes each and every Images and artistic rendition, without limitation, that JW created or acquired (in whole, or in part with TB) as of the date of this assignment which captures or features TB; and is deemed effective as of the tinge and moment of creation of each of the Images and Photos and the Property and includes any subsequently created derivative works. This transfer and assignment of rights shall include, but not be limited to, all of the following rights: (a) all rights to register the copyright in the Property with the U.S. Copyright Office; (b) all of JW's consent to and rights to display, publish, disseminate or exploit the Images, Photos and/or Property in any territory of the world, in any and all media, and formats; (c) all domestic and international rights, including without limitation, all rights pursuant to any European Union directives and/or enabling or implementing legislation, laws or regulations; and (d) any and all other rights throughout the universe in perpetuity that JW now has or to which he may become entitled under existing or subsequently enacted United States law, any state law or any foreign laws. No right of any kind, nature or description is reserved by JW. JW hereby represents and warrants and states under penalty of perjury that JW has not heretofore granted or assigned or transferred, and will not hereafter grant or assign or transfer, any right, license, title or interest in or to the Images, Photos or any of the Property, or any portion thereof, to any person, firm, corporation or other entity other than by this instrument to TB. This instrument may be executed via facsimile signatures and/or pdf electronic printed copy signatures, any of which shall have the same force and effect as if its were an original signature. __ By the signature below, this instrument is deemed approved and executed effective as of the day of ,2012. JO WALSH TARYN BOSTICK 'l'B 12 CONFIDENTIAL-ATTORNEY'S EYES ONLY JW BOLLEA001319 Filing # 30300321 E-Filed 07/30/2015 03:28:41 PM EXHIBIT 56-C to the CONFIDENTIAL DECLARATION OF GREGG D. THOMAS IN SUPPORT OF PLAINTIFFS’ OBJECTIONS 183 IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA CIVIL DIVISION TERRY GENE BOLLEA, professionally known as HULK HOGAN, Plaintiff, Case No. vs. HEATHER GAWKER MEDIA, LLC, aka GAWKER MEDIA, et al., Defendants. CONTINUED VIDEOTAPED DEPOSITION OE: BUBBA THE LOVE SPONGE CLEM DATE: March 3, 2014 TIME: 3:21 p.m. to 6:02 p.m. PLACE: Thomas LoCicero, P.L. 601 South Boulevard Tampa, Florida PURSUANT TO: Notice by counsel for Defendants for purposes of discovery, use at trial or such other purposes as are permitted under the Florida Rules of Civil Procedure REPORTED BY: Aaron T. Perkins, RPR Notary Public, State of Florida at Large Volume 2 Pages 183 to 345 Riesdorph Reporting Group, Inc. (813) 222-8963 184 APPEARANCES: CHARLES J. HARDER, ESOUIRE KIMBERLINA N. MCKINNEY, ESQUIRE Harder Mirell Abrams, LLP 1925 Century Park East Suite 800 Los Angeles, California 90067 and KENNETH G. TURKEL, ESOUIRE Bajo Cuva Cohen Turkel, P.A. 100 North Tampa Street Suite 1900 Tampa, Florida 33602 and DAVID R. HOUSTON, ESQUIRE Law Office of David R. Houston 432 Court Street Reno, Nevada 89501 Attorneys for Plaintiff CONTINUED: Riesdorph Reporting Group, Inc. (813) 222-8963 185 APPEARANCES CONTINUED AS FOLLOWS: MICHAEL BERRY, ESQUIRE PAUL J. SAFIER, ESQUIRE Levine Sullivan Koch Schulz, LLP 1760 Market Street Suite 1001 Philadelphia, PA 19103 and SETH D. BERLIN, ESQUIRE Levine Sullivan Koch Schulz, LLP 1899 Street, N.W. Suite 200 Washington, D.C. 20036 and RACHEL E. FUGATE, ESQUIRE Thomas Locicero, PL 601 South Boulevard Tampa, Florida 33606 and HEATHER L. DIETRICK, ESQUIRE General Counsel Gawker Media 210 Elizabeth Street Third Floor New York, New York 10012 Attorneys for Defendant Gawker Media, LLC, et al. CONTINUED: Riesdorph Reporting Group, Inc. (813) 222-8963 186 MICHAEL GOLD, ESOUIRE Barry A. Cohen Law Group 201 East Kennedy Boulevard Suite 1000 Tampa, Florida 33602 Attorney for Defendant Heather Cole (Clem) JOSEPH F. DIACO, JR., ESQUIRE Adams Diaco, P.A. 101 East Kennedy Boulevard Suite 2175 Tampa, Florida 33602 Attorney for Bubba the Love Sponge Clem ALSO PRESENT: Honorable James Case Mike Byrd, videographer Terry Gene Bollea Riesdorph Reporting Group, Inc. (813) 222-8963 214 recordings could come to? A. All four cameras went to there. Q. Was this recording device ever kept anywhere other than the A. No. Q. spot you marked? A. No. Q. You talked about you talked about how you could get images off of the recording device. Did it have a DVD burner on it? How how would you do that? A. I had a DVD burner, because I do audible and a lot of those things. I have a DVD burner that if I had an instance and I wanted to download something I would bring. Q. And so you could just plug it right into the A. Yes. Q. recording device? A. Yes. Q. How many times did you burn a DVD off of the recording device? A. The best of my knowledge, three or four. Q. Tell me what each of those instances were. A. One instance is I wasn't successful. I some kids had egged my house, and I wasn't able to Riesdorph Reporting Group, Inc. (813) 222-8963 215 get they didn't come close enough to the front door. Another instance is I had a pool guy in the back area, I felt as if stole some stuff. I, again, I didn't captivate that either. Another instance was actually my hot water heater broke in the in the middle of the night, and I did get that footage from the garage, and then Heather and Mr. Bollea's excursion. Q. And when did the house egging happen? A. Oh, I don't years, years ago. I don't know what day. Q. Prior? A. It was, obviously, in Halloween. It was probably early November, late October, but I can't tell you what year. Q. Was that before or after the Hulk and Heather's A. Before. Q. How about the pool guy? A. Before. Q. And the hot water heater? A. Before. Any other times that you downloaded? 20 I can't remember of any, no. I can't specifically recall. Those are the four that stick out. Riesdorph Reporting Group, Inc. (813) 222-8963 very private dad who whose family means very much a lot to him and who doesn't necessarily enjoy drama or or any type of fame other than just to do his best. Q. Well, how how is that different than the Hulk Hogan character? A. Well, when Mr. Mr. Hogan is in the four corners of a wrestling ring, there is a time to be Hulk Hogan and there is a time to be Terry Bollea. His closest friends, his ex?wife, probably his current wife, call him Terry. They don't call him Hulk. They call him Terry. He's Terry. When he's not wrestling, he's Terry. He doesn't if he was full of himself and he wanted to be Hulk Hogan, he would tell you to make sure you call me Hogan or Hulk. I never saw that. People that knew him as Terry called him Terry. And that's how that's how you could differentiate or how people could differentiate whether he's the camera is on or off, per se, with regards to working for the wrestling industry or the entertainment business. Q. And what did you call him? A. Both. Terry and Hulk, I mean or Hogan or Hootie. His nickname was Hootie to me, just kind of a term of endearment, Hootie, kind of a play on words. Q. And how did that come about? Riesdorph Reporting Group, Inc. (813) 222-8963 Well, no. I'm just curious. A. It's just a play on words. It's just a big contraceptive, walking thing, you know. I don't know. It's just a play on words, Bubba the Love Sponge. It doesn't really mean anything. Q. But out of all the things you could have picked, how did you pick that one? A. I don't know, buddy. I don't know. I don't know. Q. Does anybody still call you Todd? A. No. Q. When you were married to Heather, did she take the name Love Sponge Clem? A. Uh?huh (Indicates affirmatively). Q. Did did Hulk know that you had cameras in your house? A. No. Q. Were there cameras in the house when you lived there? A. Yes. In those areas, yes. Q. In the four areas we talked about earlier? A. Yes. Q. Did you ever discuss the cameras with him? A. No. 10 Did you ever point them out to him? Riesdorph Reporting Group, Inc. (813) 222-8963 When he lived with you, was he ever in your bedroom? A. He may have. I mean, I specifically remember one let me let me let me retract that. I think there was one particular Thanksgiving that he came over to to hang out with us, and we were watching a movie. All of us together were watching a movie in my bedroom, and so I that's the one particular time I remember. But I don't think that that was certainly not during the time he lived with me. But he had he could have very well been in my bedroom when he lived with me, but I can't give you any instances per se. Q. When you say that all of us were in the bedroom watching a movieTyler, Julia, Heather, Terry, maybe my sister. I forget what was on, maybe it might what was that movie with James Cameron, the special? Avatar? It might have been Avatar, I think, maybe. Q. Okay. And just to clarify, Julia is Heather's daughter? A. Heather's daughter, yes. Q. Okay. A. I think she's 12. I think she's 12 now. Riesdorph Reporting Group, Inc. (813) 222-8963 322 THE VIDEOGRAPHER: Off the record at 5:36. (A recess was taken.) THE VIDEOGRAPHER: On the record at 5:39. BY MR. BERRY: Q. had sex? A. that you mentioned this to Hulk, some point shortly thereafter, When was the first time that Heather and Hulk Well, the first and only time was that time guys have the videotape of. Do you recall what year that was? NO. And had they had any sexual contact before No, not not I don't think so. And so if I understand the chronology, you and then at some point at they had sex? Yes. And as far as you know, they only had sex one Yes. Do you know, just roughly, what year this NO. Do you know whether they ever had any sexual encounter at the radio station where you worked? Riesdorph Reporting Group, Inc. (813) 222-8963 just was a spontaneous?type thing. I don't I can't give you my mindset as to if I had that mindset or not. Q. Prior to them having sex, did you know that it was going to be recorded? A. No. Again, my testimony is I didn't have that mindset per se at the time. It was a spontaneous thing. And again, my room is under surveillance at all times, so I had a certain amount of days, however long my hard drive, whether it was 14 days or 18 days, to captivate that and to save that particular thing. So my testimony would be, no, it was not premeditated at the time that I asked him. I I would never do that. Q. Did Heather understand at that time that she was being filmed? MR. DIACO: Object to the form of the question. THE WITNESS: I don't know. I don't know. You might want to ask her. BY MR. BERRY: Q. Did you think that she knew she was being recorded? A. I would assume that she did. I would say the only person who didn't know would be Terry. Q. And when did was the first time that he Riesdorph Reporting Group, Inc. (813) 222-8963 343 MR. HARDER: Well, hopefully, it can be 30 days after I get the transcript. MR. BERRY: Right, right, right. That's what it MR. BERLIN: Yeah. Thirty days from the date of receiving the transcript. MR. BERRY: Yeah, yeah. Sorry. JUDGE CASE: All right. THE VIDEOGRAPHER: Off the record at 6:02. (Deposition concluded at 6:02 STIPULATION It is hereby stipulated and agreed upon by and among the attorneys present and the witness that reading and signing of the deposition by the witness is waived. Riesdorph Reporting Group, Inc. (813) 222-8963 344 CERTIFICATE OF OATH STATE OF FLORIDA COUNTY OF HILLSBOROUGH I, the undersigned authority, certify that BUBBA THE LOVE SPONGE CLEM, personally appeared before me and was duly sworn. WITNESS my hand and official seal this 14th day of March, 2014. ir.. Notary Public ate of Florida My Commission Expires: 2/27/2016 Commission No. EE173286 Riesdorph Reporting Group, Inc. (813) 222-8963 345 CERTIFICATE STATE OF FLORIDA COUNTY OF HILLSBOROUGH I, Aaron T. Perkins, Registered Professional Reporter, certify that I was authorized to and did stenographically report the deposition of BUBBA THE LOVE SPONGE that a review of the transcript was not requested; and that the transcript is a true and complete record of my stenographic notes. I further certify that I am not a relative, employee, attorney, or counsel of any of the parties, nor am I a relative or employee of any of the parties' attorney or counsel connected with the action, nor am I financially interested in the action. Dated this 14th day of March, 2014. Riesdorph Reporting Group, Inc. (813) 222-8963 346 IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA CIVIL DIVISION TERRY GENE BOLLEA, professionally known as HULK HOGAN, Plaintiff, Case No. vs. HEATHER GAWKER MEDIA, LLC, aka GAWKER MEDIA, et al., Defendants. CONTINUED VIDEOTAPED DEPOSITION OF: BUBBA THE LOVE SPONGE CLEM DATE: March 4, 2014 TIME: 12:07 p.m. to 3:10 p.m. PLACE: Thomas LoCicero, P.L. 601 South Boulevard Tampa, Florida PURSUANT TO: Notice by counsel for Defendants for purposes of discovery, use at trial or such other purposes as are permitted under the Florida Rules of Civil Procedure REPORTED BY: Aaron T. Perkins, RPR Notary Public, State of Florida at Large Volume 3 Pages 346 to 519 Riesdorph Reporting Group, Inc. (813) 222-8963 347 APPEARANCES: CHARLES J. HARDER, ESQUIRE Harder Mire11 Abrams, LLP 1925 Century Park East Suite 800 Los Angeles, California 90067 and KENNETH G. TURKEL, ESOUIRE Bajo Cuva Cohen Turkel, P.A. 100 North Tampa Street Suite 1900 Tampa, Florida 33602 and DAVID R. HOUSTON, ESOUIRE Law Office of David R. Houston 432 Court Street Reno, Nevada 89501 Attorneys for Plaintiff CONTINUED: Riesdorph Reporting Group, Inc. (813) 222-8963 348 APPEARANCES CONTINUED AS FOLLOWS: MICHAEL BERRY, ESQUIRE PAUL J. SAFIER, ESQUIRE Levine Sullivan Koch Schulz, LLP 1760 Market Street Suite 1001 Philadelphia, PA 19103 and SETH D. BERLIN, ESQUIRE Levine Sullivan Koch Schulz, LLP 1899 Street, N.W. Suite 200 Washington, D.C. 20036 and RACHEL E. FUGATE, ESQUIRE Thomas Locicero, PL 601 South Boulevard Tampa, Florida 33606 and HEATHER L. DIETRICK, ESQUIRE General Counsel Gawker Media 210 Elizabeth Street Third Floor New York, New York 10012 Attorneys for Defendant Gawker Media, LLC CONTINUED: Riesdorph Reporting Group, Inc. (813) 222-8963 349 MICHAEL GOLD, ESOUIRE Barry A. Cohen Law Group 201 East Kennedy Boulevard Suite 1000 Tampa, Florida 33602 Attorney for Defendant Heather Cole (Clem) JOSEPH F. DIACO, JR., ESQUIRE Adams Diaco, P.A. 101 East Kennedy Boulevard Suite 2175 Tampa, Florida Attorney for Bubba the Love Sponge Clem ALSO PRESENT: Honorable James Case Mike Byrd, videographer Terry Gene Bollea Riesdorph Reporting Group, Inc. (813) 222-8963 don't recall. I could have spoke to Mr. Houston. I have spoke to Mr. Houston on other matters, not with this tape, so Mr. Houston and I are friends. So I have spoke to Mr. Houston before. I don't necessarily know if it was about this matter or not, but I have spoke to Mr. Houston before. Q. But you don't ever recall talking to Mr. Houston about the sex tape? A. I don't recall. It could have happened, but I don't recall. Q. Okay. Do you recall whether you got in touch with Heather after the posting appeared on The Dirty? A. No. I don't recall if I have if I did or not. Q. To the best of your recollection, did you ever speak to her about it? A. I can't recall having a conversation with her. Q. Just around the timeframe of this April 19th posting on The Dirty, did you have any contact with law enforcement officials? A. Yes, I did. Well, no, I take that back. I met with the FBI in November of right after you guys released it in October, whatever that year is. I met with the FBI in November. It was like the second week Riesdorph Reporting Group, Inc. (813) 222-8963 third week it was before Thanksgiving, I met with them. Q. How did that come about? A. I met with the FBI. Q. Right. Did you call them up? A. Yes. Q. Why did you call them up? A. Well, I had something I needed I needed to tell them where I thought who took it. Q. Did anybody from the FBI contact you ahead of before that? A. It was all done through my attorneys, Mark O'Brien. So I don't know the logistics of who contacted who, but I met with the FBI in the presence of my agent, Tom Bean, a representative from Mr. Diaco's office, at Mark O'Brien's office. MR. DIACO: And, Judge, if I may interject an objection here. I wasn't present at that, and I assume that the content of those discussions with the FBI would be protected by some privilege, but I'm I'm just waging or trying to place that objection. I know there has been some argument about obtaining the FBI's file, and there has been some preliminary rulings on that, and so I just wanted Riesdorph Reporting Group, Inc. (813) 222-8963 raise whatever THE there is FBI, and the issue, and, clearly, we will abide by your ruling is. COURT: I think the argument was that if a privilege, it probably belongs to the it's theirs to assert if they choose to assert it. MR. THE MR. DIACO: Okay. COURT: I think it's fair game right now. DIACO: Okay. There is no one here from the FBI that is in a position to assert that privilege on behalf of the of the federal government, BY MR. BERRY: Q. THE And the meetingthat's why I'm raising it with you. COURT: Okay. just to kind of go back. The people in you were there? (Nods affirmatively). Mark O'Brien, YES. And NO. And firm there? A. Q. YES. Who who is a lawyer? he's not with Mr. Diaco's firm, right? He's got his own firm. then there was somebody from Mr. Diaco's was that? Riesdorph Reporting Group, Inc. (813) 222-8963 Stephen Diaco. Q. And then Tom Bean was there? A. Yes. Q. Who else was in the room? A. Two agents, two FBI agents. Q. Do you remember their names? A. No, I do not. Q. Do you remember where you met with them? A. I told you Mark O'Brien's conference room. Q. Oh, I apologize. How long did the meeting last? A. Probably an hour maybe an hour, hour and a half. Q. And tell me everything that you recall telling them. A. I just went through the chain of events with the tape, and the chain of custody, and who I believed took it. Q. So you told them that you recorded Mr. Hogan? A. Yes. Q. You told them that you did that without his knowledge? A. I I don't specifically know if we got into the logistics of the taping. I just know that I did speak to them about where I had it, and who I think Riesdorph Reporting Group, Inc. (813) 222-8963 404 took it, and how I think they took it, and who may have distributed it. That's the the majority of our conversations, as to who took it. They weren't as necessarily I can't recall getting into the dynamics as in?depth as I did with you. They were more about the theft of it. Q. And you don't recall discussing the recording of it at all? A. I do record I did talk about that. I just can't give you a recollection as to the exact verbiage that we used. I tried to give them a step?by?step thing, like I did with you. It was it was, in my opinion, probably very similar to what I told you. Q. Do you recall and what you ultimately told them was that you it was your belief that Matt Loyd had taken the tape? A. Yes. At that point, yes. Q. Was there anything substantively that you told the FBI that was different than what you testified about yesterday and today? A. I can't necessarily recall. Again, that was a couple years ago. So I can't recall if I found out stuff since then and been able to be more accurate But I based on my investigation of finding things. would assume that it was very close to what I spoke to Riesdorph Reporting Group, Inc. (813) 222-8963 405 you about, because I'm telling the truth. So the truth doesn't really variate that much, unless I've been able to find details out since my meeting with them. Q. Did you fill out any paperwork when you met with him? A. I don't know if I did or not. Q. Do you recall signing any documents while you were there? A. No. Q. Did you get any documents from them while you were there? A. We were given their business card and who we had met with. Q. But no other, like, paper documentsinto that meeting with any understanding about whether you could be prosecuted for a crime? A. No. I didn't I didn't I wouldn't call them to tell on myself. I was calling them to talk about we called the meeting to talk about who took it. I would have been, you know, not a I mean, I I'm not wouldn't if I'm under investigation, I mean, going to call the meeting. I was trying to give them my recollection of who I thought stole my property. Riesdorph Reporting Group, Inc. (813) 222-8963 Had you been assured by the FBI or anybody else from the federal government that you would not be prosecuted prior to that meeting? A. No. Q. Were you A. Not that I recall. I don't specifically remember that conversation. I wasn't worried about that. I was worried about who took it, and why they took it, and why would they do this to these people. Q. Sitting here today, from the time of that meeting until today, has anybody told you that you will not be prosecuted A. No. Q. for any crime in connection with this? A. No. I have heard all kinds of scuttlebutt that's happened in town, but I have not been I've not been given any assurances or anything. Q. Did Hulk know that you were going to meet with the A. No. I have not had a conversation with Terry at all since since this went down. I reached out to him a while back and then sent him a one?way text that I didn't get a response back, nor did I think I would. I just wanted to tell him that I was sorry. Q. Did his lawyers know that you were going to Riesdorph Reporting Group, Inc. (813) 222-8963 517 STIPULATION It is hereby stipulated and agreed upon by and among the attorneys present and the witness that reading and signing of the deposition by the witness is waived. Riesdorph Reporting Group, Inc. (813) 222-8963 518 CERTIFICATE OF OATH STATE OF FLORIDA COUNTY OF HILLSBOROUGH I, the undersigned authority, certify that BUBBA THE LOVE SPONGE CLEM, personally appeared before me and was duly sworn. WITNESS my hand and official seal this 15th day of March, 2014. Notary Public ate of Florida My Commission Expires: 2/27/2016 Commission No. EE173286 Riesdorph Reporting Group, Inc. (813) 222-8963 519 CERTIFICATE STATE OF FLORIDA COUNTY OF HILLSBOROUGH I, Aaron T. Perkins, Registered Professional Reporter, certify that I was authorized to and did stenographically report the deposition of BUBBA THE LOVE SPONGE that a review of the transcript was not requested; and that the transcript is a true and complete record of my stenographic notes. I further certify that I am not a relative, employee, attorney, or counsel of any of the parties, nor am I a relative or employee of any of the parties' attorney or counsel connected with the action, nor am I financially interested in the action. Dated this 15th day of March, 2014. Riesdorph Reporting Group, Inc. (813) 222-8963 Filing # 30300321 E-Filed 07/30/2015 03:28:41 PM EXHIBIT 57-C to the CONFIDENTIAL DECLARATION OF GREGG D. THOMAS IN SUPPORT OF PLAINTIFFS’ OBJECTIONS 0. t ~,..: FD-J40(R;;::i:~~..:;·: ;~---.,..---...~ · · ····-*--·-"··~-~~;-;:«:-11.=~:-File Number 96~-ff--i~3izii-l ..-.-,;p 1 · ·-·. , l__:)-~lf ·---~~C-= 2 Field Office Acquiring Evidence ---'-------------------- A:....:..-i1----"""{_:]--'-)~-------- Serial # of Originating Document -a..f Date Received --~'-+-4.,../~+i/,_..J __ Z. _______________ From _ -----------......,,.(N~a-me-o~f~Co-n~u1~bu-to-rl~ln~te-N~ie-we-e~)---------------- (Address) (CatyandState) ~------------------, b6 -1 By-..:1~/J:+-'-------------1--------------------b-7C -1 To Be Returned No ' D Yes ReceiptGiven D Yes No GrandJury Material- DisseminateOnly Pursu nt to Rule 6 (e) FederalRulesof CriminalProcedure D Yes FederalTaxpayerInformation(FTI) D Yes No No Title: Rckrcnce: ~------------,---------------~(Communication Enclosing Material) Description: ~-------------------~ b6 -2 -2 Originalnotesre interviewof b7C --- -- -- \um???dknagw I. WJ3V., 9306/ . ix. mmwwau ?thxUnww/ nu n. .I nm?JV/x/w/d/Cmu 0C All} ?57: Jierj #22: . 7X Uw?wux?dnvi ~02 Olav/w LAVA/umdmil +Ax?la/u r96 IKIUQ ?an/14C.AA/dm II 043 (Giueqc ace ?beka a; q?qrioUQEt? .. 7 It IQ MHWV Lk?sbml. Lining 4.91a1. neon/J . WJ 1. . 7 n14 ur.xV all} 1Ne\?mwco\ w. Duh mom {22% 38L Wham?; 1% 7W ?fA/p f? 555' j/Tt?z: 729d; In ?b??fi 32: 136?2? b7C-2 . .bcz/ 27L 5&3? cA ?aw/?Lu mm: AM Mae/w. .g 05 Ida?[?7 b6 QAL 1) b7C ?4 (lorCA? Wm?rav?g Klan-.0 ?wk a c! A W?s-Rwy \fan 0 .. 531? 2:23 1? ?5 (fa/6" ,Ir/l M?nmoq A 1" Ix" o. I dad/1 (all 0 00 gm), on. .. Ne? (Deon. m,?90/ 7L?me (77,11; LJV 9-9535 b6 -2 b7C -2 is)wa 104% 2?17;? -- my (pf/12f (A) (E: of?/ 1445;! if: ?5me KJ) TN o-ngc/o Mn??r %0 Hit?) . ?54,955 v. "?fch-a iblma? Ongn r71 - b6 -4 e?w?mhs?g /c ?4 M5 - 3Q (coma. Omen-Q. Maxi \I\Q\3cv ?c??vxm \ch4 0? {@453 men. wmagag,? "(mf?x?4l ?0 {Am? mil?1715015 son?.6 I _4 b7C -4 GAWKER-QBE b6 -4 b7C -4 - :f::>'$.~ed _ 'i'-3 • c-o.b6b7C -4-4__ _ t_ t_ ,.....__ ____~$,:\~,hf \C... -4~-- ~~~~~-H--W~~:2-~~~~~===:::::Z::=6:~!:!E~~=======k';f;d-~~~~--:~~b6 2- b7C -1 b7C -4 •' .. . ... b6 -4 -4- i~-.========,--L.--~~~~~J---l~~s;;.,;...:~-\:--=-'";?'~~~~~~:...i...'l,~-=-~-'-';....;...~~-b7C b6 f:.-~===:.\-4-\~~..i...;u_~~~~~~~~~~~-b7C -4 -4 - b6 J~~~~~-U~~~~~~~l-'4J~.C::.::::;L:;..~U-J.~~~~~~~~~~~~~~~--b7C -5 -5-- a Filing # 30302517 E-Filed 07/30/2015 03:46:38 PM EXHIBIT 59-C to the CONFIDENTIAL DECLARATION OF GREGG D. THOMAS IN SUPPORT OF PLAINTIFFS’ OBJECTIONS FD-1057 (Rev. 5-8-10) UNCLASSIFIED FEDERAL BUREAU Electronic Title: (U) Opening From: INVESTIGATION Communication EC Date: 10/16/2012 TAMPA TP-PRA Contact: Approved Drafted Case OF I__________ __. By: SSRA ... By: ID#: 9B-TP-2534791 (U)I _____ b6 -1, 2 b7C -1, 2 b7E -2 _ TERRY BOLLEA (VICTIM); EXTORTION - ALL OTHER NONAGGRAVATED THREATS Synopsis: (U) I Details: On October 3, 2012 Gawker Media released a one minute video on their website of a sex tape involving Terry Bollea (aka Hulk Hogan) and Heather Clem, former wife of local radio station host (aka ._____________ __.~. During multiple media appearances, Bollea denied knowledge of the original filming of the sex tapes and further denied consent to be filmed. Gawker Media has contested that Bollea has no reasonable expectation of privacy, refused to remove the video from their website and has refused to comply with a cease and desist letter. Further, the website TMZ reported that they transcribed the tape and camera, is heard saying words to the effect that if he ever wanted to retire, he had his retirement fund (referring to the sex tape). I I b6 -2 b7C -2 .__ _____ __.pn On October 15, 2012, after contacting local law enforcement, Bollea and his attorney David Houston made an in-person complaint the Tampa Division Pinellas Resident Agency (PRA). Bollea denied at any UNCLASSIFIED 1 UNCLASSIFIED Title: Re: (U) Opening 9B-TP-2534791, knowledge of Heather Clem .__ _____ ... Ii Houston EC 10/16/2012 the tapes as well to tape him during as denied the sex providing act. consent to[Jor advised PRA Agents that ni ti ally contacted hi.... __ o_n m __ s_e_v_e_r_a_l_o_c_c_a_s_i_o_n_s_b_e_t_w_e_e_n __ O_c_t_o_b_e ....... r t:::j' 10, 2012 through 2012. During these conversations and e-mail exchanges, stated that he represents the possessor of invo ving Bollea and Heather Clem.! ! additional sex tapes further stated that he was willing to negotiate a price for Bollea to purchase the copyrights of the tapes. Additionally,! !stated that Bollea used racial epitaphs in one of the tapes and, if released, would damage Bollea's career. When questioned by PRA Agents, Bollea stated he had sexual intercourse with Clem approximately three to four times but did know he was being filmed and did not consent to the filming. not boncurred with opening an On October 16, 2012 AUSA! extortion investigation into this incident. As such, it is requested that Tampa Division open a 9B Extortion investigation. This matter will Co-case Agent SA be assigned to Case Agent land SAi •• UNCLASSIFIED 2 b6 -2 b7C -2 b6 -1, 3 b7C -1, 3 (Rev. 5-8-10) - of 2 - Dateofentry 10/16/2012 DAVID HOUSTON, office number redacuxj cell phone number redaded MES interviewed at the Pinellas Resident Agency of the FBI. Also present during the interview was HOUSTON's client, TERRY BOLLEA. After being advised of the identity of the interviewing Agents and the nature of the interview, HOUSTON provided the following information: HOUSTON was asked to explain what law enforcement agencies he had spoken with prior to his visit to the FBI. HOUSTON advised since (hereinafter referred to also known as resided in Tierra Verde, FL as well as the sex act took place in Tierra Verde, FL, he had contacted the St. Petersburg Police Department (SPPD). b6 -2, 5 Prior to SPPD, HOUSTON had contacted the Clearwater Police Department b7c 5 (CPD). SPPD Major spoke with the State Attorney's Office and told HOUSTON that the filming of the sex act between BOLLEA and HEATHER CLEM was out of statute and a criminal investigation would not be initiated. HOUSTON was also encouraged to speak with the FBI. Agent Note: Interviewing Agents explained the jurisdiction of Tierra Verde and St. Petersburg and recommended that if needed, HOUSTON consult with the Pinellas Sheriff's Office as they have jurisdiction over Tierra Verde. Since GAWKER released the one minute of the BOLLEA sex tape, HOUSTON has been contacted by a number of outlets to includel an of the website thedirty.com; TMZ and others. has claimed that he has seen the sex tapes and has been helpful to ILNU (last name unknown) andl I from TMZ contacted HOUSTON soon after the one minute clip came out on GAWKER on October 3, HOUSTON that they transcribed the tape and after the sex act was over, BOLLEA leaves the b6 -2, 4 room. Once BOLLEA is into the room and made a comment, b7c 4 while laughing, to the effect of the tape being a retirement fund if ever needed. Following the conversation with and HOUSTON was contacted directly hi I attorney for Prior to phone call, was still denying that he was at all ehind the taping 10/15/2012 in Clearwater, Florida, United States (In Person) File# DatedI-afted 10/16/2012 by b6 ?1 HR: -1 This document contains neither recommendations nor conclusions of the FBI. It is the property of the FBI and is loaned to your agency; it and its contents are not to be distributed outside your agency. FD-302a (Rev. 05-08-10) UNCLASSIFIED//FOUO 9B-TP-2534791 Continuation ofFD- 302 of Interview of David of the sex act 1 not deny the taping. .______ __.!attorney-client HOUSTON was initially 2012. After exchanging stated whereby .-1-----.I Houston , On !stated to HOUSTON that! HOUSTON felt that this statement privilege. 10I15I2012 !would at violate~ , Page 2 of 2 ... t_h_a_t ___ p_o_i...,· nt, ! and b6 -2 b7C -2 I____ contacted via e-mail by .. __.! on October 10, !and HOUSTON spoke on the telephone e-mails,! to HOUS._T_O_N_t_h_a_t__.he was a! I that represented the possessors of additional sex tapes involving BOLLEA !further stated that he would negotiate with and HEATHER CLEM.! HOUSTON and BOLLEA for the purchase of the copyrights of the tapes. _____ __.!stated that it would have to "be worth his while" financially to sell the tapes. He also indicated to HOUSTON that negotiating in this way was his specialty. _. In a subsequent conversation between HOUSTON an~._ ___________ stated that he had reviewed the tapes and said one of the tapes contained ...! ____ __.!also racial epitaphs which could hurt BOLLEA's career if released claimed that the possessors of the tapes obtained them legally as they purchased a laptop which contained said images/tapes. HOUSTON set further and has not had additional contact conversation up for a conference call (HOUSTON provided e-mails which will with ..! __ ...-__ !since October 12, 2012. be kept in a lA folder in the file) Agent Note: Contained within statements from both BOLLEA and separate the statements. the lA are interview notes containing Houston. Separate 302's were written UNCLASSIFIED//FOUO to b6 -2 b7C -2 Jl t~.,,/,1 l ·:1 ~''tl ·~,..~.. . 76"'c=+'to::::.i::-5e:::r::-'!"'l1'l'",""'~"'0~1r-2r'll"g;momo~A""'l""'v!.--_J ·"·'-ejT'r'.h:7u;-;rs;:-;d:j.a::7y7", From: Sent: I RE:10.10.12Hogan I Matter "'"""\~,Jit ! wll! be available today after 12 Noon PST 10/1 Q/20123:28 PM Dea~ Please J be advised tis office represents Hulk Hogan, We are certainly distraught as to the tape being noton!y created, but as well leaked to Gawker.com ! am not certain you are aware, but Mr. BoUeahad absolutely no knowledge as to tn~fact he was being taped, and further has never given consent nor authOrizationfor any sort of production or d!strfbutionof the same. 1do not have any objectlon speaking with you, however wanted you to be aware of those facts in advance. \/ilhen ls a good time to call you? · Sincerely, Dav1dR Houston L.....- ___ ____Jlto b6 -4 b7C -4 Davki R. Houston, Esq, 432 Court Street Reno, NV 89501 775-786 ..4188 775-786-5091 FAX ,he l~!orm.;1;c,1 co-cte.jne~ ;.-.111;slrm,$rr,is,;i<;m may contlmina\,;,~, ~stnb~lkl11'" dupli,.,,tk:noi t~$ ,oo;,<<;t,t,iOll ,'.icmmwni®&~fli~ s,,icti1 proh;bit~. i! yru.1an, riat .:.ti<;Klt~nda~rnd_pl~n\,pl""-"' o:mt1c,<>s«r-,c corr,pliqu~"mar.ts,rnpns<>dby thtar2JO.,wa ,mom, iou ti,ai a~t U.S. fesdirsg any ~,.'«1,if,c<,:ty ~latel tlM>S/iitliffilp~nal~!>S ,••,dlSf lnt<,rnstRawmue C,)de:.or (2) p:,,m-;;En,;. at,achm"'nt$).,..-,k,.~s,:,the,wi$<> ir,~ ma.~6tfngo;r~'trnm#r1•:fa19to fH'lO'!naf p~f:!Yru,y rnmtersij~"jdre~ood h~tt:.'-:t), )"? L(_S,G J'f'O J 1 ~a/l .......... ,,,,,-------+ -.