Fe? 5! i 3% . 33.x HE ?r ?re 5 Ix.) r?a p?A a?I I?n BROWN WHITE OSBORN LLP KENNETH P. WHITE, SBN 173993 CALEB E. MASON, SBN 246653 333 South Hope Street, 40th Floor Los Angeles, California 90071- 1406 Tele hone: 213. 613.0500 Facmmile: 213.613.0550 kwhite@brownwhitelaw.oom cmason@brownwhitelaw.com Attorneys for Non-Party KENNETH P. WHITE CO. FORMED COPY ORIGINAL FILED Su Janet Court 01 California OI LOB Angelou DEC 09 2016 Shem F1. Garter. Executive Qtlicermlam By Fiat" autism-z, .oaputy SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES JAMES WOODS, an individual, Plaintiff, V. JOHN DOE, ET AL., Defendants. Case No. Assigned to: Hon. Mel Recana KENNETH P. OPPOSITION TO: (1) MOTION FOR AN ORDER COMPELLING KENNETH P. WHITE TO ANSWER DEPOSITION QUESTIONS AND PRODUCE AND (2) MOTION FOR AN ORDER FOR SANCTION AGAINST NON- PARTY KENNETH P. WHITE IN THE AMOUNT OF $9,040.55 Date: December 22, 2016 Time: 8:30 am. Dept: 45 [Filed Concurrently Herewith: Non- Party?s Response to Plaintiff?s Separate Statement] OPPOSITION TO MOTION FOR AN ORDER COMPELLING KENNETH P. WHITE TO ANSWER DEPOSITION QUESTIONS AND PRODUCE AND FOR AN ORDER FOR SANCTION LuII. IV. OPPOSITION TO MOTION FOR AN ORDER COMPELLING KENNETH P. WHITE TO ANSWER DEPOSITION QUESTIONS AND PRODUCE TABLE OF CONTENTS Egg INTRODUCTION .. 1 FACTUAL AND PROCEDURAL HISTORY .. 3 A. Mr. Doe?s Retention of Mr. White To Protect His Identity .. 3 B. Mr. Doe?s Death and Mr. White?s Work For His Surviving Relative .. 3 C. The Subpoena and Deposition .. 4 ARGUMENT .. 6 The Information Sought Is Protected By The Attorney-Client Privilege, And Mr. White ls Legally and Ethically Obligated To Assert It .. 6 Mr. Woods? Purpose Is To Harass, Not To Discover Admissible Evidence .. 10 Mr. Doe?s Right To Privacy Survives Death .. 11 Even If The Court Overrules Mr. White?s Assertion of the Privilege, Sanctions Are Inappropriate .. 13 CONCLUSION .. 15 i AND FOR AN ORDER FOR SANCTION 1 TABLE OF AUTHORITIES 2 Page 3 Cases 4 Catsouras v. De of California Highway Patrol 5 (2010) 1 1 Cal. App. 4th 85 .. 12 6 Diepenbrock v. Brown (2012) 208 Cal. App. 4th 743 ..13 7 Hays v. Wood 8 (1979) 25 Cal.3d 772 .. 8 9 McIntyre v. Ohio Elections Comm ?n (1995Mitchell v. Superior Court 11 (1984) 37 Cal.3d 591 .. 10 12 Nat?l Archives Records Admin. v. Favish (2004) 541 US. 157 ..12 13 Powell v. US. Dep?t of Justice 14 (ND. Cal. 1984) 584 F. Supp. 1508 .. 12 15 R0330, Johnson, Rosso Ebersold v. Superior Court (1987) 191 Cal.App.3d 1514 ..8 16 Swidler Berlin v. United States. *4 17 (1998Willis v. Superior Court (1980) 112 Cal.App.3d 277 ..7, 8 19 Statutes 20 Cal. Civ. Pro. 2023.010(d) .. 13 21 Cal. Code Civ. Pro. 2025.480 .. 13 22 Cal. COde Civ. Pro. 2023.030(a) .. 13 23 Evid. Code 953, subdOPPOSITION TO MOTION FOR AN ORDER COMPELLING KENNET111 P. WHITE TO ANSWER DEPOSITION QUESTIONS AND PRODUCE AND FOR AN ORDER FOR SANCTION 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. 3 INTRODUCTION 4 When defendant Abe Doe (?Mn Woods?) died and his personal representative dismissed 5 his appeal of this Court?s denial of his motion, Plaintiff James Woods gloated and 6 celebrated his death, expressing his hope that Mr. Doe died ?screaming [Woods?] name.? 7 James Woods @ReaiJamesWoods 2h 8 The sllme-who libeled me just dropped his appeal contesting my victorious SLAPP InOtlon. Perennlal losel - @Lisa?lomn isn't so much now Twem 9 4a 15:? 22m 53" 1.89? if?! 10 Donald G. Carder I Jam? @?Gaidaml?si?vt?m'? He cued. dud3_ The slim who hbeled dropped his appeal contesting ,1 my Vlotorlous SLAPP motlon, Porennlal loser (all. Isnliloom I I . isn't yapping so much now . James Woods @eraldnnIQSWonda-S?@LisaBloom Hopefully screaming my I if; I E: name. In agony. 4? a Q3 ,3 Rustic Ballet @linkLcuic 42m @l'loaldanmsWootla he's dead you fucking geriatric rolortl 14 I til-x,- '93; a? kiwi We: i. 16 James Woods ?94: [gin] @RealJamcsWoods 17 .(chyYourLogio Screaming my name. I hope. 18 Learn thls. Libel me. I'll sue you. If you die, l'll 3' follow you to the bowels of Hell. Get it? 19 9:373 LIKES .. 22 as as a: 23 Mark The con anneal} con-l . 7. #Suvenc 24 Reply to James Woods 25 . . 26 Now Mr. Woods seeks to compel Mr. Doe?s attorney, non-party Kenneth P. White (?Mix 27 White?), to disclose Mr. Doe?s identity, and to sanction Mr. White almost $10,000 for asserting 23 the attorney?client privilege in response to his questions (?the Motion?). Mr. Woods asserts OPPOSITION TO MOTION FOR AN ORDER COMPELLING KENNETH P. WHITE TO ANSWER DEPOSITION QUESTIONS AND PRODUCE AND FOR AN ORDER FOR SANCTION toesair-giasaw:s ?.16th that his purpose is legitimate and that he does not seek to harass or abuse Mr. Doe?s survivors. But Mr. Woods? own public statements give the lie to that assertion. Mr. Woods wants to do just what he said he wants to do: publicly harass and vilify a dead man and his family. The Motion is meritless, and is a transparent attempt to abuse the discovery process to exact twisted revenge by harassing Mr. Doe?s family. First, contrary to Mr. Woods? arguments, Mr. White expressly premised his refusals to answer questions on one ground the attorney? client privilege. That assertion was correct. Because the entire purpose of Mr. White?s representation of Mr. Doe was to protect Mr. Doe?s identity, and because Mr. White only learned Mr. Doe?s identity through con?dential communications, Mr. Woods cannot force Mr. White to disclose it. Moreover, the record shows that Mr. White answered questions when the privilege did not apply or when the privilege had been waived. Moreover, Mr. Woods? conduct demonstrates that he is engaged in a campaign of harassment rather than discovery. His very?rSt action was to subpoena Mr. Doe?s attorney; he refused offers to disclose Mr. Doe?s identity pursuant to a con?dentiality agreement; and he even refused offers to allow a neutral third party to con?rm Mr. Doe?s death and the amount of his estate (which were the facts he claimed he wanted to con?rm). These actions make it clear beyond cavil that Mr. Woods? aim is to abuse the discovery process to learn the identity of Mr. Doe?s survivors so he can harass them and encourage his Twitter followers to harass them. It is an unfortunate fact of modern life that online celebrities, including Mr. Woods, can and do wreak havoc on the lives of private individuals by inciting followers to attack them. See, e.g.,Jenna Johnson, ?This is What Happens When Donald Trump Attacks A Private Citizen on Twitter,? Washington Post, December 8, 2016 [describing repeated and widespread abuse of private ?gure attacked by Donald Trump on Twitter].1 Mr. Woods? motion is meritless and abuse of the discovery process, and this Court should deny it. 1 The article may be found at 3 80ece-bd62-I 166-9 1 ee? OPPOSITION TO MOTION FOR AN ORDER COMPELLING KENNETH P. WHITE TO ANSWER DEPOSITION QUESTIONS AND PRODUCE AND FOR AN ORDER FOR SANCTION II. FACTUAL AND PROCEDURAL HISTORY This Court is familiar with the background of the case based on past motion practice. Mr. Woods sued Mr. Doe over a ?tweet? that is, a post on social media network Twitter, which allows its users to post 140-character statements to their ?followers? and one another. Mr. Woods sought to uncover Mr. Doe?s identity. A. Mr. Doe?s Retention of Mr. White To Protect His Identity Mr. Doe retained non-party attorney Mr. White for the express purpose of protecting his anonymity as the core purpose of the defense, and Mr. White took extraordinary measures to protect that identity, including limiting access to Mr. Doe?s ?le within his own ?rm. (Declaration of Kenneth P. White [?White Decl.?] at 3-4.) Mr. White ?led numerous pleadings on Mr. Doe?s behalf: 0 When Mr. Woods ?led an ex parte application for a subpoena to Twitter to uncover Mr. Doe?s identity, Mr. White opposed it and the Court denied it. 0 When Mr. Woods, in response to Mr. White?s motion on Mr. Doe?s behalf, ?led a motion seeking pre-hearing discovery, Mr. White opposed it and this Court denied it. 0 Mr. White ?led an motion on Mr. Doe?s behalf seeking to dismiss Mr. Woods? suit. This Court initially issued a tentative ruling granting the motion (Exhibit E) but later issued an order denying the motion (Exhibit F). a Mr. Doe appealed this Court?s denial of his motion. B. Mr. Doe?s Death and Mr. White?s Work For His Surviving Relative In August 2016, Mr. White learned from a surviving relative of Mr. Doe that Mr. Doe had died. (White Decl. at 1] 6.) Mr. Doe?s relative, his personal representative, asked Mr. White to continue the representation and once again emphasized that the purpose of the representation was to protect Mr. Doe?s identity and the identity of his relatives to defend them from harassment by Mr. Woods. (White Decl. at 6-7.) Mr. Doe?s personal representative authorized Mr. White to make several disclosures of information in an effort to settle this OPPOSITION TO MOTION FOR AN ORDER COMPELLING KENNETH P. WHITE TO ANSWER DEPOSITION QUESTIONS AND PRODUCE AND FOR AN ORDER FOR SANCTION 1 matter. (Id) 2 Mr. White contacted Mr. Woods? attorneys, informed them that Mr. Doe had died, 3 informed them that Mr. Doe died with very few assets, and offered several approaches to settlement. Mr. White suggested that if Mr. Woods would agree to keep Mr. Doe?s identity con?dential, he would disclose that identity so that Mr. Woods could con?rm that he had died and that he had no signi?cant assets. Alternatively, Mr. White proposed that he disclose Mr. Doe?s identity, assets, and proof of death to a mutually acceptable neutral third party, and that 8 the third party could-then con?rm to Mr. Woods that Mr. Doe was dead and had insigni?cant 9 assets. Mr. Woods attorneys refused both of these proposals. (White Decl. at 111] 8.) 10 Mr. White subsequently dismissed Mr. Doe?s appeal of this Court?s denial of the anti- 11 SLAPP motion. 12 C. The Subpoena and Deposition 13 On November 3, 2016, Mr. Woods issued a subpoena to Mr. White seeking documents 14 disclosing Mr. Doe?s identity and the identity of his personal representative. (Exhibit to Woods? Motion.) Mr. White served objections. Those objections stated that Mr. White was 16 declining to produce documents based on the attorney-client privilege, and that the information 17 sought was private and that Woods sought it for the purpose of harassment. (Exhibit to 18 Woods Motion at 2.) L71 19 Mr. Woods subsequently took Mr. White?s deposition. A true and correct copy of the 20 entire deposition transcript is attached hereto as Exhibit A. At the deposition, Mr. White 21 refused to disclose the identity of Mr. Doe or his personal representative, and refused to 22 disclose information he had learned only through attorney?client communications. He based 23 his refusal on the attorney-client privilege, as well as preserving objections based on privacy 24 and relevance. (See, e. Depo at 7: 1 8-22; 8: 19-23.) Mr. White also answered many 25 questions and made many disclosures. For example: 26 0 When Mr. White did not know or remember the answer to a question, he disclosed 27 that, rather than simply asserting privilege. (Depo. at 15:2-7; 17:16-22; 17:24-7; 28 19:10-15; 27:18-28:1; 28:10-20; 31:14-20; OPPOSITION TO MOTION FOR AN ORDER COMPELLING KENNETH P. WHITE TO ANSWER DEPOSITION QUESTIONS AND PRODUCE AND FOR AN ORDER FOR SANCTION Mr. White answered numerous questions when Mr. Doe or Mr. Doe?s personal representative had previously waived privilege on that subject matter. Speci?cally, he acknowledged that the estate would not defend the suit (Depo. at that Mr. Doe was not married (Depo. at that Mr. Doe?s Twitter pro?le was ?ctitious; that Mr. Doe did not own a house in Los Angeles (Depo. at that Mr. Doe was not employed at the time the lawsuit was ?led (Depo. at 29-3-12); and that Mr. Doe did not work in ?nance or math and was not a partner in private equity. (Depo. at 5-18.) 0 Mr. White answered numerous questions when the privilege did not apply, including con?rming that he had never met Mr. Doe in person and had never seen a picture of him (Depo. at that he had talked to Twitter?s counsel (Depo. at 19:17- 20:20); and that he did not know Mr. Doe prior to the lawsuit (Depo. at 33 1 8?345). In short, Mr. White did not offer a blanket refusal to answer, but tailored his answers to the details of each particular question. D. Mr. Woods? Conduct and the Basis For Mr. White?s Harassment Concerns Mr. Doe and his personal representative instructed Mr. White to defend their identity as the core goal of this litigation, expressing concern that Mr. Woods would use his more than 450,000 Twitter followers to harass and abuse them if his identity were revealed. That concern is well-founded. Mr. Doe demonstrated in his motion that Mr. Woods is an enthusiastic Twitter user who relishes insulting people who annoy him. Motion at 3-4.) When he disagrees with people he calls them ?scum? and ?clown?; he asserts that he could ?shoot this guy in the head and sleep like a baby? based on an opponent?s t?shirt; he accuses the publisher of Rolling Stone of being a ?disgusting piece of shit? who masturbates to fantasies about terrorists; and he calls utter strangers ?disgusting, reprehensible Motion at 3-5, Exhibits E-l to E-10 to Motion.) Mr. Woods continued that conduct after Mr. Doe?s death. When Mr. Doe?s appeal was dismissed he published a celebratory tweet; when Twitter users pointed out that the appeal was 5 OPPOSITION TO MOTION FOR AN ORDER COMPELLING KENNETH P. WHITE TO ANSWER DEPOSITION QUESTIONS AND PRODUCE AND FOR AN ORDER FOR SANCTION OOH-lat!!dismissed because Mr. Doe died, Mr. Woods celebrated and gloated over that death, saying he hoped that Doe died ?screaming [Woods?] name? ?in agony? and that he would follow people ?to the bowels of Hell.? (Exhibits and to White Decl.) He also posted a tweet ridiculing both Mr. White (through his Twitter handle @popehat) and Mr. Doe?s additional attorney Lisa Bloom. (Exhibit to White Decl.) Concerned about such conduct, Mr. White asked Mr. Woods? attorneys to stipulate that the videotaped deposition of Mr. White would be used only in this case and not publicly disclosed, fearing that Mr. Woods would use the videotape to incite harassment and attacks. (Depo. at Incredibly, Mr. Woods? attorneys refused, insisting on maintaining Mr. Woods? right to make public use of the deposition. (Depo. at 45:1-3, Mr. White has observed that Mr. Woods? followers celebrate and congratulate his abuse of people he criticizes and denounces, particularly when those denunciations are expressed along political lines. He has observed many instances of Mr. Woods? Twitter followers expressing hostility and insults towards Mr. Doe. (White Decl. at 11 14.) This is of grave concern, especially in light of the trend of Twitter users harassing and abusing private individuals ?called out? on Twitter by public ?gures. (See footnote 1, supra.) 111. ARGUMENT A. The Information Sought Is Protected By The Attorney-Client Privilege. And Mr. White Is Legally and Ethicallv Obligated To Assert It Mr. Woods seeks to compel and sanction Mr. White for withholding Mr. Doe?s identity. But Mr. White?s stance is not a whim or a tactic; it is legally and ethically obligatory. An attorney has an affirmative legal and ethical obligation to assert the attorney-client privilege when asked to disclose attorney-client communications. Evidence Code 955 provides: The lawyer who received or made a communication subject to the privilege under this article shall claim the privilege whenever he is present when the communication is sought to be disclosed . . . (Evid. Code 955, emphasis added; see also California Rule of Professional Conduct 3?100.) OPPOSITION TO MOTION FOR AN ORDER COMPELLING KENNETH P. WHITE TO ANSWER DEPOSITION QUESTIONS AND PRODUCE AND FOR AN ORDER FOR SANCTION "earns ?Although the privilege belongs only to the client, the attorney?s professional obligation requires him to invoke it on his client?s behalf, absent other instructions; and he is entitled to assert such privilege in the course of a discovery motion during litigation to which his clients are not parties and in which they have no interest.? (Willis v. Superior Court (1980) 112 Cal.App.3d 277, 290-91.) Because the attorney-client privilege survives after a client?s death (see, Swidler Berlin v. United States. (1998) 524 US. 399, 406-7; Evid. Code 953, subd. so does this obligation. Mr. Woods asserts that Mr. Doe?s identity - and the identity of his personal representative are not and cannot be privileged because he does not face criminal prosecution if identi?ed. Mr. Woods is wrong. In circumstances like these, where the entire purpose of the representation is defending the anonymity of the client, identity can be privileged. It is true that the identity of a client is not per-se privileged ?when there is a legitimate need for the court to require? disclosure. (Willis, supra, 112 Cal.App.3d at 309.) One example as Mr. Woods concedes is when revealing the client?s identity would implicate the client in a crime. However, California courts have not restricted the privilege to those circumstances. The Willis court, in describing the circumstances in which a client?s identity may be privileged, described them broadly: ?Nevertheless, California courts recognize that the rule is not unqualified and that where disclosure of identity might harm the client by being used against him under circumstances where there are no countervailing factors, then it would be protected by the privilege.? (Willis, supra, 112 Cal.App.3d at 292 (emphasis added)). After reviewing cases involving criminal risks, the Willis court recapitulated the rule broadly: ?It is obvious that a determination of whether a client's name and address and his fee arrangement with his attorney is a privileged communication will depend on an analysis of the facts of the case and the potential for harm to the client if the identification and compensation is compelled.? (Willis, supra, 112 Cal.App.3d at 293.) Other California courts have con?rmed that a client?s identity may be privileged in a broader array of circumstances than criminal ones. Several courts have found that a client?s identity can be privileged when its disclose could expose the client to civil liability. Hooser v. OPPOSITION TO MOTION FOR AN ORDER COMPELLING KENNETH P. WHITE TO ANSWER DEPOSITION QUESTIONS AND PRODUCE AND FOR AN ORDER FOR SANCTION - 5 i 4.55 . .- Superior Court (2000) 84 Cal.App.4th 997, 1005 [?There is a recognized exception to this rule, however, where known facts concerning an attorney's representation of an anonymous client are such that the disclosure of the client's identity would implicate the client in unlawful activities, thus exposing the client to potential investigative action or criminal or civil liability.? [emphasis added]], citing Hays v. Wood (1979) 25 Cal.3d 772, 785.) Moreover, a client?s identity can be privileged when ?the disclosure of the client's identity would betray personal, con?dential information regarding the client.? [Hooser, supra, 84 Cal.App.4th at 1005.] For instance, in Rosso, Johnson, Rosso Ebersold v. Superior Court (1987) 191 Cal.App.3d 1514, the court upheld a law ?rm?s assertion of privilege in the face of a subpoena seeking the identity of potential clients who had responded to an advertisement about intrauterine device litigation. Because disclosure of the list would reveal that the people named on it had concerns about a particular medical condition, and thus reveal the reason for the representation and the content of a communication, the court held that the names were privileged. (Id. at 1519.) This case meets the exception identi?ed by Willis, Hooser, and Rosso. Mr. Doe (and later his personal representative) retained Mr. White speci?cally for the purpose of protecting his identity. (White Decl. at 11'? 4-6.) Revealing his identity would subject Mr. Doe (or now, his estate) to civil liability by revealing that he was the one who posted the tweet that Mr. Woods sued over. It would necessarily reveal the purpose for which he sought legal advice by revealing that he is the anonymous person who sought to have his identity protected. It would harm him by exposing him to public ridicule and attack by Mr. Woods, as set forth above in Section and below in Section All of these harms are of the sort that triggers Mr. White?s legal obligation to protect the identities of Mr. Doe and his personal representative. (Willis, supra, 112 Cal.App.3d at 293; Hooser, supra, 84 Cal.App.4th at 1005; Rosso, supra, 191 Cal.App.3d at 1519.) Moreover, Mr. Woods has not shown the ?legitimate need? or ?countervailing factors? that those courts require to compel disclosure of identity. Mr. Woods has not shown, or even tried to show, that he has exhausted other methods of discovering Mr. Doe?s identity. In fact, OPPOSITION TO MOTION FOR AN ORDER COM PELLING KENNETH P. WHITE TO ANSWER DEPOSITION QUESTIONS AND PRODUCE AND FOR AN ORDER FOR SANCTION Mr. Woods has a pending subpoena to Twitter seeking account details. (White Decl. at 1[ 19.) The Court should not countenance Mr. Woods using the most extreme method subpoenaing an attorney and demanding that he reveal con?dential communications -- when he has not shown that other methods won?t work. Finally, Mr. Woods? Motion deceitfully attempts to con?ate two types of questions questions that directly ask Mr. Doe?s identity and questions that seek information that Mr. White only learned through con?dential communications. Whether or not client identity per se is privileged is a case-speci?c inquiry, but con?dential attorney-client communications are \Doo-qmur-h-me always privileged. They do not lose that privilege when they might tend to reveal a client?s CD identity that the opposing party seeks. . Mr. Woods asked Mr. White numerous questions that y?t h-d sought information Mr. White testi?ed he learned only through con?dential attorney-client communications. Those communications are privileged, period. The fact that the information I?n DJ sought would help Mr. Woods learn Mr. Doe?s identity does not lessen the privilege one iota. .1: For example: 0 Where Mr. Doe died. Mr. White explained he only knew the answer through a p?n Ch con?dential communication. (Depo at r-rras a How old Mr. Doe was when he died. Once again, Mr. White explained that he only p?n DO :1 knew the fact through con?dential communication. (Depo at 17: 17-22.) p?s Whether Mr. Doe was married. Mr. White con?rmed that he had previously 20 disclosed in a settlement discussion that Mr. Doe was not married, waiving the 21 privilege to that extent. However, he said he could not disclose further because he 22 only knew the information through con?dential communications. (Depo at 23 23 0 Whether Mr. Doe lived in Los Angeles. Mr. White explained he only knew the 24 answer based on con?dential communications. (Depo. at 26: 15?20.) 