- , ·fPr ;crrtt" J!f{ From: Sent: To: Friday,October 12, 2012 11:34AM David Houston RE:Hulk Hogan Tape b6 -2, 4 b7C -2, 4 David, I have viewed all materials and am now able to spea~:more substantively\ Call at your convenience. PMn The ir1:fonnationin this ele<:m>nicmail message is confidential and for use of only the named recipient The infotmation may be prote.ctedby privilege, ·workproduct immunity or other applicable law. If you are not the imt~ndedredpien! the retention, disseminatio.n, rfatrlbntionor crpying ofthis .e-maHmessagefosttiCltlyprohibited, ff yoµ receive th is messagehi error please notify us immedfateiy or b;i e~maili1t! atl I From: David Houston[mJailto:dhouston@houstonatLaw.com] Sent: Wednesday, OctrJber10" 2012 2:36 PM To4 I b6 -2, 4 b7C -2, 4 Subject: RE: Hulk Hoganrape l wf!! get this to David and we can make a plan from there D I Davfd R, Houston, Esq. 1~ 432 Court Street Reno, NV S9501 775-786-4188 n5-786-5091 FAX ·rha. tr1fo.rm~~Jon 1?$~i,ge T~x A,t~•i,c.e; msctas'>Jf~: To t:5tiSiB'S compllan@ 1,ftthr~ql.Jir~menle. ~r~~os-ed OytOOlRS ~n~r c;rc~~er 230.,,~ i:rifom.~you ~,at -afiYU.S. f@:$ers: ia~ a..."lv~~ oontalfi~d It1 t:ii.S:o~mm.w1i<*~~:n1 (L~c!Utjiriga11'i aHii,.t;hmru1ts.i:_ ~~ss o1hsf'~is~ ·sf,~ttk:~~ly sti:!i~d..\i{S~not R"tt~d~d orw.ltta-:-1 to be uso::d1 ~t'!d t~rn1vt b~ r;~, t~ th*· µurpos~ of fi ~¥ohiir1~.Pf;b~'Dlties undar th~ (;rt~rnQ~Revanue Ca®~ or ~?J Pf\.>'mOUr:g, rna,;.:*.t~ng 1xrOO::H'nm~N9i~1~ k1 ~oott,"l)f pa vvrote: H)/10,'20122:30 Pf\.'! Mr. Houston is unaware of whom you might be. Could you please give us more infomiation as to what yoa need and/or have re. Hull<.Hogan tape. Thank you ~rely, ....,,.,.........,..........,......,... ............................................. ....J 0 David R. Ht1t1stor1,. isq. 432 Court Street Reno.,NV 8950 l 775~786-4188 775-,786-509'1FAX Th.einformation contained in this tnmsmissfonmay c:ontainprivileged and confidential information. H is intended only for the use of tlw perso:n{s)nanwd above, Jfyou are rmt the intcnde1ledevke. 2 10 sm ll:11 JJ J JW lJ&Q From: Sent: To: S,ifi~ject: ~W· Thursday, October 11, 2012 3:20 PM I Re: 10,1L12 Hogan I s· l\hankyouQavid,D . '.'tW ·;;::,~ On Thu, Oct 11, 2012 at 3:10 PMJ 'v :~:::::::: !,:1,,-rote: '---------------------' b6 -4 b7C -4 DeaO ! want to thank you very much for yow· telephone call and advise you ofthe fol!oWing.You have been kind enough to alert rne you have been offered what I have termed to be illegal material in the form of tapes as it pertair1sto Hulk Hogan. Your advice to rnewas that you would not run the same. I am herewith providing you with our appreciation for your wi!llngness to abide by at least the basic rules of human decency. Further, this omce nor any otheir office representing Mr. Hogan would ever consider bringing any action again.styou, based upon your willingness not to runthis material and further your willingness to provide us witl1 the literal heads up as to wt1atwas coming, ! want to Uiank you again and advise, absent your cooperation this certainly could have been harmfui to my clients' wellbeing. It is something that I will also convey to Mr. Hogan. Your wiUingnes.snotto involve in what amounts to a cheap extortion sch:erne1sappreciated and clearly there is no reason to consider Mr. Hogan would ever bring litigation against you based upon your actions up and to this point in time. Sincerely, David R, Houston D b6 -4 b7C -4 David R, Houston, Esq, 432 Court Street Reno, NV 89501 775-786.-4188 775-766-5091 FAX The ~nt~mf4.t~cn ix:f;~$tl1a.d ~r,th~tt~r.a:r.~mi~$;pn ma:ycont~:f1pr.v~legm:i::$nd©'"'lf1~1tk:ll inft.ifffhSt;nn. H i~ tnt~:'3ded¢r1:yfur th~ U$~.oft~~ f...~~!.:(5} r:wned ;jl)aW>.Cf'>'!Ai am nv~:ti.~ int-s..<"td~~ N~C~i,ar~t. f<1~ .a~~hef~b~·-noHf~dlh~t any :-:e-vt&w, d~s,s~nlITT~t~I'\ Cls.trit,ufa.:1n er dup~f:;a!~or,1)fthis ,:::,,m.rn~H1lca~o1, is iid~ilyproh!Pi~®. tf }'{~~ar~ ~t tr-~ir-,}O.~,,.fo.d re,~:}p~~n:{ ,;;:.:ont~:~· t~s s~noor-Oyrep~ em·a~an-::! dar5troy~fl t~pi~s c-f"in~ orig~1:atf"l'H}S:Z:age. 1 11 689mg . . . n, . . {??nmahkm?url rim/Fi??; . . iiwuv? . A. Ivar1.1..??2115, I. 7,49 . . . n, .5. 35441531.; . #111454; A ~11 .u Ilip?h?f .- r- 1 l ·;t1\"-' , L: \ ,·,\; \ \ .., ' '·¥ y;1· \ .. .--1.::,-,_ -i ' .i..,._1.. '··.,.. ,.,._. + ·····.·.·.·.·.·.·.· . '-·.·......... ...······-.. ' " ..... "'_...... ·"' . . l ·························r ·• .. . ~- I ,·· ,>····/ ./ ''Jlc~,tl,.,i;/ "· ,t,., •• ,,· ' .~-:.--: ,\v< .., . .. .--.. ;1,..-..... ,_ ../ ~--~~-.... ..· ~-~.. . ... _..; ....... ··.·.· ....··.·.·.· ........ ·.·.·, ...,,·.' ..·'._,l.··.~, ...,".·c···....... ··'.. __,, l_ ,• ._i_· ..·.·.'.'.·.-.'~.i ..,'.:~.··,·, • ...... ~,:·." •.'::-, ('''\ . ··'. ·.·:· ....-'., ..·,.··:-_··,· .....·...............-'.~:~.·.·'.'.\c\,, c.. ...... ./\~··' ..,'.'_:_·.·::-···-,,::<(7-:·0;;: "'' . ...... ,[t ·:'..:.: <,.w ~y ;:.~) ,, I ·~~{~:-.\~~\ / ....... ,·::· ·~· ...·~·-··: ·..·.___ ,_,_·_.· ~- .. "- ,. -"" ~--~>- ,.-,-~····: t.<~<\ ,•;)t L_________ .... . ···.····_·_ ...J ·····_·_·_· ___ \ __ ,.,, b6 -2 b7C -2 ········.-.................. . •.•.·.·.-.{~;~t··. '{_'· :-... ~-\..:- .......... :.,1\j ''" ,,. ___ \ \ ..-.... :::;::/~( .r...$~?~ I" ..< : / ............ ·..... Ct:·: ..1..1..,. FD-302a (Rev. 05-08-10) UNCLASSIFIED//FOUO 9B-TP-2534791 Continuation ofFD-302 of Interview of Terry Boll ea _l_0_/_1_5_/_2_0_1_2_ , Page over his residence and wanted to make sure he was not bedroom. BOLLEA denied any knowledge of filming taking and denied ever consenting to being filmed. filming place 2 of 2 in the in the bedroom In April 2012, grainy pictures emerged which showed BOLLEA engaged in sexual intercourse with who he knew then to be H. CLEM. BOLLEA immediately contacted! ! which BOLLEA advised had been his long time best friend to ask him where the pictures came from and how they were released. denied having anything to do with the pictures and blamed H. CLEM. On October 3, 2012, GAWKER released a one minute video showing the !to ask why he sexual act between BOLLEA and H. CLEM. BOLT,f.A ca] J ct ! 1 Jdenied having anything would tape the two of them and release to do with the taping and release of the tape and asked how H. CLEM could have done this to he and BOLLEA. BOLLEA stated he believed at the time that ._ ___ __.!had nothing to do with the filming and release of the tape. Based on these statements, BOLLEA, who had previously scheduled media appearances for his wrestling show, went on the Howard Stern show, Today show and ! ____ ... _. others defending it.1 BOLLEA learned from his attorney that the media company TMZ statectc==J .----!made statements on camera regarding the tape being their retirement fund after BOLLEA left the room. BOLLEA questioned! !regarding this statement, yet! !continued to deny that he had anything to do with from! !denying the filming. BOLLEA has gotten numerous text messages he had anything to do with the taping of the sex act as well as blaming H. CLEM. BOLLEA keeps all text messages and provides them to Houston and will make them available to interviewing Agents. b6 -2 b7C -2 b6 -2 b7C -2 BOLLEA was asked by interviewing Agents whether the whole situation is some type of publicity stunt. BOLLEA denied it was a publicity stunt as he stands to make several million dollars if he would give his consent and sell the tape. BOLLEA is not interested in this scenario, rather he wants to prosecute whoever did this to him. Agent Note: Contained within statements from both BOLLEA and separate the statements. the lA are interview notes containing Houston. Separate 302's were written UNCLASSIFIED//FOUO to 16 - 1 of FD-302 (Rev. 5-8-10) 1 - UNCLASSIFIED//FOUO FEDERAL BUREAU OF INVESTIGATION Date of entry DAVID HOUSTON, contacted writer telephonically. After the identity of the interviewing Agent and the nature of HOUSTON provided the following information: 10/22/2012 being advised the interview, of HOUSTON was asked to provide additional detail regarding the e-mail sent writer on 10/19/2012 stating there may be additional sex tapes involving other individuals. HOUSTON stated he is receiving information from! !of TMZ, al though he would like to keep identity confidential because he is a good source of information. he I .-~~R_e_g~arding the FBI Agent that was possibly HOUSTON stated TERRY BOLLEA knows the provide the name to writer. ._~~~-I filmed Agent, byl has met I him and HOUSTON stated BOLLEA called him earlier in the week to tell went on Twitter to call! !HOUSTON further stated BOLLEA not to make any public comments about the ongoing matter. I b6 -2, 4 b7C -2, 4 could him he he warned UNCLASSIFIED//FOUO Investigationon File# 10/19/2012 9B-TP-2534791 at Clearwater, Florida, United States (Phone) Date drafted 10/22/2012 b6 -1 b7C -1 This document contains neither recommendations nor conclusions of the FBI. It is the property of the FBI and is loaned to your agency; it and its contents are not to be distributed outside your agency. - 1 of FD-302 (Rev. 5-8-10) 2 - UNCLASSIFIED//FOUO FEDERAL BUREAU OF INVESTIGATION Date of entry 10/24/2012 TERRY BOLLEA, was re-interviewed at the Pinellas RA of the FBI. Also present during the interview was BOLLEA's attorney, DAVID HOUSTON. After being advised of the identity of the interviewing Agents and the nature of the interview, BOLLEA provided the following information: BOLLEA provided the following ._______ __.! HEATHER CLEM !..._ ___________ (BOLLEA's ex-wife) I ~ telephone numbers: ex-wife) redacted ....,!LNU (last name unkn._o_w_n_) _____ ! ! ! 6 -2, 4 ?C _ 2 , 4 _ I Interviewing Agents asked BOLLEA whether there are additional individuals to his knowledge that were close enough to I Ito have potentially slept and have been filmed with HEATHER CLEM. BOLLEA advised that the individuals he could think of include brother (FNU,__~___. former former NFL star r=---................... ____ -,,__ __________ ......_____ ____.NU I land ._ ___. possible LNU. BOLLEA has met LNU in the past and believes that he is an FBI agent in Indiana. .._ _______.... I _________ BOLLEA was asked whether he room while he was with HEATHER happening during one of the sex pulling his hair extensions in was strange as the two had just ..___ recalled a time whereby! !entered the CLEM to talk to him. BOLLEA recalled this acts asl ~as "dogging" BOLLEA by front of HEATHER CLEM. BOLLEA thought this had sex or were about to have sex. BOLLEA began speculating on possible to the BOLLEA sex tapes between various investigation and their attorneys. This links and individuals includes,! issues regarding involved in the b6 _.....IHEATHERCLEM and ..! ______ -2 b7C -2 rights ? __ _.....r- ________ .._ ________________ b6 -2, 4 b7C -2, 4 b6 -2, 4 b7C -2, 4 (_a_l_s_o~- Based on text messages provided by HOUSTON between BOLLEA and! interviewing Agent asked BOLLEA who! fas. BOLLEA advised=i=====i~i-s_t_.....he b6 -2, nickname of !..________________ _. .----B_O_L __LEA advised the .._ ____ ~!former girlfriend. name! BOLLEA stated b7C -2, bn the text ..! ____________ messages 4 4 refer to ~!contacted him UNCLASSIFIED//FOUO Investigationon 10/22/2012 at Clearwater, Florida, United .------------------------.-----------~ File# 9B-TP-2 53 4 7 91 by.._ _____________________________________________ States (In Person) Date drafted 10/24/2012 _ b6 -1 b7C -1 This document contains neither recommendations nor conclusions of the FBI. It is the property of the FBI and is loaned to your agency; it and its contents are not GAWKER-19 to be distributed outside your agency. FD-302a (Rev. 05-08-10) UNCLASSIFIED//FOUO 9B-TP-2534791 ContinuationofFD-302of 10/22 Interview of Terry Bollea ----------------------~ ,On _1_0_;_2_2_;_2_0_1_2_ , Page 2 of 2 last week to tell him he had to tell BOLLEA something and did not want !proceeded to tell him that at a BOLLEA to be mad at him.! 1 10 to 12 years Wrest 1 eMania event in Toronto, Cana d aw h'lC h too k pace aao I event. Also the event was lwere at the at lcal l crll !After the event, I and and! landl I I I that 4 4 I I I BOLLEA advised b 6 -2, b 7C -2, I- I I I BOLLEA stated that afte~ ltold him this story, BOLLEA was extremely mad at! ~ventually calmed BOLLEA down. In anger, BOLLEA went on Twitter and called! !and stated words to the effect that !would pay." BOLLEA advised that when he brought ._~~~~~~~__.!up on text message with! !did not deny anything, rather he told BOLLEA that he (BOLLEA) knew about what happened. Agent Note: Contained within the lA corresponding to HOUSTON's 302 are interview notes containing statements from both BOLLEA and HOUSTON. Separate 302's were written to separate the statements. UNCLASSIFIED//FOUO I b6 b?C -2, - 4 2, 4 ,F.,~·""'"' ._..-,_:,,,,.,..,.. ,.,.,.,,,,.....,,........,,. •. .,..,,,._. .. ..,,.,.,...,,,.,.,.",.,,,.,.,.."; ...,.,.~..,,..,.,.., •....,.v'".. ,://,F,, .. ........ ,,.~.,--6'...,._.,,. __ ., ,(.,,.. -~., '"r"t:,.,~l*~hr.., +vi iH"""'b1. u~dAu ft r,c{ .\ t ?~ ~·:~ t~ tl .... ).:... y~ ....... J.:.1t ,) ~.:-~ f .....-,::; !!,... , ' • .. • "4.-~ t i ~:@:·trutt1~s..,: was cooi lfiJltn ..,.,..& . . . t~t] h. ..) were .v*··o:r· marne::L And it only happEM1ed ., --1- 'Sc ::_; , · .. .-:":'') · s· hA (.n~ l{:S, a . ~;)..;,:·~. l t ,., .... .-;.ht;:::rfl I ~·NA ..... x d.......... 1 ~J s,1,~· C "".l!t,.,) n ..;,~ ..,r ..H ~-M ;f .JLL; era And novv people ctin 'ftfJUre · t Vll1V Cause · 1T •:z.i OU i()Qf(f'i.'' ';;$. ! :,,' .. :/. 1'" . . . • . 'f''" )· . ' .•: " -" ' ,.,;.,; . . ~H.f.r~ tMAfos;_;-"f'H"'ict c,of ~,.vri :f~:.A·.-.,.,,(.'';;j ",:/}7_... >,,:,r:;:; ..... ,.;i:f-:A' ,,;. i8 ..._.._,.~,,..,~~vn"_.,..-_'.'>,9',..-~.,_....,.,.....4:.NJ-.N_,_..,.,,.,,,~f#////ff//..t:~"':<'X;"-""'::.,.;,".i;.,.,.-.,.,./,://////,:////////////..-//."'•/f" ('/~ . f Of , •. ;(h4 ,, .• ('~(hiJ jfC•.b. ,,,7 ..,.,7u..1 ,;;;ycy *·,:, • i ,<;,: ~aI~. i .,.,,,.,; ~~-, . '"\ •• .....~."\ a.·lit.f't"'t %1~:w,.. h\ ../.. 3 hi ; ~,)' I . ""'~,,j·•r1 f.'.1• '-> , . :~ ·«/,· : f; ~;N'.".,..Y-:,....,....-.,_.,,.. ......... _..~,.~,......~,..,.~.,. \ . 1 I i ). ,, ,n,r_,.,.,,i, . iiiri=~iii, b6 -4 b7C -4 ~.@%$~~~~$@"~~ ~«--· ·~ ...'"'""' .. . ~Mo-" . .,...,.-.,., -· .;.,.·. • ,. •• "· ., •••• .."./;,. 1- ~' >' ,, "~ • ;. •••••• ,. . •• ' • •• " •••• , ,.., ~- '~ ,, :: ,: ., tr" f/lAYt~ ff( ..t 1...:;1Jti' (~J--~.~..~J tt-· ......... .x1 :-.:~-....x-·::: ..... 4... ..# ~~-~-~f'-. V;*,..;-:t...r~ ...41.,, b*:yx+t... fhy,;.;4 lj f~f~.:,-~ ~r,;,.zthir1og l !ft~ ~;{~ J . } (;A'{ ..;:;.;.,..,A.,,,....,r;,-~.....,. ... "",~. ,.,~..,_,,....,,, . f ; 1 { ,,.,,.~117~--"o/-~-~ -~~J(fi:2; ... ::~). :{}13 fJ%t-~1 Oct ().c~:tf\. :;~{)) f)}(}:l j\J\j ·,,.~ 1-. ~A>-~- , ~-.. ··~ .,......,"Y>Q-·)e b6 -4 b7C -4 :;::~ i(~ )J b § .'-•"'""'~-,~·;:::··'"··-·,.·.•.,,·.wm,•·•<*-w,~:,w,:·:~:~-w,:,:"'·'~\ !.\_,1,.,; / b:i;dri\, Actua J1!,, rr~~r · [\fl .... ,/ ;,;~... ~... · t.JJ' iJ. t~..A3... i". • .:/ · . . . f ,. \vould have been the v1ay , . . .[_)''{))/{i:h t1';:-1n~ \~IeQQU If.1. flf.'.'.f\N'7~ .;.~,..., . ofi·u .. -4-l·-::, t{ f ~:;;1 S ,::/,._,~·-·,,------------/ VY.. j -· . . . · · - ,.#4 ·"= -:.,,.,.,.,. ..,. » lfv/.'· ~"' ...._.fi·i',' f Y 'i,.,.....,.! ...4 .,...,..,. _:f·" ,,,,,~. ,'! , ........... ! j ,· ; (J-c;tf\: :;1:t;:·1 :;r::a:~·4·1 ..J\.f\t J. L - - ,.. l rn go;H1nr-~ i ... ~lj. textc:'~...:.,;,;i fi.OQ,j: 1 . . ......... 7 ~. S I I ___ that ,.,.fr,' %· ____,1snt if\/Jhg to .;;j;.r-:ff"h . ~f +, '' ,, • $., had anvthino to do - ,_;;:lj#ilij ,,.c.,. b6 -2, 4 b7C -2, 4 ,-:ii,·;':.•;,,.;,,;' Oct 12, 2IH2, 10:56 AM (Nq ~-: (t have in--)\ car. Head:d _to Ocala._..,,._ ~~icoolf'~o~l DeJl,Jnred /'" . . ... . ..... 1 Listen u know that i love · you terry period. p1ease ~,........ n/-.j'-.,< '{ StQt)t.,..,...-:"~.) . -'.• t.-:!'S .... ~:-l· ~r,-..}';Y-•p•·--; ry')~ ;-,,,ti.I,~-~(~~ ..;, SL:! ~/ 1 {f.._.;;,..,. .J... didn'..Lre!@o-:asa.Jhe,.,,,.. -"'1 ' b6 -2, 4 b7C -2, 4 rlhaveDin 0·-Jd ...~., lthe car. Headed to Ocata0 ~G.k,cooh,sr~L Do,ivered (; Listen u know that i love \l ! · you terrv period. o!ease ! :/ .: .,, f stop publicly ourying me. 1 ,,\ '"'"' H,· H jf,.".. if I d •dn 't. i'"'P,:{,,;nvA;). i footage, and im suffering <- th'is th ,;·.·w,··F'',!V "r.P;:/Yl:C'.> I . 'F h, , ,,, 1 rom e!omq vvrtn 1 / } . H,h.< II '", ~{ 1{..~~ ,pa;eer to I h~ro.. I l l I I wreck to ca!Ungth,e sheriff i. b6 -2, 4 b7C -2, 4 ,,,,;.;j : w rie ,Nas in JB.h, T.,1 o , . ,,j , u .i.io i! act ua!'1ymtrooucmg 1'" 0 .., L d/~ii r1 rr i .---,_,t· L__f1:..,/ .~::; "../. ;,.:;,;~:,t,..y 0 rrqh ..,{'~..:7-~ ~,-.hi hk·-+r,,,,,,f ~(v~..Ji 1f" ,::::>or We h-'.:i• i p·,,...,,..:.,! ·~.> .r..-.JO ( . '·IS a 'bflO' dt:t8! '· l ,J,;. ' ThIS d1BXwas ' ,.. ) ). OT...8. Vt'"}r\y/ t tH3 fj\J t)fO(JllC( .. evil woman that. i'rn very !' embarrassed to have been married to, l'ffi very sorr/ /embarassed / V-JGboth are / . . * tl,wi: J (~ ~./, thlr.:•. \.~ ~~....:.)...{Y.:, ;.;'.,·~/ 90 1.ng / Y>.r·•·. ~;,..}~... ,f.,~.r ~-r.--.·c,H-hhY' . HJ I lit;; 1:;;;hl iv! g.ood ----- - _,,_.._______ ,f ./ !I Oct 12, 2.0'12, 11:16 .ilM ,'. ( ,c;;:c::-~ ~.!::~.ff.· -s;.~/. - ' ,, ,~ ,..·--;: . . ,f{i ·Pl! t,.jr->, ]\ ·,: ......... ,... Jinxthsw:h~)~M;r:;:1i~~;~J1-5ij/1r10: :l. ·, ~~.......,.._.,......;..,~) - 1 of FD-302 (Rev. 5-8-10) 1 - UNCLASSIFIED//FOUO FEDERAL BUREAU OF INVESTIGATION Date of entry 10/24/2012 DAVID HOUSTON, was re-interviewed at the Pinellas RA of the FBI. Also present during the interview was HOUSTON's client, TERRY BOLLEA. After being advised of the identity of the interviewing Agents and the nature of the interview, HOUSTON provided the following information: for At approximately the purpose of I 6:35 PM EST, HOUSTON contacted conducting a consensually monitor~e-d.,.....t ..... e~l~e-p....,..h_o_n_e ___c_a....,..1~1-.--T ...... h_e ___ call lasted approximately be made at a later date) the following information: The following ~------------__,!and! 45 minutes. (Note - a transcript At the conclusion of the call, telephone numbers were provided of the call will HOUSTON provided bG - 2 b7C -2 for! Interviewing Agents asked HOUSTON if he was willing to give up his attorney-client privilege by being a witness in the ongoing investigation. HOUSTON confirmed that he understood the privilege would be potentially lost, to include any civil suits by being a witness in the ongoing criminal investigation and that he intended to continue. that! !attorney,! bas HOUSTON advised contacted HOUSTON and has advised that! !is more or less broke.! ! has multiple properties in Tierra Verde, FL to include a vacant lot. by! !and his attorneys to settle b6 -2, 4 Further, HOUSTON has been approached the civil suits they have filed. One of the stipulations in the settlement b7C -2, 4 posed by! !was that! !would not be prosecuted criminally. HOUSTON provided Interviewing Agents several e-mails between he and .-~~~--.!and he ......~~-!H__,OUSTON also provided copies of text !from 10/6/2012 to present. Both will be messages between BOLLEA an~ kept in a lA in the case file. Agent note - Contained within the lA are interview statements from both BOLLEA and HOUSTON. Separate 302's separate the statements. notes were containing written to UNCLASSIFIED//FOUO Investigationon File# 10/22/2012 9B-TP-2534791 at Clearwater, Florida, United States (In Person) Date drafted 10/24/2012 b6 -1 b7C -1 This document contains neither recommendations nor conclusions of the FBI. It is the property of the FBI and is loaned to your agency; it and its contents are not to be distributed outside your agency. EXHIBIT B b6 -2 b7C -2 October 29, 2012 Re: .Public Apology to Hulk Hogan (Terry Bollea) and Retraction of Statements After further investigation, I am nmv convinced that Hulk Hogan was unavvare of the presence oftherecording device in my bedroom. I am convinced he had no knmvledge that he was being taped. Additionally, I am certain that he had no role in the release of the video, It is my belief that Ten-y is not involved, and has not ever been involved, in trying to release the video, or exploit it, or othenvisegain from the video's release in any way. Regrettably, \vhen Hulk filed the la\vsuit against n1e, I instinctively "vent on the offensive. The things that l said about him were not true. I \Vas wrong and I am deeply sorry for my reaction, .and for the additional pain that it caused Hulk on top of the pain that he \Vasalready feeling from having learned that he \WJStaped V>"ithout his knowledge; and the publk release of the video .. I am conunitted to helping Hulk and his attorneys find whoeveris responsible for the release of the tape and holding them accountable to the :fullest extent of the Iav/. Sincerely, !13894!.f Page 6 of 4 Pagelof2 State Bar of CA :; Keith l\.·1Davidson ATTORNEY SEARCH Keith M Davidson -#212216 Current Status: Active This member is active and may practice law in Ca!ifomia. See below for more details. Profile Information Tim fo!fowinginforrrmfjonis from the official records of TheState Barof C,iffomia. 21.2215 Bar N~mber: Address: Kelth M..Davioson& Associates, P.LC. 8383 Wi!shif{~ B!vd Ste 510 Phone Number; (323) 658-5444 Fax Number; ( 323) 658-5424 Beverly Hills, CA 90211 ke1th@krnd!aw.com Map 11 County: Los Angeles Undergraduate School: Boston CG!!; Chestnut Hi!! law Schoo!: Wtiiltier Coll SOL: CA Ml\ District 2 Status History EffecUvc Date Status Change Present Active 11ii 9/2{)10 Active 8l21/2Q1(} Not migi!:J!eTo Practice Law 12}5!.2000 Admitted toThe State Barof California Actions Affecting E!rgibi!lty to Practice law Effective 0£,scrlption Date Re$ufting Status Case Number Discipllmiry and Related Actions B/21/2010 Discipline wractuai svspension 3/171'2010 Stfpulated dispos!tion filed in Administrative ssct 07-0-12913 Not E.HgibleTo Practice Law 07-0-129·13 Actions This member has no public record of administrative actions. Copies of offidal attorney discipline records are avai!sb!e upon rs.:~quesi hUp~//memhers.calbar.ca.gov/fal/Member/Detail/212216 l ltl/2012 ORIGINAL (Do not wrili!above this line.) --1 State Bar Court of California Hearing Department Los Angeles IC~s~ Nu~ber (s) ( Counsel Fof The State Bar f I I ~~__.,....-:-c-~-----:--:~~~~·~~~~l (for Court's use) I I I I 01-0-12913; os-0-11661 & ! Jean Cha I I Deputy Trial C0uns~l I 08-0-1484 7-PEM 1149 S. Hil1 Street Los Angeles, CA 90015 PUBLIC MATTERiI I FILED (213) 765- l 000 Bar# 22813~7 l ····················--·····--·--· I Co~mselFor .Respondent I MAR L7 2010 ------1 Arthur Margolis Margolis& MargolisLLP 12000 Riverside Drive Los Angeles, CA 90039 (323) 9S3-8996 Bar# 57703 Il .··--········--·-···.·· ---···----~ jl Submitted to: Sett!ementJudge ) STIPULATION RE FACTS, CONCLUSIONSOF LAW AND ' DlSPOSff!ON AND ORDER APPROVING t!tt~tt~~~r~~:: · · I r STATE SAR COURT CLERWS Or"'FlCE SANFRANCISCO . ACiUAl SUSPENSION Il Bar. #212216 [] PREVIOUS STIPULATION REJECTED i i A Member ofthe.State Bar ofCalifomia Lif:3.f:!!2-QD.9.~.n.tt -·-··-·-····--·-················-----~ Note: AU information required by thls form and any additional information which cannot be provided in the space provided, must be set forth ln an attachment to this stipu!atfon under specific head!n9st e.g., i•Facts/' ''Oismissals," "Conclusions of Law," ''Supporting Authority," etc. A. Partiesf Acknowledgments: (1) Respondent is a member of the State Bar of Califbmia, admitted December 5, 2000. (2) The parties agree to be bound by the factual stipulations contained herein even if conclusions of law or disposition are rejected or changed by the Supreme Court. {3) A!! investigations or proceeoings Hstedby case:number in the captio1 of this stipulation are entirely resolved by this sttpulationanctare deemed consolidated. rnsmlssed ch$rge(s}lcount(s} are listed under ~oismissa!s.'1 The stipulation consists of 20 pages. not including the order. (4) A statement of acts or ornissions acknowledged by Respondent as cause or causes for discipline is lnc!uded under "Facts." (5) Conciusions of law, drawnfrom and spedflca!ly referring to the facts are also included under "Conclusions of law". Actual Sui,penslon 1 ii [fiii IDl1i1'1 fi/111 lllili I II l I I I II I I II I " ............. ---·--------··-----·-------------·---·····- . (Do not write abffil'e this line.) Attachmentlanguage.beginshere {if any}: ATTACHMENT TO STIPULATION RE FACTS, C(>NCLUSIONSOF LA\V AND DISPOSITION IN THE MATTER OF: CASE NUMBERS: KEITH M. DAVIDSON,212216 07~0-12913;08-0-11661; 08.;.0~14847-PEM Respondent admits the facts set forth in the stipulation are true and that he is culpable of violations of the specified statutes and Rules of Professional Conduct. Forsyth Matter (07-0-12913) FACTS 1. In May 2006, Charles Forsyth and BernadineF,rrsythemployed Respondent to repre.senttheitson in a medical malpracticematter, The Forsyths' son suffered from compUca!ionsstemming from a brain injury. 2. On September 20, 2006, Respondent filed a civil .actionentitled. Charles Forsyth, as Conservatorand Guardia#Ad Litemfbr Ronald Forsyth, et. al. v. 1WetropolitanState.Hospital, Steve Gholamhosein Rahimi, J.1.D.et. al., Los Angeles County Superior Court cmmnumber VC047329 (the medical malpra-cticeaction). 3, On September20, 2006, the court issued a notice setting a case management conference in the medical malpractice action for January 23, 2007, Respondent received proper notice of the Case Management Conference. 4, On November 27.,2006, the California Office of Attorney Genetal (the Attorn.ey General's office}filed a Notice of Hearing on Demurrer and Motion to Dismiss on behalf of defendant Metropolitan State Hospital in the medical malpractice action. Pursuant to the notice, the hearing on the Demurrerw·asscheduled for January 29, 2007. On November 27,2006, the Attorney General's: office properly served Respondent with the Notice of Hearing on Demurrer and Motion to Dismiss. Respondent received the Notice of Hearing on Demurrer and Motion to Dismiss, Actual S!!spension 7 SETTLEl\.fENT AGREEMENT AND MUTUAL RELEASE 1.0 THE PARTIES 1.1 This Settlement Ag1'eement and Mutual Release (hereinafter, this "Agreement") is made and deemed effective as of the __ day of November, 2012, by and between JOHN ROBERTO ("ROBERTO'' a pseudon~m_wh~,s~ t:~e identity Vv'i.U b.e ackpowledoed oo a Sid'] b6 -2 b7C -2 Letter Agreement attached hereto as '·EXH1Bl I A'J; on the one part, aniS 3.0.1J ROBERTO SHALL PA,YTq 3.lU. Ll b6 -2 b7C -2 ~30(t000.00 AS FOLLPWS: $125;000.00 USD upon ex.ecuti()nof this Agreement; 3.(U .1.2 $50,000,00 USD on the Nine...Month ai.miversary6f execution of this Agreement;and 3.0.1.13 $25,000.00 USDon the F01.1rteen.:M011th anniversary of execution of this Agreement; 3. 1 Undertakings§;, Obligations Nove1nber·--·-' 2012: (a) Ohall b,i !wrn do each of the following by execute this Agreement and return a signed copy to 1:Z013ERTO: (b) Oh.all transfer and/or assign any and all rights in andt1TtheProperty to ROBERTO(as set forth hereinbelow),and execute an Assigpment & Transfor of Copyright, in the for111 atta.~ihed hereto, and return a signed copy of san1t~, to ROBERTO's counsel; b6 -2 b7C -2 D (c) shall deliver to ROBERTOevery existing copy of all tangible Propeiiy.OshaH completelydivest hetself of any and all artistic media, impressions, painti!1gs,, books; cnke cans, s~ethes .or any othet type of c~ation b):_RC~;l3ERT00hall transter an physical, ml\mersh1pand mtellectual property nghtsto .ROBERTO; (d) Dshall not, at any time from the date of this Agreement forward~ din-ctly or indirectly disclose or disseminate any of the Property or any Confidential l:ntormation (including that it exists, and/or confirming anyrumors as to any such existence) to any third party, as more fully provided herein. fortl; {e) DshaU provide to ROBERTO's counsel (to the extent not alreadv done so and set lgraph 4.2 hereinbelow), summary details disclosing W whomOor .anyoneelse on behalf) disclosed, displayed to, disseminated, transferred to, provided a copy lo, and/or · 1stnbuted, sold, licensed or otherv,rise sought to have conunerciaHyt~xploit, the Images a11d/orProperty and/or any Confidential Information. (f) OhaH provide to ROBERTO'S counsel the names and contact information of each and any persons or entities who; ( l) has provided to or who othen1i:ise 0 2 b6 -2 b7C -2 obtained possession of the original and/or any copies of any of the Images and/or any Property~ if anv, (ii) to Vl'honQas scannedthe Imagesand/or any Property at any thne~ and (iii) to whom 0kno,vs had, has or may potentially have possession of a copy of the Images and/or any Prope1ty at any time, including but not limited to the present thne (and specify \Vithdetail to which of the referenced categories (i.e., possession} shovm, past, present, etc) any name corresponds, the name so relates), (g) nhall provide to ROBERTO' s counsel copies of any agreements andior other documentation fuLJpossession. c.ustody or control, if any, regarding (e) and/or (f) above~ that evidences who has or may have been provided a copy of any of the Property. b6 -2 b7C -2 32 Transfer of Proper!y.Ri hts to ROBERTO. In further consideration for the pron~_wenants and consideration herein, 1erebytrm.1sforsand conveys to ROBERTO all o.L__Jrespec:tive rights, title and interest in and to the Property, and any and all physical and intellectualproperty rights related thereto. Without limitingthe generality of the foregoing, D ROBERTOshereby sell, assign; and transfe~OBERTO. her successorsand assigns, throughoutthe universe in perpetuity,all ofl___Jntite right,title, andinterest (inc.luding,\vithout Hmitation.aH copyrightsand all extensionsand renewals (Jf copydg.hts), of\vhatever kind or nature in and to the Property,.,vithout reservation,condition or limitation,.· whether or not such rights are r!()\V km.)\vn,recognized or contemplated, and the completefunconditional and uneJ1cumbered. mvnership and all possessory interest :andrights 111 and to the Property, \Vhkh includes,but is not limited to the originals, copies, negatives,prints, positive, proof sheets, CDroms; DVl)-roms, d uplic,ttes,nuttake and the results of any other means of exhibiting, reproducing~ storing, recording and/or archivingany ofthl: Property or rdated material. together wifh aBrightsofaction and claims for damages and benefitsarising because of any infringement of the copyright to the Property, and assigns and releases to ROl3ERTOany and all other (Jwnor holdin thei;.:opyrightand/or Property, (ir any proprietary rights and usage rights[]uay .mmsforsto ROBERTO all of the ri~ts herein other right.in or to the Pr?peity, Qassigr~s t:11d granted, without re.servat10n, cond1t10n or htmtatton, and agrees thatr-leserves no right of any kind. naturt_: or description related to the Property and contents there~ot\:v'ithstanding the foregoing~ if any of the rights h(!tl~in gnmted ~u-esubjectto terrninatkm under section 203 of the Copyright Act, or any similar provisionsof the Act or subsequentamendments thereoLJ hereby agrees to re;..granisuch rights to ROBERTOimmediately upon such te.n1tination. All rights gnmted herein or agreed to be granted hcreund.crshall vest in ROBERTO inuncdiatelyand shall .ren1ainvested in perpetuity. ROBERTO Shall have the right to freely assig11,. sell, transfer or destroy the Property as she desires. RO'.BERTO shaU have the right to register sole copyright in and to any of the Property \vith the US CopyrightOffice. ROBERTO shall also have the right, in respect to the Property, to add to, subtract from~ change, arrange, revise, adapt, into any and all form of expression or tangible communication, and the right to combine: any of the Property with a.n.y other.\\.rorks of any kind and/or.to create.derivative 'Norks with. an·y.ofthe .at.idto do with it as she so deems, To the fullest extent allowable under the applicable la\v ~hall irrevocably waive and assign to ROBERTO ru1y ~o-called ''n1ora.lrights'' nr · droit 1 7rE· .. now have or 1~oral' (la.·,,vsf.or.th~p~.otect.i.~n..ofc.op. rights under any pnnc1ples of law whtcl respect to and in fmtherance of the above ROBERTO an ''Assignment & Trans.foro ROBERTO otl ,pert~, b6 -2 b7C -2 b6 -2 b7C -2 outsid.e 0.f the.~ United St·. ates~,if.·'any'. r any.' sir~.n. ar 'lay later have m the Property. \\" 1th 0. agrees to and shaHexecute and deriver to ...opyrighf', in the form attached hereto as EzJ1Htl1 3 182 3.2.1 Notwithstanding the foregoing paragraph 3.2, and vvithout in anyway limiting or diminishing from the foll transfe.rand assignment of rights therein vdthout reservation, the Parties understand the purpose of the transfer of:rights is to provide ROBERTO the fullest possible ability and remedies to prevent and protect against any dissemination of the Property. 33 .li'verv of the Pro erty to ROBEE,TQ. Concurrently upon execution of this Agreement s applicable, shall deliver to ROBERTO, by delivery to his counsel herein, all of the Property which is embodied in tangible form (all originals and duplicates), whether documents, canvasses, paper art, digital copies, letters, prints, electmnic data, films, tapes, CDRoms, DVD-Roms, Images recording tapes, photographs; negatives, originals, dupHcates, contact sheets, audio recordings .. images recordings, magnetic data, computerized data, digital recordings, or other recorded medium orany other format of embodying information or data. v.;\lithoutlimiting the generality of the forego.ing, such tangible Properly shall include all documents as defined by California Evide.nce Code §250 \vhich contain any of the Property. represents and warrants that the materials delivered pursuant to thetem,s of this Paragraph 3.3 comprise the totality of all existfog originals duplicates of all Property in any tangjhk/orm, whether \Vithin their possession, custody or control. and including othenvise (and thatl_J.u10\VS (Jf no other copies or possible or potential copies not inllpossession and control and delivered pursuant to this paragraph), and tha.tupon suc1iaeTivery to ROBER.TO, JW shall not maintain possession, custt1dyor control of any copy of all or any portion of any tangible Property; b6 -2 b7C -2 D and 3.3.1 ·This Agn..