25 0 Whether Mr. Doe lived in Los Angeles when he died. Mr. White explained he only 26 knew the answer through con?dential communications. (Depo. at 26:23-27:3. 27 0 Whether Mr. Doe had other Twitter accounts. Mr. White explained he only knew the 28 answer through con?dential communications. (White Decl. at OPPOSITION TO MOTION FOR AN ORDER COMPELLING KENNETH P. WHITE TO ANSWER DEPOSITION QUESTIONS AND PRODUCE AND FOR AN ORDER FOR SANCT ION T9Thus, while Mr. Woods cites cases to support his assertion that Mr. Doe?s identity is not con?dential, he is missing the point: con?dential attorney-client communications are con?dential, and Mr. Woods cites no authority for the bizarre proposition that he is entitled to disclosure of con?dential attorney-client communications because they would help him learn Mr. Doe?s identity. Mr. Woods? argument that these are ?facts? is inapt; Mr. White explained that he only knows some of these ?facts? through con?dential communications. California courts reject such attempts to evade the privilege. (See, e. Mitchell v. Superior Court (1984) 37 Cal.3d 591, 601 [rejecting argument that questions to client about facts learned from lawyer were not privileged because they were only ?factual? and af?rming assertion of privilege].) The legal point is simple: an attorney-client communication about an otherwise discoverable fact is still an attorney-client communication. 2 Therefore, Mr. White?s assertion of the privilege was correct, and this Court should uphold it. B. Mr. Woods? Purpose Is To Harass. Not To Discover Admissible Evidence The facts before the Court show that Mr. Woods? purpose is not to uncover potentially relevant information, but to harass Mr. Doe?s surviving relatives and Mr. White, which is not a legitimate goal of discovery. Mr. Woods has not submitted any evidence that he has tried any other methods of discovering Mr. Doe?s identity. He is demanding Mr. Doe?s identity though his attorney even though Mr. White had already offered to disclose that identity in settlement discussions if Mr. Woods would agree to keep it con?dential. (White Decl. at ?l 8.) There is only one reason for Mr. Woods to reject that offer and demand the right to publicize the names of Mr. Doe and his family members to maintain the freedom publicly to harass and incite harassment against Mr. Doe?s family. 2 By Mr. Woods? strange logic, litigants would be entitled to depose one another?s attorneys in any case and demand disclosure of con?dential attorney-client communications regarding all discoverable facts. For instance, because a defendant?s location on a particular date is a ?fact,? a plaintiff in a wrongful death case could depose opposing counsel and demand ?where was your client the night of the murder.? 1 0 OPPOSITION TO MOTION FOR AN ORDER COMPELLING KENNETH P. WHITE TO ANSWER DEPOSITION QUESTIONS AND PRODUCE AND FOR AN ORDER FOR SANCTION 5r as Similarly, Mr. Woods? attorneys who brag about being ?pit bulls? and ?attack dogs? for clients inexplicably refused to stipulate to use Mr. White?s deposition video only in this case.3 (White Decl. at 111] 16-17.) Once again, they offered no legitimate explanation, and their purpose is clear: they want to use Mr. White?s deposition video to publicly attack and vilify Mr. White, and to inspire Mr. Woods? followers to join in the attack. Mr. Woods himself bragged that he pursues people who insult him ?to the bowels of Hell? and publicly gloated at Mr. Doe?s death, expressing hope that Mr. Doe died screaming Mr. Woods? name and ridiculing Mr. Doe?s attorneys. (Exhibits B-D to White Decl.) These facts show plainly that Mr. Woods and his attorneys are taking this course to in?ict maximum expense, risk of abuse, and humiliation on Mr. Doe?s surviving relatives and lawyers. That is not a legitimate purpose of discovery, and the Court should not permit it. C. Mr. Doe?s Right To Privacy Survives Death As is set forth above, Mr. White explicitly stated that he Was asserting Mr. Doe?s right to privacy in order to preserve it as an objection, and that his refusals to answer were premised on the attorney-client privilege. (Exhibit to Motion at 2.) Mr. White acknowledges that, by denying Mr. Doe?s motion, this Court necessarily rejected the privacy argument already. The objection was stated so as not to waive it for appeal. However, Mr. Woods is simply wrong that Mr. Doe?s right to privacy and anonymity died with him. In fact, multiple authorities show that the right to anonymity survives death. In McIntyre v. Ohio Elections Comm?n (1995) 514 US. 334, 345, the United States Supreme Court held that Ohio's statutory prohibition against distribution of any anonymous campaign literature violated the First Amendment. There, like in this case, the author of the pamphlet died during the pendency of the litigation. (Id.at 340.) The passing of the author did not diminish her right to remain anonymous. The Supreme Court explained that the author?s choice to remain anonymous was as protected by the First Amendment as any other components of the publication?s content. (Id. at 345.) The court further reasoned that 3 Indeed, the speci?c request Mr. Woods? attorneys refused was the request that they use the deposition video ?for legal purposes only.? 1 OPPOSITION TO MOTION FOR AN ORDER COMPELLING KENNETH P. WHITE TO ANSWER DEPOSITION QUESTIONS AND PRODUCE AND FOR AN ORDER FOR SANCTION 1 identi?cation of the author against her will would be particularly intrusive. (Id. at 355.) 2 Similarly, in Powell v. U.S. Dep?t of Justice (ND. Cal. 1984) 584 F. Supp. 1508, 1526, 3 the court held that a person?s death does not extinguish his privacy interests in non-disclosure 4 of his name. In Powell, the court analyzed the privacy interests at stake with respect to 5 disclosure of the names of certain FBI agents and persons under investigation by the FBI. (Id) 6 The court reasoned that the disclosure of people?s identities, even after death, may cause 7 reputational harms to them and their families. (Id) The court further explained that while 8 these privacy interests may diminish with time, they are at their peak in the period soon after a 9 person?s death. (Id) 10 Courts have also recognized a family?s interest in the privacy of a decedent?s 11 information. For example, in Nat'l Archives Records Admin. v. Favish (2004) 541 U.S. 157, 12 171, the United States Supreme Court held that the decedent?s family?s privacy interest in 13 nondisclosure of details about their relative?s death outweighed the public?s interestin 14 disclosure. (Id. In this case, it is beyond dispute that whatever Mr. Woods learns, he will 15 exploit for maximum public humiliation of Mr. Doe?s family. 16 California courts have likewise recognized that privacy interests can persist after death. 17 In Caisouras v. Dep'i of California Highway Patrol (2010) 181 Cal. App. 4th 856, the court 18 held that the right of privacy does not invariably die along with the person who is the subject 7. 19 matter of the publication. The court held that the decedent?s family members had an actionable 20 privacy interest in photos of the decedent. Relying on National Archives, the court explained 21 that surviving relatives of a deceased person have an interest in protecting his memory, and 22 protecting their feelings. (Id. at 872.) 23 Because Mr. White expressly premised his refusals to answer on the attorney-client 24 privilege, and only asserted the privacy objection to preserve it, this issue is not dispositive. 25 However, the authority above demonstrates that Mr. White?s preservation of the objection was 26 in good faith and based on legitimate authority. 27 28 OPPOSITION TO MOTION FOR AN ORDER COMPELLING KENNETH P. WHITE TO ANSWER DEPOSITION QUESTIONS AND PRODUCE AND FOR AN ORDER FOR SANCTION asEven If The Court Overrules Mr. White?s Assertion of the Privilege. Sanctions Are Inappropriate Mr. Woods demands $9,040.55 in sanctions for Mr. White?s obligatory assertion of the attorney-client privilege. This demand is utterly without merit even if this Court ultimately overrules the assertion of the privilege. As Mr. Woods concedes, discovery sanctions are only appropriate when a witness engages in ?misuse? of the discovery process or acts in ?bad faith? or ?without substantial justification.? (Motion at 11, citing Cal. Code Civ. Pro. 2025.480, No such misuse or bad faith conduct took place here. Instead, as is set forth above, Mr. White attempted to comply with his legal and ethical obligation to assert the attorney?client privilege as to con?dential information that was at the heart of his representation indeed, that was the purpose of his representation. As is discussed above, the legal authority on the issue of privilege is at the very least con?icting, making sanctions in appropriate. (Diepenbrock v. Brown (2012) 208 Cal. App. 4th 743, 749 [sanctions inappropriate when counsel relied on con?icting authority].) Moreover, Mr. White took numerous steps to narrow and limit his assertion of the attorney?client privilege, demonstrating good faith and showing that his purpose was to comply with his professional obligations, not to delay or obstruct. Speci?cally: 0 Mr. White expressly stated that his refusal to answer questions was premised on the attorney-client privilege, and that he was articulating the privacy objection only to preserve it. (Exhibit to Motion at 2-3.) He answered questions required to establish the foundation of the privilege for instance, by specifying which attorneys and staff at his ?rm were part of the communications. (Depo. at 0 Mr. White analyzed and responded to questions on a question-by?question basis, answering when the privilege had been waived as to particular subjects based on Mr. Doe?s past instructions. For instance: 0 Based on a prior authorized waiver Mr. White acknowledged that Mr. Doe?s estate would not be defending this suit. (Depo. at 0 Mr. White con?rmed that in a settlement communication he had disclosed that OPPOSITION TO MOTION FOR AN ORDER COMPELLING KENNETH P. WHITE TO ANSWER DEPOSITION QUESTIONS AND PRODUCE AND FOR AN ORDER FOR SANCTION ?aw-Pb.) Mr. Doe was not married. (Depo. at 0 Mr. White con?rmed that he had previously been authorized to disclose that Mr. Doe?s Twitter pro?le was ?ctitious and that Mr. Doe did not own a house in Los Angeles, and based on that previous waiver responded that Mr. Doe did not own a house in Los Angeles. (Depo. at 0 Mr. White con?rmed that he had previously been authorized to disclose that Mr. Doe did not have a job at the time this lawsuit was ?led, and based on that waiver responded that Mr. Doe was not employed at the time the lawsuit was ?led. (Depo. at 0 Mr; White con?rmed that he had previously been authorized to disclose that Mr. Doe did not work in ?nance or math and was not a partner in private equity, and on that basis acknowledged that Mr. Doe did not do those things. (Depo. at 5-18.) 