>ernen.tis conditioned orr-lcompliancewith each and every the personalverification by Rrn3ER.TO of the Images and that the tem1 of P(1ragraph33 Q.DJl Images arc comprised of and captures the content previously reprnsented to his counsel to exist and he captured therein (i.e., thl~de;-1rand identifiable as to ROBERTO, high quality, graphic intimate content and physical relations between ROBERTO and rnlknmvn female(s)), all of ,;,vhichterrns are essential and. material. 4.0 b6 -2 b7C -2 CONFIDENTIALITY & RKPRESENTATlONS &: \VARRANTIES. 4.1 Q~firri1ion of CQJlDQtutialIuform.§..tiQn. "Confidential Information" means and includes each and of the foUowing: an (a) AH intangibfo infornmti~n pe1taining to ROBERTO and/or his family and/or friends lea.med, obtained, or acquired b) ncluding without limitation information contained in letters, agreements, documents, audio or Images recordings, electronic data, and photographs; (b) AH intangible information pertaining to the existence and content ofthe Property, including the fact that false representations of ROBERTO's art has entered the stream of comme:rce; All intangible private information (i.e., infom1at.ionnot generally available (c) to and/or knovm by the general public) reb.ting.andtor pertaining to ROBERTO, including without limitation ROBERTO's business information, aiiistk information, legal matters, contractual information, personal information, private social lifo, lifestyle, private conduct~ (all informationlitems hi. 4,1 ''(a)", ''(b)" and ''(cf' are sometimes collectively referred to as, '"Intangible Confidential Infom1ation"); RUBERTU- 4 1 b6 -2 b7C -2 (d) All tangible materials of anv kind containing information pertaining to \~ithout limitation letters, ROBERTO learned, obtained, or acquired bQncludi.ng agreements, documents, audio or Images recordings, electronic data, and photographs, canvas art, paper art~ or art in any other fonn on any 1nedia. The lmages and Photos and all infotmation/items in 4, l(d) are collectively referred to as, the "Properly" and/or the ''Tangible Confidential Information"}; b6 -2 b7C -2 4-2 ·,,tions & Warranties Regarding Prior DisclQsures of Tangible fidential ntormation. epresents and warrants that prior to entry into this Agreement, ms directly or indirectly disclosed any Tangible Confidential Information (Le., any ofthe Property), to any Third Party, including without limitation disclosure or indirect disclosure of tbe content ofsu. ch 9,wl.fi.dentt.·a.l Information in tangible form, ot~an the follmving persons or entities to whoml__Jms made such prior disclosures (herein L_JDisdosed Individuals/Entities''): (i} --------------··· ..---·------------··········---·--' (11>------····· ..·--------------·--· ..·-------····---····· (iv) ____ ·----·--········-------------······· ..·--(v) ---------····---------------······ ..·--- D11a1l be responsible for any subsequent public disclosure of any of the Confidential Jnfhrmation (a). attributable directly to each of them; and/or (b) not discJosed hereinabove as a prnviously.discloseQ)isclosed Individuals/Entities,. and any such disclosure shall be deeme.d a breach ()f this Agreement h1 1 b6 -2 b7C -2 I (a) Repres~rr!:~,~icill~ & \.Varr~n.th~fU!fid Agrecm£11t1Jly ROBEEIQ. The following\en/s, warranties andrepresentationsare made by ROB.ERTO as material inc.foe. en.1i.~n.ts.' tt . . o enter into this Agree.m.ent, and each Party acknowledg.es that she/he is executing this l greement in reliance thereon: (b) ROBERTO warrants and represents that he, directly and/or through his representatives, has not as of the date of this Agreement disclosed to any authorities the name of any oOs relates tothe Property or othen.vise, and that absent a direct requ~ law enforcement, he, directly and/or through any representatives, shall not disclosreement, l\greement and without \Vhich ROBERTO would not agree to pay any monies whatsoever hereunder, and witl1the express acknowledgment by that ROBERTO is executing this A:greement in reliance on the agreements, \.V8:rranties,and representations he.reinwhich are at the essence of this Agreement, including~ the following: b6 -2 b7C -2 tha.Om (a) Ogrees and \'irarrants and ter,m.~sents pf.~rmanently ceas(~ and desist from any efforts to and/or attempting to and/or engaging in and/or ammgingthe use, Li,x~n~<;l, distributfon, dissemirn1tion or sate of any of the Confidential lnfcmnation and/or Property~ including the Images created by ROBERTO, or of any other Images by; Oagree~ and ~'ar:antsan~'lrepres:nts tha1nvi_U permanen_tly cease . '. (b) and desist from any postmg or dissemmatwn or display o1 the Cokffire~tml Infom1at10nand/or Property, indudingthe Images (including, but not limited to, to anymedb outlet, on any blog or posting hoard, on the Internet, or othenvise); thaOrrn , , (c). r-ligree~ an_dwarra~1ts an,drepres.en!s pe~1:-anently cease and desist tro:tn usmg~~semmatmg or d1sclosmg any mhxmah.on to tmy 1 bm.1Persons (indudir1g, but not limited to, to an)'media {Jutkt~ on any blog or posting board, on the Internet, about any details of or as to the contents of the Confidential Information and/or or other\.vis:e) Property, including the Irnages, a.nd/ot as to a:ny other personal details of or abol.1tor pertaining to ROBERTO and/or her family and/or friends; b6 -2 b7C -2 (d} llgrees and warrants am'l represents thaOviH permanently ceas(~ and desist from and rlt any time, make any use of or reference to the name, image.or likeness of ROBERTO in any manner whatsoever, incJnding "vithout limitation, through any print or electronic media of any kind or .nature for any purpose, including, but not limited to, on any websites; ,.~t-,, (e) Ogre.es an.d vvarrants and represents that any and all existing copies of the Images and any Prope.rty(other than as expres~v spr:ified in paragraphs 3.2 and 33 herein) further warrants and represents that the have been turned over and provided to counsel; an only copy of the Images and Property that has ever existed, at any time~ has been tw·ned over to ROBERTO's counsel pursuant to this Agreement, and the Images and any Property has never been transferred to or existed in any other fonn, including not in electronic fonn, nor on any computer, or electronic device and other storage media; b6 -2 b7C -2 6 185 (f) Q disclosed, or posted (herein "'disclose"),any Cm:rfidentialInformationto anyperson. group, firm or entity whatsoever, including, but not limited to, family members, frk~nds, associates, journalists, media organizatkms, newspapers, magazines, publkationsi television ot radio b6 -2 stations, publishers, databases~blog:\ websites, pnsting boards, and any other enterprise involved b7C -2 in the print, \Vire or electronic media, including individuals \VOrkfogdirectly 01' indirectly for, Of on behalf of: any of said persons or entities ("Third Parties" and/or Third Party"). In no event skdl any o~e relieved of such pa1ty's confidentiality obligations he.reinby virtue of any breach or a'rreireti. ge .·bre•. ,ch of !his ln no eve.t·l ..t shaUany.dispu.teir·.·l· C.'onne,:.tiori v-tiththis Agreement relieve any oQ frm -onfidentiality obligations arising pursuant to this Agreement, and any disclosure of ,on 1 ential Informati{)U in conne~µon,withany(uch proceeding or dispute shaH co1:stitut~a breach ~f_this_Agre_emen~, andl_}haH use . ~est efforts to prevent the unauthonzed disclosure of Conhdential Infonnatmn m coxmectwnwith any Ar·:.J. I such pn.1ceedingor dispute. ,µ.&, A11ydirecJ or indtect disclosure of Confidential Information to any Third em,oye~s. Party by any oL_jndior any o epresentatives, heirs, agents. attorneys transfe:r.ors,. transferees, suc~essorsor assigns~and/or any frie.n~ of any O . :~ollectivelyr-, n breach o:hne---1 Group·'}, atter the date of thrn Agreement, shaU be deemed a d1sclosureoy terms of this Agreement, entitling ROBERTO to all rights and remedies set forth herein. 4,3.5 Dforther Agreement~Das warrants and represents that, prior to entering into this not written, publishedt c.ausedto be published, -0rauthodzed the \vriting, b6 -2 b7C -2 7 186 publication, broadcast, transmission or public dissemination of any interview, article, essay, book, memoir, story,, photograph, film, script, images tape, biography, documentary, -..vhether written, oral, digital or visual, vvhetherfictionalized or not, about ROBERTO or her family, whether truthfi.1l,laudatory; defamatory, disparaging, deprecating or neutral, which discloses aiiy Confidential Information and/or \Vhichincludes any description or depiction of any kind whatsoever ,,.,het11er fictionalized or not, about ROBERTO or her family; other than as expressly disclosed boo ROBERTO's counsel and as set forth herein in paragraph 4.2 above. b6 -2 b7C -2 4.3.6 D1ereby irrevocably agrees and covenants tha:tOshaH not, directly or indirectly, publicly disparage ROBERTO, nor ,vrite; publish, cause to be published, or authorize, consult about or \..Vithor otherwise be involved in the writing, publication, broadcast;transmission or dissemination of any book, memoir, letter, story\ photograph, mm, script, In1ages,interview, article, essay, biography, diary, journal, documentary, or other written, oral, digital or visual :account or description or depiction of any kind whatsoever whether fictionalized or not~about ROBERTO or her family, whether truthful, laudatory, defamatory, disparaging, deprncating or.neutral. Ourther \Varrantsand represents tfottrihas not and will not e~ into an)'written or oral agreemt.!nt\Vithany third party purporte~requhing or ob1igati11gL_Jo doso. 43.7 Agreer~1~ntfixROBER1J2).;{.<1tto Dispara,.gQ ROBEµQ,hereby agrees and covenants that she sh,lll not, directly or indirectly, publicly disparag( __ Jnor \1\-Tite, publish, cause to be published, or authorize, consult about or \Vithor otherwise be involved in the \1vTit1ng, publ.ication~broad.ca.st;transmission or dissemination of anybook. memoir..letter, story, photograph, fi1m. script, Images,interview, article, essay, biog:rnphy,diary,joumal, documentary, or other 'Written,oral, digital or visual a~ctmnt or description or depiction of any kind v,,rhats<.)ever whether fictionalized or no1,abou1 !involvementin or connei,~tionwith (prior to the date of this Agreement), actual or alleged,. any efforts to sen,Hce:nseand/z)t any other exploitation of the images and/orProperty, 4.4 . Pt~£losure Ofrsmfi_ggntialJnfol]11~!:1itmJsl)rohibit~g: Oecognizes and agrees that substantial effort and expenst~have been dedicated to limit the efforts of the press, other n1t>:dia, and the public to learn of personal and business affairs involving ROBERTO. JW further acknmvledges that auy future disclosure of Confidt;mtialInformationto anyThird Partywourd constitute a serious and material breach of the tem1s·t1fthisAgreement, and shall constitute a breach oftru:st and confidence, .invasionof privacy, and a misappropriation of exclusive prope1ty rights, and may also constitute fraud and deceit Some of the Confidential lnfonnation may also constitutes :and includes propc· . · 1 business informationand trade secrets which have independent economic·value. ·cknowledges that ai1y unauthorized use1 dissemination or disclosure of Confidential In ormatio.n,or the fabrication and dissemination of false and/or misleading .info11natim\,about ROBERTO, \.VOuld result in irreparable injury to RO.BERTO,and would be injurious to a reasonable person; and/or -..vnuldconst1tutean injurious 'Violationof the right of pdvacy or pullicit(,and/or \Vouldbe i~jur!ous to ROB~1. RTO's business, professi.?n, person and/or career, cknowledges ROBER.1O's substantial and valuable ptope1ty nghts and other proprietary interests in the exclusive possession, ovmership and use of Confidential Information, and recognizes and acknowledges that such Confidential lnfonnation is a proprietary, valuable, special and m1iqueasset -..vhicbbelongs to ROBERTO and to \VhichtheO has no claim of o\vnership or other interest. b6 -2 b7C -2 b6 -2 b7C -2 8 187 4.4.1 Disdo:s:qres Pep_nitted..fur---1-otwithstanding the foregoing,OhaH only be permitted to disclose Confidential Info~ ~o another person or entity only if co~pe~led to do so b·.yv~lidlegal 'proc.·e ..ss,Cj·'. ding svithout limitation a_subpoena ducet tec1m1 ball not make any such d1sclosure.unles has or similar legal compufs1on, pr0\ 1foch ROBERTO \Vill or might suJfor from each breach of the tem1Sof this Agreement and that this amount is not a penalty. Alternatively, at ROBERTO's .sole discretion, ROBERTO may seek to recover actt~fll damages proximately caused by each such breach, acc{)rding to proo[ Any other breaches not a LD Breach Terms shall be su~ject to a claim for actual damages according to proof; µnd 5.1.3 Injunctive Rel~.ocknowfodges and agrees that any unauthQrized disdosme to Third Parties of any Confidential Infonnation will cause irreparable harm to ROBERTO, v.rhkh damages and injuries vYillmost likely not be measurable or susceptible to ROBERTO......... 9 b6 -2 b7C -2 b6 -2 b7C -2 01d calculation. further acl< ..nmvledges and agrees that any breach or thre~ breach of this Agreement due to the unauthorized disclosure or threatened disclosure byl_Jo Third Parties. of any Confidential Information shall entitle ROBERTO to immediately obtain; either from the Arbitrator or from the Los Angeles Superior Court and/or other court of competent jurisdiction, an ex parte issuance of a restraining ordCJ preliminary injunction (herein ,;injunctive Relief) without advance notice to any o preventing the disclosure or any further disclosure of Confidential Irrformationprotecte, y the terms hereof, pending the decision of the Arbitrator·or Court. The Parties further acknowledge and agree that in connection with any such proceeding, any Party may obtain from the Court or Arbitrator on an ex parte application or noticed motion without opposition, an order sealing the file in any such proceeding, and the Parties stipulate to the factual and legal basis for issuance of an order sealing the file in any such proceedings. The rights and remedies set forth in this Injunctive Relief Section are \Vithoutprejudice to any other rights or remedies, legal or equitable, that the Parties may have as a result of any breach of this A1:,'Te.ement. Dispute Resolution. Inrecognition of the mutual benefits to ROBERTOandD of a voluntary sysk~mof altemative dispute resolution vvhichinvolves binding confidential arbitration of alt disputes which may arise between.them, it is their intention and ag,reementthat any and all claims or controver.siesarising het\veen ROBERTO onthe one hand, andC)n. the othe.rhand, shall be resolved by binding c011fidentialArbitrado11to the greatest extent permitted by kt\\-'. Arbitration shall tak:eplace before JAt-.·iSENDISPUTE CJAMS") pursuant to JAMS Cornprehensive Arbitration Rules and Proc.edures(including h1terim lvfoasu.res)(''JAMS :Rules") and California fanv,or before ACTION DISPUTE RES0Ll.JT10N SERVICES (''ADRS") 5.2. b6 -2 b7C -2 b6 -2 b7C -2 pursuant to the A.DRSRules (including Interim Measures) and Califomia law (whichever the clai:rnarHelects upon filing an arbitrati,1n), in Los Angeles, Califomfo, and will be heard and decided by a sole,11eutral arbitrator (''Arbitrator") selected either by agreement of the Parties, or if the .Partiesare unable to agree, then selected under the Rt.iies of the selected arbitration service. The oosts and foes associated \vithany Arbitrator and/or Arbitration service shall be split equally among the parties fo any such dispute, The Parties shall have the right to conduct discovery in accordance \Viththe California Code of Civil Procedure Sectkm 1283.05 et. seq. and the written discovery requests and results of disi-:overyshall be deemed to constitute Confidential Information. The Arbitrator shall have the right to impose all legal and equitabk~remt~dies that \Vouldbe available to any Party before any governmental dispute resolution forum or court of competent jurisdiction, inclodingvvithout limitation temporary, preliminary and permanent injunctive relief, compensatory damages, liquidated damages! accounting; disgorgement, specific petfom1anc~\ att'!Jrneysfees and costs, and punitive damages. It is understood and agreed that each of the Partie,sshall bear his/its own attorneys' fees, expert foes, consulting fees, and other litigation costs (if any) ordinarily associated with legal proceedings taking place in a judicial forum; subject to the Arbitrntor's reassessment in favor of the prevailing party to the extent permitted by Ca1ifomialaw. Each of the Parties understands, acknowledges and agrees that by agreeing to arbitration as provided herein, each of the Parties is giving up any right that he/she/it may have to a trfal by judge or ,jury with n!gard to the matters 'f\-'ilkb are required to be submitted to mandatory and binding Arbitration puxsmmt to the terms hereof. Each of the Parties further unde:nitands, acknowledges and agrees that the:re is no right to an appeal or a review of an lu·bitrator's mvard as there would be a rigid of appeal or review of a judge 6.0 or ju:ry's decision. l\'.IUTUALRELEASES 10 b6 -2 b7C -2 6.1 Except fr.,rthe rights and obligations of the Parties set forth in this Agreement, ROBERTO, for hersel{ and each of her representatives, agents, assigns, heirs, partners; :bsolr. )" companies, af~.1liated.~:r~. :mployees, insurers and a~orn.ey.~ a.n.d.·fi.)rever . releases and discharge md1v1dually,and all hem;, an ttomeys, and each oI them ("ROBERTO-J e ea.sees"), of and frorri any and all claims, emands, damages, debts, liabilities, accounts, reckonings, obligations, costs (including attorney's fees), expenses, liens, actions and causes ofactions of every kind a.n.dnature \vhatsoever,\Vhether known or unknown, from the beginning of time to the effective date of this Agreement, including v.iithoutlimitation any and all matters, facts, daims and/or defenses asserted or ,,vhichcould have been asse1i.edin tlle Matter, or \Vhichcould have been asserted .inany other kga.1action or proceeding, except as may be provided herein (the "ROBERTO-J\\/ Released Claims"). Notwithstanding any of the. foregoing, for clarity\ the opertJ...f any ,vebsite or tnedia outlet or photo agency, and anyone else "vhoobtained from or •,vhc ave or trans.fo11"ed to a copy of the Photos and/or Images and/or Property are .11otinclude' an · expressly omitted from the ROBERTO-JWReleasees and oO b6 -2 b7C -2 ROBERTO~J\VReleased Claims. ... D. 62. .·. Excep·d·(}ftherig·h·t·s. and o.hliga.·tions.' oft.he Parties set f.brth in this A.greement, for themselves,an~epresentati ves, agents, assigns. heirs, partners, cottrpanies, affiliated cornpanies, ert~es, insurers and attorneys, absolutely Hndforever release and discharge ROBERTO,individtm.lly, a.ndeach of her n.~ptesentatives, agents, assigns, heirs, partners, companies~ affiliated companies, subsidiaries, employees, attorneys, successors, insurers, and each of them ("ROBERTO Releasees"), of and from any and all claims, demands, damages, debts, liabilities, accounts, reckonir1gs, obligations, costs (including attorney's fees), expenses, Hens~actions and causes of actions of every kind and nature whats()ever,whether k110'wn i;)runkm,\.vn,from the beginning oftime t() the date of this Agreement, including without limitationany and all matters, facts, clafrns and/or defenses asserted or i.vhk.hcould have been as.s.,e. tl.1eAction,.Qf\vh.ich could have been asserted in trn.yother legal acti011or proceedjng (the L__Jelea.sed Claims"). b6 -2 b7C -2 F4 The subject .matterreforred to in paragraphs 6.1 and 6.2, above (Le., the ROBERT();.J\:V Released Claims anQeleased Claims), are collectively referred to as the 6.3 b6 -2 b7C -2 "Released Matters.;, 6. 4 The P~lrtie.s h~reto, and each of them, hereby warrant, represent and agree that each ofthem Js fully aware <>f§1542 nf the r~b:iLQ!c2.d~ of the State rif California, \'Vhichprovides as foltO\VS: "A general release ROBERTOs not extend to claims which the creditor ROBERTOs not know or suspect to exist in his .favor at the time of executing the release, which if known by him must have materially affected his settlement vvith the debtor." The Parties, and each of them, voluntarily waive the provisions of California Civil Code § 1542, and any other similar feilernl and state law as to any and all daim:s~ demands, c1mses ofaction, or charges of every kind and nature ,,rbat:sQevcr, whether known or unknown, suspected o.r unsuspected. 6..5 Each ofthe Parties hereto acknowledges and agrees that this Agreement constitutes a s-ettlement and compromise of claims and defenses in dispute, and shall not be construed in any fashion as an admission of liability by any party hereto. 11 ---------~ I b6 -2 b7C -2 7.0 CONFU)ENTIAl.JTY OF THlS AGRE-El\'1KNT ., 7J The Parties, respectively, shall not to disclose the terms of this Agreement; either directly or indirectly, to the media or to anyone else other than their respective attorneys and r-1-nay representatives and/or as may be required by law. not comment or make any press of this Agreement ROBERTO releases or otherwise discuss the resolution of the ~ct however may disclose·this agreement to officials of the Hyatt, 8.0 b6 -2 b7C -2 1\IUSCELLANEOUS TERl\-18 8. 1 Entire Agreeme111. This Agreement constitutes the entire agreement and understanding concerning the Released Iv1atters hereof bet,veen the Parties hereto and supersedes any and all prior negotiations and proposed agreement and/or agreements, vvrittenandio-rontl, ben ...·een the Parties, Each of the Parties hereto acknowledges thatneithe.i- they, nor any other party, nor any agent or attorney of any other party has made any promise, representation, or \var.ranty \vhatsoever, exprz~ssed 0:r hnplied, ,.:vritten oxornl, which is not contained herein, cot1cemingthe subject matter hereof:_to induct~ it to execute this Agreement, and each of the Parties hereto ack11ovvledgesthat she/he has not executed this Agreement in reliance on any promisc 1 representation, and/or warranty .nQt contained herein. This Agreement shall be binding 01:1and inure HJthe benefit of the Parties, the Releasees, and each of their respective -successors and assigns an.-ddesignees. 8 '' £)1Ufam.ia Law ~-S''.t.JmtThis Agreement and any dispt1te or controversy relating to this Agre1..~ment, shall in all respects be construed, interpreted, enforced and governed by.the lavvsoftheState ofCaHfomia. v(~nueand jurisdiction \vith respect to-any action, claim or otherproceeding, including for equitable relief: arising under or in relation to this Agreement shall be exclusively in the federal and/<}tstate comts and/or arbitration tribunal, as applicable, located in the County of Los A.ngeles, State of Califotnia~ \Ve:st District, or the United States DistricL District Court located ,vithin the County of Los Angeles .. State of California, C1..~ntral Attornstx~:_Ipes. In the event of any dispute, action, proceeding or controversy regarding the existence~ validity, interpretation, performance, enforcement, claimed breach or threatened breach <.)fthis Agreement, the prevailing party in any resulting arbitration proceeding 83 and/or court proceeding shall be entitled to recover as an element of such Party's costs of suit, and not as diunages, an attorneys'foes, costs and expenses incurred or sustained by such prevailing Party in connection with s-uchaction, including~"vithoutUtnitation, legal fees and costs. Waiv(,!rs; Modification. This Agreement cannot be modified or changed except by \Vritteninstrument signed by an of the Parties hereto. No \:v·aiverof any of the provisions of this Agreement shall be deemed to constitute a \Vaiverof any other provision, whether or not similai-, nor shall any waiver constitute a continuing \Vaiver. No ·waiver shaH be binding unless executed in \'\Titingby the party making the waiver. 8.4 8.5 Scolli'. of Provisions/$~.wenibility/Heading;i. None of the Parties hereto shall be deemed to be the draf-ler of this Agreement, but it shall be deemed that this Agreement was jointly drafted by each of the-Parties hereto. Should any provision oft1us Agreement be found to be ambiguous in any ,vay; such ambiguity shall not be resolved by construing this Agreement in favor of or against any party herein, but rather construing the terms of this Agreement as a ~.vhole according to their fair meaning. In the event that any provision hereof is deemed to be ffleg(1lor RUBERTO- 12 1 b6 -2 b7C -2 GAWKER- unenforceable., such a detennination shall not affect the validity or enforceability of the remaining provisions thereof: aH of which shaU remain in full force and effect. 1nthe event that such provision shall be deemed invalid due to its scope or breadth, such provision shall be deemed valid to the extent of the scope or bre..1dthpermitted by la\V, The captions appearing at the commencement of certain paragraphs herein are descriptive only and for convenience of reterence. Should there be any conflict between any such caption or heading and the paragraph at the caption of which it appears, the paragraph, and not such caption, shall control and govern. any 8.6 Advice of Coun;;_;el and Under~tandinu of this Binding Agreement, Each of the Parties represents, acknowledges, and declares. that she/he has received the advice of legal counsel of his/her ow11choosing regarding the form, substai:Jce, and effect of this Agreement Each of the Parties represents, acknowledges, and declares that shet11ehas carefo!ly read this Agreement, knows an:d understands this Agreement's contents, and s.ig11s this Agreement freely, voluntarily, and without either coercion or duress, Each of the Parties represents and v,mrrants that she/he is fully competent to manage his/her business affairs, and that she/he has full power and authority to execute this Agn:,>ement,and to do any and aH of the thi;n:gsreasonably required hereunder; and that this Agreement, when signed by all Parties, is a valid and binding agreement, tlnforceable in accordance ,vith its terms, Execution. In order to carrv out the terms and conditions of this execute, upon ~easonabk request,. any and all documents and instnunents necessary·to effectuate the tenns of this Agreement. 8.7 ~rther AgreementL __ Jgrees to p;~~~-ptly 8,8 EQtice Provj_~i9.tl~,Any notice, demand or request that one Party desires, or is required to give (including service ofany subpoena, court pleadings,. summons and/or complaint), to the other Pmty nmst be prom.pdy communicated to the other Party by using their respective contact information below, by both (i) e-mail or facsimile; and (ii) telephone. Either Party may change his or her contact information by nntifying the other Party of said change(s) pursuant to the applk:able t-enus herein. 8.8J Io ROBER1ILtJ$follows: 8.8.2 tel 8.9 This J\greement may be executed with one or more separate counterparts, each of \Vhich,when so executed shall be deemed to be an original and, together shall coustitute and be one and the same instrument Any executed copies or signed counterparts of this Agreement, the Declaration, and any other documentation may be executed by scanned/printed pdf copies of ROBERTO- 13 b6 -2 b7C -2 signatures and/or facsimlle signatures, \:vhichshall be deemed to have the sru:ne·forc.eand eJWect as if they were original signatures. IN \\llTNESS 'WHEREOFf by their signatures below, the Parties each have approved and executed this Agreement as of the effective date first set forth above. JOHN ROBERTO 14 b6 -2 b7C -2 ASSIGNMENT & TRANSFER OF COPYRIGHT For g - , l • consideration, the n."Ceiptand sufficiency of ivhich is hereby acknowledge( herebv irrevocably sens,transfers, assiuns and convevs to JOHN ROBERTO ("ROBERTO" , t roug 10ut the ~miverseand in perpetuity, the full, unencumbe/ed and undivided interest in all otr"°1"igh 4 title and interest (including, \:S.'ithou:t limitation, aH copyrights and all extensions and renewat~pyrights), of whatever kind 1)r nature in and to the Images(s) ~myand all outtake photo images therefrom (the ''Images") and any and al! still photos (the "Photos") which capture or feat~re ROBERTO e~ther wiQn.•i .·.·,,·""'····./.,/ ••••••••••••••••••• ;;'/ .................... ,.,·.·,·,·,·,·,·,·,·.·.·.·.·.·.·.·.·.·.· ..·........................... ················,·,·,·,·,·,·,·,·,·.·.·.··································,··,·.·.·.·.·.·.·.·.·.·.·.·.·.·.·.· U ./'' ·'/' /l / I •• ,.,·,·,·,·,·.·.·.·.·.·.· ........... . ______,....,...1_············.·.·.·_.·.·.·.·.·.· ...·...... _............... _............... ·.·.·_.·.·.·.·.·.·.· ..·...... _............... ---, ...... ·.·.·.·.·.·.·.·.·.·.··1~·•.··································.·.·.·.· ...·.......... :_ :7PLZ.~ ·~Zt/[L --------------------(' ~::'-:"-e.::i\-\ ; E::./ s 4 .. C h.-· i~M c.r::rf-cl:::.·····~-· 7 1 0 ·.·.·.·.·.·.< ... ,... :,'.-~, ·..·.·.·.·.·.·.·.·.L---------_.·~:.: , ., f..-./........... ,. ..,f. .,..).. .................. "..",.-:.:£f:.:!t.t 4 -~~, f'\,'_ .. . 1 ') ,,,A.. ...•. ·.·.·.·. .'.o<> ... ·... .,,Cf /l/1.,;:;,·-·-' (i;"i;:'.::i..",?.t::,t,::;~~ ..... 1 ,e_ . /./ """ . . ·1 . :,-- ··L-------.--------------' t""-::, .< . . L...t........ ·:t"· ··..... C·"' ..,J,?(Il ..:ccc"}'S~)J ..... . ..?...\:~::\.:~:i ..l~ ·. c- -. \ < -)l~ .,,.., ::r?,C\,-:/f<>LDJ~\ ..... c::.. ..t:;:t'tT.t?t··" .. '\ ···.·.·.·.· ·······························.·.··.·. ·.·....................·~~~-::-~._,<>} ···························.·.·.·.·.·····································.·.·.·.·.·.·.························.·.·.·.· ....GAWKERaB6 ....... . FD-1036 (Rev. 10-16-2009) UNCLASSIFIED//FOUO FEDERAL BUREAU OF Import Form Type: Title: By: Date: 03/05/2013 USAO Memo SSRA_I~~~~~~~~~__. By:_!~~~~~~~~--' Drafted Case Form OTHER (U//FOUO) Approved INVESTIGATION ID#: b6 -1, 2, 3 b7C -1, 2, 3 9B-TP-2534791 TERRY BOLLEA (VICTIM); EXTORTION - ALL OTHER NONAGGRAVATED THREATS Synopsis: captioned (U//FOUO) investigation Memo written by AUSA ~~~~~__.!regarding _I the •• UNCLASSIFIED//FOUO GAWKER-446 FD-1057 (Rev. 5-8-10) UNCLASSIFIED FEDERAL BUREAU OF Electronic Title: (U) To update From: for Communication case declination Date: 07/23/2013 TAMPA TP-PRA Contact: Approved Drafted Case case INVESTIGATION By: !_________ ___, S SRA ... !__________ By: ... ID#: __. u 9B-TP-2534791 b6 -1, 2 b7C -1, 2 b7E -2 TERRY B LLEA VI TIM); EXTORTION - ALL OTHER NONAGGRAVATED THREATS Synopsis: (U) To update case for case declination. Details: On 7/15/2013, USAO had declined AUSA ... ! _______ prosecution in !informed writer captioned matter. verbally that b6 -3 b7C -3 the I On 7/19/2013, AUSA !sent via e-mail a copy of the declination letter stating in part that "it has been determined that prosecution is not appropriate in this matter." The hard copy letter will be placed in the case file once received. On 7/22/2013, Terry Bollea to USAO. Writer notified attorney David Houston as notify them of the declination of prosecution Once all evidence will be closed. issues are considered UNCLASSIFIED and disposed of, well as by the the case a FD-1057 (Rev. 5-8-10) UNCLASSIFIED FEDERAL BUREAU Electronic Title: (U) Update From: INVESTIGATION Communication case Date: 08/01/2013 TAMPA TP-PRA Contact: Approved Drafted Case OF I __________ By: A/ S SRA ... I _________ __. By: ... ID#: __. 9B-TP-2534791 b6 -1, b7C -1, b7E -2 2 2 TERRY BOLLEA (VICTIM); EXTORTION - ALL OTHER NONAGGRAVATED THREATS Synopsis: (U) To update and to place the case in case for "Pending Enclosure(s}: Enclosed are 1. (U) Destroyed 192a' s the Federal Inactive" following Grand Jury status. document return items: Details: On 7/31/2013, Writer financial records to the the 192a's will be placed made a Federal Grand Jury return of all Grand Jury. The records will be destroyed in a lA in the case file. and b6 -2, 3, 4 AUSAI !notified writer that the USAO will be sending b7C -2, 3, 4 abandonment notices td bnd regarding the evidence (sex tapes). It is anticipated tha nd! !will sign abandonment letters. Additionally, AUSA contacted ....___ __.!attorney for Heather Clem to notify him that the sex tape._s_w_o_u_l_d~ I be returned to Terry Bollea as Clem is a participant UNCLASSIFIED within the tape's UNCLASSIFIED Title: Re: (U) Update 9B-TP-2534791, case 08/01/2013 footage. ._~~___.~sked for a copy of the tape which the USAO denied. Writer was advised that the culmination of the civil suit between Bollea andc===Jwould have to occur before the sex tapes could legally be turned over to Bollea or any legal owner of said tapes. Therefore, it is recommended Inactive" status upon completion process . that the case be placed into "Pending of the evidence abandonment/return •• UNCLASSIFIED 2 b6 -2, 4 b7C -2, 4 LAWOFFICEOF DAVID R. HOUSTON STATE AND FEDERALCRIMINALDEFENSE Criminal Law Office 432 Court Street Reno,Nevada 89501 Tele: 775.786.4188 Fax: 775.786.5573 Email: dhouston@houstonatlaw.com David R. Houston, Esq. b6 -4 b7C -4 17 December 2012 SA..._! ___ __. FBI - Tampa Division 83 Park Place Blvd. N Second Floor Clearwater, FL 33759 Dear._!__ b6 -1 b7C -1 __, Here are the signed documents I had in my folder from Friday, December 14, 2012 Meeting at the 'Sandpearl Resort. DRH:0 b6 -4 b7C -4 ... ~· I t..' !J ~.....\:.\...'" ...... .. D Special Agent._!_____ DH: DAVE HOUSTON TB: TERRY BOLLEA ___, b6 -1 b7C -1 b6 -2, 4 b7C -2, 4 Typing Key: AV: Automated Voice Auto: Automated Message UI: Unintelligible PH: Phonetic IA: Inaudible PH: Phonetic ////: Speaking simultaneously (12/14/2012) (03:22:27) D This is Special Agent! !It's December 14th,2012, approximately 9:35 a.m. DAVID HOUSTON and TERRY BOLLEA in a meeting with! and his unidentified client. I I (UI voices in background) TB: (IA) Do you want me to lock it? DAVID and I are about to be sitting here right now going over this document. DH: Yeah sure. Do you want to look at it, really? TB: Yeah I'd really like to look at it. (Sound of movement, footsteps) TB: (UI) they sponsor my show. We have a wrestling show. DH: Mmhm. I b6 -1,2 b7C -1, 2 j, TB: So (UI) stay late, thought it was the best thing to do. (UI) so I swore to myself after today, (IA) myself off for four days. DH: (UI) TB: And I can sleep. DH: (UI) TB: (UI) (Tapping sound in background) DH: I've got a friend that (IA) Red Bull. TB: Yeah (UI) but now I can't sleep so I told my wife today (UI) DH: (UI) TB: Yeah it happened quick because you know they were giving 'em to you free and if you watch my wrestling show, you've got product placement ,like the guys that will offer and will go hey your match is up next, drink one of these, you know? DH: Oh sure, sure. TB: And so every time I go to work there's boxes of crap laying around. (Sound of movement) (Sound of footsteps) (Sound of door opening) (UI voices) (Cell phone messaging sound) TB: You guys need like a slow little person, Agent, and I could take one of my little wrestlers and hide him behind the chair and have an extra set of eyes and ears in here. DH: Yeah that would be kind of funny (IA) pops up. TB: (Chuckles) This is the most ludicrous, craziest thing I've ever read. (Sound of footsteps) .i (Sound of water running) (Unknown movement sounds) (UI voices in background) (Sound of footsteps) TB: ... the guy who owned the place so (UI) (Sound of footsteps) TB D TB: ... now they had us in their (UI) b6 (UI) Oh yeah. (Unknown movement sounds) (Sound of footsteps) TB: I can't. I can't hear you. What happened to your phone? (IA voice in background) TB: Yeah (Tapping sound in background) Yeah. Yeah. (Tapping sound in background) (IA voice in background) Yeah. (Sound of movement) (Sound .of footsteps) TB: -4 b7C -4 Yeah. Yeah. (Sound of footsteps) •' TB: Yeah. (Tapping sound in background) (IA voice in background) (Sound of knocking) (Sound of door opening) (Sound of footsteps) TB: Yeah. (Sound of footsteps) (Zipping sound) TB: . Yeah. (Zipping sound) (Sound of footsteps) TB: Yeah. (IA voice in background) Okay well this whole, this whole trek music thing is it like real popular stuff like plays because at the end of the day it's the "it" factor and you know it's not the ego, it's not the art form, it's basically throwing the stuff out there, put asses in seats, the most popular, that's the only thing I'm worried about the trap music is, you know, you need to be in line with, you know, like you know the popular stuff too. You know, to make the money, you know what I'm saying? Dul) DH: And the other thing truly we're concerned about is if they're the people that provided it to the other websites, GAWKER, um TMZ and these other Internet · sites that actually broadcast these snippets cause the obvious is true. If they're not the people that have them. TB: If, if I want to track stuff (UI) I ( I DH: Ill so you know that's another thing of interest. Now he may want to ask you more questions you're gonna ask of his client. Ifl were him I would but you know. TB: Ill (talking on phone in background) b6 -4 b7C -4 1 DH: Certainly we've got critical concerns in those areas because. TB: Ill DH: If somebody else is out there doing it, what's the point you know? D Mmhm. TB: b6 -4 b7C -4 We're gonna work together and its all trap underground slow banging stuff instead of just up tempo with the whole club just bouncing. You need to really think about direction and make sure that you know that you have both so that, you now, you have the youth factor and draw the money and whatever. (IA voice in background) TB: Yeah. There you go, there you go. (IA voice in background) TB: Yeah. Yeah. (IA voice in background) DH: D DH: D DH: D TB: D TB: Oh and the other thing we had the concern about is of course how do we know they're originals? Mm. In other words there's a signature on the line (whispering) supposedly from I I b6 -2, 4 b7C -2, 4 How do you know they're originals and there are no copies. Right and his deal is there's a signature by! ~n orie of them, supposedly to .....:...!::::::==-".'." authenticate it but how do we know its ~ignature? You know, in other words this person seen him sign it? I (UI) Uh huh. (UI) If it's true how do yo~ know (IA) Yeah. b6 -4 b7C -4 b6 -2, 4 b7C -2, 4 DH: D DH: D DH: D DH: D TB: Yeah I think what they streamed, we need to know what was streamed. Was it the entire thing because if so doesn't that, can you copy what's streamed to you? I'm not a tech person so I don't know. (UI) Um I don't know. I mean certainly (UI) b6 -4 b7C -4 Right yeah certainly you'd think you could. (UI) may look that way but. But my idea is once it's streamed, is it live so in other words it's not streamed like an e-mail that, then hold on to and look at it when you want or does somebody call you and say hey I'm gonna stream this ·on this website at such and such a time and that' s the only way of seeing it? Well you've got these (UI) I mean you've got to have it saved or something (UI) hit play and streaming it. Mrnmn. So I don't know, it's. b6 -4 b7C -4 (IA voice in background) Yeah. (Knocking sound) (Sound of footsteps) (Sound of door opening) DH: Corne on in. How are you? D DAVEJ....__ DH: Nice to meet you. D TB: ....!How are you doing? (Sound of footsteps) b6 -2 b7C -2 I____ __. Nice to meet you, ... (Talking on the phone}(UI) I love you dog and I just want to ask you a couple of questions. His brother does a lot of social media stuff. Do you know that? Okay well anyway urn I need to talk to you about that but I'll give, I got a meeting going on so I'll call you in a little while. Love you too dog, get up and get going pretty soon. b6 -4 b7C -4 DH: Same deal. TB: Okay, love you, bye. D Same, same deal. It's good to meet you. I'm sorry under these circumstances. b6 -2 b7C -2 . TB: Yeah. D At the end of the day, I think and it's our intent that these things go away,.,they.go away forever. TB: Well that's, that's my intent too because I've, you know, just at the end of the day everything that's done, business wise and on a personal level, I just re, got remarried. I just want it to go away too. D TB: D Great. So if that's the goal, we're, we're on the same page. b6 -2 b7C -2 Right. TB: Plus, you know, just had enough. (Chuckles) DH: The, yeah, the, the basic question and, an~ t'm not a tech guy so I mean I'll be the first to admit it, um, one of the things that I talked about is the fact that this stuff was streamed at one point and whether or not. I know it got streamed to TMZ. I don't know how it was transferred to the other entities but if it's streamed, .does that mean, and the manner in which it was streamed, that these folks then had the ca, capability of copying it in its whole? Or was it only streamed in part? And that's the thing I don't know the answer to so obviously it GAWK.BR's got complete copies of all three, it c:Ioesn'tdo us any good, ifTMZ does, etc. But if it's streamed in part so that essentially what GA WK.ER is showing is all that GAWK.ER has or what TMZ may have receivec;lis all that they have. TB:· · Well my question on top of that is if it's on a computer how do w~ know they didn't copy"it? D DH: Right, so here's what we know, alright? That what has been on GAWK.ER is the only thing that exists, is the only thing that anybody has seen. So there are three separate DVDs and we understand that these DVDs are the originals and that its ! !handwriting on the· CDs and that he labeled them with whatever he labeled them. Do you know his handwriting? b6 -2 b7C -2 b6 -2· b7C -2 '( J TB: Well I mean if.I saw it I could probably, yes. I wouldn't say I'd be perfect at it. DH: Yeah well. TB: (UI) D DH: D Ah so that's our understanding that the, so that of the three separate DVDs um and there's an outline in here. Yeah. I'm pretty sure that what GAWK.ER~d don't quote me on this but what GAWK.ERhas was off of one CD. No one has ever seen the other two. There's one, and if you rank them in terms of offensiveness or, or importance to you, um, no one has ever seen that. TB: Seen, seen what? D That, this particular DVD. "DH: D TB: D b7C -2 I haven't, yeah I and just so you knowl.__ ____,!I, I have not shown TERRY verbatim, not verbatim but the outline. b6 -2 b7C -2 Yeah I mean so there's three separate DVDs you know they all depict what they depict um which, which is some sort of sexual relations um then in one there's conversation that has to do with um some kind of contract deal that your daughter is in Miami and she was dating the, the Mmhm. Producer's son and all that kind of stuff and no one has ever seen that one and, and if far be it for me to put myself in either of your positions, that would be, that would be the most important one for me. b6 -2 b7C -2 (Sound of movement) DH: Is that the, what is that one? TB: Well !hat gets us back to my original question. If these were put on a computer, how do we know there's not other copies of them than what you have? D Well it's our understanding that these are the originals, that these were the original. We don't know wha~ !did. b6 -2 b7C -2 'f. DH: No I, I think what he means if it was put on another computer, i.e. streamed, what you're telling us, just so I can be sure, is the only thing for instance being played on GAWKER, that's all they have, they don't have anything beyond that. D That's all anybody has as far as GAWKER, TMZ, those people. DH: Okay. TB: How do we know that for sure? D We don't but I guess that's, that's why the polygrapher is here. b6 -2 b7C -2 DH: Right and our thing TERRY, and you weren't a part of this, but I had the conversation regarding whether or not his person is the one that actually gave it to GAWKER. I think I mentioned that to you, gave it to TMZ. So in other words we don't have another person out there that's giving it to these web sources so this person that we're going to meet later. TB: Today? DH: Yeah, today, is the person who actually did that. Am I correct? D Yes. DH: D b6 -2 ·b7C -2 Okay and that way we don't have another person out there who's actually :funneling this information to these websites so we're settling up to date with this person in hopes of keeping this off the Internet cause of the damage to be done to you and then in tum we've got somebody else popping up. Eighty five percent of the time that they've matched in talking about this it's all um basically DAVID saying how do I ensure my client, how do I ensure what my client (IA) TB: Mmhm. D And so a way that, that DAVID negotiated that was to spread out the payments, polygrapher, and then in order to (IA) if there's any kind of breach um which is. TB: Well I guess if, I guess you know (IA) there were other copies of the tape and somebody was trying to hurt me that'd already be out there then, somebody would have probably already released that. DH: You'd think although you know, the, the reason that we have the polygraph is to verify as much as we can verify and hopefully the person can do that. D That's my hope, that's why we got ... I___ ___, b6 -2 b7C -2 b6 -2, 4 b7C -2, 4 DH: D· TB: D DH: D So we'll see what happens with that but the, the part I think. Which tape has the issues? Is it tape two or tape three, or is it tape one, do you see it? Alright so tape two talks about ah the only thing of real interest is apparently ~ad a girlfriend whose sister wanted to date you. I That was, that was GAWK.ER. Okay, that's tape two. b6 -2 b7C -2 Right. The other thing on ~apetwo is ah you telling a story about um some Coast Gu~d guys and there was some altercation at a, at a bar. TB: Yep. D Alright, tape three I think is the one where you're talking D b6 -2 b7C -2 (Sounds of papers being moved) There's a lot oftalk about the MTV showJ ~umped sides on !is dating this black guy, billionaire, talks about you know the N me um word and if she's gonna date someone like that. You can read it if you want. I TB: Yeah I'd love to read it. DH: Yeah it's pretty much right here. (Sound of movement) D DH: b6 -2 b7C -2 (UI) Pretty much right down in here. That's the part that's been referred to as the racially charged part so obviously that's, I think, what they're (UI) (Sound of movement) DH: D DH: b6 -2, 4 b7C -2, 4 Is that the part!...___ ___. Yes. Correct? (Beeping machinery sound in background) (Sound of papers being shuffled) b6 -2 b7C -2 b6 -2, 4 b7C -2, 4 D Up on page three (clears throat) forty nine minute mark. (Sound of movement) D DH: D (IA) ever wanted to retire all we need to do is. b6 -2 b7C -2 What time did you get in last night? About three thirty. TB: Mm let's do it. DH: Yeah, so. TB:. Let's do it. DH: I mean, that's, it's been understood that the reason .. (Sound of movement drowns out voices) DH: ... you know pretty damaging stuff. TB: Yeah I'd say. DH: And the obvious is true and this can come from! !They understand that it's damaging stuff and that by executing these agreements we're getting in control of the tapes, or the videos, whatever they are -andthose aren't goint to be broadcast !client and! lient of course is after by anybody associated with! going to verify that they haven't made copies and well go ahead, yo-µtell him. D TB: D b6 -2 b7C -2 So I would imagine that, that the answers that you would want verified by polygrapher. Uh huh. b6 -2 b7C -2 Have you turned everything over to your attorney that you have; yes or no. Have Y?Uprior to turning everything over to your attorney,, have you made any copies; yes or no. And are you aware of any other copies of this that exist anywhere, yes orno. (Sound of papers being shuffled in background) D And I think that about covers it. Would you agree sir? I mean what, so how do you. DH: Yeah (IA) b6 -2 b7C -2 DH: Dave Houston b6 -2 b7C -2 UF: Unknown Female VM: Voice Mail Typing Key: AV: Automated Voice Auto: Automated Message UI: Unintelligible IA: Inaudible PH: Phonetic ////: Speaking simultaneously -- - - - - - - - - - - - - - - .10/22/2012) (00:42:26) --- ---" - -------- - - ---- UF: I____ ...., DH: Hi. This is Dave Houston calling for um ... UF: bne second please Mr. Houston. b6 -2 b7C -2 (Hold music plays) D DH: D Hey David. HelloD How are you? Fine thanks. DH: Um. D Um. DH: Go ahead. D b6 -2 b7C -2 b6 -2 b7C -2 You called me in my car so if there's a little background that's why. 2 DH: D DH: D DH: D DH: D Alright, no problem. Um a couple of things come to mind. I'm gonna me meeting with Terry later. I; I heeded your advice. I didn't w~t to involve him in something that he may have an emotional reaction to so um you know I guess that might be understandable but one of the things. b6 -2 b7C -2 Right. That he you know has repeatedly stated to me is ah this idea of some of assurance um that these are truly originals because you know of course um we're bombarded with these various leaks on these various sites and these other sites claiming that they've seen them. (Someone co~ghs in background) I think you've got TMZ reporters out there claiming they've seen them so the end result we keep coming back to and that he wanted to actually be a part of this for concerned this idea of having ori~inals as opposed to ah coming up with trying to, you know, buy these things and then we wind up literally with a pig in a poke and somebody else has got them out there and next thing you know we're reading about another one. And that's, that's the other thing that troubled me so that was my primary I've not been involved in one of concern. I don't know how to tackle thatO these before so I rely upon um your suggestion as to how I might offer him some assurance. Okay um great I, I think that's, that's good um here's the assurance that I think you can have. Um I do not have um the, the, it's my understanding they are on three separate DVD roms, DYDs, okay? Okay. And that the DVDs are labeled with a sharpie and the handwriting apparently of I I . D DH: D b6 -2 b7C -2 Okay. So we can presume that it, I mean God only knows (pause) I guess I don't know if there's originals either and my client won't either um but we, what we can say is that they came from the hand of! I DH: b6 -2 b7C -2 b6 -2 b7C -2 How do we know there's not copies out there? Well we know that there's no copies um other than the cop, we know my client made no copies. b6 -2 b7C -2 Okay. What we know, what we know is that he had either an original or a copy that was made by! I 3 DH: Okay. And, and again I mean I'm going back to the LJthing. instance. For, for b6 -2 b7C -2 D Yep., DH: We know that the original came :fromthat location. I don't know who did what there. Obviously there's a bunch of different stories flying around but what I do know is the original starts there. Now :fromthat point. D DH: D DH: D DH: D DH: D DH: D Right. b6 -2 b7C -2 Whoever got hold of it that you represent either did or didn't make copies but what you're telling me essentially is your client can't tell me that there are no other copies out there so what are we buying? I guess that's the point then. Yeah nah I think that's, that's appropriate. Um what, I think what you're buying is you're, I think, you're either buying the original or you're buying a copy that was made by! !(Jm and you'll have to talk to! !whether or not he made any copies. b6 -2 b7C -2 Um. I don't know if he did or not. I only know what my client did ~d my client made no copies. Are these three separate events or are they just three separate CDs or do you know, or DVDs? b6 -2 b7C -2 They are, they are three, three separate events um :frombeginning to end and the files on the DVDs are dated. Right. And there are three separate. b6 · I've never seen these obviouslyD and I've heard people tell me that they have seen them,! !of TMZ in particular. Well what are we dealjng with on, on these tapes and you know I ask that only because I think, as you're pretty much aware if you've seen the news or the reporting on this, that a lot of damage has already been done as far as Terry's reputation is concerned. I think we've dropped some sponsors already, the whole story. What are we dealing with? Are these just straight up sex videos or are we dealing with something, tve heard there's one with racial epithets involved and the whoie story. Yeah there are three, there's three. 4 b6 -2 b7C -2 -2 , b7C -2, 4 4 DH: D · DH: D DH: D DH: D DH: D DH: D Have you seen them all? b6 Yes I have. -2 b7C -2 Okay. What, what am I dealing with here? And I'll tell you why I ask um as you !for a period of decades an~ I don't have . know Terry was best friends with! a clue and neither does Terry as to when he got filmed by! ~o therefore trying to figure out what the content may be is pretty difficult for us. And· again it goes back to okay what are we getting for the money-essentially? Um so (pause) I saw the three, the three videos first and then I went to Gawker and the three videos that I saw are all in the same bedroom and all with the same camera angle as (UI) so it's a stationary camera. It's not like um you know someone in the bed or someone around the bed who is manipulating the camera. It's just stationary, it's elevated and its pointing at the bed from what looks like behind some sort of plant. b6 -2 b7C -2 Right. Cause I think in the lower left hand corner you see some leaves that are you know some sort of greenery. b6 -2 b7C -2 Right. Um I think the camera's color um but the room is very, very dark so the colors are all very muted, it's almost grayish. (UI) Yeah it does have audio um and it is clear from one of the tapes that both Heather and! !knew that they were being, knew that the tape was running. Right. Um there's no indication at all that your client knew it was running. b6 -2 DH: Is there anything. D (UI) DH: Is there anything on the beginning of the tape where there is any discussion of the filming? I know that the one that I've heard about, and again this is obviously I think a TMZ thing again, where they reported on the beginning of a tape or something Heather is talking about having to get this thing turned on or she's gonna be in a lot of trouble. Ah are you aware of that or have you heard anything like that> b7C -2 5 b6 -2 b7C -2 D DH: D DH: D DH: D DH: D DH: D DH: Ah I heard of something like that you know through other channels. That's not in any of my tapes. I think that was allegedly with some other male other than your client. b6 -2 b7C -2 Okay yeah that's kind of the drift I got but I wasn't sure and I just wanted to make sure the three that you have·there's not, you know, for instance three :rµoreof Terry out there so again we're not solving a problem. You know my goal is to solve a problem not simply make his bank account lighter so we can have the entertainment value of possessing something that really doesn't do us any good just because of the obvious damage that's out there and you know quite frankly damage is costly to him. Yeah I agree. Ah I think as far as, because we started off we assurance, so let me shoot some other ideas out there um you know there can be a declaration by my client that he, how he came, the possession of it, what he's done with it since he came into possession with it, in fact that no other copies are out there, that he made no other copies. Sign that under penalty of perjury um we could do a polygraph or just a declaration. Dis /// b6 -2 b7C -2 there anything out there ... we can also. Is there anything out there that presents· that level of reliability, i.e. how he came to possession of them so that we know that we don't have some intervener out there-or is that something you can or can't do? b6 -2 b7C -2 I think it's something we can do and he can prove, you know ah, I'll have to check with him but I think he can prove how he purchased the material, how he was ah you know, it was a good faith purchase or what have you. Okay. Then I think there's the last thing we can do is, assuming that there is a financial acquisition or settlement between our client that's confidential and that involves a non disparagement and all that kind of stuff, is we can put in um if my client is less than truthful we could put in a disgorgement clause. We could put in .... How do we get the money? (Chuckles) It's been my-experience once you give money over, disgorgement clause, unless somebody is pretty well heeled, is not worth a lot. You know what I mean? I mean that money can be out of the country. Yeah. b6 -2 b7C -2 In an immediate wire transfer. 6 bG _ 2 b7c -2 D DH: D DH: D DH: D DH: D DH: D DH: D Yeah I hear you but no one wants a judgment against them or someone running against or you know coming, coming after them. The other thing I think is the last thing you should probably do is spread out the payments so that ifthere is a breach or threatened breach then all payments stop. b6 -2 b7C -2 Right. That there is a return bf money that has already been paid then it can maybe get into a disgorgement of other profits, should he say sell this material twice or liquidate the damages. Well and I guess ... And other than that like a, so I guess what just in review what we've talked about is a declaration under per{alty of perjury, disgorgement, punitive damages, um so um periodic payments spread over time and in the case of breach, a threatened breach um stop with your payments and return of money that's already been paid. b6 -2 b7C -2 Right. .Other, other than that I, I don't know how we can assure, I mean I, in all these cases at some point both sides have to take a leap of faith. Well here's a question for you that, that kind of was something I had wanted to talk to you about. There have been other websites, besides Gawker of course, I can't even remember who they are. I know um supposedly the Dirty.com was approached.about these things and if, if you believe them, and there's some other website out there that claims they've got them as well. And I didn't know whether that was something; that you were aware of or whether there's somebody else with these um particular tapes out there. It's nothing that I'm aware ofum you know I think it's something that, that we, we can find out um. b6 -2 b7C -2 Okay. You know if there are other copies I can tell you that the way that I viewed them was, was through a ah through like a streaming service. Right. . So I never fully acquired a copy of it so perhaps that's how other people may have viewed it, I'm not sure. 7 b6 -2 b7C -2 DH: I know that in, in some of these instances that folks will go out to different ah you know internet service places and say okay well here's a snippet of it to try to build ~e sorl of, of market for it or something in the event that, let's, like the L__Jor ! thing where if you believe them initially they were going to fight it but then of course it came out enough to the point where they kind of threw their hands up and said oh well I might as well sign off and commercialize this and you know rightfully so. They've made a lot of money. But I guess my question is, is your guy or girl or whomever your clients may be um folks that may have been going around trying to give people snippets of this so that they had a marketplace out there or do you know? D D DH: No I don't know. I didn't ask the question because quite frankly I don't, I don't want to know at this point um and, and I ~hinkthat if we knew it would probably hinder resolution between you and I. Well maybe and maybe, I'll tell you why not because that's honestly! !what I'm worried about is we've got other folks out there that are trying to market this to other websites and I know at one point in time !over at Vivid got the call because um he actually had sent me an inquiry as to whether or not Terry would sign off because somebody was trying to sell him these tapes and you know if I know that your people are the ones that are doing the attempt at selling to other folks that at least I know that I don't have three or four ditferent teams of players out there that are, you know, all in possession of this. And you know I can't imagine how that many people would get in possession of it but, you know, these are questions Terry's been, you know, sort of been hitting me between the eyes with so I'm just hoping you'll give me some guidance on it. I D DH: D DH: b6 -2, 4 b7C -2, 4 b6 -2 b7C -2 b6 -2, 4 b7C -2, 4 . b6 -2 b7C -2 Right. Cause then it means that there's a viable product, otherwise it's a copy of, potentially a copy of a copy of a copy and you know I get back to the idea of financial issues and what they're worth and what they're worth to-him and how do I stop the damage that he's getting hit with because of these tapes. And what I'm looking for I think is pretty much the same thing you've t~lked about and that is to try to achieve some final resolution here. Yeah I hear ya, I hear ya loud and clear and I understand your goal and all that but you know but I, I think at this point you know I'm, I don't know the answer to that question and um even appreciating what you've just said I still don't want to know the answer to that question. Right. 8 b6 -2 b7C -2 r. D I'm certainly not gonna um you know walk my client into a lawsuit you know that's. DH: Right. D That's, that's not what I'm here for. What, what I do know is that I have. I never knew this client before this matter. DH: Right. D And I feel that you never know I mean sometimes (IA) is your own worst enemy. DH: Sure I've had those. D (Chuckles) But um I have you know as a condition ofmy employment I have you know told them that they are to speak to no one about this and they are to do nothing with the product so long as I'm involved. DH: DH: (IA) D Um that I am the only person that they are talking to. D b6 -2 b7C -2 Right. Um in, in order so that we can control the flow of information and everything else and they have assured me. DH: b6 -2 b7C -2 b6 -2 b7C -2 (IA) and a good question comes up from that, you, you indicated as long as you're involved you've got them kind of under control. Ah what if something breaks down here. Let's say we don't reach a deal, what are they, what's their next step? b6 -2 b7C -2 I don't know. DH: I mean are they planning to try to release more and just break, break him down to the point where he signs off commercially to produce this thing or I mean in order words he's asking me exactly these questions. If he doesn't reach a deal what happens next and I don't have an answer for him. D Yeah I don't either. I mean I.think it's probably speculative. DH: Well can you talk to 'em? D That's really not something I would discuss. DH: Okay. 9 b6 -2 b7C -2 D DH: D I don't, frankly I mean I, I mean I don't want to know. Right. What if Terry wants to ... D It's not my business, my, my business is to, to the extent possible um advise them as to their rights. DH: Right. DH: D DH: Okay. What ... That's my goal here. What ifTerry wants to look at the tapes? What's our shot at doing that or a chance of doing that? DH: (UI) D I don't mean to be ... DH: I don't know, honestly I don't know. D Yeah. DH: -2 b7C -2 b6 Why? I mean I, I. D -2 b7C -2 b6 Um and inform you what, what I believe my clients rights are and to, to negotiate a transfer of those rights. D DH: -2 b7C -2 Okay. What if ah ... DH: D b6 You know um you know that kind of if, if or, you know, if, if it serves me no productive purpose. -2 b7C -2 b6 And I guess one of the reasons would be in h~sbrain if he's been with her six times and he sees the tapes then maybe he gets the idea okay well maybe I was only with three times cause I actually did two of the things I thought I did on one tape as opposed to two different tapes. You know I mean I don't know. I asked him the same question. He really doesn't have an.answer other than he probably wants to make sure it's him, number one and number two. b6 Yeah. -2 b7C -2 That he's trying to put together in his brain how many times he could have been taped and you know how people think okay well I did, and you know meaning no disrespect to my client, but I did this sort of circus act on this tape and maybe I did a different one on this next tape. Ifhe sees the tape and they're both on one 10 I tape then he's figured out okay well maybe there aren't two se~arate events because again we're going back over six years. I think you know that. D DH: D And that's part of our problem. This is not current events stuff so that's why he's trying to figure out what the heck is on them and what essentially he's paying for cause I don't imagine they come cheap and if that's the case I think at least he ought to be able to see the tapes in order to justify whatever he's going to pay. I, I don't know anybody who would, you know, buy a pig in a poke cause again what if there's nothing on the tapes? What its some actor portraying him and he's paid a bunch of money, gets some tapes and it's a Hulk Hogan lookalike cause we don't know what's on them. See what I'm saying? Yeah maybe I could make some sort of offer of proof or something like that. Let me think about that, talk to my client um um but I, I hear what you're saying and I, I'll, I'll, I'll give it earnest, some earnest thought to that and, and um present that to my client. DH: Yeah it's just a ... D Well I guess I can. DH: Here's, here's one thing ... D DH: D DH: D DH: b6 -2 b7C -2 Yeah, yeah. b6 -2 b7C -2 I can talk to you a little bit about the, you know my impression of the tapes. Okay. Um one, she's a very attractive girl. b6 -2 b7C -2 Yes. That was the first thing that struck me. (Chuckles) Yes she is very attractive, she is very attractive. D Two, she's um you know she's, she's very sexual. D Um there, there are not close ups. The camera is stationary. DH: DH:. D b6 -2 b7C -2 b6 -2 b7C -2 Yeah. Right. I think what you saw on Gawker is what, is you know everything I saw um and. . . 11 b6 -2 b7C -2 DH: Yeah and there's no question. D Um other than, there's no wild sex by the way, I mean there was no a, you don't, it was. DH: This will help. You bring up something that helps me and probably gets a point across to him. One of the things he was concerned about the tapes and their authenticity meaning are they genuinely him but one of the things that he knows is the tape leaked by Gawker is him and. D DH: b6 -2 b7C -2 b6 -2 b7C -2 Yeah. If you guys are the ones that gave it to Gawker then I can pretty much tell him hey the Gawker has what Gawker has and that came from the folks we're dealing with so it's pretty reliable that that's ~ou on those tapes Terry and that helps me out as well cause you know of course anybody could call anybody and say hey I've got tapes of your client and um you can't look at them until you buy "em but once you buy "em you may see that its some guy that looks like Hulk Hogan and isn't. If that's the Gawker leak tape then that's a genuine Terry Bollea tape, no question. Yeah. b6 -2 b7C -2 (Unknown sound in the background) But I can't tell you, you know, who, who did not leak it to Gawker. What I can tell you the tapes that I have seen are the same, you know, actors and the same cave and the same camera and the same bedroom that was on Gawker. DH: Right. D Um you're, she seems very, the situation was, was weird. Um now I'm talking about the footage, alright, so the situation was weird um there are times during the sex, before, during and a~er the sex where um ~s walking in and out of the bedroom and chatting um you know with his wife and his best friend as they're having sex and they're chatting bacl,c Um the sex is pretty straight. I mean there is no, there's, there's nothing that would be even remotely unusual or fetish like. It was pretty straight sex um. · DH: Right. D ·Oral sex both ways um him on top, her on top and that's it um there's never even bG - 2 b7C -2 an occasion where he was behind. DH: Right. I 12 b6 -2 b7C -2 D And then you know I think that it's pretty clear that, that he wa~ going through and let me tell you too and I, I've been a fan of your client for years um. DH: Well he needs (IA) D (UI) DH: . . . which is not a graphic self ... D (Laughs) Yeah he seems like just a really, really nice guy who was going through a really bad part in his life. DH: Yep. D Um he, he confides in, mostly her so it's just talk a little the conversation is between your client and what's her name? Clem? DH: Yeah Heather Clem, yeah. D b6 -2 b7C -2 !