0 Mr. White clari?ed when he did not know the answer to the question even when the answer, if he knew it, would be privileged. (Depo. at 15:2?7; 17:16?22; 17:24-7; 19:10-15; 27:18-28:1; 28:10?20; 31:14-20; 0 Mr. White answered questions not arguably covered by the attorney-client privilege: 0 He con?rmed he had never met Mr. Doe in person and never saw a picture of him (Depo. at 0 He answered questions about his conversations with counsel for Twitter (Depo. at 0 He con?rmed that he did not know Mr. Doe prior to the lawsuit (Depo. at 33:18-34:53 This careful, case-by?case application of the privilege demonstrates that Mr. White was not acting in bad faith or seeking to abuse the process, and answered every question he ethically could. He was caught between a demand for answers and threat of sanctions, on the one hand, and an ethical and legal obligation to assert the privilege if he had a basis to do so, on the other hand. Even if the Court disagrees with the basis for his assertion, it would be fundamentally 4 OPPOSITION TO MOTION FOR AN ORDER COMPELLING KENNETH P. WHITE TO ANSWER DEPOSITION QUESTIONS AND PRODUCE AND FOR AN ORDER FOR SANCTION unfair and unjust to penalize Mr. White for complying with his core ethical duties as an attorney, and preserving his objections so that the matter could be brought to this Court for resolution. IV. CONCLUSION For the foregoing reasons, Non?Party Kenneth P. White respectfully requests that the Court deny Plaintiff?s Motion to Compel and Motion for Sanctions. Dated: December 9, 2016 Respectfully submitted, BROWN WHITE OSBORN LLP By KENNETH P. WHITE CALEB E. MAS ON Attorneys for Non-Party KENNETH P. WHITE 1 5 OPPOSITION TO MOTION FOR AN ORDER COMPELLING KENNETH P. WHITE TO ANSWER DEPOSITION QUESTIONS AND PRODUCE AND FOR AN ORDER FOR SANCTION DECLARATION OF KENNETH P. WHITE 1, KENNETH P. WHITE, declare: l. I am an attorney licensed to practice law in California, and am a Partner at Brown White Osborn LLP, attorneys for Defendant Abe Doe and after his death his personal representative. 2. I make this Declaration in support of my Opposition to Mr. Woods? motion to compel me to reSpond to questions. Because this declaration is for a limited purpose, it does not include all information that I know about the case. 3. Mr. Doe hired me to represent him in this case shortly after Mr. Woods ?led it. The premise of my retention was explicitly to defend Mr. Doe?s anonymity and prevent his identity from being disclosed. Without revealing the contents of attorney-client communications, this was the explicit core purpose of the representation and main goal of the defense, based on Mr. Doe?s express fear that Mr. Woods and Mr. Woods? aggressive Twitter followers would harass him and his family if his identity were disclosed. 4. Based on these instructions I took unusual measures to protect Mr. Doe?s identity. I assured that the ?le of his case did not bear his name and that the ?le was electronically protected from access by anyone other than me, a select paralegal, and the person responsible for generating bills. I took pains not to use his name in communications and did not disclose it to third parties. When he retained another attorney, Lisa Bloom, to assist in some aspects of the case, I made sure that his name was not disclosed to her. I limited direct communication with Mr. Doe to myself. 5. Mr. Doe authorized me to disclose some personal information about him early in the case Specifically, that most of the information in the pro?le of his Twitter account were ?ctional, and that he did not have assets to satisfy Mr. Woods even if Mr. Woods won. To the extent I disclosed such facts at Mr. Doe?s prior permission, I answered questions about them at my deposition. 6. In approximately August 2016 I learned from Mr. Doe?s surviving relative and personal representative that Mr. Doe had recently died. The personal representative asked me to continue to represent Mr. Doe?s estate in this action, and emphasized again that preserving Mr. Doe?s identity and the identity of his family in order to protect them from harassment and abuse was the express purpose 1 6 OPPOSITION T0 MOTION FOR AN ORDER COM PELLING KENNETH P. WHITE TO ANSWER DEPOSITION QUESTIONS AND PRODUCE AND FOR AN ORDER FOR SANCTION 42.9continued representation and the core goal of the defense. 7. Mr. Doe?s personal representative authorized me to make several disclosures about Mr. Doe for the purposes of attempting to negotiate a settlement. Speci?cally I received authorization to disclose that the estate would no longer defend the case, that the estate lacked assets suf?cient to satisfy any signi?cant judgment, and that several of Mr. Woods? beliefs about Mr. Doe (for instance, the belief he was married) were untrue and based on a ?ctional Twitter pro?le. 8. Using this information I attempted to settle the matter with Mr. Woods? attorneys in a manner that would protect Mr. Doe?s identity and the identity of his surviving relatives. Speci?cally, I proposed that I would disclose Mr. Doe?s identity for purposes of a settlement discussion if that identity could be protected by a con?dentiality agreement so that Mr. Woods could not publicly disclose it. I also proposed alternatively that Mr. Woods? attorneys and I select a mutually acceptable neutral third party to whom I could disclose Mr. Doe?s identity and proof of his death and lack of assets, and that the third party could then con?rm to Mr. Woods that Mr. Doe had died and lacked assets. Mr. Woods rejected those proposals. 9. Based on the express instructions of Mr. Doe?s personal representative, I asserted the attorney-client privilege to refuse to disclose Mr. Doe?s identity or his personal representative?s identity. However, I did not make blanket objections, and disclosed information when the privilege had been waived or when the information was not privileged. Speci?cally, I answered that I did not remember or did not know when that was the case (even when the answer would have been privileged if I had known it), I answered questions on subjects on which I had already waived privilege at Mr. Doe?s or his personal representative?s instructions, and I answered questions about communications with third parties and other non-privileged issues. I also expressly clari?ed that though I was asserting Mr. Doe?s privacy rights to preserve that objection, I was basing my refusal to answer on the attorney- client privilege. 10. Attached as Exhibit A is a true and correct copy of the full transcript of my deposition. 11. Attached as Exhibit is a true and correct copy of a screenshot of an exchange on Twitter between Mr. Woods and another Twitter user concerning Mr. Doe and another one of Mr. Doe?s attorneys, Lisa Bloom. 1 7 OPPOSITION TO MOTION FOR AN ORDER COM PELLING KENNETH P. WHITE TO ANSWER DEPOSITION QUESTIONS AND PRODUCE AND FOR AN ORDER FOR SANCTION 12. Attached as Exhibit is a true and correct copy of a screenshot of an exchange on . Twitter between Mr. Woods and another Twitter user concerning Mr. Doe and another one of Mr. Doe?s attorneys, Lisa Bloom. 13. Mr. Woods, or someone controlling his Twitter account, deleted the incendiary tweets regarding Mr. Doe shortly after he made them. I personally observed the tweets in their original form and have since con?rmed, by searching Mr. Woods? account, that" they are now deleted. 14. Attached as Exhibit is a true and correct copy of another tweet by Mr. Woods. 15. In the course of this lawsuit I have spent a signi?cant amount of time reviewing Mr. Woods? Twitter conduct and the response of the more than 450,000 people who follow him on Twitter. I have observed on multiple occasions that his followers that is, people who have used their Twitter accounts to follow (and therefore read) his account on Twitter celebrate and congratulate his abuse of people he criticizes and denounces, particularly when those denunciations are expressed along political lines. I observed many occasions of Mr. Woods? Twitter followers expressing hostility and insults towards Mr. Doe. I am concerned that Mr. Woods would publish Mr. Doe?s personal information and the information of his relatives, and that his followers would take that as a signal to harass and abuse Mr. Doe?s survivors including of?ine, through calls and other communications. That concern is premised on more than ten years writing about and observing internet culture, and observations of recent events when public ?gures with large followings attack individuals on Twitter. For instance, see ?This is What Happens When Donald Trump Attacks A Private Citizen on Twitter,? Washington Post, December 8, 2016 at SOece-bd62-l 1e6?91ee- 1 ocbe story.html?utm term=.ec9ce1 f2. l6.? At my own deposition, I asked Mr. Woods? attorneys to stipulate that the deposition video would only be used in the course of this litigation, and not otherwise publicly released. I did that because I was concerned that Mr. Woods would publish the video to incite his followers to attack me or my family. His attorneys refused to so stipulate. 17. I am particularly concerned because Mr. Woods? attorneys proudly advertise themselves as ?attack dogs? on behalf of their celebrity clients. On Laver Singer?s website, they feature a 2000 OPPOSITION TO MOTION FOR AN ORDER COM PELLING KENNETH P. WHITE TO ANSWER DEPOSITION QUESTIONS AND PRODUCE AND FOR AN ORDER FOR SANCTION Los Angeles Magazine article referring to them as ?bad cop,? ?stealth Rottweiler,? ?pit bulls.? 18. Exhibit is a true and correct copy of this Court?s tentative ruling granting my anti- SLAPP motion on Mr. Doe?s behalf. Exhibit is a true and correct copy of this Court?s later order denying the motion. 19. I have reviewed a new subpoena Mr. Woods has served upon Twitter seeking Mr. Doe?s account details and other information Twitter stores about him. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on December 9, 2016, in Los Angeles, California. NNETH P. WHITE OPPOSITION TO MOTION FOR AN ORDER COMPELLING KENNETH P. WHITE TO ANSWER DEPOSITION QUESTIONS AND PRODUCE AND FOR AN ORDER FOR SANCTION EXHIBIT A Kenneth P. White November 14, 2016 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES JAMES WOODS, an individual, Plaintiff, vs. Case No. BC589746 JOHN DOE a/k/a and DOES 2 through 10, inclusive, Defendants. VIDEOTAPED DEPOSITION OF KENNETH P. WHITE Monday, November 14, 2016 11:00 a.m. 11:59 a.m. 2049 Century Park East, Suite 2400 Los Angeles, California Reported By: PAMELA A. STITT CSR NO. 6027 U.S. LEGAL SUPPORT (800) 993?4464 Kenneth P. White November 14, 2016 APPEARANCES: For For The Plaintiff: LAVELY SINGER BY: LINDSAY D. MOLNAR ATTORNEY AT LAW 2049 Century Park_East -Suite 2400 Los Angeles, 310.556.3501 1molnar?1avelysinger.com California 90067?2906 Defendants: BROWN WHITE OSBORN LLP BY: CALEB MASON ATTORNEY AT LAW 333 South Hope Street 40th Floor Los Angeles, 213.613.0500 cmason?brownwhitelaw.com California 90071 Videographer: STAN BEVERLY U.S. LEGAL SUPPORT U.S. LEGAL SUPPORT (800) 993?4464 Kenneth P. White November 14, 2016 INDEX TO EXAMINATION WITNESS: KENNETH P. WHITE EXAMINATION PAGE: By Ms. Molnar 6 RECESSES (11:47 a.m. 11:51 a.m (11:56 a.m. 11:INFORMATION REQUESTED UNANSWERED QUESTIONS PAGE LINE U.S. LEGAL SUPPORT 993-4464 Kenneth P. White November 14, 2016 MARKED Exhibit 1 Exhibit 2 Exhibit 3 INDEX TO EXHIBITS WITNESS: KENNETH P. WHITE James Woods vs. John Doe Monday, November 14, 2016 Pamela A. Stitt, CSR NO. 602? DESCRIPTION PAGE Document entitled "Complaint For: (1) Defamation (2) Invasion of Privacy by False Light"; l0 pages 5 Twitter Abe List @ablisted screen shot; 1 page 23 Twitter Abe Contraire @abelolisted screen shot; 1 page 35 U.s. LEGAL SUPPORT (800) 993?4464 Kenneth P. White November 14, 2016 LOS ANGELES, CALIFORNIA MONDAY, NOVEMBER 14, 2016, 11:00 A.M. (Deposition Exhibit 1 was marked.) THE VIDEQGRAPHER: Good morning. We are on the record. This is the recorded video deposition of Kenneth P. White in the matter of James Woods versus_John Doe taken on behalf of the plaintiff. This deposition is taking place at 2049 Century Park East, Los Angeles. California on November 14, 2016 at approximately 11:00 a.m. My name is Stan Beverly. I am the videographer with U.S. Legal Support located at 11845 West Olympic Boulevard, Los Angeles, California. Video and audio recording will be taking place unless all counsel have agreed to go off the record. Would all present please identify themselves beginning with the witness. THE WITNESS: My name is Kenneth White and I am the deponent. MR. MASON: I am Caleb Mason. I am here representing Mr. White. MS. MOLNAR: I am Lindsay Molnar representing plaintiff. THE VIDEOGRAPHER: The certified court reporter U.S. LEGAL SUPPORT (800) 993?4464 Kenneth P. White November 14, 2016 is Pam Stitt. Would_you please swear in the witness. KENNETH P. WHITE, having been first duly sworn, was examined and testified as follows: EXAMINATION BY MS. MOLNAR: Q. Good morning, Mr. White. How are you? A. Good morning. I?m well, thank you. Q. Would you mind stating the name of your firm? A. It is Brown White Osborn LLP. Q. And what is your position at the firm? A. I am a partner and general counsel. Q. How long have you been with the firm? A. Since its inception. Q. And what year was that? A. In its original form in July of 2005. Q. Okay. I am going to turn to Exhibit 1, which you have a copy of in front of you now. A. I do. Q. Can you tell me what is in front of you? A. It is appears to be the complaint in this -action Woods versus John Doe. Q. Okay. And will you confirm that your client is U.S. LEGAL SUPPORT (800) 993?4464 Kenneth P. White November 14, 2016 the defendant referenced in Exhibit 1 as John Doe a/k/a Abe List? A. Yes. I will confirm that the person named here, the person whose conduct is described here was my client. Q. You say "was." He is no longer your client? A. He is deceased. Q. Okay. What is the legal name of your client? MR. MASON: We are going to object on several grounds that I think Mr. White I'm happy to have him articulate but they boil dewn to attorney?client communications, they are privileged, and we believe that the underlying purpose of the question is not reasonably calculated to lead to admissible evidence and it's-purpose is to harass, intimidate third parties and/or deceased people, which we do not believe is an appropriate function of the litigation process, but Mr. White is an attorney and I'm happy to let him explain all of that. THE WITNESS: I am going to follow my attorney's admonition and I would only add factually that the core purpose of representation of Mr. Doe was to protect his identity and that is part of the basis of the assertion of the attorney?client privilege. MS. MOLNAR: Are you aware of any legal Okay. authority that supports your position? MR. MASON: Yes. U.S. LEGAL SUPPORT (800) 993?4464 Kenneth P. White November 14, 2016 MS. MOLNAR: Do you know any of it off the top of your head? THE WITNESS: No. 'And as deponent I think it would be work product. BY MS. MOLNAR: Q. So are you still in an attorney?client relationship with your client now that he is deceased? A. I am in an attorney?client relationship with his heir. Q. And is his heir a male or a female? A. Male. Q. What is the name of his heir? MR. MASON: Again, we would object to that question for the same reasons articulated earlier. If Mr. White wants to expand on his reasons,.he is free to do so but we are objecting to the question. He is not going to give you a substantive answer as to the name. THE WITNESS: I would only add that the specific reason fOr the continuing representation of the interest of the late Mr. Doe was to protect his identity and the identity, therefore, of his heirs. BY MS. MOLNAR: Q. So who is your client now? A. I would say that it is the estate of John Doe. U.S. LEGAL SUPPORT (800) 993~4464 Kenneth P. White November 14, 2016 Q. And do you have a retainer agreement with them with the estate? A. No. Q. So you represent the estate? A. I represent the remaining interest First of all, I'm not here in my capacity as representing Mr. Doe. I'm here in my capacity as a third?party witness being subpoenaed. I am giving advice to Mr. Doe?s heirs in their capacity, I understand, as the representative of the late Mr. Doe. Q. So just to be clear, has there been a court that has appointed a personal representative of Abe List's estate? A. Yes. Q. Can you tell me the name of that court? A. Well, I can tell you, first of all, that the matter has since been dismissed so there is no current pending such matter. Q. Can you tell me what court it was pending in? MR. MASON: At this point I think I need to start interjecting objections for the purpose, if nothing else, of preserving the record. As Mr. White has indicated the purpose of the representation was expressly to preserve the anonymity of the client so our position is that questions directed at obtaining information from Mr. White U.S. LEGAL SUPPORT (800) 993?4464 Kenneth P. White November 14, 2016 the attorney about the identity of the client are questions that seek directly to invade the attorney?client privilege and are therefore improper, and we also believe that all such questions seek to obtain information to be used for purposes of harassment-rather than proper legal purposes. So my advice to Mr. White is that he is free to answer questions without invading the province of the attorney~client communications and he has he is prepared to do that up to the point at which answers would tend to reveal the identity of the client or confidential attorney~client communications. THE WITNESS: I think I can answer that it is a California Superior Court. BY MS. MOLNAR: Q. Okay. So the judge that it was before? A. No, I am not going to reveal information that would tend to reveal the identity of my client, which is the purpose of my retention. Q. Okay. Is there a substitution of counsel that is going to be filed in the action pending between James Woods and Abe List? MR. MASON: Again, I would object to that question insofar as it appears calculated to invade the attorney?client and work?product privileges. U.S. LEGAL SUPPORT . 10 (800) 993?4464 Kenneth P. White November 14, 2016 As I heard the question it seemed to ask about potential future legal decisions that might be made by the client or the law firm. That strikes me as attorney?client material.' If you understand the question and you can answer without violating the privilege, you can do so. THE WITNESS: I believe I can answer without violating the work?product privilege in that I have previously_disclosed to you that there would be no substitution or going forward by the estate. BY MS. MOLNAR: Q. Okay. A. And to the extent that I have disclosed that to you, I do again without waiving any other work product or communication. Q. You had mentioned earlier that there was a proceeding that was filed with respect to Mr. Abe List's estate and that it subsequently had been dismissed. When was that filed? MR. MASON: I want to note the same objection for the record to all questions that seek to invade the attorney?client or work?product privileges with respect to actions taken by Mr. Doe?s attorneys in the performance of their representation which was expressly intended to maintain his anonymity. U.S. LEGAL SUPPORT 11 (800) 993?4464 Kenneth P. White November 14, 2016 If you understood the question and you can answer without revealing such communications, you may do so. THE WITNESS: I can answer that I don't remember a date, and I can point out what is obvious in public, that it was after the time that I contacted you and let you know the situation. Beyond that I couldn't even nail it down as to a precise date, and otherwise I will follow my attorney?s advice and decline to answer. BY MS. MOLNAR: Q. I believe we spoke in August about Abe List's passing. 'Do you recall if it was during the month of August? A. I do not. Q. Okay. I want to go back to how you found out about Abe List's passing. When did you find out? If you could, an exact date would be helpful. MR. MASON: So I again want to interpose the same objection which_I can keep doing it or we can just have it as a standing objection. The objection is that questions that go toward extracting from Mr. White the substance of communications with his client seek to and do invade the attorney-client privilege. And the second objection is that we believe these questions are being asked not for U.S. LEGAL SUPPORT 12 (800) 993-4464 Kenneth P. White November 14, 2016 legitimate litigation purpose but for purposes of harassing and posthumously attacking the reputation and name of John Doe. The representation by Mr. White was expressly intended to prevent his identity from being revealed. With that said, I mean, we could do we can do a standing objection to all of it. MS. MOLNAR: So you want to 80 every question I ask you want to MR. MASON: No. No. But I mean, I could say "same objection? or something like that and just make the record a little shorter. MS. MOLNAR: Yes. MR. MASON: Is that okay? MS. MOLNAR: That would be fine. MR. MASON: So I think the same objection, the one I just articulated would go to that. And as always, Mr. White, if you can answer the question without invading the confidential communications, you are free to do so. THE WITNESS: I do not remember the date. I remember that it was proximate in days not weeks to when I reached out to you on the matter. BY MS. MOLNAR: Q. Do you recall when you reached out to me? U.S. LEGAL SUPPORT 13 (800) 993?4464 Kenneth P. White November 14, 2016 don't but I did it in writing. And who informed you that Abe List had passed? MR. MASON: Same objections. THE WITNESS: The person I now am instructed by representative of the late Mr. Doe, a family member one who contacted me. MOLNAR: Would that be Abe List's father? MR. MASON: Same objections. THE WITNESS: I am going to stick with that. MOLNAR: You are not going to answer that question? THE WITNESS: Yes, I am going to decline to. MOLNAR: So just to be Clear, you are not going to give me the name of the personal representative of Abe List's estate? A. Q. away? also the same objections. That's correct. Were you informed the date that Abe List passed MR. MASON: I would go vague as to grammar and Informed of the date or informed on the date? MS. MOLNAR: I can strike that. MR. MASON: Yes. Just add a preposition. U.S. LEGAL SUPPORT (800) 993?4464 14 Kenneth P. White November 14, 2016 BY MS. MOLNAR: Q. When did Mr. Abe List pass away? MR. MASON: That one I am going to interpose the same objections we had previously. THE WITNESS: I I do not remember the date; however, if I did, I_would stand by the objections as articulated by counsel. BY MS. MOLNAR: Q. I believe you previously had informed us that it was the month of August; is that correct? A. I believe that in settlement communications, specifically denominated as such, I made a reference to that general time range, yes. Outside of settlement communications I would decline to answer. Q. Where did Mr. Doe pass away? MR. MASON: Same objections. THE WITNESS: I am going to decline to answer because I think it would reveal confidential communications. BY MS. MOLNAR: Q. And just to be clear for the record when I refer to Mr. Doe and Abe List, it?s interchangeably, I am referring to your client. A. I understand. Q. Did you ever view a death certificate for Abe SUPPORT 15 (800) 993?4464 Kenneth P. White November 14, 2016 List? MR. MASON: Same objections. THE WITNESS: Did I ever View a death certificate? BY MS. MOLNAR: Q. Yes. Did you see one? Were you provided with one? MR. MASON: SO, right, same objections and I think also the question is vague. Can you MS. MOLNAR: I can rephrase. 