_ __. b6 -2 b7C -2 Yeah so he confides in Clem about the deteriorating condition of his marriage and you know the ins and outs of his marriage and he had some choice words for his ex-wife. b6 -2 b7C -2 DH: D DH: D (Chuckles) Yeah. Um and ah at one ·point he complains and confides in Clem about the deteriorating condition between the relationship between he and his daughter um and at some point you know they talk about that for an extended period of time. Right. Um but both him, Cl~m and then after they have sex ah! ~omes in and, and all three of them are talking about her and ~t some point its discussed that she is a thankless bitch, that she's choosing sides, she's going with her mother and they move to L.A. and there was some Thanksgiving where they had um Thanksgiving dinner and didn't invite him and um it was really heartbreaking for him and um you know someone mentioned something about throwing her to the, to the curb. DH: Wow that would seem to authenticate the tape that it's him that's for sure. Because I mean a lot of what you're talking about I've sort of heard that same story. I've repped with him for about six years now so. D Yeah. b6 -2 b7C -2 13 b6 -2 b7C -2 DH: D DH: D DH: D DH: D DH: D (Sighs) I've, I've heard the same discussions you know in reference to the issues and he·problems with the kids and you know, every, in the divorce courts everybody tries to pick sides or parents try to get kids to pick sides so that (IA) Then there was just some more discussion um seell1:slike he has a very close relationship or had a very close relationship with his son and he was constantly mentioning his son and, and wanting to keep him close and'happy and satisfied. Um there was some discussion about his son's girlfriend's sister calling him or texting him and, and wanting to um date him if his, if Hulk's marriage did in fact fall apart. b6 -2 b7C -2 Right. Um and then she was seventeen or eighteen. b6 -2 b7C -2 Yeah I think that, I think they put that one out on TMZ too but that came from (IA) And then the other um discussion really the, probably the most noteworthy thing or from your perspective is talking about, the same conversation where they're !was. He's talking about how much talking about um how thankless! money he invested into her music career and I think he said it was something around two million. b6 -2, 4 b7C -2, 4 Right. And that there was some billionaire in Miami who I get the impression that he was black. b6 -2, 4 b7C -2, 4 Right. Um and that he thought.that! !was fucking this guy's son because he caught them kissing or cuddling or something like that and he's like his, look I'm driving I don't have my notes so don't quote me on this but the conversation went so~ething like, now I'm not an outrageous, you know I don't care if you fuck, I mean I'm not two-faced like that you now fuck all you want. Um but I'd rather not you fuck a nigger and if you're gonna fuck a nigger ah you, you just assume I'd rather have you fuck a nigger that was a seven foot tall NBA .um not you know, not some piece of shit seventeen year old kid. DH: Right. D And he said something abqut you know I'm not a racist um well maybe I am but no more than anybody else and they all got a chuckle out of that. 14 b6 -2 b7C -2 DH: Right. D And that was pretty much the gist of that conversation. DH: Yeah that would not be a good thing. D So (pause) so there it is. I mean other and you know other than the methods I spoke about earlier _asfar as assurance um I don't have any other ideas. DH: Right. D DH: b6 -2 b7C -2 b6 -2 b7C -2 And the tape is, you know, it is what it is. Well a couple of things come to mind. I mean referencing and assurances, you now, I and I haven't talk to you about money but I do want to talk to you about that because it may be so far out of our bar, our, our ballpark that you know it's just something I may have to say you know let you guys roll with it and do what they do with it but if we're in a situation where money is paid up then obviously we want to be in a situation to know that they're not going to be leaking other information from other tapes that we haven't bought. That would certainly be one concern and I, I need some assurance from them that as, as far as what they possess, they possess these three, that's only these three. They've got no more, we're not gonna hear about a fourth one that inadvertently showed up later after we cut some sort of a deal, that this would have to be. you know, all inclusive as referenced anything they have now or anything they get in the ~ture cause I really don't want to be in that situation where somebody held one back or said oh no we just found this or this one just came up. And the other issue of course would be if, if we're talking money I know that ah there's a value to these. l_just don't know in your mind what that value is. I haven't seen them, you have. I haven't had the luxury of being able to access the potential damage impact if these things get out and certainly you have and I'm assuming if there's conversation such as what we just talked about referencingJ and you know who she's dating, that the racial issue certainly could cost him a great deal as far as sponsorships. I mean he's a national guy and he's got a certain image to maintain so I guess what I'm looking for here is what are we talking about money to make sure that doesn't happen. I D DH: Look I, I don't care how you respond to my next question but I need you to start, start the negotiation off. ! (Chuckles) Well then I'm negotiating against mysel~...._ ....I mean there's no 15 b6 -4 b7C -4 b6 -2 b7C -2 D No, no, no you're not, you're, you're just starting, I don't care if you say a dollar. b6 -2 b7C -2 Alright then I'll say a dollar. DH: D (Chuckles) And I'm not trying to be ... DH: D Oh well don't. Alright. I'm not trying to be flippant. I just need to know whether. DH: D b6 -2 b7C -2 No I understand, I understand but I don't want to get in a position where you know it comes back later that we demanded X and, and you never countered so now that you kno~, we started a negotiation per acquisition of my client's right. DH: Right. No I mean. D So. DH: As, as far as I'm concerned. D b6 -2 b7C -2 I think we can talk later. (Unknown sound in background) I'm, I'm in anuncomfortable position for two reasons. Number one, I've never seen them. I don't know how damaging they are, like I said, I think you do. You certainly are better off in that sense than I am. Number two, I am in the comfortable position knowing something about his finances. I'm not his accountant by any means but I have some knowledge as to contracts and I'll be straight up with you. He's lost two major contracts since this thing broke open, one with Rent-A-Center and another with this health food vitamin company that . was gonna sign him· for a, a pretty good contract, they've pulled back and they pulled back because of these leaks that are out there so obviously if the leaks are gonna get worse in the event that we don't deal with it then that's certainly the incentive for him to want to deal with it but you know. I mean money is relative. Some people think that a million bucks is a lot of money, some people think it isn't. I frankly think it is and that's why I'mj-µst trying to get some ballpark from you of where your head's at or your client's head at as far as the value of these things to them. As I keep saying, our goal is to make sure that this stuff doesn't get out there. This hurts him dramatically. I think everybody appreciates and knows that and that's what we're buying and essentially I don't know what value your client places on that. DH: 16 - -------- D DH: Well I think we would counter with, with a million dollars. And I'm assuming a million dollars is negotiable? Or is it not? Yes. D nis. DH: -2 b7C -2 D DH: b6 Okay. Now, from the perspective of involving Terry, I mean do you want me just to go with him and say look they're talking a million bucks, we're _gonnahave another phone call, you sit down with me Terry and this way certainly I can give him an I've idea of what is on these tapes in the sense of the discussions about! talked to him and I, I know I mentioned the racial issue to him and he was kind of blank on that like it wasn't ringing a lot of bells. This gives me the opportunity to at least present him with that information and maybe if you could, if, if you can look at these things and try to give me a better heads up as far as what we're seeing out there because you know I've told you my purpose here is to avoid the damage and stop the bleeding, literally. And if you can say to me hey Dave, you know, look there's some other stuff on here it allows me to at least advise him what I consider that value to him. Commercially, that value may or may not be, · you know, in terms with what you guys are asking and I know we haven't reached a bottom line figure and you haven't hit that point where you said hey that's it, it doesn't get any lower than that but is that something you can do? I D DH: D DH: D I would think so I mean, for, as far as viewing the tapes um you know at some point we're gonna have to have a show and tell. I could probably make an offer of proof of what exactly what it is. I think um then we can agree on price um then ah so long as the material is what I told you it is. b6 -4 b7C -4 -2 b7C -2 b6 Right. You know we close the deal and if the material is anything other than what I told you it was then you know-the agreement that we had is off. Okay. Um and, and look I don't mean to put myself in your shoes or how you talk to your client or what kind of relationship you have but I hope that you and I are dealing in a professional way that is truthful, open, candid. Um and I hope that ah I know that I appreciate that. I hope you do and I hope your client does and um it's not my intention here um to hold anybody over the fire um, um you know I hope I'm part of the solution here. 17 b6 -2 b7C -2 1 DH: Can, can I ask you a question and you don't have to tell me the answer to this but this certainly helps me come to any understanding of whether this is maybe a copy of the original or the original. If! signature is on the CDs or whatever it is, DVDs, that suggests to me that those are originals. Now I don't think! !and a, you know again! don't know but I don'~ think! !went around and make a bunch of copies and handed them out to people. But how do rame is in his handwriting? you, are you comfortable believing tha1 I D DH: D DH: D DH: Yeah. b6 -2 b7C -2 And if we go on that theory is there any way you can let me know, just even in general, how your clients got a hold of "em. Is it something they were given or how did they wind up with 'em so again it goes back to whether these may be originals or might be a bunch of in a series of copies. Yeah it, they, they purchased them um from a, from another individual, not, not from I, Okay I mean is that person close to ... ! __ put you on the spot I I !do you know? And I'm not trying to I, I believe he is yeah, I believe, I believe that the seller ah was close tq___ _. b6 -2 b7C -2 Okay, alright. D By the way I, I think you're, I think you're entitled to, to know exactly how this happened um you know before that check is cashed. DH: Well and that's something I'm assuming you can fill us in on as how this happened, whose done what and that, you know. I mean look it's no secret that we filed a lawsuit against Gawker trying to get this thing off the air and you know. D Right. DH: Again the last thing I want to do is to be chasing every potential internet out there because we've put Gawker down, next thing you know we got three other sites sh9wing this stuff and that's why I was concerned as to whether your clients were potentially taking this around and ah it, I don't know. You know I'm getting the impression from you you're telling me they're not but what, can you tell me that? Is that something you can share with me? D b6 -2 b7C -2 Well it's not me. I mean I, I can tell you what I've told them. I've told them to speak to no one ah to do nothing with those things ah put them in a safety deposit box. 18 b6 -2 b7C -2 DH: D DH: Qkay and I mean. They, they have assured, then they have assured me that they've done that. Now do you think that that was something they might have done beforehand because I'm not saying its current as far as current events but I know somebody was shopping these two different sites for a while and if it was befor~ this whole thing b:oke open I don't have a problem with it and I thin_kmost of it was. I would just like to know and maybe you can talk to your people and find out if it was them. That gives me a higher level of security to be able to tell Terry, Terry I know it went to other internet sites but in all probability it w~s the same folks that we're dealing with now. We don't have another team out there trying to get internet sites interested cause they've got them too. You know cause if somebody else has got 'emLJobviously, they've got very little if any value to us. D Agreed, agreed. DH: And that's why I'm trying to get some sort of feel here for what's up out there. D Yeah you know it's, it's my understanding that these are the original tapes and that there are no other copies out there. DH: D DH: D <- b6 -2 b7C -2 Okay well that makes me feel a lot better. I think then we've got something to talk about. Um what I'd like to do is you know I'm meeting with him later. I'd like to be able to get back with you once we have an opportunity to figure out what, you know and I, and I tell you one thing I hate. I hate this constant back and forth where somebody says you know I'll give you a dollar, you ·say a million. I say we'll give you a hundred thousand, you say nine, you know there's gotta be a point where there's a value in your head and I don't know whether we can get to that point on this call or not but if we can its gonna save a lot of the back and forth. I, I'd kind of rather go on with everybody's bottom line and say this is what it costs, let's not waste a lot of time, you're either in or you're but, meaning talking to Terry. And I'm very much a straight shooter with him. I don't usually you know waste a lot of time going back and forth in negotiations with him. I'll say look this is worth to them. It doesn't matter what you think its worth, this is what its worth to them. Can you do that for me? I don't think that this conversation I can do that. You know I still need to talk to my people. b6 -2 b7C -2 Okay. Ah and ·thei:iI think you know like look, you know we're not asking for two million, you know, you know that, you know that a million isn't firm, you know 19 --------------- ----- we're not asking for ten million so you know, knowing that our counter to your one dollar settlement was, was a million and it's not firm I think you should see if, you know, if we're, if we're (IA) so you know let's, let's put a little time aside ah let's have the people in authority within your shot. DH: D Right. b6 -2 b7C -2 And, and then maybe in the next phone call let's see ifwe can't, can't get this done. DH: Okay do me favor and I'd like to offer some asswance to your folks and tell them we are interested um I don't want to out of frustration thinking they've gotta go out and do something to ah you know get our attention would be the best thing um that's not necessary. We get it, we're interested. We, as I've told you, are certainly well aware of the value to him in reference to his reputation and things like that and frankly I think his reputation has taken enough of a-hit to get that point across just by what's going on in the news. Ah so please let them know that. It's a good faith dealing and ifl had a, a definite figure I could give you certainly a quicker l;lllswerbut I realize you gotta talk to them and see where they're coming from as well but just let them know that we're trying to accomplish is really get a chance to get some facts and figures together so that we can meet up, that we can talk, that we can see the tapes and I don't know how long that's gonna take to get there but you can imagine that you know it's pretty important to him because he's trying to get on with his life. D Yeah, right I get it. D I, I look forward to, I look forward to hearing back from you $id um I think it's regrettable um that your client has taken a hit on this already. (UI) DH: Yeah no kidding I mean he, he, I think you've summed it up, he's a good man. It's unfortunate but hey we all do dumb things but as far as getting taped though, that's a whole different story to me. I, I would hope that never happened to me. DH: D DH: D DH: b6 -2 b7C -2 Okay now is this. Um yeah I (clears throat) I find the, the behavior of, ofl...._ __.~o be detestable actually after watching it. b6 -2 b7C -2 Yeah me too. So. Hey is, hey can you give me a cell number so I can get you if I've gotta get you after hours? 20 DH: b6 -2, 4 DH: Yeah b7C 4 DH: Okay and you?ve got mine obviously DH: DH: DH: DH: DH: DH: need me after hours don?t hesitate to use it. Alright? You now I actually don?t think I do. Oh here, you got a pen handy? Or can you do while you?re driving? Sure, yeah, yeah, hold on one second. Alright, shoot. It?s seven redacted b6 ?2 b7C -2 Yeah. redacted Yeah. 7 redacted Right. Alright thanks David Alright sir we?ll be talking. DYE. b5 -2 MC ?2 Alright, bye. (End of recording) 21 b6 -2 so if you 1373 ?2 it and then I think you?ve got the of?ce number too. be '2 b7C -2 EAWKERJM \um???dknagw I. WJ3V., 9306/ . ix. mmwwau ?thxUnww/ nu n. .I nm?JV/x/w/d/Cmu 0C All} ?57: Jierj #22: . 7X Uw?wux?dnvi ~02 Olav/w LAVA/umdmil +Ax?la/u r96 IKIUQ ?an/14C.AA/dm II 043 (Giueqc ace ?beka a; q?qrioUQEt? .. 7 It IQ MHWV Lk?sbml. Lining 4.91a1. neon/J . WJ 1. . 7 n14 ur.xV all} 1Ne\?mwco\ w. Duh mom {22% 38L Wham?; 1% 7W ?fA/p f? 555' j/Tt?z: 729d; In ?b??fi 32: 136?2? b7C-2 . .bcz/ 27L 5&3? cA ?aw/?Lu mm: AM Mae/w. .g 05 Ida?[?7 b6 QAL 1) b7C ?4 (lorCA? Wm?rav?g Klan-.0 ?wk a c! A W?s-Rwy \fan 0 .. 531? 2:23 1? ?5 (fa/6" ,Ir/l M?nmoq A 1" Ix" o. I dad/1 (all 0 00 gm), on. .. Ne? (Deon. m,?90/ 7L?me (77,11; LJV 9-9535 b6 -2 b7C -2 is)wa 104% 2?17;? -- my (pf/12f (A) (E: of?/ 1445;! if: ?5me KJ) TN o-ngc/o Mn??r %0 Hit?) . ?54,955 v. "?fch-a iblma? Ongn r71 - b6 -4 e?w?mhs?g /c ?4 M5 - 3Q (coma. Omen-Q. Maxi \I\Q\3cv ?c??vxm \ch4 0? {@453 men. wmagag,? "(mf?x?4l ?0 {Am? mil?1715015 son?.6 I _4 b7C -4 GAWKER-QBE b6 -4 b7C -4 - :f::>'$.~ed _ 'i'-3 • c-o.b6b7C -4-4__ _ t_ t_ ,.....__ ____~$,:\~,hf \C... -4~-- ~~~~~-H--W~~:2-~~~~~===:::::Z::=6:~!:!E~~=======k';f;d-~~~~--:~~b6 2- b7C -1 b7C -4 •' .. . ... b6 -4 -4- i~-.========,--L.--~~~~~J---l~~s;;.,;...:~-\:--=-'";?'~~~~~~:...i...'l,~-=-~-'-';....;...~~-b7C b6 f:.-~===:.\-4-\~~..i...;u_~~~~~~~~~~~-b7C -4 -4 - b6 J~~~~~-U~~~~~~~l-'4J~.C::.::::;L:;..~U-J.~~~~~~~~~~~~~~~--b7C -5 -5-- a EOUSA F;~~-1 {B){6) . ., , .."" ~- .. I , "''"""' •'•"• ..................... ~,..,~......... ~"-~"·····-········'"~··"'"""""' ' sent: 1\iesclay, November13,2012 10:22'. AM (B)(7}(c)To:~~ Subjecti FW: 9 of 9 S1.lnl"3 sets oHweet!i from thls morning .., Note the on,~~bout the chetk, I.st'; disc1Jsswh~n y'ou are abl~. sAI._ ____ _. b6 -1, 4 b7C -1, 4 Tampa Olvlslon,Pinellas RA Offt~ I 1 REFERRAL GAWKER-104 From: Friday,October 19, 2012 3:18 PM Sent To: IFW:10.i9.l2! Subject; SA.._!___ b6 1, 2, 3 b7C -, 2, 3 ~atter __. Tampa Division, Pinellas RA I Office! From:! Sent: ""Fr..,.1d""'"a-y,"""'Octo,,....,....,.be-r """'19,,...,""'2"'"01"""'2"""3,,....:"'"01.,..,,,,,PM"""'""----- I To~ Subject: 10.19.U b6 -1, 2, 4 b7C -1, 2, 4 ~atter IThe caseIseems.totake a number of twists end turns and I wanted you to be aware of the following. !t seems as though -··---c=Jamttte-athermad6"1:f0tte a habit of-taping folks. · --~- ------ ·· .-~--~------·---------------------- ···-·--···--- bs 1_under_ st.an __ d it, ere are po .. te.ntia!lytapes~ ~fThll "",. 't----.---------1 The troublin matter is there may also be tape on . _ as been a good friend of or a n~ years, has stayed w ...___ .... ~t his heme and may have ta·r.e~n~~~ ge of the opportunity an imntatlon frortL__JO sleep withhis wife. As_-_ th_ td I As is apparent, Heatherwould record these people and ln fact, according has on one of the tapes said "Oh I better turn this recorderon, if I don't I am going to be in big trouble~. It seems she was operating at ~irectlon for the purpose of creatingwhat might be a rather valuablelibrary ror Mure use. b6 -1, I I am not sure Whethels d is showing snippets ~o! :I b7C -1, representingthem, although I am beginning to think so just simply by the fact someone tn order to continue generatinginterest 2, 2, 4 4 Heather'sstatement on the tape! ~wed is very simple. She is doing this at someone's direction tor a . specific purpose and it certainly concerns.more \han Terry Bollea. Did you get a chanceto talk to the State's Attorney?The more I check into the Ideaof prosecutionon a State level for the production of the.tape, the more l am simply amazed that the states attorney's office has no inte_rest.The statute of llmltatlonsis not based simply upon the date of production,but as we have learned is also tied ln with disseminationor attempteddiscrimination. Please let me know if youdid have a conversation. l know you don't want two thingsgoing on at once, but I ain curious · · as to what their positionmay be. Sincerely, LJRHouston -____,...,.---,---____,.,,.-__.!to' b6 -4 b7C -4 bavid R, -Houston, Esq. 432 Court Street Reno•. NV 89501 775·-786~4188 775-786-5091 FAX 1 GAWKER-1111 Filing # 30302517 E-Filed 07/30/2015 03:46:38 PM EXHIBIT 60-C to the CONFIDENTIAL DECLARATION OF GREGG D. THOMAS IN SUPPORT OF PLAINTIFFS’ OBJECTIONS CONFIDENTIAL-ATTORNEY'S EYESONLY Kristy Rosser From: Sent: To : Cc: Subject: Shearn, Jason R. Tuesday, December 11, 2012 12:51 PM orrpoly@gmail.com; David Houston Braziel, Charlotte F. Thursday/Friday Jim, Dave (our CW)... Dave, Jim (our Polygrapher)Now that we have the formalities out of the way, I wanted to shoot out an email with information regard ing our meeting on Thursday. We will meet on Thursday, 12/13 at 5:00 PM at the Tampa FBI Office. The address is 5525 West Gray Str eet, Tampa, FL 33609. Dave - Please mapquest or put into Terry's gps (much easier than me trying to give you directions). The office Is within 5 m inutes of the airport. Dave - Please bring a check for $600 for Jim's polygra ph exam. Also, please bring a trust account check for the "payment" of the tapes. We will bring a port able DVD player to view the tapes. Let me know if anything comes up. Thanks again for your help. SA Jason R. Shearn Tampa Division, Pinellas RA Office 727-796-7055 f DEPosmoN j i EXHIBIT :J 3h j i,-? -10 5;(_ BOLLEA 001 160 Dep236 -001 Filing # 30302517 E-Filed 07/30/2015 03:46:38 PM EXHIBIT 61-C to the CONFIDENTIAL DECLARATION OF GREGG D. THOMAS IN SUPPORT OF PLAINTIFFS’ OBJECTIONS qmqmo?{??nmahkm?url rim/Fi??; . 0.. . . 15!! I. Ivar. mmam?mm.5. 35441531.; . #111454; A Al? .u Ilip?h?f Filing # 30302517 E-Filed 07/30/2015 03:46:38 PM EXHIBIT 62-C to the CONFIDENTIAL DECLARATION OF GREGG D. THOMAS IN SUPPORT OF PLAINTIFFS’ OBJECTIONS From: Sent: To: Subject: E:10.18.12 Hogan Matter b6 -2, b7C I did receive your EHnaitthank you. -2, 4 4 !n my experience.,I find little, if any, benefit from involvin9client's 1ninformalconferencecalls/meetings,etc. with opposing parties or attorneys. I'd be morethan happy to discussthis matterwith David directly.but l would not agreeto have his client directly involved in a conferencecall !f David'sclient demandsto be involved,I think the best avenue allowingfor his involvementis a confidentialnontbfr1ding mediationwhich I'm sure can be scheduledwithin days, l'm likewisesure we could have any out,-of~stateparties.or attorneysappear via phone or teleconference. Pleaselet me knowwhat you'dliketo do. The informationin this electronic mai!messageis confidential andfor useof on!ythe namedredpient. Theinformation maybe protected by privilege;work product Immunity or other applicablelaw.If you are not the intended recipient the retention., dlsseminatlon,distributfonor .copyingof this e-mail messageis strlctlyprohibited. If you receivethis message1nerror pleasenotify ai us immediately ~f by e··mailat! ! b6 -2, ~!t!l"hursd:v, Od;lber18, 2012 12:35 PM from~ ...--------------------- SU~ b7c rtrnr.iTRoganMatter 10/18/2012 12:34 PM We wanted to make sure ~·oureceivedOllf request for phone conference. Pleaseadviseif you still representappropriate party or parties'\ Sincerely, DavidR. Houston D 1 -2, 4 4 ______ __.Ito b6 -2, 4 b7C -2, 4 DtlviclR. Houston,Esq. 432 Court Str~et R~no. NV 89501 775-786-4188 775-786-5091 FAX To<> tl'll0nt,>inp,Mll!Ql!dlllld oor,~1)81 inliitma..'ioo.n !~b'.ll~ on,)· f0\~1>'9$),)'!>~Rs ll<'l<:I dtrt>,· ~I ~cf lm,:,ngi""'! -\I<'. T.»: To "'1W>'> =!)l•a= ~.,,r<,m)'fudS'!ll1ls ooimn\.Jl.:$1QI:~ $!>001icllill,· Sl.;nOO,Will!11<)!mi~ j)l'Wl't!St1 tot;,,~. •r>dcamol l:'p<)S<> of (t) .. p!>(Ul,'1. .. $ ~Mll< U)Q li'l[$llli,i R<>~·<.!nL>I) Cm: Of(.!) pml'JO~r\11, m!lrst>:ill"'1'!)iITT)' ll!'rf ' = ,.,t ~'l~Ol!lan~~.11,>d Q:lnf,dimtioH'1lcmi«1m,i.s~u,1<.lod ,:mo; t<>< 11111 '-'W-~100p.in,on(s}neme, Ifyw ll':<} ,n{.,ooollreQf!,w. r""' ara h$!'obyli<>t'lltl!n i,ny ro'®\ti,®sw~nalir~ij,:,1 <>1 ~IQ inlu~ ~; pie,~ •::o~1act tt:dsft:ir l'l!J}i)~ <;,>1sl a,i1> mw,al~soQ!!. Ta,,,'\¢Yle<> 0,'.'los,o.,;.'. T1> .. ~~"""«>mp!saiios ·,,m, i•>IR:SundSf c;n."<.liSf 2-30.weiriiom,you 1n,;1a<\~O.S,f\lA ~ti< &latod,w~iro; !f\tcflWd. am<"-i>n:rwl t,o OJ*ll~i;l, m81'1~ I>-'mc..'>!!\m~:n.11 m ~oo!hs11>W"t $~)' mal!9<'.s h'l. Thursday,October 18, 2012 12:41 PM Kristy Rosser RE:10.18.12 Hogan Matter I did receive your e-mail. thank you. In my experience, I find little, if any, benefit from involving client's in informal conference calls/meetings, etc. with opposing parties or attorneys. I'd be more than happy to discuss this matter with David directly, but I would not agree to have his client directly involved in a conference call. If David's Client demands to be involved, I think the best avenue allowing for his involvement is a confidential non-binding mediation which I'm sure can be scheduled within days. I'm likewise sure we could have any out-of-state parties or attorneys appear via phone or teleconference. Please let me know what you'd like to do. Thanks, Keith Keith M. Davidson, Esq. Davidson & Associates, PLC 8383 Wilshire Boulevard, Suite 510 Beverly Hills, CA 90211 Phone (323) 658-5444 I Fax (323) 658 -5424 www.KmdLaw.com I Email: Kelth@KmdLaw.com The information in this electronic mail message is confidential and for use of only the named recipient. The information may be. protected by privilege, work product immunity or other applicable law. If you are not the Intended recipient the retention, dissemination, distribution or copying of this e-mail message is strictly prohibited. If you receive this message in error please notify us immediately at (323) 658-5444 or by e-mail at keith@kmdlaw.com From: Kristy Rosser [mallto:krosser@houstonatlaw.com] Sent: Thursday, October 18, 2012 12:35 PM To: Keith Davidson Subject: 10.18.12 Hogan Matter 10/18/2012 12:34 PM Mr. Davidson: We wanted to make sure you received our request for phone conference. Please advise if you still represent appropriate party or parties". Sincerely, David R. Houston /kc 1 BOLLEA 001079 CONFIDENTIAL-ATTORNEY'S EYES ONLY Kc Rosser, BusinessManager to David R. Houston, Esq. 43 2 Court Street Reno, NV 89501 775-786-4188 775-786-5091 FAX The InformationcontainedIn this transmissionmay containprivilegedand confidentialInformation. II ls Intendedonly for the use of the person(s)namedabove. If you are not the intendedrecipient,you are hereby notified\hat any review,dissemination,distributionor duplicationof this communicationIs slriclly prohibited.If you are no! the Intendedrecipient,please contactthe sender by reply email and destroy all copies of the original message. Tax Advice Disclosure:To ensurecompliancewith requirementsimposedby !he IRS under Circular230, we Informyou that any U.S.federal tax advicecontainedIn this communication(Includingany attachments),unlessotherwisespecificallystaled, was not intendedor writtento be used,and cannotbe used,for the purposeof (1) avoidingpena!llesunder the InternalRevenueCode;or (2) promoting, marketing or recommendingto anotherparty any mattersaddressedherein. From: Kristy Rosser Sent: Wednesday,October 17, 2012 11:28 AM To: Keith Davidson(Keith@kmdlaw.com) Subject: 10.17.12 Hogan Matter 10/17/2012 11:28 AM Dear Mr. Davidson: I have had a chance to speak with my client. As you may be aware, we have most recently filed suits attempting to block Gawkers further distribution or release and hopefully any other media outlets that may be out there. My client has indicated the desire to become in control of the tapes. I had told him of our discussion. Would you be interested in a conference call with my client and I for some time next week? I have to head back to Tampa to deal with some other matters and my client has expressed a desire of participating personally in attempting to resolve this matter. Sincerely, David R. Houston /kc DICTATED BUT NOT READ Kc Rosser, BusinessManager to David R. Houston, Esq. 432 Court Street Reno, NV 89501 775-786-4188 775-786-5091 FAX The InformationcontainedIn this transmissionmay containprivilegedand confidentialInformation. II Is Intendedonly for the use of the person(s)named above. If you are no! the Intendedrecipient,you are herebynotifiedthat any review,dissemination,distributionor duplicationof this mmunication is strictly prohibited.If you are not the intendedrecipient,please contactthe sender by reply email and destroy all copies of the originalmessage. Tax Advice Disclosure:To ensurecompliancewith requirementsimposedby the IRS underCircular230, we informyou that any U.S.federal tax advice containedIn this communication(includingany attachments),unlessotherwisespecificallystaled,was nol lnlendedor writtento be used,and cannotbe used, for the purposeof (1) avoidingpenaltiesunder lhe InternalRevenue Code;or (2).promoling, marketingor recommendingto anotherparty any mattersaddressedherein. 