3 MR. MASON: Yeah. BY MS. MOLNAR: Q. Have you seen Abe List's death certificate? A. I have not reviewed a death certificate of Abe List. I have not read one. Q. Have you asked for one? A. I didn't MR. MASON: Well, yeah, as to that question again as phrased I would go with vague, particularly as to the object of the verb "asked." Depending on how it was phrased that could reveal attorney?client communications so I think as phrased I would say same objections as previous. THE WITNESS: NOW that I think about it, I think I have to decline to answer that on the basis of U.S. LEGAL SUPPORT 16 (800) 993~4464 Kenneth P. White November 14, 2016 attorney?client communications.- MR. MASON: Generally what we are going for here is the position that we are taking and I understand that you guys have a different View of the legal merits of this position and we will litigate that in the appropriate forum, but Mr. White is declining to answer questions that ask him to reveal steps that he took or legal Communications that he had that would tend to reveal the identity of John Doe in this case. I understand that you guys want to know the name and we don't want to tell it to you. MS. MOLNAR: Right. And that we obviously disagree with your position. MR. MASON: Exactly. MS. MOLNAR: Okay. Q. How old was Abe List when he passed away? MR. MASON: Same objections. THE WITNESS: I only know that fact through attorney?client communications, so on that ground I decline to answer. And for the record I don't remember the exact number anyway. BY MS. MOLNAR: Q. What was the cause of Abe List's death? MR. MASON: Same objections. Also foundation, U.S. LEGAL SUPPORT 17 (800) 993?4464 Kenneth P. White November 14, 2016 also calls for speculation, also calls for expert opinion. THE WITNESS: I'm going to without waiving any of the objections that my counsel has stated indicate that I do not know the exact cause of death or what was determined by anyone to be the cause of death, and beyond that I will assert that it was in an attorney?client communication, discussion that the subject happened. BY MS. MOLNAR: Q. Did you ever meet Abe List in person? MR. MASON: Same objections. THE WITNESS: I think I can answer that. Are you going to be mad if I disagree with you? MR. MASON: No, not at all. And, in fact, I think that one is worth speaking about. Did you ever meet him or her in person? Sure. THE I did not. MS. MOLNAR: It's not a communication. Q. You did not? A. I never met him personally. Q. Have you Have you ever seen a picture of Abe List? MR. MASON: We are getting closer. This is a good exercise, though. We are going to walk up to the line. I think we are okay with, ?Did you ever meet that person in person?" No. Did you ever see a picture?_ I U.S. LEGAL SUPPORT 18 (800) 993?4464 Kenneth P. White November 14, 2016 reckon that is of the same species so, Ken, I'm going to say I don't see that one as objectionable unless you saw any picture within the context of an attorney?client communication in which case it would be. THE WITNESS: I did not. MR. MASON: Okay. THE WITNESS: I do not recall seeing a picture of him. BY MS. MOLNAR: Q. Do you know where Abe List was born MR. MASON: I think that BY MS. MOLNAR: Q. county and state? MR. MASON: Same objections. THE WITNESS: I do not. BY MS. MOLNAR: Q. Did you ever discuss Abe List with counsel for Twitter? MR. MASON: Same objections. I would say for the record I don't think that it would make a legal difference. If you think it would, we can confer on that. I think other than MS. MOLNAR: I don't see how communications between Mr. White and Twitter would be deemed attorney?client. U.S. LEGAL SUPPORT 19 (800) 993?4464 Kenneth P. White November 14, 2016 THE WITNESS: This would be my answer. I discussed the case with counsel for Twitter, but I never answered any of the questions you?ve given me or gave Twitter any information with which they could identify him. BY MS. MOLNAR: Q. So during these Just to be clear, these conversations with Twitter Abe List's legal name was never disclosed by you; is that correct? A. That is absolutely correct. Q. Did they ask you to disclose his legal name? MR. MASON: Vague THE WITNESS: They did not. MR. MASON: Vague as to "they." Attorneys for Twitter? THE WITNESS: I?m sorry. MR. MASON: That's all right. And the answer is they did not? I THE WITNESS: They did not. MR. MASON: Okay. BY MS. MOLNAR: Q. Have you ever discussed Abe List with anyone that is not your client? A. Discussed in what way? U.S. LEGAL SUPPORT 20 (800) 993?4464 Kenneth P. White November 14, 2016 MR. MASON: Yeah. So the objection would be vague. Do you mean reveal the name or discuss the case? I mean MS. MOLNAR: Reveal the name. MR. MASON: Okay. BY MS. MOLNAR: Q. Have you ever revealed Abe List?s legal name to anyone other than your client? A. Yes. MR. I mean, again, as phrased I think it does seek to invade work product. I don't I don?t think that Well, I mean, you can ask the question in various ways and we will see how it goes. But I think you are talking about outside of the attorney~client relationship context? MS. MOLNAR: Generally. If he has ever said Q. Just to be clear, if you ever said the legal name of Abe List at all outside of I'm sorry. Strike that. Did you ever discuss Abe List's legal name with anyone that is not your client, whether it be in the context of this case or otherwise? A. Okay. I have only disclosed his name to a co?counsel, not this one, and one staff member for purpose of opening the case. That staff member being within the scope of attorney?client privilege and privacy. U.S. LEGAL SUPPORT 21 (800) 993-4464 Kenneth P. White November 14, 2016 Q. Can you give me the name of the co?counsel that you had disclosed Abe List's legal name to? A. I think that would be MR. MASON: I would at least want to interpose the objection Mr. White is general counsel of our firm. He can opine on this as well. But I think that asking about communications between attorneys at the same firm regarding a case I would place that in the heartland of attorney?client privilege. So I would direct him not to answer about internal communications within the firm with respect to the case. THE WITNESS: I would classify it as work product I MR. MASON: Work product. yes. THE WITNESS: in that it reveals which of my partners ww it could have a tendency to reveal the nature of the communication and that type of thing. But it was to a partner in the firm with an equal obligation and charge to maintain the confidentiality. BY MS. MOLNAR: Q. Okay. It wasn't clear to me that your co?counsel was within your firm. A. I'm sorry. Q. I had also understood that you had possibly that Mr. Doe had possibly engaged Lisa Bloom as well? U.S. LEGAL SUPPORT 22 (800) 993?4464 Kenneth P. White 2016 A. Q. question based on an attorneywclient communication and on He did. .withheld from her. Okay. MR. MASON: THE WITNESS: Was Abe List married? Same objections. And to my knowledge his identity was I only know the answer to that that basis I think I have to refuse to answer. that during a discussion with you which I will confirm Let me think about that for a second. I think that in a discussion that I would characterize as a settlement discussion with you, not a successful one, but a settlement overture I told you that he had not been married at any time relevant to this case. And I will confirm that I did that in a settlement context. I believe that would be covered by 1152. cannot reveal anything more than that. believe, BY MS. Q. MS. MOLNAR: Okay. Exhibit 2. (Deposition Exhibit 2 was marked.) MOLNAR: Mr. White, can you describe to me what we have just marked as Exhibit 2? MR. MASON: That aside I I am going to mark this as, For the record has there been forgive my ignorance, has there been disCovery in this 08.88? Should I be looking for a Bates stamp or anything? I U.S. LEGAL SUPPORT (800) 993~4464 23 Kenneth P. White November 14, 2016 THE WITNESS: NO. MS. MOLNAR: No discovery. MR. MASON: Okay. Got it. THE WITNESS: This appears?to be a printout from the Twitter account Abelisted, that?s a~b?e?l?i?s?t?e?d. It shows his profile and it shows a small number of_ tweets. BY MS. MOLNAR: Q. And will you just confirm that "abelisted" referenced in Exhibit 2 was your client? A. Yes. The person who created this acCount was my client and is the person named in the complaint. Q. I'm going back to the question I had asked you about whether Mr. Abe List was married. And the reason I wanted to ask you more about it is because I believe that it is publicly available informationhis brief description underneath his profile picture it says that he is married to'@ A. Uh?huh. I see that. Q. Do you know who this person is that is referenced herein as s?t?e?q?u?u?s? A. I do not. MR. MASON: Same objection. THE WITNESS: I do not actually. MR. MASON: I want to get the objection in first U.S. LEGAL SUPPORT 24 (800) 993-4464 Kenneth P. White November 14, 2016 even if the answer is THE WITNESS: I apologize. BY MS. MOLNAR: Q. And this profile also references the fact that Mr. Abe List is located in LOS Angeles, California or was located. Do you know if that was true? MR. MASON: Same objections. THE WITNESS: I do know whether or not that was true. Let me think for a moment to see if it has been revealed whether_or not it is true in any way that is not privileged. BY MS. MOLNAR: Q. Other than in this exhibit? A. Right. But you are asking me whether that is true and that's you're asking me to confirm whether that is true. MR. MASON: Hang on. The question was: DO you have the knowledge? And I think your answer was yes, you had the knowledge. THE WITNESS: Yes. MR. MASON: The next question is going to be please tell me if it is true. THE WITNESS: Okay. MR. MASON: And as to that we need to U.S. LEGAL SUPPORT 25 (800) 993?4464 Kenneth