2 BOLLEA 001080 Filing # 30302517 E-Filed 07/30/2015 03:46:38 PM EXHIBIT 64-C to the CONFIDENTIAL DECLARATION OF GREGG D. THOMAS IN SUPPORT OF PLAINTIFFS’ OBJECTIONS Bollea vs Gawker Media, et al. CONFIDENTIAL-ATTORNEYS' EYES ONLY David Houston April 10, 2015 1 · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · ·Case No. 12012447-CI-011 · · · · · · · · ·IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT · · · · · ·IN AND FOR THE PINELLAS COUNTY, FLORIDA · · · · · · · · · · · · · ··-oOo· · · · · ·TERRY GENE BOLLEA professionally known as ·HULK HOGAN, · · · · · · · · · ··Plaintiff, · ·vs. · ·HEATHER CLEM; GAWKER MEDIA, LLC aka GAWKER MEDIA; ·et al., · · · · · · · · · ··Defendants. · ·======================================================= · · · · · · · ·CONFIDENTIAL - ATTORNEYS' EYES ONLY · · · · · · · · · ·VIDEOTAPED DEPOSITION OF · · · · · · · · · · ··DAVID HOUSTON · · · · · · · · · ··FRIDAY, APRIL 10, 2015 · · · · · · · · · · · · ·Reno, Nevada · · · · · · · ·Reported by:··KIMBERLY J. WALDIE, NV CCR #720, RPR · · · · · · · ·CALIFORNIA CSR #8696 Hoogs Reporting Group 775-327-4460 Bollea vs Gawker Media, et al. CONFIDENTIAL-ATTORNEYS' EYES ONLY David Houston April 10, 2015 2 ·1· · ··· ·2· · ··· ·3· ·APPEARANCES OF COUNSEL: ··· ·4· · ··· ·5· ·For the Plaintiff Terry Gene Bollea ··and · Deponent David Houston: ·6· · ··HARDER · MIRELL & ABRAMS LLP ·7· ·BY:··CHARLES J. HARDER, ESQ. ··1925 · Century Park East ·8· ·Suite 800 ··Los · Angeles, California 90067 ·9· · ··· 10· ·For the Defendant Gawker Media, LLC: ··· 11· ·LEVINE SULLIVAN KOCH & SCHULZ, LLP ··BY:··MICHAEL · D. SULLIVAN, ESQ. 12· ·1899 L Street NW ··Suite · 200 13· ·Washington, DC··20036 ··· 14· · ··Also · Present: 15· · ··James · Case, Special Master 16· · ··· 17· ·Videographer: ··· 18· ·Jeff Waldie, CCVS ··· 19· · ··· 20· · ··· 21· · ··· 22· · ··· 23· · ··· 24· · ··· 25· · Hoogs Reporting Group 775-327-4460 Bollea vs Gawker Media, et al. CONFIDENTIAL-ATTORNEYS' EYES ONLY David Houston April 10, 2015 3 ·1· · · · · · · · · · · · ··I N D E X ··· ·2· · ··· ·3· ·WITNESS· · · · · · · · · ·EXAMINED BY· · · · · · ··PAGE ··· ·4· ·DAVID HOUSTON· · · · · · ·MR. SULLIVAN· · · · · · · ·7 ··· ·5· · ··· ·6· · ··· ·7· · ··· ·8· · ··· ·9· · · · · · · · ·EXHIBITS FOR IDENTIFICATION ··· 10· ·233· · ·Photocopy of text messages, Bates· · · · ··212 ···· · · ·BOLLEA 002654 - BOLLEA 002670 11· · ··237· · · ·Web pages of David R. Houston, Bates· · · ··12 12· · · · · ·GAWKER 24994 - 24995 ··· 13· ·238· · ·RadarOnline post, Bates GAWKER 24873 -· · ··15 ···· · · ·GAWKER 24883 14· · ··239· · · ·E-mail, Bates DH 018· · · · · · · · · · · ··18 15· · ··240· · · ·DVD of TMZ Live interview dated· · · · · · ·23 16· · · · · ·March 7, 2012 ··· 17· ·241· · ·TMZ Online post, Bates GAWKER 24913 -· · · ·52 ···· · · ·GAWKER 24919 18· · ··242· · · ·E! Online post, Bates Gawker 23705 -· · · ··60 19· · · · · ·Gawker 23709 ··· 20· ·243· · ·E! Online post, Bates Gawker 23802 -· · · ··66 ···· · · ·Gawker 23806 21· · ··244· · · ·National Enquirer article, Bates· · · · · ··96 22· · · · · ·GAWKER 24309 ··· 23· ·245· · ·E-mail chain and attachment, Bates· · · · ·101 ···· · · ·Gawker 00142 - Gawker 00144 24· · ··246· · · ·E-mail, Bates Gawker 00157· · · · · · · · ·108 25· · Hoogs Reporting Group 775-327-4460 Bollea vs Gawker Media, et al. CONFIDENTIAL-ATTORNEYS' EYES ONLY David Houston April 10, 2015 4 ·1· · ··· ·2· · · · ··· ·3· · · · ··· ·4· · · · ··· ·5· ·247· ···· · ·6· · ··248· · ·7· · ··249· · ·8· · ··250· · ·9· · ··251· · 10· · ··252· · 11· · · · ··· 12· ·253· ···· · 13· · ··254· · 14· · · · ··· 15· ·255· ··· 16· ·256· ···· · 17· · ··257· · 18· · · · ··· 19· ·258· ···· · 20· · ··259· · 21· · · · ··· 22· · ··· 23· · ··· 24· · ··· 25· · · · · · · · · · ··I N D E X · · · · ·EXHIBITS FOR IDENTIFICATION · · · · · · · · · · · · · · · · · · · · · · ··PAGE · ·DVD of TMZ Live interview dated· · · · · ··120 · ·October 9, 2012 · ·E-mail, Bates BOLLEA 001068· · · · · · · ··133 · ·E-mail chain, Bates BOLLEA 001070· · · · ··134 · ·E-mail chain, Bates BOLLEA 001074· · · · ··138 · ·E-mail chain, Bates BOLLEA 001075· · · · ··148 · ·Philly.com online post, Bates· · · · · · ··161 · ·Gawker 24043 - Gawker 24045 · ·Hollyscoop online post, Bates· · · · · · ··165 · ·Gawker 24961 - Gawker 24964 · ·The Daily Beast online post, Bates· · · · ·168 · ·Gawker 24965 - Gawker 24968 · ·E-mail, Bates BOLLEA 001146· · · · · · · ··171 · ·E-mail chain, Bates BOLLEA 001094 -· · · ··172 · ·BOLLEA 001096 · ·E-mail chain, Bates BOLLEA 001098 -· · · ··181 · ·BOLLEA 001103 · ·E-mail chain, Bates BOLLEA 001233 -· · · ··184 · ·BOLLEA 001253 · ·Letter dated November 8, 2013, Bates· · · ·190 · ·BOLLEA 001193 - BOLLEA 001216 Hoogs Reporting Group 775-327-4460 Bollea vs Gawker Media, et al. CONFIDENTIAL-ATTORNEYS' EYES ONLY David Houston April 10, 2015 5 ·1· · ··· ·2· · · · · · · · · · · · ··I N D E X ··· ·3· · ···· · · · · · ··PREVIOUSLY MARKED EXHIBITS ·4· · ··· ·5· ·60· · ··The Dirty online post dated April 19, 2012 ··· ·6· ·61· · ··E-mail dated April 19, 2012 ··· ·7· ·62· · ··E-mail chain, top e-mail dated April 23, ···· · · ·2012 ·8· · ··63· · · ··The Dirty online post dated April 26, 2012 ·9· · ··89· · · ··Undated letter to Hulk Hogan, from Steven 10· · · · · ·Hirsch, Bates BOLLEA 000779 ··· 11· ·90· · ··E-mail dated 4/23/2012, Bates BOLLEA 001056 ··· 12· ·126· · ·WTSP Press Conference DVD ··· 13· · ··· 14· · ··· 15· · ··· 16· · ··· 17· · ··· 18· · ··· 19· · ··· 20· · ··· 21· · ··· 22· · ··· 23· · ··· 24· · ··· 25· · Hoogs Reporting Group 775-327-4460 Bollea vs Gawker Media, et al. CONFIDENTIAL-ATTORNEYS' EYES ONLY David Houston April 10, 2015 6 ·1· · · ··BE IT REMEMBERED, that on FRIDAY, APRIL 10, 2015, at ·2· ·10:03 a.m., at the offices of Hoogs Reporting Group, 435 ·3· ·Marsh Avenue, Reno, Nevada, before me, KIMBERLY J. ·4· ·WALDIE, a Certified Court Reporter, personally appeared ·5· ·DAVID HOUSTON. ·6· · · · · · · · · · · · · ··-oOo·7· · · · · ··THE VIDEOGRAPHER:··Good morning.··We are going ·8· ·on the record at approximately 10:03 a.m.··Today is ·9· ·April 10, 2015.··This is tape No. 1 of the 10· ·video-recorded deposition of David Houston taken by the 11· ·defense in the matter of Terry Gene Bollea, 12· ·professionally known as Hulk Hogan, Plaintiff, versus 13· ·Heather Clem, Gawker Media, LLC, Defendants, filed in 14· ·the Circuit Court of the Sixth Judicial Circuit in and 15· ·for Pinnelas County, Florida.··This is case number 16· ·12012447-CI-011. 17· · · · · ··The deposition is being held at the offices of 18· ·Hoogs Reporting Group in Reno, Nevada.··The court 19· ·reporter today is Kimberly Waldie.··She is representing 20· ·Hoogs Reporting Group.··My name is Jeff Waldie, 21· ·Certified Court Video Specialist, of the firm Sierra 22· ·Legal Video, PO Box 18312, South Lake Tahoe, California, 23· ·96151. 24· · · · · ··And will counsel and all present please 25· ·identify themselves and who they represent for the Hoogs Reporting Group 775-327-4460 Bollea vs Gawker Media, et al. CONFIDENTIAL-ATTORNEYS' EYES ONLY David Houston April 10, 2015 87 ·1· ·author for this communication? ·2· · · ·A· ··I in all likelihood dictated this ·3· ·communication, yes. ·4· · · ·Q· ··Let me see if I can help you out.··If you look ·5· ·toward the bottom about a couple inches up from the end ·6· ·of the text, do you see where it says:··"Dictated but ·7· ·not read"? ·8· · · ·A· ··Yes, sir. ·9· · · ·Q· ··And, sir, who is Kc Rosser? 10· · · ·A· ··She would have been one of the girls that 11· ·receives dictation.··She has a station.··We try to 12· ·balance it out as much as we can.··And Ms. Rosser would, 13· ·of course, have been on one station with the other girls 14· ·being on the others.··Who may have gotten it that 15· ·morning would appear to be Ms. Rosser. 16· · · ·Q· ··Okay.··And I take it she works in your law 17· ·office? 18· · · ·A· ··Yes, at that time she did. 19· · · ·Q· ··Okay.··All right.··And it looks like this 20· ·communication was sent as an e-mail.··Is that your 21· ·understanding? 22· · · ·A· ··It certainly appears to be. 23· · · ·Q· ··Okay.··And was this e-mail sent, to the best of 24· ·your knowledge? 25· · · ·A· ··I believe so. Hoogs Reporting Group 775-327-4460 Bollea vs Gawker Media, et al. CONFIDENTIAL-ATTORNEYS' EYES ONLY David Houston April 10, 2015 202 ·1· ·polygrapher that if we were going to do the polygraph ·2· ·examination, "we," meaning myself, Davidson, and ·3· ·Mr. Bollea had to leave the room because he felt that ·4· ·there shouldn't be any sort of distraction during the ·5· ·course of his testing.··We, of course, agreed to do so. ·6· · · · · ··We then left, went downstairs to the restaurant ·7· ·located in the Sand Pearl Hotel, again, engaged in ·8· ·random small talk as we sat there.··And it was fairly ·9· ·awkward for obvious reasons.··I think there was some 10· ·food purchased but certainly not full-course meals but 11· ·rather just attempting to kill time.··We were waiting, 12· ·waiting. 13· · · · · ··At one point Mr. Davidson indicated "We might 14· ·as well get the authentication out of the way" because 15· ·apparently he did not bring anything with him to the 16· ·hotel room when he first arrived as far as what he was 17· ·peddling. 18· · · · · ··We then went to what amounted to a different 19· ·room, and I guess it was his room.··I'm not certain. 20· ·But that's what I'm presuming.··At which point he then 21· ·was willing to show us the particular DVDs for purposes 22· ·of authentication. 23· · · · · ··I know that Terry, I think, viewed a very brief 24· ·snippet before he understood, of course, that he was 25· ·present.··From what I can recall, I believe he Hoogs Reporting Group 775-327-4460 Bollea vs Gawker Media, et al. CONFIDENTIAL-ATTORNEYS' EYES ONLY David Houston April 10, 2015 203 ·1· ·attempted, then, to play each DVD, would show a brief ·2· ·snippet that I then looked at.··It seemed as though ·3· ·Terry, frankly, had had enough and stepped back.··It ·4· ·was, again, very brief.··It wasn't an actual viewing of ·5· ·the videotapes but more along the lines of "Okay.··Yep, ·6· ·that's Terry.··Next one.··Oh, that's Terry.··Next one," ·7· ·which, of course, in a real transaction you would never ·8· ·do because they simply could have been copies of the ·9· ·first one.··You never knew. 10· · · · · ··At that point the polygrapher contacted, I 11· ·believe via text, although I'm not positive, may have 12· ·been a phone call, advised he was finished with his 13· ·examination and we could return to the room. 14· · · · · ··We returned to the room.··The polygrapher 15· ·announced his result.··It appeared as though 16· ·Ms. Burbridge -- and then we later learned her name -17· ·was telling the truth, with the primary issue being "Are 18· ·these the originals?··Are there any copies still in your 19· ·possession?"··And as I understood it, Ms. Burbridge was 20· ·an intermediary for an individual known only as Mr. X. 21· ·And, of course, Ms. Burbridge being polygraphed was an 22· ·absolute waste of time because she wouldn't know whether 23· ·Mr. X had them or not. 24· · · · · ··There was, again, some random discussion with 25· ·Mr. Davidson.··At that point the polygrapher has left or Hoogs Reporting Group 775-327-4460 Bollea vs Gawker Media, et al. CONFIDENTIAL-ATTORNEYS' EYES ONLY David Houston April 10, 2015 212 ·1· · · ·Q· ··Okay.··In terms of the first DVD viewed, how ·2· ·long did you spend viewing that DVD? ·3· · · ·A· ··That might have actually been the longest one. ·4· ·I'd say maybe 10 or 15 seconds maximum. ·5· · · ·Q· ··Ten or 15 seconds? ·6· · · ·A· ··Yes. ·7· · · ·Q· ··Okay. ·8· · · ·A· ··It was, again, very brief.··As I think I ·9· ·indicated, Mr. Bollea looked at the video -- thinking 10· ·back to it, it -- it became obvious he was upset and 11· ·stepped away, saying "That's me."··And that was pretty 12· ·much the end of video No. 1. 13· · · ·Q· ··Okay. 14· · · ·A· ··Video No. 2 and 3, as shown on disc, whether 15· ·they be independent videos, to this day, Mr. Sullivan, I 16· ·don't know.··It could be the same video copied.··I don't 17· ·know.··What I do know is it appeared as though it 18· ·referenced the same character in each one.··Whether they 19· ·were representative of separate videotapes would be up 20· ·to someone who's actually seen them. 21· · · ·Q· ··All right.··Or seen more of them. 22· · · ·A· ··Sure. 23· · · ·Q· ··All right.··Now, what, if anything, was said 24· ·while the tapes were being watched? 25· · · ·A· ··Not much. Hoogs Reporting Group 775-327-4460 Bollea vs Gawker Media, et al. CONFIDENTIAL-ATTORNEYS' EYES ONLY David Houston April 10, 2015 214 ·1· · · · · ··I would suggest to you that my brief viewing, ·2· ·of course, did indicate to me that it appeared to be ·3· ·someone similar to Mr. Bollea. ·4· · · ·Q· ··All right. ·5· · · ·A· ··I did not see the female in what I observed, ·6· ·literally, at all.··I essentially saw the back of ·7· ·Mr. Bollea and then a bit of a side profile on the last. ·8· · · ·Q· ··Okay.··Did you see any other persons who ·9· ·appeared on the tape other than Mr. Bollea? 10· · · ·A· ··I don't remember. 11· · · ·Q· ··Okay.··Were you able to identify Heather Clem? 12· · · ·A· ··You know, I wasn't familiar with Heather Clem. 13· ·It would be, to me, like seeing someone you don't know, 14· ·then someone later saying, "Were you able to identify 15· ·them as a specific person?" 16· · · · · ··I think -- I -- I didn't know her, certainly 17· ·facial features or otherwise, well enough to suggest 18· ·that a brief viewing could result in an identification. 19· · · ·Q· ··All right.··Were you -- were you able to 20· ·identify any of the persons who appeared on the video by 21· ·voice? 22· · · ·A· ··I don't think the audio was turned up, now that 23· ·you mention it.··I don't remember hearing the audio. 24· · · ·Q· ··All right. 25· · · ·A· ··I don't recall.··And I think I'm safer with Hoogs Reporting Group 775-327-4460 Bollea vs Gawker Media, et al. CONFIDENTIAL-ATTORNEYS' EYES ONLY David Houston April 10, 2015 216 ·1· · · ·A· ··There appeared to be three DVDs, not all at ·2· ·once placed in a player, but individually one at a time. ·3· ·Whether they were different DVDs or one DVD and two ·4· ·copies remains to be seen, I guess. ·5· · · ·Q· ··Okay.··What -·6· · · ·A· ··I don't know. ·7· · · ·Q· ··Okay.··What order did you view the three tapes ·8· ·in? ·9· · · ·A· ··First one was first. 10· · · ·Q· ··No. 11· · · ·A· ··There's no time, date stamp on the DVDs for me 12· ·to draw reference points. 13· · · ·Q· ··No.··I understand that.··But the reason I ask 14· ·you is because he gives you this Exhibit B, and it says 15· ·first tape, second tape.··You know what I mean?··It 16· ·purports -17· · · ·A· ··Right. 18· · · ·Q· ··-- to provide contents to three different 19· ·tapes. 20· · · ·A· ··Right. 21· · · ·Q· ··Did he then say to you when you were in his 22· ·room, "Okay.··I'm going to show you an excerpt of the 23· ·first tape"? 24· · · ·A· ··No.··I think the idea was at that point in time 25· ·not to verify everything that he claimed was on the Hoogs Reporting Group 775-327-4460 Bollea vs Gawker Media, et al. CONFIDENTIAL-ATTORNEYS' EYES ONLY David Houston April 10, 2015 223 ·1· ·you? ·2· · · ·A· ··Not by me. ·3· · · ·Q· ··Okay.··Did you see a -- a man at any point ·4· ·other than Mr. Hogan in the portion you viewed? ·5· · · ·A· ··I do not recall seeing a man.··That's ·6· ·something -·7· · · ·Q· ··Okay. ·8· · · ·A· ··-- that I just don't remember seeing. ·9· · · ·Q· ··All right.··On any tape that you viewed, did 10· ·you ever hear the voice of Bubba Clem or the voice of 11· ·who you believed to be Bubba Clem? 12· · · ·A· ··No, I didn't hear any voices. 13· · · ·Q· ··Okay.··Mr. Houston, have you watched the entire 14· ·sex tape that was sent to Gawker? 15· · · ·A· ··No. 16· · · ·Q· ··Have you watched the excerpts that were posted 17· ·by Gawker on the Internet? 18· · · ·A· ··And maybe I should clarify that.··When you say 19· ·"the entire sex tape sent to Gawker," I don't know what 20· ·was sent to Gawker, and Gawker hasn't invited me in to 21· ·see.··So I don't know how to answer that other than 22· ·"No." 23· · · ·Q· ··Okay. 24· · · · · ··MR. HARDER:··They produced a -- 30 minutes. 25· · · · · ··THE WITNESS:··Right.··I guess what I'm saying Hoogs Reporting Group 775-327-4460 Bollea vs Gawker Media, et al. CONFIDENTIAL-ATTORNEYS' EYES ONLY David Houston April 10, 2015 230 ·1· · · · · · ·I, KIMBERLY J. WALDIE, a Certified Shorthand ··· ·2· ·Reporter licensed in the State of California and the ··· ·3· ·State of Nevada, do hereby certify: ··· ·4· · · · · · ·That on FRIDAY, APRIL 10, 2015, at the offices ··· ·5· ·of Hoogs Reporting Group, 435 Marsh Avenue, Reno, ··· ·6· ·Nevada, personally appeared DAVID HOUSTON, who was duly ··· ·7· ·sworn to testify and deposed in the matter entitled ··· ·8· ·herein; that, before the proceedings' completion, the ··· ·9· ·reading and signing of the deposition were not requested ··· 10· ·by the parties; that said deposition was taken in ··· 11· ·verbatim stenotype notes by me, a Certified Shorthand ··· 12· ·Reporter, and thereafter transcribed into typewriting as ··· 13· ·herein appears; ··· 14· · · · · · ·That the foregoing transcript, consisting of ··· 15· ·pages 1 through 229, is a full, true and correct ··· 16· ·transcription of my stenotype notes of said deposition ··· 17· ·to the best of my knowledge, skill and ability. ··· 18· · · · · · ·I further certify that I am not a relative or ··· 19· ·employee of counsel of any of the parties, nor ··· 20· ·a relative or employee of any party involved in said ··· 21· ·action, nor financially interested in the action ··· 22· · · · · · ·Dated at Reno, Nevada, this 14th day of April, ··· 23· ·2015. ··· 24· · ···· · · · · · · · · · ··________________________________ 25· · · · · · · · · · · · ··KIMBERLY J. WALDIE, CSR No. 8696 ···· · · · · · · · · · ··NV CCR #720, RPR Hoogs Reporting Group 775-327-4460 Bollea vs Gawker Media, et al. CONFIDENTIAL-ATTORNEYS' EYES ONLY David Houston April 10, 2015 231 ·1· · ·2· · · · · · ·OFFICER'S ACTIONS RE SIGNING OF DEPOSITION ·3· · · · · · ·PURSUANT TO NEVADA RULES OF CIVIL PROCEDURE ·4· · ·5· ··DATE ·6· ·4-14-15· · · ··AT DIRECTION OF COUNSEL A RULE 30 LETTER ·7· · · · · · · · ··WAS SENT TO THE WITNESS, DAVID HOUSTON ·8· · ·9· · 10· · 11· · 12· · · · · · · · ··WITNESS SIGNED DEPO 13· · 14· · · · · · · · ··ORIGINAL SENT TO 15· · 16· · · · · · · · · · · · ·OTHER ACTIONS 17· ·_______________· · ··_________________________________ 18· ·_______________· · ··_________________________________ 19· ·_______________· · ··_________________________________ 20· ·_______________· · ··_________________________________ 21· ·_______________· · ··_________________________________ 22· ·_______________· · ··_________________________________ 23· ·_______________· · ··_________________________________ 24· ·_______________· · ··_________________________________ 25· ·_______________· · ··_________________________________ Hoogs Reporting Group 775-327-4460 Filing # 30302517 E-Filed 07/30/2015 03:46:38 PM EXHIBIT 65-C to the CONFIDENTIAL DECLARATION OF GREGG D. THOMAS IN SUPPORT OF PLAINTIFFS’ OBJECTIONS FD-1087 (Rev. 5-8-10) UNCLASSIFIED FEDERAL BUREAU OF Evidence Event Approved Drafted Case (U) tp-2534791 E03381766 Title: - Barcode INVESTIGATION Log # Date: 12/17/2012 By: By: 9B-TP-2534791 ID#: (U) ..... UNSUB(S); b6 -1, 2, 4 ...-T-E...,R_R .... Y...-B._.O..,L._.L_E_A .... (VICTIM) ; b7C -1, 2, 4 hcTIM); b7E -2 ~~--_-_-:_-:_-:_-:_-:_:::::::~(VICTIM); EXTORTION - ALL OTHER NONAGGRAVATED THREATS r Acquired By: Acquired From: (U) consensual Receipt Given?: No Holding Office: TAMPA No Details Details: Item 10 Type monitoring Provided Description (U) One original computer disk dated Acquired On: 12/14/2012 ELSUR Evidence Type: Consensual Intercept Type: Consensual Monitoring Non-Telephonic Intercept Identifier: 12-cm-tp-127 Media Type: Computer Disk Original Type: Original 12/14/12. - UNCLASSIFIED This document contains neither recommendations nor conclusions of the FBI. It is the property of the FBI and is loaned to your agency; it and its contents are not to be distributed outside your agency. r Td~phu,'l",..,J_ . ...______ __.._ __, We~·· Fa. E--m~._______ __. CONFU)ENTJAL - POLYGRAPH EXAl:UNA TION REPORT !___....,!20121214 December 14, 2012 ATTN: ExaminationNumber:... b6 -2, 4 b7C -2, 4 n~rvidR. Houston, Attorney at Law 432 Court Street Reno. NV 89501 PR 775-7864188 !(DOBJ.........,.____ Examim~~ __. ExaminationType: Singte-lssueExamination Examine~ ! PRBDfCATION: At the re uest of vourst~lf~ in conjunction with your client,.Te Bollea and FBI S :iecialAgent ...._ ___ .....,.._.....1,;..i.;..;.o.;;..lv'-'i'·}raph "'' · · •· on December 14, 2012, i t tht! Cleanva:tex each, Florida 33767. Subsequentto a meeting \\'ith examinee, Terry Bolle~ myself, and you. but prim·to beginning the examination, the examinee reviewed and sig.neda voluntary cgn~pnt fom1 allowing the completion of this examination,and rdeasind ~nd Tampa ~/£graph Services, LLC - including any agents, employees, ernployers,. ot affiliates nfai1y liability risvltingfrom this polygraph examination, This signed statementassures that the examinee was tiil'f advised that the entire examination V/ouldbe recorded, that altirtformation, findings, and exa.jination data would be subsequently disseminated to the above named addressees, and that the exdJ,f.1inee could tem1inatethe examinationat any time. b6 -1, 2, 4 b7C -1, 2, 4 ·.f'. Dudngthe aforementioned meetinn prior to !the examinatfon acknowledged to all partiesthat she and an unidentified cmne into possessionof five Vt eos that recordedMr. B:1l1faen?aged in.sexual activity '".'ith. Hea~er Cle.m w~Ue beina ss~cretlym,djo and ~ideo record:d I \vrthput his kn.ovvledge and consent. She smd that 1t \.1.1a practice to pass.his wifitamund to celebrities and sec.retly record them having sex with her, She stated that she and !collaborated on how, when and where to release two of the DVDs to generate interest and up their subsequent demands for $300,000 in exchange for the remaining three DVDs, one of \\;'~iphwas most damaging to the reputation and income potential of lvir. Bollea, She said that she ai:id! !shopped around for a.place to release the videos and personaUyreleased them on G~v/ker and TMZ. She said they held the most damaging DVD back because it would cause Mr. Bollea the most and therefore the most valuable. She said she was in it strictly for t'inancial gain and involved her to protect his identity, She further stated that the writing on the DVD labels matched vvritingshe has seen b~ !and tlmt ~ssured her these ! s4t hln !'aS 1 b6 -2 b7C -2 FD-1036 (Rev. 10-16-2009) UNCLASSIFIED//FOUO FEDERAL BUREAU OF Import Form Type: Title: Drafted Case Form Date: OTHER and (U//FOUO) _l~~~~__.loL Approved INVESTIGATION By: 12/18/2012 NCIC SSRA_I~~~~~~~~---' By: ID#: 9B-TP-2534791 b6 -1, 2, 4 b7C -1, 2, 4 (U) UNSUB(S); TERRY BOLLEA (VICTIM); I IO,ICTIM) ; (VICTIM) ; EXTORTION - ALL OTHER NONAGGRAVATED THREATS I Synopsis: J I______ ..... I (U/ /FOUO) .... DL and NCIC •• UNCLASSIFIED//FOUO FD-1057 (Rev. 5-8-10) UNCLASSIFIED FEDERAL BUREAU OF Electronic Title: (U) Document From: Communication meeting Date: 01/10/2013 TAMPA TP-PRA Contact: Approved Drafted Case INVESTIGATION By: b6 -1, 2 b7C -1, 2 By: ID#: I 9B-TP-2534791 TERRY BOLLEA (VICTIM); EXTORTION - ALL OTHER NONAGGRAVATED THREATS Synopsis: (U) Meeting with~l _______ __.!and Attorney~! ________ __. b7E -2 Enclosure(s}: Enclosed are the following 1. (U) transcripts and 12/13/12 letter items: Details: .------'O_n_J'"-ianuary 9, 2013. and Attorney! office in Tampa, Florida. land AUSA! ~-----'I SAi Also present !and SA! ! met with! !at the United States Attor._n_e_y_'s__. at this meeting were AUSAI .__~~~- ~----~-----------. SAi lplayed r----._,!_a_n_d---1Tampa's I I transcripts were land his specific sections of CHS for~! ____ ~!and reviewed attorney with the reviewed tape recordings his attorney. between Draft copies tape recordings. In addition a 12/13/2012 letter drafted I UNCLASSIFIED by b6 -1, 2, 3, 4 b7C -1, 2, 3, 4 of FD-1057 (Rev. 5-8-10) UNCLASSIFIED FEDERAL BUREAU Electronic Title: (U) Update From: INVESTIGATION Communication case Date: 08/01/2013 TAMPA TP-PRA Contact: Approved Drafted Case OF I __________ By: A/ S SRA ... I _________ __. By: ... ID#: __. 9B-TP-2534791 b6 -1, b7C -1, b7E -2 2 2 TERRY BOLLEA (VICTIM); EXTORTION - ALL OTHER NONAGGRAVATED THREATS Synopsis: (U) To update and to place the case in case for "Pending Enclosure(s}: Enclosed are 1. (U) Destroyed 192a' s the Federal Inactive" following Grand Jury status. document return items: Details: On 7/31/2013, Writer financial records to the the 192a's will be placed made a Federal Grand Jury return of all Grand Jury. The records will be destroyed in a lA in the case file. and b6 -2, 3, 4 AUSAI !notified writer that the USAO will be sending b7C -2, 3, 4 abandonment notices td bnd regarding the evidence (sex tapes). It is anticipated tha nd! !will sign abandonment letters. Additionally, AUSA contacted ....___ __.!attorney for Heather Clem to notify him that the sex tape._s_w_o_u_l_d~ I be returned to Terry Bollea as Clem is a participant UNCLASSIFIED within the tape's n/ nu?uwuv Lulu. S?t?a .5 $325 LA/m?a \f I L?+u?wv if Riga ?29 wi?eww am: >5 Egg1.3ch (I lunW/??an. mfg/O I. {UNI/ld?bdxx .w/L?gwnv? 628nm: .i . UGMD1&0? 0+ knujtujxmum And vi Uh? wl m3 From: Sent: To: Subject· n,esdav Noyember 06 20123:35PM PN: Settlement Notes b6 s~ I Offic~ I -1, b7C -1, 2, 2, 3, 3, 4 4 TamP,aDiyi,-sion,Pinellas RA 5.t: To:! From,_~~~~--,,~~....,..,,,.....,.....,.,...,,..,.,..,.,.,..,..~~~~--' Tuesday, November06, 2012·2:20 PM Subject: I PV'I:Settlement Notes R_H asked_!~et this ~oy~µ~sWl;!II_ David, Please allow this correspondenceto confirm that we have agreed to settleour dispute as fol1ows: - $300K total pa;•ments.{fifty percent due upon execution;25% on 9 month anmversaryof execution and 25% on 16 month anniversary of execution) • complete release of any and all claims knownand unKnown confidentiaUty mutual non-disparagement ln case of breach by my client - dlsgorgement of profits return of money already paid • cessationof money to be patd • reps & warranties re source of footage • disclosureof identified individuals who have knowledgeof and/or were shownfootage • disclosure if any of .anyother personswho are/were known to possessfootage if anyone In case of breach by either party; confidentialbinding arbitrationin either NV or CA under American ArbitrationAssoc or JAMS Your ci!ent will be provided with a detailedoutline of the footage, Ha wi!I be awardedan opportunityto authenticatethe footage at the closing. If the footage fails to substantiallymatch the outline & he is not the person actually filmed, deal is off. l hope your client avoids tile expense & aggravation of a polygraph. However, If he opts for one, he pays for the exam and travel of myseif and my client to the exam. I wmwork on the release this weekend. Deal must ciose within 30 days. 1 GAWKER-1101 From: Sent IExtortionMatter Subject: Hi b6 -1, 2, 3 b7C -1, 2, 3 Friday,July OS,2013 10:01 AM To: O I Hope you h.td a good 4th_ I c.an.£.!!!tassumethat you, like me, have not heard anything in regardsto he Hoga,1 extortion matter. I was talking withLJtoday who wanted me to malcecontact with you for the following: b6 -1, t. . . b7C -1, 2, 3 2 ,3 1. At this point, everything is stale and there isn't anything to do. Is there any reason not to approacC !at· this point to inquire about the originof the tapes, the custody of them, production,et,. In other words, start from the top and let him tell us:what happenedfrom hls point of view. This would require us to make contact with his attorney and explainto him what our interest is - whtch he may not want us talkingwit~ Also, ~as alreadyglven us one story of which he wm either confom or alter dependingon what he tells us this time; To be honest" I'm .oot sure it helps/hurts/~r even matters from your office's perspective. Short of a total confession to a biggerconspiracy,I'm not sure management willbe swayed by what he has to say. However, I I from our perspectJ~e,it willleave no proverbial stone uncoveredand tie up loose ends.,.. Thoughts? 2. If the writing is an.dhas been on the wall for this thing, and it's not going to go anywhere, my office is going to require a dedinatlon lettf?r. I Let me khOwyourthotJghts. It seemswe havedone all we totJld, had all the meetings,talked to everyone and nothing has moved. If that's the case, we either approach! !or one last hurrah, or we get the i.;asedeclined so we can b6 -2 i, move on. We know what a declination wilf bring-management is going to be getting a call from Houston/Hogan- but b7c -2 that was alwayson the table. Thanks, 5,1.______ ...., Tampa Division,PinellasRA Offic~ I b6 -1 b7C -1 l GAWKER-1130 Filing # 30302517 E-Filed 07/30/2015 03:46:38 PM EXHIBIT 66-C to the CONFIDENTIAL DECLARATION OF GREGG D. THOMAS IN SUPPORT OF PLAINTIFFS’ OBJECTIONS FD-1057 (Rev. 5-8-10) UNCLASSIFIED FEDERAL BUREAU OF Electronic Title: (U) Tolls From: TAMPA Contact: Approved ID#: Communication Uploading ~I_______ By: ~I ________ Drafted Case By: INVESTIGATION 9B-TP-2534791 05/07/2013 Date: b6 -1, 2 b7C -1, 2 __, __, (U) ,........:~..!:::==========::::;---' TERRY BULLEA (VICTIM); EXTORTION - ALL OTHER NONAGGRAVATED THREATS Synopsis: Application (U) To document (TA). uploading of toll records in Telephone Details: Toll records for telephone numbe~~------__.!obtained from! were u loaded into TA. The requested time frame wa~~--------' ...._ __,,..... also provided toll ..., records outside of the requested time frame but these records were not uploaded into TA. The subscriber's name for phone number_! _______ b3 -1 b6 -4 b7C -4 b7E -2 _____ ______________ is~I A I rere uploaded into •• UNCLASSIFIED TA on 5/7/2013 . __, FD-1057 (Rev. 5-8-10) UNCLASSIFIED FEDERAL BUREAU Electronic Title: (U) Tolls From: TAMPA Contact: Approved By: Drafted Case INVESTIGATION Communication Uploading Date: 05/10/2013 I .=====:::::::....--. By:!.__ ________ ID#: OF _. 9B-TP-2534791 b6 -1, 2 b7C -1, 2 ,......;.(_U~).! ________________ ....,. TERRY BOLLEA (VICTIM); EXTORTION - ALL OTHER NONAGGRAVATED THREATS Synopsis: Application (U) To document (TA). uploading of toll records in Telephone b3 b6 b7C b7E Details: Toll were records uploaded for into 1-------~r~ The telephone TA The subs~riber's I number! requested name obtained time for frame this phone I________________ A ... !were •• UNCLASSIFIED uploaded from wasL----r----......., number into is.__ ___ __. TA on 5/10/2013 . -1 -2 -2 -2 Filing # 30302517 E-Filed 07/30/2015 03:46:38 PM EXHIBIT 67-C to the CONFIDENTIAL DECLARATION OF GREGG D. THOMAS IN SUPPORT OF PLAINTIFFS’ OBJECTIONS FD-1087a (Rev. 5-8-10) UNCLASSIFIED FEDERAL BUREAU OF Evidence Event (U) ITACC call Title: Approved Drafted dated INVESTIGATION Entry 10/22/2012 Date: 10/23/2012 b6 -1, 2 b7C -1, 2 By: By: Case 9B-TP-2534791 ID#: (U)_I ------ TERRY BOLLEA (VICTIM); EXTORTION - ALL OTHER NONAGGRAVATED THREATS Acquired By: Acquired From: .__ ________ .... I (U) FBI Receipt Given?: No Holding Office: TAMPA Item 10 Type b6 -1 b7C -1 b7E -2 on 10/23/2012 Description (U) ITACC Call between David Houston 10/22/2012. .___....,... __ !dated Acquired On: 10/23/2012 ELSUR Evidence Type: Consensual Intercept Type: Consensual Monitoring Intercept Identifier: n/a Media Type: Computer Disk Original Type: Original and! ..._____ b6 -2 b7C -2 - Telephonic •• UNCLASSIFIED 18 FD-1087a (Rev. 5-8-10) UNCLASSIFIED FEDERAL BUREAU OF Evidence Event (U) Itacc Title: Approved Drafted call dated INVESTIGATION Entry 10/25/2012 Date: 11/05/2012 By: By: Case 9B-TP-2534791 ID#: (U) TERRY BOLLEA (VICTIM); EXTORTION - ALL OTHER NONAGGRAVATED THREATS Acquired By: Acquired From: 10/29/2012 (U) FBI Receipt Given?: No Holding Office: TAMPA Item 10 Type Description (U) ITACC call dated 10/25/2012 Acquired On: 10/29/2012 ELSUR Evidence Type: Consensual Intercept Type: Consensual Monitoring Intercept Identifier: n/a Media Type: Computer Disk Original Type: Original •• UNCLASSIFIED - Telephonic b6 -1, 2 b7C -1, 2 b7E -2 FD-1087a (Rev. 5-8-10) UNCLASSIFIED FEDERAL BUREAU OF Evidence Event (U) ITACC call Title: Approved Drafted dated INVESTIGATION Entry 11/2/2012 Date: 11/05/2012 By: By: Case 9B-TP-2534791 ID#: (U) I I TERRY BOLLEA (VICTIM); EXTORTION - ALL OTHER NONAGGRAVATED THREATS Acquired By: Acquired From: 11/05/2012 (U) FBI Receipt Given?: No Holding Office: TAMPA Item 10 Type Description (U) ITACC call dated 11/2/2012 Acquired On: 11/05/2012 ELSUR Evidence Type: Consensual Intercept Type: Consensual Monitoring Intercept Identifier: n/a Media Type: Computer Disk Original Type: Original •• UNCLASSIFIED - Telephonic b6 -1, 2 b7C -1, 2 b7E -2 FD-1057 (Rev. 5-8-10) UNCLASSIFIED//FOUO FEDERAL BUREAU OF Electronic Title: (U//Fouoc=JApology From: Communication CD Date: 11/01/2012 TAMPA TP-PRA Contact: Approved Drafted Case INVESTIGATION By: b6 -1, 2 b7C -1, 2 SSRAI...._ _________ ___, By: ID#: 9B-TP-2534791 (U) I I TERRY BOLLEA (VICTIM); EXTORTION - ALL OTHER NONAGGRAVATED THREATS Synopsis: media file b6 -2 b7C -2 b7E -2 (U//FOUO) Agent received~l----------------'~pology from Attorney David Houston Enclosure(s}: 1. (U//FOUO) Enclosed CD with are the followi~·n-g......._-i_t-e~m-s ___ : __________ apology read by!.__ _____________ _ __. Details: On 11/1/2012 David Houston writer received an e-mail from the assistant to containing a windows media file of the apology on-air byl settlement agreement The file was removed and will be maintained I attorney read The apol~s the result of a in the civil suit betweenL.___j3.nd Terry Bollea. from the e-mail and written on to a cd by writer in a lA in the case file . b6 -2 b7C -2 •• UNCLASSIFIED//FOUO 118 FD-1057 (Rev. 5-8-10) UNCLASSIFIED//FOUO FEDERAL BUREAU Electronic Title: (U//FOUO) From: TAMPA TP-PRA Contact: Approved Drafted Case By: Omission of OF INVESTIGATION Communication lA from SSRA!__________ previous 302 Date: 01/03/2013 __. By: ID#: I 9B-TP-2534791 b6 -1, 2 b7C -1, 2 TERRY BOLLEA (VICTIM); EXTORTION - ALL OTHER NONAGGRAVATED THREATS Synopsis: previously (U//FOUO) To add for! written previously omitted ! lA from FD-302 b7E -2 Enclosure(s}: Enclosed are the following items: 1. (U/ /FOUO) Handwritten notes from sex tapes 2. (U/ /FOUO) TMZ Check 3. (U/ /FOUO) Letter showing absence from work 4. (U//FOUO) FD-597 Details: On 12/20/2012, employment for the gathered regarding provided and FD-597 handwritten for the I _______ _. Writer met with ... at her lace of purpose of collecting documents that had the captioned investigation. At thatL.--i-m-e-,.r-- ....... ---, notes documentation from she the Bollea sex Writer provided. UNCLASSIFIED//FOUO tapes, provided! a check from TMZ !with an b6 -2 b7C -2 FD-1087 (Rev. 5-8-10) UNCLASSIFIED FEDERAL BUREAU OF Evidence Event Approved Drafted Case (U) tp-2534791 Title: INVESTIGATION Log - E03381750 Date: 12/04/2012 By: By: (U)I..._~~~~~~~~ 9B-TP-2534791 ID#: UNSUB(S); TERRY BOLLEA (VICTIM); I (VICTIM) ; l__ (VICTIM); EXTORTION - ALL OTHER NONAGGRAVATED THREATS !on 12/04/2012 Acquired By: Acquired From: (U) I-TACC Receipt Given?: No Holding Office: TAMPA No Details Details: Item 10 Type Provided Description (U) One original computer disk - 11/27/12 Acquired On: 12/04/2012 ELSUR Evidence Type: Consensual Intercept Type: Consensual Monitoring - Telephonic Intercept Identifier: 12-cm-tp-118 Media Type: Computer Disk Original Type: Original •• UNCLASSIFIED This document contains neither recommendations nor conclusions of the FBI. It is the property of the FBI and is loaned to your agency; it and its contents are not to be distributed outside your agency. b6 -1, b7C -1, b7E -2 2 I 2, 4 4 FD-1087 (Rev. 5-8-10) UNCLASSIFIED FEDERAL BUREAU OF Evidence Event Drafted dated Log 12/5/2012 Date: 12/06/2012 b6 I____________ __. I By: ID#: (U) ._ 9B-TP-2534791 ________ ___, UNSUB(S); ~T-E=R-R~Y___.B_O_L-L-E~A (VICTIM); ~l~~~~~~l{v~.ICTIM); I ____ .... ____.I (VICTIM) ; EXTORTION - ALL OTHER NONAGGRAVATED THREATS Acquired By: Acquired From: --~~~~~~~~__.Ion Given?: No Holding Office: TAMPA No Details Details: Item 10 Type 12/06/2012 (U) FBI Receipt -1, b7C -1, b7E -2 By: .. Approved Case (U) ITACC call Title: INVESTIGATION Provided Description (U) ITACC call dated 12/5/2012. Acquired On: 12/06/2012 ELSUR Evidence Type: Consensual Intercept Type: Consensual Monitoring Intercept Identifier: n/a Media Type: Computer Disk Original Type: Original - Telephonic •• UNCLASSIFIED This document contains neither recommendations nor conclusions of the FBI. It is the property of the FBI and is loaned to your agency; it and its contents are not to be distributed outside your agency. 