P. White November 14, 2016 interpose MS. MOLNAR: But I haven't asked yet. MR. MASON: I understand that. But rather than speculate on the record, I mean, if you learned the fact relevant to the question through the attorneywclient through attorney~client communiCations or attorney work?product, then that would fall within the same objections that we have been interposing throughout the case. So with that caution we can listen attentively for the next question. THE WITNESS: Okay. BY MS. MOLNAR: Q. Is that true, does Mr. did Mr. Abe List live in Los Angeles, California? A. On that one part of the profile I do not remember a nonprivileged source of information or a place where it has been disclosed so I am unable to answer that part of the profile I'm unable to answer based on the attorney?client privilege. I do know the answer. I'm unable to disclose it. Q. Okay. And outside the profile did Abe List live in Los Angeles, California, when he passed away? MR. MASON: Same objections. THE WITNESS: Right. My same objection. I know the answer to the question, but I only know as to that U.S. LEGAL SUPPORT 26 (800) 993-4464 Kenneth P. White November 14, 2016 particular one from an attorney?client source and that is not one where I think it has been revealed elsewhere by me or by the client. BY MS. MOLNAR: Q. Okay. Did Abe List own a house in Los Angeles at the time of his death? MR. MASON: Also foundation, Same objections. calls for speculation. THE WITNESS: This one Let me lay the foundation for why I think I can answer it. At the very beginning of the case I informed lead counsel for Mr. Woods that the profile of Mr. List was completely fictitious and that I remember saying a few things that weren't true, one of which was being that he owned any property. Given that deliberate disclosure in the past I think I'm able to answer no, he did not. BY MS. MOLNAR: Q. Okay. And going back on Exhibit 2 it also referenced that Abe List has a link to Harvard, which would imply that he went to Harvard at some point. Did he graduate from Harvard? MR. MASON: Same nu Same objections. THE WITNESS: Without waiving If I knew the I would refuse to answer on the answer to the question, basis of the attorney?client privilege. I do not U.S. LEGAL SUPPORT . 27 (800) 993?4464 Kenneth P. White November 14, 2016 presently remember, no, the answer to the question. BY MS. MOLNAR: Q. And just to be clear, you don't know whether he graduated or whether he even went to Harvard? MR. MASON: Same objections. THE WITNESS: I do not remember the answer to that question. I will tell you without waiving that I would object and refuse to answer if I did remember. BY MS. MOLNAR: Q. And just to make the record clear I am going to ask you again: Did Abe List go to Harvard? MR. MASON: Same objections. THE WITNESS: You are asking me whether he attended Harvard? BY MS. MOLNAR: Q. Correct. A. I do not remember I don?t remember whether I knew at one point or not. If I did remember, I would assert the attorney?client privilege and decline to answer. Q. Okay. Did Abe List have a job when he passed away? MR. MASON: Same objections. THE WITNESS: I could answer that question as to the time of the beginning of the lawsuit. I cannot answer U.S. LEGAL SUPPORT 28 (800) 993-4464 Kenneth P. White November 14, 2016 it as to the time when he passed away. BY MS. MOLNAR: Q. Okay. So to be clear the lawsuit was filed on July 29, 2015. So when the lawsuit-was filed on July 29, 2015 did Abe List have a job? - A. He did not. And, again, that was one of the things that I told your colleague in communications with him at the beginning of the lawsuit. MR. MASON: Okay. So for the record that is the basis for answering that question. THE WITNESS: That it was previously disclosed. MR. MASON: Okay. BY MS. MOLNAR: Q. Then from July 29th, 2015 to the date of his death did he ever have a job? MR. MASON: Same objections. THE WITNESS: Because I made no subsequent disclosure on that subject that would operate as a waiver, I have to assert the attorney?client privilege after that point where I made the disclosure. BY MS. MOLNAR: Q. What was Abe List's profession? MR. MASON: Same objections. THE WITNESS: I guess that I would have to assert the attorney?client privilege too. U.S. LEGAL SUPPORT 29 (800) 993?4464 Kenneth P. White November 14, 2016 MR. MASON: I wanted to add to our same objeCtions vague and foundation. THE WITNESS: Sure. BY MS. MOLNAR: Q. Going back to Exhibit 2 he indicated Abe List in his profile indicates that he?s a math dork in finance, partner in private equity. Is that true? MR. Same objections. THE WITNESS: Again, in the conversation with your colleague at the first hearing in the case I told him some things and among them would be a disclosure that he is net was not a partner in private equity, that he was not in finance and that he was not in math. I don?t recall whether I specifically disclaimed "dork," but I said words to the substance that everything claimed against him was about him and who he was was made up so I can answer that question based on that prior disclosure that no, that's not true. BY MS. MOLNAR: Q. Are you familiar with Abe List's tweet history meaning the type of topics that he had previously tweeted on? A. Somewhat. MR. MASON: Hang on. THE WITNESS: Okay. Sorry. U.S. LEGAL SUPPORT 30 (800) 993?4464 Kenneth P. White November 14, 2016 MR. MASON: facial I was making an objection, expression. I would go with our same objections and also vague and foundation,'it calls for speculation THE WITNESS: Let me think about that. MR. MASON: asking about tweet history. THE WITNESS: I'm sorry. I'm going to withdraw my answer and say that I think that asking me that invades attorney.work?product. You are asking me what I did in the course of investigating the case. MR. MASON: That's what it sounds like to me. THE WITNESS: And on that ground I will decline to answer. BY MS. MOLNAR: Q. What was Abe List's residential address when he passed away? MR. MASON: Same objections. THE WITNESS: I will I will say that I do not remember the address but-without I will say that without waiving the objection, which I would invoke if I knew the answer. BY MS. MOLNAR: Q. Did you e?mail Abe List? MR. MASON: Same objections. Same objections. THE WITNESS: I think I have to as to the methodology of contact I think I have to assert the U.S. LEGAL SUPPORT 31 (800) 993?4464 Kenneth P. White November 14, 2016 attorney~client privilege and work~product. BY MS. MOLNAR: Q. So you are declining to let me know whether or not you had e?mails with your client, to be Ciear? .MR. MASON: I think so. Yeah. Same objections. Questions about how you communicated with your client I think seek to invade the attorney?client communications. THE WITNESS: Yes, I agree with that. I will assert a3sert the privilege as to that. BY MS. MOLNAR: Q. Do you know his e?mail address? MR. MASON: Same objections. THE WITNESS: I'm just trying to figure out in my head MR. MASON: The objection is if you learned the fact through the attorney?client relationship, through a privileged communication with the Client or through attorney work?product activitiesr then the question seeks to invade privileged communications and/or privileged information and therefore it's improper. MS. MOLNAR: I think we should try and limit the speaking objections here. MR. MASON: I'm sorry about that. I was trying to with "same objections" but my client had a look on his face like he wanted to contemplate it. U.S. LEGAL SUPPORT 32 (800) 993~4464 Kenneth P. White November 14, 2016 THE WITNESS: My only question is whether a "yes" or "no" answer to that without revealing the e?mail address itself would invade the attorney?client privilege or the work?product privilege and I would ask my counsel's guidance on that. MR. MASON: I mean, we can confer outside of the room. My general principle has always been that you err on the side of protecting the privilege and I would hate to not do that in this case. THE WITNESS: Okay. MR. MASON: So if it is a fact that you learned in the context of the attorney-client relationship, I think the fact is privileged and the question seeks to .invade that privilege. THE WITNESS: I will decline to answer based on the objection stated by my counsel. BY MS. MOLNAR: Q. Okay. Did you know Abe List prior to being retained by him in order to defend him in connection with this lawsuit? A. This whole thing is like the law school exam. MR. MASON: That one was a very good final question. I actually kept my mouth shut on it. I think it was an answerable one. THE WITNESS: I believe it also is. The answer U.S. LEGAL SUPPORT 33 (800) 993-4464 Kenneth P. White November 14, 2016 is no, I did not know him I did not know him to my knowledge before that. I can't exclude the possibility that there was some Twitter interaction with him somewhere over the years but I was not aware of him and did not know him prior. BY MS. MOLNAR: I know you are also an avid Twitter user, Mr. White. A. That's a polite way to put it. Q. Were you friends or did you follow Abe List at any point? A. No. Wait. I take that back. There might have been MR. MASON: Let me do an objection on that one too. I think that's First of all, are we limiting the scope temporally as you did in the previous question? MS. MOLNAR: "At any point" so it would be before or after the lawsuit was filed. MR. MASON: Without a temporal limitation that excludes the period of representation it strikes me as the question is phrased it seeks to invade potentially attorney~client communications. I think it is also vague at least to people vague as to the verbs in question, "followed," "friends," et cetera. THE WITNESS: This is my answer. Before I did U.S. LEGAL SUPPORT 34 (800) 993?4464 Kenneth P. White November 14, 2016 not, I did not follow him on Twitter, I was not his friend on any social media. After it seems to me that if I did something public, like follow his account, then that would be something that was not itself confidential. I believe the answer is I might have for not believe I did over the long term. MS. MOLNAR: Okay. I am going to mark this as I believe this is Exhibit 3. (Deposition Exhibit 3 was marked.) BY MS. MOLNAR: Q. I am going to represent to you, Mr. White, that this is a post from Abe Contraire. Are you familiar with that user name? A. I am. Q. Is Abe Contraire the same person that is Abe List which is your client which was your client? MR. MASON: Same objections as to that. THE WITNESS: AS to that I am If you showed me posts or things in Abe Contraire's profile, I could look at them and acknowledge them, but I'm not able to answer the question without attorney-client communication. On that basis I have to declare decline to do so. Also, this document is confusing to me. But I will let that U.S. LEGAL SUPPORT - 35 (800) 993?4464 Kenneth P. White November 14, 2016 BY MS. MOLNAR: Q. The point of the document is really to point out that the Twitter handle Popehat, is that you, Mr. White? A. That is. Me individually in my private 3 capacity -- Q. Correct. A. not as an attorney. Q. Do you share that account with anyone else? A. I-did for a time. Q. Okay. And I believe you also have a blog called Popehat; is that correct? A. That's