2, 2, 4 4 Filing # 30302517 E-Filed 07/30/2015 03:46:38 PM EXHIBIT 69-C to the CONFIDENTIAL DECLARATION OF GREGG D. THOMAS IN SUPPORT OF PLAINTIFFS’ OBJECTIONS 155 IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA, IN AND FOR PINELLAS COUNTY TERRY GENE BOLLEA, professionally known as HULK HOGAN, Plaintiff, VS. No. HEATHER GAWKER MEDIA, LLC, aka GAWKER MEDIA, Defendants. et al., VOLUME 2 CONTINUED VIDEOTAPED DEPOSITION OF: DATE: TIME: PLACE: PURSUANT TO: REPORTED BY: TERRY GENE BOLLEA March 6, 2014 1:58 p.m. to 5:47 p.m. Riesdorph Reporting Group 601 Cleveland Street Suite 600 Clearwater, Florida Notice by counsel for Defendants for purposes of discovery, use at trial or such other purposes as are permitted under the Florida Rules of Civil Procedure Susan C. Riesdorph, RPR, CRR Notary Public, State of Florida Pages 155 311 163: 16-164:4; Con?dential designation removed on 8/19/14 per Harder email Riesdorph Reporting Group, Inc. (813) 222-8963 156 APPEARANCES: CHARLES J. HARDER, ESQUIRE KIMBERLINA MCKINNEY, ESQUIRE Harder Mire11 Abrams, LLP 1925 Century Park East Suite 800 Los Angeles, California 90067 and DAVID R. HOUSTON, ESQUIRE Law Office of David R. Houston 432 Court Street Reno, Nevada 89501 Attorneys for Plaintiff Riesdorph Reporting Group, Inc. (813) 222-8963 157 APPEARANCES (continued): SETH D. BERLIN, ESQUIRE Levine Sullivan Koch Schulz, LLP 1899 Street, N.W. Suite 200 Washington, D.C. 20036 and MICHAEL BERRY, ESQUIRE PAUL J. SAFIER, ESQUIRE Levine Sullivan Koch Schulz, LLP 1760 Market Street Suite 1001 Philadelphia, 19103 and RACHEL E. EUGATE, ESQUIRE Thomas Locicero, P.L. 601 South Boulevard Tampa, Florida 33606 and HEATHER DIETRICK, ESQUIRE General Counsel Gawker Media 210 Elizabeth Street Third Floor New York, New York 10012 Attorneys for Defendant Gawker Media, LLC MICHAEL GOLD, ESQUIRE Barry A. Cohen Law Group 201 East Kennedy Boulevard Suite 1000 Tampa, Florida 33602 Attorney for Defendant Heather Clem ALSO PRESENT: Honorable James Case Mike Byrd, Videographer Riesdorph Reporting Group, Inc. (813) 222-8963 Yeah. Q. And how many times would you say that you've been in Bubba's bedroom? A. No more than three. Q. Did you ever notice security cameras in Bubba's house? A. No. Q. Did Bubba ever point his cameras out to you? A. Never. Q. Did Bubba I assume, therefore, that Bubba never explained to you how his security cameras worked. A. I never knew he had cameras. Q. Do you remember Bubba saying that people with maids or nannies should have security cameras in their homes? A. No. Q. Do you remember Bubba saying that following his child custody dispute, Tom Bean told him he should put cameras throughout his house so that no one could accuse him of doing anything improper? A. I don't remember that. MR. BERLIN: We're going to listen to an audio clip that is Exhibit 83. (Exhibit No. 83 marked for identification.) MR. BERLIN: This comes from the Bubba The Riesdorph Reporting Group, Inc. (813) 222-8963 situation where Bubba left me in the room and Heather performed oral sex on me. Q. Was anybody else at the radio station when that took place? A. To the best of my knowledge, no, but I didn't I mean I check around. It was real late at night. mean, it wasn't at nine o'clock at night. It was more like midnight or 1:00 or 2:00 in the morning. Q. Do you know whether that encounter was filmed? A. I have no idea. Q. Do you know whether the other encounters in the bedroom were filmed? A. I have no idea. Q. Did you ever tell anybody else about your sexual encounters with Mrs. Clem? A. Not that I can recall. Q. Whether in the bedroom or at the radio station? A. Not that I can recall. Q. Did anybody ever talk to you about it? A. No. Q. So nobody you didn't get the sense from something anybody said to you that either Bubba or Heather had told anybody else? Riesdorph Reporting Group, Inc. (813) 222-8963 309 CERTIFICATE OF OATH STATE OF FLORIDA COUNTY OF HILLSBOROUGH I, the undersigned authority, certify that TERRY GENE BOLLEA personally appeared before me and was duly sworn . WITNESS my hand and official seal this 11th day of March, 2014. mac 0 51.95am Susan C. Riesdorph, RPR, CRR, CLSP Notary Public State of Florida My Commission Expires: 6/10/13 Commission No.: DD 891977 Riesdorph Reporting Group, Inc. (813) 222-8963 310 CERTIFICATE STATE OF FLORIDA COUNTY OF HILLSBOROUGH I, Susan C. Riesdorph, RPR, CRR certify that I was authorized to and did stenographically report the deposition of TERRY GENE that a review of the transcript was requested and that the transcript is a true and complete record of my stenographic notes. I further certify that I am not a relative, employee, attorney, or counsel of any of the parties, nor am I a relative or employee of any of the parties' attorney or counsel connected with the action, nor am I financially interested in the outcome of the foregoing action. Dated this 11th day of March, 2014, IN THE CITY OF TAMPA, COUNTY OF HILLSBOROUGH, STATE OF FLORIDA. mg.) acesfm Susan C. Riesdorph, RPR, CRR, CLSP Riesdorph Reporting Group, Inc. (813) 222-8963 311 PLEASE ATTACH TO THE DEPOSITION OF TERRY GENE BOLLEA, VOLUME 2, TAKEN ON March 6, 2014 IN THE CASE OF TERRY GENE BOLLEA V. HEATHER CLEM, ET AL. PAGE LINE CORRECTION AND REASON THEREFOR I HAVE READ THE FOREGOING PAGES AND, EXCEPT FOR ANY CORRECTIONS OR AMENDMENTS INDICATED ABOVE, I HEREBY SUBSCRIBE TO THE ACCURACY OF THIS TRANSCRIPT. TERRY GENE BOLLEA DATE WITNESS TO SIGNATURE DATE Riesdorph Reporting Group, Inc. (813) 222-8963 Filing # 30302517 E-Filed 07/30/2015 03:46:38 PM EXHIBIT 70-C to the CONFIDENTIAL DECLARATION OF GREGG D. THOMAS IN SUPPORT OF PLAINTIFFS’ OBJECTIONS IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA TERRY GENE BOLLEA professionally known as HULK HOGAN, vs. Plaintiff, Case No. 12012447CI-011 HEATHER CLEM; GAWKER MEDIA, LLC aka GAWKER MEDIA; GAWKER MEDIA GROUP, INC. aka GAWKER MEDIA; GAWKER ENTERTAINMENT, LLC; GAWKER TECHNOLOGY, LLC; GAWKER SALES, LLC; NICK DENTON; A.J. DAULERIO; KATE BENNERT, and BLOGWIRE HUNGARY SZELLEMI ALKOTAST HASZNOSITO KFT aka GAWKER MEDIA, Defendants. ______________________________________/ PLAINTIFF TERRY GENE BOLLEA’S CONFIDENTIAL SUPLEMENTAL OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS AND RESPONSE TO EVIDENCE RAISED BY GAWKER ON THE FIRST TIME ON REPLY FILED UNDER SEAL I. INTRODUCTION Gawker once again has waited until its reply papers to make its motion. This time, Gawker filed 33 exhibits, and made 70 numbered paragraphs (plus subparagraphs) of arguments, in its reply papers that were not filed or argued in its motion papers. In other words, Gawker finally articulated the alleged discovery violations ten days after Plaintiff Terry Bollea filed his opposition to Gawker’s motion. There was no reason why these materials and arguments could not have been included with Gawker’s moving papers, so that Mr. Bollea would have had an opportunity to respond to them in his opposition. The materials and arguments in the reply should not be considered by the Court. 1 HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY If Gawker’s sandbagging tactics are permitted, the single most salient point to consider in Gawker’s late-filed materials is that every single alleged discovery violation that Gawker complains about relates to completely collateral issues. Gawker essentially concedes this— while nevertheless outrageously asking for dismissal of the action, and with it the denial of Mr. Bollea’s fundamental due process right to seek redress for his grievances against Gawker, which published a video of him naked and engaged in private sexual relations in a private bedroom, without his knowledge or permission, which millions of people watched because of Gawker’s wrongful and unlawful acts. With regard to the so-called evidentiary sanctions that Gawker seeks as alternative relief, Gawker does not actually identify a single evidentiary issue it wants decided in its favor. Rather, Gawker asks for a ruling (which is not even a proper evidentiary sanction) that unauthenticated, hearsay, highly prejudicial and completely irrelevant evidence that Plaintiff supposedly made offensive comments relating to race should come into evidence, presumably so Gawker can attempt to prejudice the jury against him. Plaintiff has produced all information in his possession or control that is actually relevant to the issues—such as whether Gawker invaded his privacy (it did), whether he knew about or consented to the filming or publication (he did not), whether the publication of the sex video was newsworthy (it was not), and the damages Plaintiff has suffered (they are substantial). Thus, Gawker knows that it cannot seek an evidentiary sanction (such as asking that the newsworthiness issue be determined in its favor) because Gawker has not identified any alleged discovery violation by Plaintiff that goes to those issues. (For that matter, Gawker does not identify any alleged discovery violation by Plaintiff that goes to any of the elements of any of Plaintiff’s causes of action.) 2 HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY Moreover, Gawker’s laundry list of allegations does not identify any actual violations of Plaintiff’s discovery obligations. Instead, Gawker’s complains that: (1) Plaintiff supposedly should have interposed his law enforcement privilege objection to Gawker’s initial round of discovery asking for communications relating generically to the “Sex Video,” rather than to Gawker’s second round of discovery asking specifically for law enforcement communications. Gawker makes this argument even though this issue has now been fully litigated and Gawker has received all of the information it requested, including all of the information regarding the FBI investigation. (2) Plaintiff redacted a few irrelevant words, and the three digit prefix from telephone numbers of people who are neither parties nor witnesses to this case and instead have no involvement whatsoever in the claims, defenses or facts relating to this case. Plaintiff properly filed a Motion for Protective Order as to those redactions. (3) Plaintiff initially estimated that the date of the sexual encounters with Ms. Clem was “in or about 2006,” later estimated that the date was “in or about 2008,” and shortly thereafter—months before Mr. Bollea’s deposition or the deposition of Bubba Clem—Plaintiff was able to deduce that the encounters occurred in approximately late Spring/early Summer 2007. Like Gawker, Plaintiff would have much preferred to have the information earlier rather than later, but the earlier estimations did not prejudice Gawker in any way, because the earlier estimations were later clarified, and Gawker had that information months before taking any depositions at all in this case. (4) Plaintiff and his counsel allegedly made incomplete statements about the number of sex videos that exist. This is a false argument by Gawker; Mr. Bollea and his counsel do not have any personal knowledge that more than one sex video exists (the video produced by 3 HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY Gawker from which it derived the one minute, forty-one second highlight reel that it played on the Internet for six months and allowed more than five million people to view. Gawker makes much of a letter from an Assistant U.S. Attorney that lists three videos, two of which are dated the same day (thus, they could be copies of the same video) and a third that has no date (and could be a third copy of the same video). The truth, however, is that the issue is irrelevant to this case because Gawker only published content from the one single video that the parties have ever possessed and know exists. Mr. Bollea makes no claims in this action regarding videos other than the one video published by Gawker, because that is the video that caused his damages, even if a second or third video exists—which has yet to be established. None of Gawker’s arguments warrant the imposition of any discovery sanctions whatsoever. Finally, even if the Special Discovery Magistrate agrees that any of Gawker’s claims constitute sanctionable conduct (which Mr. Bollea strenuously opposes), well established law provides that any such sanctions must be precisely tailored to fit the claimed violation. Here, the violations asserted by Gawker do not come close to the level necessary to dismiss this action or to strip Plaintiff of his due process right to pursue his claims. Further, the evidentiary sanctions sought by Gawker are outrageous. Gawker asks that it be allowed to call Plaintiff a racist in front of the jury, based on an alleged “summary,” written by an unknown person and sent by an extortionist, of an alleged video that no one in this case has ever seen, and that is irrelevant to this case because any such video was not posted by Gawker. Moreover, it has yet to 4 HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY be established that Plaintiff made any of the statements alleged, even if such statements were relevant—which they most certainly are not.1 Plaintiff’s position has been consistent from the outset: this case should be tried on the merits. Gawker’s actions invaded his privacy and caused him significant harm. Gawker, however, wants this case to be about anything other than the merits—it wants to argue about other alleged sex videos, about FBI investigations of an unrelated extortion attempt, about alleged racially offensive hearsay, and other completely collateral matters. The sideshows should be put to an end, and the case should proceed to a trial on the merits. Gawker’s motion should be denied in its entirety. II. GAWKER WAIVED ITS REPLY ARGUMENTS AND MATERIALS BY INTENTIONALLY WITHHOLDING THEM FROM THE MOTION PAPERS. It is well-established that new evidence and arguments may not be submitted for the first time on reply. Department of Highway Safety & Motor Vehicles v. Dellacava, 100 So.3d 234, 236 (Fla. 5th DCA 2012) (holding that it is a due process violation to consider arguments raised for first time in a reply brief); J.A.B. Enterprises v. Gibbons, 596 So.2d 1247, 1250 (Fla. 4th DCA 1992) (holding that an argument raised for first time in reply is deemed abandoned). Gawker has broken this rule in the past; Plaintiff has objected; and Gawker has broken it again in the instant motion for sanctions. The Magistrate should no longer tolerate such tactics, and 1 At most, if the Special Discovery Magistrate finds a discovery violation, the appropriate response is a modest monetary sanction. For instance, if Plaintiff should have further objected to Gawker’s initial discovery request on the basis of the law enforcement privilege, the cost to Gawker of serving a second, more specific discovery request could form the basis for a modest monetary sanction. Similarly, a modest monetary sanction to compensate Gawker for some attorney time relating to fixing the precise (though ultimately irrelevant) dates of the sexual encounters between Plaintiff and Ms. Clem could be commensurate with that violation, if one is found. 5 HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY should rule that the materials and arguments in the reply, which were not raised in or attached to the motion papers, are waived. Gawker submitted none of the evidence contained in its dossier of alleged discovery violations at the time it filed its moving papers. Instead, Gawker waited until after Plaintiff filed his opposition to sandbag Plaintiff (and the Magistrate) with 33 new exhibits, 70 paragraphs and countless subparagraphs of brand new argument. By waiting to unload these materials and arguments until ten days after Mr. Bollea’s opposition papers were filed, Gawker obviously intended to deny him an opportunity to respond to the evidence before the hearing, and to get a free preview of Plaintiff’s opposing arguments before filing its evidence and arguments for the first time. Such conduct is contemptible, and a clear violation of the rules. It is especially improper in a proceeding in which Gawker seeks a judicial ruling stripping Mr. Bollea of his fundamental due process right to seek redress for his claims. In bringing such a motion, Gawker should want to follow every rule that applies, rather than flagrantly violate them. Gawker presumably will seek to argue, either at the hearing or in yet another unpermitted filing to the Magistrate on this same motion (or both), that the only remedy available to Mr. Bollea for Gawker’s sandbagging tactics is to allow him an opportunity to file a response to the reply papers. Mr. Bollea respectfully submits this would be an unacceptable remedy to address Gawker’s ongoing and repeated violation of the rules. If every litigant were allowed to file new evidence and arguments after the opposition has been filed, all litigants would withhold their evidence and detailed arguments until their reply papers, knowing that the worst that could happen from such tactics would be the possibility of a response brief. Instead, the only proper remedy to address Gawker’s continued sandbagging of Mr. Bollea in its motion practice is for the Court to disregard the new materials and arguments submitted by Gawker in its “reply,” 6 HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY because those materials and arguments could and should have been submitted with Gawker’s moving papers. III. GAWKER HAS NOT ESTABLISHED ANY DISCOVERY VIOLATIONS. If Gawker’s evidentiary submission is considered at all, it fails to establish any actual discovery violations. Gawker’s arguments are taken in turn: A. Gawker alleges that Plaintiff failed to identify that there may have been three videos. Response: 1. Only one video—the video produced by Gawker in discovery, and from which Gawker drew the one minute and forty-one seconds of “highlights” from the sexual encounter that it posted on its website, and which gave rise to this lawsuit—has actually been confirmed to exist. The documents created by an unknown extortionist purporting that there might possibly be as many as three different videos, are unauthenticated, lack foundation, are unreliable, and are hearsay. No party in this action is aware of any more than one video, and the only identifiable witness with actual knowledge—Bubba Clem, who solely created the video—testified under oath that, to his knowledge, there exists only one sex video, and not more. Harder Aff., Ex. A (Bubba Clem Depo. Tr. 322:1–324:7). Moreover, the letter Gawker refers to from the Assistant U.S. Attorney makes reference to three discs, but they could be three copies of the same sex video: two discs purportedly bear the same exact date, and one bears no date at all. Conf. Statement Ex. 8. Thus, there is no basis whatsoever for Gawker to “charge” Plaintiff or his counsel with “knowledge” of the purported existence of three videos. 2. Importantly, whether there exist three videos, two videos, or one video, is irrelevant to the merits of this case. Gawker possessed only one video, edited it into a one minute and forty-one second highlight reel, and posted it to the Internet for six months, where 7 HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY millions of people viewed it. (Plaintiff and his counsel possess only that video—and did not possess it until after it was produced by Gawker in discovery.) Plaintiff’s claims pertain exclusively to that one video, and it has no bearing on the case whether a second (unpublished) or even a third (unpublished) video exists. Either way, it would not change the fact that Gawker posted footage of Mr. Bollea naked and having sex in a private bedroom, where he had an expectation of privacy, and when he never knew about, nor consented to, either the taking of the footage or its publication. Nothing in the unauthenticated, hearsay documents cited by Gawker purports to support any of Gawker’s defenses, such as its “newsworthy” defense, or its claim that Mr. Bollea’s privacy supposedly was not invaded; Gawker does not even attempt to make such a contention. Nor does Gawker claim that the delay in its receipt of these unauthenticated, hearsay documents caused it any prejudice whatsoever in this case. How could it? The documents are inadmissible, pertain to irrelevant issues, are highly prejudicial, and do not support or come anywhere close to supporting any of Gawker’s defenses, or for that matter any of Mr. Bollea’s claims against Gawker. 3. Gawker’s contention that Plaintiff made inaccurate interrogatory responses on this topic is wrong. The one and only recording that Plaintiff knew about, and could verify under oath, is the one video that Gawker possessed, produced in this lawsuit, and edited to a one minute, forty-one second sex video, which it posted on its website. The law enforcement documents to which Gawker refers do not establish that there were three different videos. Perhaps there were three copies of the same video. Perhaps three different videos. Law enforcement knows the contents. Mr. Bollea and his counsel do not. Those recordings have been held by the government, not Mr. Bollea or his counsel, who never had, and do not now have, any of these recordings. 8 HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY 4. Plaintiff’s counsel’s statement, “if there happens to be more video,” is not a false statement. It was made in Court during a conversation where Gawker’s counsel claimed that there were or might be more than one video. Harder Aff., Ex. B. Plaintiff’s counsel did not know the true number of videos, and was discussing with the Court how the Court and the parties should treat any such new video or videos if they exist and were ever produced. None have been produced. Id. It may well be the case that none exist. Plaintiff and his counsel do not know. Moreover, this statement cannot possibly be the basis of any discovery sanction. Chmura v. Sam Rodgers Properties, Inc., 2 So.3d 984, 987 (Fla. 2nd DCA 2008) (holding that sanctions are only appropriate where a party has been instructed by the court to comply with a discovery request and has refused to do so). 5. Mr. Bollea’s statements at deposition were not false—there is no evidence that he had any idea which acts were filmed or not filmed. His testimony confirms that he did not know about any security cameras in Bubba Clem’s house. Harder Aff., Ex. C (Bollea Depo. Tr. at 258:5–21). Further, Plaintiff has personal knowledge of only one video—the one that Gawker published on its website. He has never even seen that video, nor has he seen or possessed any other sex videos depicting him and Heather Clem. 6. Even if a discovery response or deposition answer is later proven to be inaccurate, that is not a basis for sanctions. It is only where discovery is not provided in violation of a court order that a sanction may be ordered. Chmura, 2 So.3d at 987 (“Where a party has never been instructed by the court to comply with any discovery request, sanctions for noncompliance are inappropriate.”) (quoting Thomas v. Chase Manhattan Bank, 875 So.2d 758, 760 (Fla. 4th DCA 2004)). Here, Mr. Bollea has not been found to have provided an inaccurate discovery response 9 HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY or deposition answer, and even if one is determined to exist, he certainly did not violate any court order in doing so. 7. The discovery order that Gawker contends was violated—initially made orally on October 29, 2013, and subsequently memorialized in writing on February 26, 2014—did not order Mr. Bollea to answer the specific interrogatories to which Gawker contends he did not sufficiently respond. Rather, it granted Plaintiff’s motion to limit discovery of his private sex life, his medical history and his finances. Because there was no specific order, there was no violation, and thus it would violate due process to impose a sanction. See Surf-Tech Intern., Inc. v. Rutter, 785 So.2d 1280, 1282 (Fla. 5th DCA 2001) (holding that the court may not dismiss the complaint where the discovery order that was violated was vague and “subject to interpretation”). B. Gawker alleges that Plaintiff misstated the date of the sexual encounters. Response: 1. At the time of the filing of the initial complaint, as well as the amended complaint (and initial discovery responses served shortly after the amended complaint), Plaintiff was unsure about the date of his sexual encounters with Heather Clem. He did not have any documents contemporaneous with the encounters; the encounters had occurred several years prior to the publication of the sex video by Gawker and the filing of the complaint; and Mr. Bollea testified at deposition that his memory is poor when it comes to names (he refers to people as “Brother”) and also dates – he has trouble recalling when things happened in the past. Plaintiff’s initial complaint, filed only a few days after the sex video was published by Gawker, alleged that the sexual encounters occurred “in or about 2006.” Am. Compl. ¶1. Subsequently, he believed that the encounters occurred in our about 2008, rather than 2006, and thus his 10 HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY responses to initial discovery identified the dates as “in or about 2008.” Conf. Statement Ex. 12. Shortly thereafter, Mr. Bollea, with the aid of his counsel, was able to piece together past events in his life in 2006, 2007 and 2008, including where the Heather Clem encounters fell within the timeline of other events, and further clarified that the encounters occurred “in or about late Spring/early Summer 2007.” Conf. Statement Ex. 17. These discovery responses were provided before Gawker took any depositions in this case, in particular, the depositions of Mr. Bollea and Bubba Clem. 2. Gawker has suffered no prejudice whatsoever from the fact that Mr. Bollea provided certain time estimates initially, and later provided more accurate time estimates of the sexual encounters. First, Gawker had the more specific time estimates before it began to take depositions, and Gawker then proceeded to ask both Mr. Clem and Mr. Bollea detailed questions regarding the sexual encounters at their respective depositions. See, e.g., Harder Aff., Ex. D (Bollea Depo. Tr. at 269:1–15 (confirming dates of encounters); 273:19–22 (answering questions regarding how the encounters began), 282:12–14 (answering questions regarding Bubba Clem’s knowledge of the encounters), 290:22–291:11 (describing encounter with Heather Clem at radio station)). Gawker points out in its reply that it obtained the documents from the law enforcement investigation which, while hearsay, do corroborate Mr. Bollea’s amended discovery responses, and subsequent deposition testimony, regarding the dates of the encounters. Second, despite Gawker’s statement that the dates of the encounters are “a key fact,” Gawker does not identify a single issue in this lawsuit that turns on the date of the sexual encounters. Conf. Statement ¶34. Gawker’s violation of Mr. Bollea’s privacy and other rights is the same whether the encounters occurred in 2006, 2007 or 2008. Gawker’s “newsworthiness” defense is exactly the same. Moreover, the statute of limitations (the only “issue” Gawker 11 HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY identifies) runs from the date of Gawker’s publication in October 2012, not from the date of any encounter. In light of the total lack of prejudice to Gawker, including the fact that Mr. Bollea did not engage in any discovery violation based on the foregoing, there is no basis for any sanction. Mr. Bollea violated no court order. Even if he served an incorrect discovery response (which Mr. Bollea disputes), any such conduct is not cause for a discovery sanction. Cooper v. Lewis, 719 So.2d 944, 945 (Fla. 5th DCA 1998) (“This record simply does not indicate that the doctor was attempting to obfuscate the requested data. . . . At least before imposing such sanctions, the trial court should find that someone is in contempt of court or has violated an appropriate court order.”). C. Gawker alleges that Plaintiff suppressed evidence of racially offensive language and that Bubba Clem’s alleged “retirement” comment was about that subject matter and not the sex video. Response: Plaintiff has properly brought a motion for protective order on this issue. The issue will be determined pursuant to that motion. To summarize the arguments in the motion for protective order: 1. The alleged use of offensive language by Plaintiff has nothing whatsoever to do with this case. The Special Discovery Magistrate already made this ruling at Bubba Clem’s deposition, and that ruling was correct. Gawker’s publication of the sex video did not include any such alleged offensive language, and the claims against Gawker regarding its invasion of Plaintiff’s privacy and other rights, and its defenses including “newsworthiness,” have nothing whatsoever to do with the allegations of alleged use of offensive language in a supposed 12 HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY different video recording that none of the parties has even seen or possessed, and might not even exist. The fact that a document written by an unidentified extortionist exists, and that an unauthenticated hearsay summary (written for the purpose of extorting Plaintiff for money) contends that another video exists, and that Plaintiff supposedly used offensive language on it, does not mean that such language was ever used, or that it is in any way relevant to Plaintiff’s claims in this lawsuit, and it certainly does not form a basis for Gawker’s request for onerous sanctions. Plaintiff produced the materials when ordered to do so, and properly filed a motion for protective order relating to the irrelevant offensive language in the unauthenticated hearsay documents, consistent with the Magistrate’s prior ruling. 2. Gawker has not shown why it matters to this case whether Bubba Clem’s alleged comment about supposedly “getting rich”—an alleged statement that was reported by other news media organizations (not Gawker) in Spring 2012, and that did not appear on the sex video obtained by Gawker, concerned sex or race. This is because it does not matter. 3. Gawker is seeking dismissal of this entire action, because of an alleged delay in producing an unauthenticated, hearsay document that will never be admitted at trial and will not lead to any admissible evidence. Gawker characterizes the document as a “transcript,” but it clearly is not that at all—it is a document written by an unknown person who was in the process of attempting to extort Plaintiff for money by claiming that an alleged video existed of Plaintiff allegedly having sex with Heather Clem and allegedly making offensive statements. 4. The FBI expressly instructed Plaintiff’s counsel not to disclose any aspect of the investigation, and the unauthenticated hearsay document is irrelevant to this case because the sex video that Gawker posted (and also the long version that Gawker produced in discovery) does 13 HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY not contain the alleged offensive language or any alleged statement by Bubba Clem relating to “getting rich.” 5. Gawker has suffered no prejudice whatsoever from any alleged delay in discovery with respect to the foregoing matters. D. Gawker alleges that Plaintiff’s personal participation in the FBI investigation regarding an unrelated extortionist is somehow grounds for sanctions. Response: 1. Not a single issue in this case turns on whether Plaintiff personally participated in the FBI’s investigation of an unrelated extortionist. It does not lessen Gawker’s invasion of Plaintiff’s privacy; it does not make the sex video published by Gawker “newsworthy,” or otherwise affect any of the parties’ claims or defenses. Moreover, it does not matter who provided the video to Gawker in the first place. It was not Mr. Bollea, and there is not a single piece of evidence that even suggests Mr. Bollea had anything to do with Gawker’s procurement of the video. 2. There is no significance to Gawker’s discovery of this fact. And there is no prejudice whatsoever to Gawker as a result of having discovered Plaintiff’s participation when it did, rather than earlier in the litigation. 3. The FBI expressly instructed Plaintiff and his counsel not to disclose the FBI investigation. Houston Aff. ¶¶4–5. Gawker later obtained a letter from the Assistant U.S. Attorney stating that, to her knowledge, any such instruction by the FBI was not in effect, from the point of view of the U.S. Attorney’s Office. Conf. Statement Ex. 28. That letter was sent after the discovery at issue was provided. Id. 14 HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY 4. Plaintiff properly asserted privileges with respect to these communications, including the law enforcement privilege. When those privilege assertions were overruled, Plaintiff promptly produced the communications. Plaintiff properly litigated his privilege claim and then turned over the information when he did not prevail. 