correct. Q. All right. That?s it on this exhibit. A. I just want to make sure that I haven't said anything that you think suggests that I think this is an accurate exhibit. It appears to me to be cobbled together from different things. Q. I disagree. But the point of the exhibit was just to see if you know who Abe Contraire is, number one A. Okay. Q. and, number two, if Popehat was your Twitter name and if that was you. A. All right. So long as my answers are not taken to confirm that this is an accurate exhibit, then I'm U.S. LEGAL SUPPORT 36 (800) 993-4464 Kenneth P. White November 14, 2016 fine. MR. MASON: Could we do the standard foundational question, have you seen this before. do you know what it is? . MS. MOLNAR: I don?t think I need to. MR. I think what he is saying MS. MOLNAR: I This is not something that I'm going to be offering into evidence. It is more based on getting some facts. MR. MASON: Awesome. Would you mind if I asked him? MS. MOLNAR: Go ahead. MR. MASON: Mr. White, have you seen Exhibit 3 before? THE WITNESS: I have not. MR. MASON: Do you know what Exhibit 3 is? THE WITNESS: I don't know exactly. It appears to be a screen shot that seems to put together different tweets to make them look like they are together. MR. MASON: Okay. Thank you. BY MS. MOLNAR: Q. I know you have said that you did not to your knowledge know Abe List before you were retained to represent him in the current lawsuit. Do you represent him or did you represent him in U.S. LEGAL SUPPORT 37 (800) 993-4464 Kenneth P. White November 14, 2016 any other legal matters other than the current lawsuit? MR. MASON: I think the same objections as to that. THE WITNESS: I have to assert the attorney?client privilege as to that, as to whether the answer is "yes" or BY MS. MOLNAR: Q. Are there any other lawsuits pending with Abe List as a plaintiff or defendant? MASON: foundation, Vague, same objections. THE WITNESS: If I knew the answer to the question based on attorney?client communications, I would have to assert the attorney?client privilege and decline to respond. I do not know the answer to the question. BY MS. MOLNAR: Q. Okay. Did Abe List ever file for bankruptcy? MR. MASON: Same objections. Also foundation, also calls for speculation. THE WITNESS: If I knew the answer to the question, I would need to assert the attorney?client privilege because the only way I could know is through communications with my client. However, I do not know the answer to the question. BY MS. MOLNAR: Q. Do you know if Abe List had any other Twitter U.S. LEGAL SUPPORT 38 (800) 993?4464 Kenneth P. White November 14, 2016 accounts? MR. Same objections. THE WITNESS: When you say "any other Twitter accounts," what are you including and excluding? BY MS. MOLNAR: O. Other than the handle "Abelisted" are there any other Twitter accounts under other handles that were owned by or managed by Abe List? MR. MASON: Same objections. Also foundation, calls for speculation. THE WITNESS: I have to assert the attorney-client privilege because the only way I know the answer to that question is by attorney?client communication. BY MS. MOLNAR: Q. Did Abe List have a website? MR. MASON: Same objections. Also foundation, also calls for speculation. THE WITNESS: If I knew the answer to the question, I would need to assert the attorneyeclient privilege and decline to answer it because the only way I would know would be by attorney?client communications; however, I do not know the answer to the question. MS. MOLNAR: Could we take a five?minute break? MR. MASON: You bet. U.S. LEGAL SUPPORT . 39 (800) 993-4464 Kenneth P. White November 14, 2016 THE WITNESS: Sure. Thank you. THE VIDEOGRAPHER: The time is approximately 11:47 a.m. and we are going off the record. (Recess taken from 11:47 a.m. to 11:51 THE VIDEOGRAPHER: The time is approximately 11:51 a.m. and we are back on the record. MS. MOLNAR: I just have a couple more questions and then we can wrap up. MR. MASON: Sure. THE WITNESS: I should have shaved better today. THE VIDEOGRAPHER: It doesn't show up. THE WITNESS: Huh? THE VIDEOGRAPHER: It doesn't show up. BY MS. MOLNAR: Q. Mr. White. have you had conversations with peOple outside of your firm and outside the context of this case regarding James Woods? A. Yes. Q. And can you give me the names of the people that you spoke with? A. Wait. Did you say outside the context of this case? MR. MASON: I heard the question as outside of what I would object to as On the same objections so if U.S. LEGAL SUPPORT 40 (800) 993?4464 Kenneth P. White November 14, 2016 that's WITNESS: I wasn't listening carefully. MS. MOLNAR: Outside, yes. THE WITNESS: Could I ask you to restate the Iquestion. MS. MOLNAR: Could you read it back, would you mind. (Record read as follows: "Question: Have you had conversations' with people outside'of your firm and _outside the context of this case regarding James Woods?") MR. MASON: So the caution remains the same with respect to revealing attorney?client communications or work product. As I understand the question it is not seeking to elicit any such reSponses. THE WITNESS: And as I understand "outside the context of this case,? I have had conversations with people about the case. I don't recall ever having had a conversation about Mr. Woods that was not related to this case. BY MS. MOLNAR: Q. Okay. It's It's possible that at some point or other I made some comment on Twitter about him prior to this U.S. LEGAL SUPPORT 41 (800) 993?4464 Kenneth P. White November 14, 2016 case but I don?t remember having done so. Q. Did Abe List have any children?- MR. MASON: Same objections. THE WITNESS: I would only know that through 'attorney?client communications and therefore I have to assert the attorney?client privilege. I don?t believe that was something that was discussed in my initial conversation with your colleague so there's no waiver. BY MS. MOLNAR: Q. Just to confirm, you do know whether or not he had children? MR. MASON: Same objections as to that question too. I mean, if it's something that you learned during the course of the attorney?client relationship through attorney?client communications, the question is objectionable. WITNESS: I Will follow my attorney's recommendation. - BY MS. MOLNAR: Q. This is just a "yes" or whether you know it or not. I'm not asking you now whether he does. Is that within your knowledge? A. But you are asking me in effect did my client convey to me in a confidential communication whether or U.S. LEGAL SUPPORT 42 (800) 993*4464 Kenneth P. White November 14, 2016 not he has children and by answering your question I would be conveying that confidential communication and that's the basis on which I have to decline. Q. Okay. But it is certainly possible that you learned that he had children not through your client but through other means possibly. A. I suppose it?s hypothetically possible but I did not. I Q. Okay. Did Abe List have any siblings? MR. MASON: Same objections. THE WITNESS: That I'm quite certain I only know the answer to that question based on confidential communications with my client and therefore I have to assert the attorney-client privilege. MS. MOLNAR: I think we?re done. THE WITNESS: Okay. MR. MASON: So I have one request before we wrap up. I wonder if the parties could agree here while we are on the record that the transcript and the video of this deposition be used only for legal purposes within this case. We can specify what those are, obviously, but obviously filing with the court or, you know, supporting any kind of brief or argument in the litigation, but that the video and transcript not be released in other public U.S. LEGAL SUPPORT . 43 (800) 993?4464 Kenneth P. White November 14, 2016 fora such as by Mr. Woods in any of his online w~ whatever he uses Twitter, Facebook, et cetera that the parties agree to restrict the use of this deposition to the litigation at hand. MS. MOLNAR: I would have to consult with Mr. Weinsten on that before I can answer that question. THE WITNESS: We are happy to wait. MS. MOLNAR: Do you want to wait and then we will go back on the record? THE WITNESS: That would be fine. Or we can stay on the record and not say anything for a couple of minutes. MS. MOLNAR: Let's go off the record and take a five?minute break. Let me see if I can THE VIDEOGRAPHER: Microphone, please. MS. MOLNAR: I'm sorry? THE VIDEOGRAPHER: Your microphone. MS. MOLNAR: Well, I was just going to walk away and rip your whole equipment off. I hope you don't mind. THE VIDEOGRAPHER: The time is approximately 11:56 a.m. and we are going off the record. (Recess taken from 11:56 a.m. to 11:57 a.m THE VIDEOGRAPHER: The time is approximately 11:57 a.m. and We are back on the record. U.S. LEGAL SUPPORT 44 (800) 993?4464 Kenneth P. White November 14, 2016 MS. MOLNAR: So we are not prepared to agree to that but we can discuss it further. I am going to close the deposition and discuss it after. THE WITNESS: I would like to just make, then, a statement, make the record for why I would like the stipulation at least as to the video. Okay. So I am concerned that Mr. Woods will post portions of the video in an effort to incite harassment of me, my firm or my family. I believe that the vividness of using a video medium makes it more likely that that will be successful than the cold transcript. I believe that the timing is particularly inopportune because of the ektremely strong feelings in the country right now by the people who follow Mr. Woods and the type of behavior they address and he encourages them to address towards others. MS. MOLNAR: Okay. I think that this should be more than enough. I think we should MR. MASON: That's fine. For our purposes I think the next step for us is if we can't reach an agreement, we will most likely need to seek some kind of protective order MS. MOLNAR: Okay. MR. MASON: really from the court. Could we agree that, you know, at a minimum pending the parties' discussion U.S. LEGAL SUPPORT 45 (800) 993?4464 MS. right now. THE MR. THE MS. THE deposition of Kenneth White. used was one. Kenneth P. White November 14, 2016 MOLNAR: I'm not going to agree to anything WITNESS: Okay. MASON: All right. WITNESS: I made my record. Thank you. MOLNAR: Thank you. VIDEOGRAPHER: This concludes today's video The total number of media The time is approximately 11:59 a.m. and we are going off the record. (ENDING TIME: 11:59 A.M.) U.S. LEGAL SUPPORT (800) 993?4464 46 I fa. t? . nu? James-3 When "the shame Wm ?beige me retained a diet gum Hd a guy What: ca-Hs hi2 hit New" the ansuiit James Woods @ReeIdemeE?Neede 2h 5- The slime who Iibeled me just dropped his appeal . eonieeting my victerieus SLAPP motion. Perennial ioser CipLiea-zi?i?leem isn?t yapping so much now DOi?laEd Ge Carder (?irtineeragrymiek 1h Jemee W??dg @ReeIpier?heeWeede' 35m 1 3 Ema Hp pefully screaming my name? In agony?. Threat James ?1 The slime who libeled me just dropped his appeal contesting my victorious SLAPP motion. Perennial loser isn't yapping so much now Rustic Ballet {gaifttazial.lzazmeswvooda he's dead you fucking geriatric retard - James Woods Screaming my name, I hope. Learn this. Libel me, ill sue you. It you die, I?ll follow you to the bowels of Hell. Get it? 9:378 l__ll