5. Plaintiff’s deposition responses were not false, as Gawker contends. He was asked about a report that a sex video was being shopped to media outlets, and he had no knowledge of that fact. Harder Aff., Ex. E (Bollea Depo. Tr. 343:17–344:8). An attempted extortion is not the same thing as “shopping” a video to media outlets. Further, Plaintiff asserted the attorney-client and law enforcement privileges as to his communications with the FBI. Gawker never brought a motion to compel and never obtained a court order requiring his testimony on this issue. 6. In any event, even if Plaintiff did give an inaccurate deposition answer (which has not been demonstrated, and Plaintiff denies), such an occurrence is not a violation of a court order and is not sanctionable. Chmura, 2 So.3d at 987 (“Where a party has never been instructed by the court to comply with any discovery request, sanctions for noncompliance are inappropriate.”), quoting Thomas v. Chase Manhattan Bank, 875 So.2d 758, 760 (Fla. 4th DCA 2004); Cooper, 719 So. 2d at 945 (“This record simply does not indicate that the doctor was attempting to obfuscate the requested data. The fact that the doctor’s staff asserted the other patients’ right of privacy concerning delivery of copies of their IMEs does not constitute such a showing. At least before imposing such sanctions, the trial court should find that someone is in contempt of court or has violated an appropriate court order.”). 7. If every time a party answered a question at a deposition that the other party believed was inaccurate resulted in a motion for terminating sanctions, the courts would be 15 HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY clogged with motions for terminating sanctions. This is why the law and the court rules do not provide for the relief that Gawker is seeking here, even if Gawker was able to establish the factual basis for its requested relief—which is not the case as a threshold matter. E. Gawker argues that Plaintiff did not produce all documents relating to his media appearances. Response: 1. Once again, Gawker does not identify a court order that Plaintiff has violated, in order to justify its request for sanctions. The facts are as follows: Gawker served a subpoena to Plaintiff’s publicist in New York who was not involved in the scheduling of his October 2012 media appearances, and therefore does not possess any documents relating to those matters. (These facts have been explained to Gawker countless times, but it continues in its conduct, undeterred.) In response to Gawker’s false claims that Plaintiff supposedly organized the media tour as a result of the Gawker sex video being published, Plaintiff’s counsel voluntarily obtained from TNA Wrestling Plaintiff’s October 2012 media tour itinerary. Harder Aff., Ex. J. TNA Wrestling scheduled these media appearances using its in-house media department. The purpose of the media tour was to promote an October 2012 TNA pay-per-view wrestling event. Id. The media itinerary, obtained by Plaintiff’s counsel, was produced to Gawker’s counsel before Plaintiff’s deposition. Those documents are dated prior to Gawker’s publication of the sex video, thus showing that the entire media tour (including appearances on the Howard Stern radio show and the Today show) was scheduled by TNA Wrestling before Gawker posted the sex video. Id. In response to Gawker’s New York subpoena, Plaintiff’s publicist produced her nonprivileged documents that she possessed, which pertained to the press release and press 16 HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY conference contemporaneous with the filing of this lawsuit, but the publicist asserted a privilege objection as to her communications with Plaintiff’s counsel relating to the filing of this lawsuit and press issues regarding same. Gawker filed a motion to compel against the publicist in the New York state courts, and that privilege issue is currently being litigated in that state. Gawker chose to sue the publicist in New York, rather than litigate the same issue before the Special Discovery Magistrate in this Court with a motion to compel against Plaintiff. Having made that election, Gawker cannot now claim that Plaintiff (who is not a party to the New York litigation) has violated any court order, or that a discovery sanction should be imposed against him. The New York state court issues are currently pending before an appellate division of the trial court in that jurisdiction. 2. Gawker has not shown any prejudice whatsoever in connection with its arguments relating to media documents. Gawker received Plaintiff’s October 2012 media itinerary before his deposition, and questioned him in detail at his deposition regarding those issues. Harder Aff., Ex. F (Bollea Depo. Tr. 389:1–412:25). 3. None of the media appearance documents has anything to do with the merits of this case, except for the fact that they confirm that Plaintiff’s media appearances in October 2012 were scheduled before Gawker published the sex video, and thus were not (as Gawker has falsely claimed in this lawsuit) organized in an effort to supposedly capitalize off of the publicity of Gawker’s publication of the sex tape. On the contrary, Mr. Bollea testified clearly that he was “not going to hide” from the sex tape issue, and instead proceeded with the pre-scheduled media appearances to promote the TNA pay-per-view event and, in the process, had to “face” the media questions that he did not want to answer regarding the sex tape. Harder Aff., Ex. G (Bollea Depo. Tr. 415:12–20). 17 HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY 4. The content of Plaintiff’s media appearances is publicly available and, at his deposition, Gawker extensively questioned Plaintiff about his public statements about sex and his personal life. Harder Aff., Ex. H (Bollea Depo. Tr. 34:1–35:24 (testimony regarding his autobiography “My Life Outside the Ring;” 460:7–468:23 (eight pages of testimony regarding Plaintiff’s comments about sex on the Howard Stern Show); 602:7–604:14 (testimony regarding comments about sex made in 2006 on Bubba Clem’s radio show)). 5. Gawker’s extensive accusations that it supposedly received these documents late is simply not accurate. Gawker received the October 2012 media tour itinerary promptly after Plaintiff’s counsel obtained them from TNA Wrestling, and it received the publicist’s nonprivileged documents promptly after serving its New York subpoena. 6. Gawker does not cite a single portion of any of these documents that is actually relevant to any issues in this case. If there was anything in those documents that Gawker could use to substantiate its defenses, Gawker presumably would have cited to them, and explained its position, in its extensive “reply” papers. 7. There is no evidence that Plaintiff suppressed any evidence, as Gawker recklessly alleges. At his deposition, Plaintiff testified extensively about his media appearances, and stated under oath that he did not recall deleting any relevant text messages on that topic. Harder Aff., Exhibit I (Bollea Depo. Tr. at 93:20–94:3, 95:5–12, 389:13–401:16, 412:8–416:20 and 443:7– 444:22). 8. The October 29, 2013, and February 26, 2014, orders did not specifically require any further response; rather, they granted Plaintiff’s motion to limit discovery. Imposing a sanction based upon a non-specific order would violate due process. Ross Dress for Less Virginia, Inc. v. Castro, 134 So. 3d 511, 523 (Fla. 5th DCA 2014) (“It is well established that a 18 HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY party cannot be sanctioned for contempt for violating a court directive or order which is not clear and definite as to how a party is to comply with the court’s command.”). 9. Gawker has shown no prejudice whatsoever regarding its allegations relating to media documents. F. Gawker alleges that Plaintiff did not produce his telephone records. Response: 1. Gawker seeks sanctions because Plaintiff is attempting to protect the privacy rights of uninvolved third parties. Plaintiff has appropriately moved for a protective order on the issue of redacting the three digit prefix from third parties’ telephone numbers. If he does not prevail, the redacted digits will be produced. 2. Gawker has shown no prejudice whatsoever in having not received the three digit prefixes of uninvolved third parties’ telephone numbers. Gawker has not articulated what evidence will be revealed by the disclosure of the three digits. Gawker certainly has not stated that any of the disclosed phone numbers (with prefixes redacted) match to any party or third party witness in this case. Gawker has not made any argument regarding how the redacted prefixes could possibly affect the invasion of privacy and “newsworthiness” arguments that are at the core of this case. Further, there is no trial date and, even if this evidence ultimately is ruled discoverable, and produced, Gawker has not shown that any delay will harm it in any way whatsoever. 3. The assertion that the Special Discovery Magistrate rejected Plaintiff’s argument regarding third party privacy is not a basis for a discovery sanction. The issue in the earlier ruling was whether the documents were discoverable at all, not whether they could be redacted. 19 HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY IV. THE SANCTIONS SOUGHT BY GAWKER ARE UNWARRANTED. As noted in Plaintiff’s earlier opposition, it is black letter law that any discovery sanctions must be tied directly to the violations that are proven. “[T]he severity of the sanction must be commensurate with the violation.” Ferrante v. Waters, 383 So.2d 749, 750 (Fla. 4th DCA 1980). Plaintiff submits that Gawker has not proven a single violation. But even if the Magistrate determines there to have been a violation, Gawker has alleged, at most, that there was some delay in its receipt of certain documents that do not concern the relevant issues in this case. None of the alleged discovery issues concern any of the matters pertinent to Plaintiff’s claims or Gawker’s defenses. None of them address whether Gawker’s publication of the sex video was “newsworthy” or whether Gawker had a First Amendment right to post it. Thus, the entire motion is a sideshow. Gawker tacitly admits this. It does not seek an evidentiary sanction that an aspect of “newsworthiness” be decided in its favor, which Gawker surely would do if it had any credible proof that Plaintiff suppressed evidence relevant to its “newsworthiness” defense. Instead, the only specific evidentiary sanction that Gawker requests is a ridiculous one: that Gawker be permitted to introduce to the jury unauthenticated, irrelevant, highly prejudicial, hearsay evidence of Plaintiff’s alleged use of offensive language relating to race, without objection. This is not a proper sanction at all, on many levels. First, no legal authority supports Gawker’s position that permitting a defendant to poison the jury with prejudicial, inadmissible “evidence” is a proper sanction for a discovery violation. Gawker’s motion and reply certainly do not cite to any legal authority for such a proposition. Second, there is no competent evidence that any such offensive language was ever used, even if the law permitted the requested sanction (which it does not), and even if such language was used, it is not relevant to the claims and defenses in this 20 HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY lawsuit because the Gawker sex video contained no such language, nor any other video that the parties have ever seen or possessed. Gawker does not identify any other specific sanctions for an obvious reason—because it has not shown a single instance where it has been denied a piece of evidence that it can actually use at trial to advance its contentions, or rebut Plaintiff’s contentions. As stated in Plaintiff’s earlier opposition, Gawker’s requested dismissal sanction is a matter of due process, and reserved for only the most serious violations of the discovery process—i.e., where a party wilfully fails to respond to essential discovery despite court orders. Surf-Tech Intern., Inc., 785 So.2d at 1283 (there can be no dismissal sanction absent “willful failure to comply or extensive prejudice to the opposition”); Killstein v. Enclave Resort, Inc., 715 So.2d 1165, 1169 (Fla. 5th DCA 1998) (there can be no dismissal sanction where violation was in the nature of “information is trickling in slowly”). Before dismissing a case as a discovery sanction, the court is required to make explicit findings on six factors: “1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration.” 21 HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY Buroz-Henriquez v. De Buroz, 19 So.3d 1140, 1141 (Fla. 3d DCA 2009), citing Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla. 1993). Here, none of these factors are present. Thus, there is no basis for a dismissal sanction to even be requested, let alone imposed. As to factor #1: there is no evidence of a willful violation as opposed to an act of neglect. As to factor #2: there have been no previous sanctions on any counsel in this action. As to factor #3: Plaintiff was not personally involved in any act of disobedience. Plaintiff was present at his two-day deposition and the Magistrate personally observed that he was forthcoming with all information requested, except as to matters where his counsel’s objections were sustained. As to factor #4: Gawker has not shown any prejudice. As to factor #5: Plaintiff’s counsel have made an appropriate showing. As to factor #6: there has been no showing that any delay has caused “significant problems of judicial administration.” Accordingly, Gawker’s request for a dismissal of the case, and with it the denial of Plaintiff’s right to due process, is an unsubstantiated and outrageous overreach. Likewise, an evidentiary sanction is not appropriate where the only alleged violations concern collateral issues. If the Magistrate finds that a violation occurred (a finding that Plaintiff strongly opposes), the only sanction that possibly could be commensurate would be a modest monetary sanction (and even that sanction Plaintiff strongly opposes). For instance, Gawker might have a colorable claim that it should be reimbursed for the attorney’s fees required to serve a second round of more specific discovery, because Plaintiff’s responses supposedly were not sufficiently specific, or for its attorney time related to Plaintiff’s initial time estimates of the dates of his sexual encounters with Heather Clem, if those initial estimates 22 HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY caused Gawker to incur attorney’s fees separate and apart from what it otherwise would have incurred had the initial time estimates been more specific. Any more severe sanction would interfere with Plaintiff’s due process right to bring his claims to trial. “[D]iscovery rules should not be employed to shut out parties from their day in court. In Florida, access to the courts is guaranteed by our state constitution. The protection of this constitutional right is no doubt a major factor operating in the resolution of cases such as this.” Killstein, 715 So.2d at 1168 (emphasis added). All Plaintiff has ever asked for is a trial of his claims on the merits. Gawker seeks, at any cost, to avoid being held to account for its invasion of Plaintiff’s privacy, before a Florida jury. It is time to bring this case to trial, and for a jury to determine the parties’ claims and defenses. V. CONCLUSION For the foregoing reasons and those stated in Plaintiff’s opposition papers, Defendants’ motion should be denied in its entirety; monetary sanctions should be imposed against Gawker to reimburse Mr. Bollea for the legal costs to oppose this motion. If any discovery violation is demonstrated, Gawker at most should receive a modest monetary sanction commensurate with the alleged violation. DATED: June 17, 2014 /s/ Charles J. Harder Charles J. Harder, Esq. PHV No. 102333 HARDER MIRELL & ABRAMS LLP 1925 Century Park East, Suite 800 Los Angeles, CA 90067 Tel: (424) 203-1600 Fax: (424) 203-1601 Email: charder@hmafirm.com -andKenneth G. Turkel, Esq. Florida Bar No. 867233 Christina K. Ramirez, Esq. Florida Bar No. 954497 23 HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY BAJO CUVA COHEN & TURKEL, P.A. 100 North Tampa Street, Suite 1900 Tampa, Florida 33602 Tel: (813) 443-2199 Fax: (813) 443-2193 Email: kturkel@bajocuva.com Email: cramirez@bajocuva.com Counsel for Plaintiff 24 HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY Filing # 30302517 E-Filed 07/30/2015 03:46:38 PM EXHIBIT 71-C to the CONFIDENTIAL DECLARATION OF GREGG D. THOMAS IN SUPPORT OF PLAINTIFFS’ OBJECTIONS Con?dential IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA CIVIL DIVISION TERRY GENE BOLLEA, professionally known as HULK HOGAN, Plaintiff, Case No. vs. HEATHER GAWKER MEDIA, LLC, aka GAWKER MEDIA, et al., Defendants. CONFIDENTIAL EYES ONLY HEARING BEFORE THE HONORABLE JAMES R. CASE DATE: July 18, 2014 TIME: 9:10 a.m. to 12:50 p.m. PLACE: Riesdorph Reporting Group 601 Cleveland Street Suite 600 Clearwater, Florida REPORTED BY: Aaron T. Perkins, RPR Notary Public, State of Florida at Large Pages 1 to 168 Riesdorph Reporting Group, Inc. (813) 222-8963 Con?dential APPEARANCES: CHARLES J. HARDER, ESQUIRE Harder Mire11 Abrams, LLP 1925 Century Park East Suite 800 Los Angeles, California 90067 and KENNETH G. TURKEL, ESQUIRE Bajo Cuva Cohen Turkel, P.A. 100 North Tampa Street Suite 1900 Tampa, Florida 33602 Attorneys for Plaintiff CONTINUED: Riesdorph Reporting Group, Inc. (813) 222-8963 Con?dential APPEARANCES CONTINUED AS FOLLOWS: SETH D. BERLIN, ESQUIRE MICHAEL D. SULLIVAN, ESQUIRE Levine Sullivan Koch Schulz, LLP 1899 Street, N.W. Suite 200 Washington, D.C. 20036 and MICHAEL BERRY, ESQUIRE Levine Sullivan Koch Schulz, LLP 1760 Market Street Suite 1001 Philadelphia, PA 19103 and GREGG D. THOMAS, ESQUIRE Thomas LoCicero, PL 601 South Boulevard Tampa, Florida 33606 and HEATHER L. DIETRICK, ESQUIRE General Counsel Gawker Media 210 Elizabeth Street Third Floor New York, New York 10012 Attorneys for Defendant Gawker Media, LLC, et al. Riesdorph Reporting Group, Inc. (813) 222-8963 Con?dential PROCEEDINGS CERTIFICATE I PAGE 168 Riesdorph Reporting Group, Inc. (813) 222-8963 Con?den?al I (Hearing proceedings called to order at 9:10 JUDGE CASE: Well, welcome back. MR. HARDER: Thank you. And thanks for scheduling and fitting us all in. JUDGE CASE: It worked out absolutely fine. On the amended notice of the hearing, I have got a motion for sanctions by the defendants, in which I think you want to take first; is that right? MR. BERLIN: Yes. JUDGE CASE: Okay. MR. HARDER: They filed it first. JUDGE CASE: And then subsequent to that is the protective the motion for protective order? MR. HARDER: Right. JUDGE CASE: Okay. MR. HARDER: There may be some overlap when we talk about them, so JUDGE CASE: That's fine. MR. BERLIN: And we thought -- MR. BERRY: And time permitting at the end Charles and I had talked last week about developing a schedule, perhaps, for discovery and Riesdorph Reporting Group, Inc. (813) 222-8963 Con?dential 51 to point out is the similarity of this motion with their February 12th motion. They brought a motion to compel compliance with the Court's October 29 order and for sanctions. Your Honor heard it and Your Honor denied it. The things that are in their motion now, it's a lot of the same stuff that was in that prior motion that you denied. It was things that, We never got the date right. We initially said that the sexual encounters happened in or about 2006 and then later we said in or about 2008 and then later on we said mid 2007. They already brought a motion for sanctions on that. It was denied. There is no reason for sanctions for something like that. If somebody makes an estimate and then they revise their estimate, you don't sanction them because they revised their estimate. And it was certainly not concealing anything. We did not have the dates quite right. We did not have records about the dates. He talks about a letter from the AUSA which identified communications that came from an extortionist. He talks about how there exists certain other tapes. I have never seen any of those tapes. They have never seen any of those Riesdorph Reporting Group, Inc. (813) 222-8963 Con?dential 52 tapes. Mr. Bollea has never seen any of those tapes. Nobody on either side of this table or Your Honor or Judge Campbell has ever seen any of these supposed tapes. We don't know if they exist or not. Nobody has seen them. Maybe they exist and maybe they don't. An extortionist said they exist, an extortionist who wanted money and wanted to make certain representations of what was in the supposed tapes, that there is racial comments, that there is all kinds of other comments in there, nobody has seen any of these things. But yet Mr. Berlin says these tape exist. He told you that about ten times. These tapes exist, and I concealed that. Nobody has seen them. I haven't concealed anything. I don't know if they exist. When he asked for communications with the FBI, we produced it. Those communications had in there communications from an extortionist saying, These are the these tapes exist, and these are what's on them. We produced them. They have it. I think the only potential prejudice here is that it's not even a prejudice. If they had wanted the FBI communications sooner they knew that we were talking to the FBI. They waited a Riesdorph Reporting Group, Inc. (813) 222-8963 Con?dential 72 never said they do. I didn't know. But there was a discussion if other tapes existed and we were going with the premise that there might exist other tapes. And we discussed that if there are other tapes in existence and if they have ever come to any of our possession, Gawker was concerned that they could become destroyed or concealed or something like that. And I did make the decision that I don't see how other tapes are relevant to this case, because this case is about the one tape that they got, not any other tapes that might exist of other incidents and encounters between Mr. Bollea and Ms. Clem, because they did not publish those. They didn't have them in their possession. They don't have them in their possession now. We don't have them. We have never seen them. Maybe they exist. Maybe they don't exist. But we had a conversation with Judge Campbell about if there are tapes. And Judge Campbell said, Well, if there are tapes, preserve them, and they are going to go to Judge Case, and Judge Case will review these tapes to determine if there is relevant dialogue, such as Mr. Clem allegedly saying, Now we can get rich. And, apparently, if Riesdorph Reporting Group, Inc. (813) 222-8963 Con?dential 78 accurate information, or the AUSA made a typo. I don't know. And then the third one has no date on it. And so it's possible that these were all from July 13 and that maybe it's a first part, a second part, and a third part. Maybe it's three copies of the same thing. We don't know. We've never seen it. But in the extortionist's effort to try to get money and as much money as possible and to scare Mr. Bollea into thinking that his life is going to come to a screeching halt if he doesn't pay them off, it makes all these allegations about what are in these various tapes. And, again, we redacted out a few words out of here based upon the prior ruling. This actually falls within Judge Campbell's protocol that these things actually should be going to you, to determine if any of these words are relevant to the case, because I mean, there is a lot of graphic words here. I'm about to read it, but he's typing this in. Can we go off the record one second so I can say some of these words. JUDGE CASE: I think the record can stand it. Judge Campbell may not like it, though. Riesdorph Reporting Group, Inc. (813) 222-8963 Con?dential 168 CERTIFICATE STATE OF FLORIDA COUNTY OF HILLSBOROUGH I, Aaron T. Perkins, Registered Professional Reporter, certify that I was authorized to and did stenographically report the above hearing and that the transcript is a true and complete record of my stenographic notes. I further certify that I am not a relative, employee, attorney, or counsel of any of the parties, nor am I a relative or employee of any of the parties' attorney or counsel connected with the action, nor am I financially interested in the action. Dated this 22nd day of July, 2014. Aaron T. Perkins, RPR Riesdorph Reporting Group, Inc. (813) 222-8963 Filing # 30302517 E-Filed 07/30/2015 03:46:38 PM EXHIBIT 75-C to the CONFIDENTIAL DECLARATION OF GREGG D. THOMAS IN SUPPORT OF PLAINTIFFS’ OBJECTIONS FD-302 (Rev. 5-8-10) -1 of 2- FEDERALINHHEUJOFINVESTHEATHNV Date of entry 10/16/2012 TERRY BOLLEA, home address also known as HULK HOGAN, w/m, redacted Clearwater Beach, cell phone number redaCted Pinellas Resident Agency of the FBI. Also present during the interview was David Houston, office number 775?786?4188, redaded After being advised of the identity of the interviewing Agents and the date of birth (DOB) FL 33767, was interviewed at the b6 -6 b7C -6 SSAN cell phone number nature of the interview, BOLLEA provided the following information: BOLLEA advised approximately five and a half to six years ago, he (hereinafter referred engaged in sexual intercourse with HEATHER CLEM theI known asl Ialso (hereinafter referred to asl b. BOLLEA recalls having sexual intercourse with H. CLEM more than twice but less than five times over a three to four month period. The sexual relationship between BOLLEA and H. CLEM took place before BOLLEA's son, automobile accident and before he met his current stated that the sexual relationship was consensual not only between he and H. CLEM but also encouraged BOLLEA advised for the two years prior to having intercourse with H. CLEM, H. CLEM would constantly make advances on BOLLEA to the point of telling him she fantasized about him and asking to see his penis. On the night BOLLEA's former wife, filed for divorce, BOLLEA was distraught b6 4 and sought company. The two went out together b7C "Zr 4 BOLLEA to come back to his residence to stay for the evening. BOLLEA agreed and on the way H. CLEM to tell her that BOLLEA was coming over for the evening. Looking back at this call, BOLLEA believes possibly having H. CLEM set up the camera that ultimately taped the sex act. When BOLLEA arrived at the CLEM BOLLEA that were again encouraged by CLEM. While in the master bedroom, he recalled asking "you aren't filming this are you?" responded that he was not filming and that he would not do that to BOLLEA. BOLLEA was asked by interviewing Agents why he thought to ask about the filming. BOLLEA responded by stating has surveillance cameras all residence. H. CLEM made advances on BOLLEA then agreed to have be 4 _b7C 4 BOLLEA stated sexual intercourse with H. Investigation on Hm, by 10/15/2012 in Clearwater, Florida, United States (In Person) Datedrafted 10/16/2012 b6 -1 b7C -1 This document contains neither recommendations nor conclusions of the FBI. It is the property of the FBI and is loaned to your agency; it and its contents are not to be distributed outside your agency. GAWKER- 1 5? FD-302a (Rev. 05-08-10) UNCLASSIFIED//FOUO 9B-TP-2534791 Continuation ofFD-302 of Interview of Terry Boll ea _l_0_/_1_5_/_2_0_1_2_ , Page over his residence and wanted to make sure he was not bedroom. BOLLEA denied any knowledge of filming taking and denied ever consenting to being filmed. filming place 2 of 2 in the in the bedroom In April 2012, grainy pictures emerged which showed BOLLEA engaged in sexual intercourse with who he knew then to be H. CLEM. BOLLEA immediately contacted! ! which BOLLEA advised had been his long time best friend to ask him where the pictures came from and how they were released. denied having anything to do with the pictures and blamed H. CLEM. On October 3, 2012, GAWKER released a one minute video showing the !to ask why he sexual act between BOLLEA and H. CLEM. BOLT,f.A ca] J ct ! 1 Jdenied having anything would tape the two of them and release to do with the taping and release of the tape and asked how H. CLEM could have done this to he and BOLLEA. BOLLEA stated he believed at the time that ._ ___ __.!had nothing to do with the filming and release of the tape. Based on these statements, BOLLEA, who had previously scheduled media appearances for his wrestling show, went on the Howard Stern show, Today show and ! ____ ... _. others defending it.1 BOLLEA learned from his attorney that the media company TMZ statectc==J .----!made statements on camera regarding the tape being their retirement fund after BOLLEA left the room. BOLLEA questioned! !regarding this statement, yet! !continued to deny that he had anything to do with from! !denying the filming. BOLLEA has gotten numerous text messages he had anything to do with the taping of the sex act as well as blaming H. CLEM. BOLLEA keeps all text messages and provides them to Houston and will make them available to interviewing Agents. b6 -2 b7C -2 b6 -2 b7C -2 BOLLEA was asked by interviewing Agents whether the whole situation is some type of publicity stunt. BOLLEA denied it was a publicity stunt as he stands to make several million dollars if he would give his consent and sell the tape. BOLLEA is not interested in this scenario, rather he wants to prosecute whoever did this to him. Agent Note: Contained within statements from both BOLLEA and separate the statements. the lA are interview notes containing Houston. Separate 302's were written UNCLASSIFIED//FOUO to 16 Filing # 30302517 E-Filed 07/30/2015 03:46:38 PM EXHIBIT 76-C to the CONFIDENTIAL DECLARATION OF GREGG D. THOMAS IN SUPPORT OF PLAINTIFFS’ OBJECTIONS IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA CIVIL DIVISION TERRY GENE BOLLEA, professionally known as HULK HOGAN, Plaintiff, Case No. vs. HEATHER GAWKER MEDIA, LLC, aka GAWKER MEDIA, et al., Defendants. VIDEOTAPED DEPOSITION OE: HEATHER COLE, formerly known as HEATHER CLEM DATE: January 26, 2015 TIME: 10:07 a.m. to 1:59 p.m. PLACE: Bajo, Cuva, Cohen Turkel, P.A. 100 North Tampa Street Suite 1900 Tampa, Florida PURSUANT TO: Notice by counsel for Defendant Gawker Media, LLC, for purposes of discovery, use at trial or such other purposes as are permitted under the Florida Rules of Civil Procedure REPORTED BY: Aaron T. Perkins, RPR Notary Public, State of Florida at Large Pages 1 to 125 Riesdorph Reporting Group, Inc. (813) 222-8963 APPEARANCES: CHARLES J. HARDER, ESOUIRE Harder Mire11 Abrams, LLP 1925 Century Park East Suite 800 Los Angeles, California 90067 and DAVID R. HOUSTON, ESQUIRE Law Office of David R. Houston 432 Court Street Reno, Nevada 89501 and KENNETH G. TURKEL, ESOUIRE Bajo, Cuva, Cohen Turkel, P.A. 100 North Tampa Street Suite 1900 Tampa, Florida 33602 Attorneys for Plaintiff CONTINUED: Riesdorph Reporting Group, Inc. (813) 222-8963 APPEARANCES CONTINUED AS FOLLOWS: MICHAEL BERRY, ESQUIRE PAUL J. SAFIER, ESQUIRE Levine Sullivan Koch Schulz, LLP 1760 Market Street Suite 1001 Philadelphia, PA 19103 Attorneys for Defendant Gawker Media, LLC, et al. MICHAEL W. GAINES, ESQUIRE The Barry A. Cohen Law Group 201 East Kennedy Boulevard Suite 1950 Tampa, Florida 33602 Attorney for Defendant Heather Clem ALSO PRESENT: Mike Byrd, videographer Terry Gene Bollea Judge James R. Case Riesdorph Reporting Group, Inc. (813) 222-8963 did not watch it. It was brief. Q. What was your response to Mr. Clem when he showed you that? A. I was upset. Q. Do you recall what you said to Mr. Clem or what Mr. Clem said to you? A. I recall being upset. Q. Did you shout? A. I don't recall. Q. I assume that you had no idea before the third sexual encounter that it was going to be filmed? A. Can you ask me that in a question? Q. Sure. Did you have any idea before the sexual encounter happened that it was going to be filmed? A. No. Q. The first time that you learned of the filming of any sexual encounter with Terry Bollea was after the third encounter, correct? A. Yes. Q. Did you ever have any communications with Terry Bollea regarding sex after the third sexual encounter? A. Not that I recall. Q. You never told Terry Bollea that the Riesdorph Reporting Group, Inc. (813) 222-8963 123 CERTIFICATE OF OATH STATE OF FLORIDA COUNTY OF HILLSBOROUGH I, the undersigned authority, certify that HEATHER COLE, formerly known as HEATHER CLEM, personally appeared before me and was duly sworn. WITNESS my hand and official seal this 30th day of January, 2015. Notary Public ate of Florida My Commission Expires: 2/27/2016 Commission No. EE173286 Riesdorph Reporting Group, Inc. (813) 222-8963 124 CERTIFICATE STATE OF FLORIDA COUNTY OF HILLSBOROUGH I, Aaron T. Perkins, Registered Professional Reporter, certify that I was authorized to and did stenographically report the deposition of HEATHER COLE, formerly known as HEATHER that a review of the transcript was requested; and that the transcript is a true and complete record of my stenographic notes. I further certify that I am not a relative, employee, attorney, or counsel of any of the parties, nor am I a relative or employee of any of the parties' attorney or counsel connected with the action, nor am I financially interested in the action. Dated this 30th day of January, 2015. Riesdorph Reporting Group, Inc. (813) 222-8963