1
1 UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
2
------------------------------x
3 CARA LESLIE ALEXANDER et al., :
:
4 Plaintiffs, :
:
5 :
v. : Civil Action
6 : Nos. 96-2123
FEDERAL BUREAU OF : 97-1288 (RCL)
7 INVESTIGATION et al., :
:
8 Defendants. : Volume 1
------------------------------x
9
Washington, D.C.
10
Thursday, April 30, 1998
11
12 Deposition of
13 CLIFFORD H. BERNATH
14 a witness, called for examination by counsel
15 for the Plaintiffs, pursuant to notice and
16 agreement of counsel, beginning at
17 approximately 10:06 a.m., at Judicial Watch,
18 Inc., 501 School Street, S.W., Washington,
19 D.C., before Shari R. Broussard, notary
20 public in and for the District of Columbia,
21 when were present on behalf of the respective
22 parties:
2
1 APPEARANCES:
2 On behalf of Plaintiffs:
3 LARRY KLAYMAN, ESQUIRE
DON BOSTION, ESQUIRE
4 Judicial Watch, Inc.
501 School Street, S.W., Suite 725
5 Washington, D.C. 20024
(202) 593-8422
6
7 On behalf of the White House:
8 SALLY PATRICIA PAXTON, ESQUIRE
Special Associate Counsel to the President
9 The White House
1600 Pennsylvania Avenue, N.W.
10 Washington, D.C. 20500
(202) 456-5079
11
12 On behalf of the First Lady:
13 MAX STIER, ESQUIRE
Williams & Connolly
14 725 Twelfth Street, N.W.
Washington, D.C. 20005
15 (202) 434-5803
16
On behalf of the Executive Office of the
17 President and the FBI:
18 ELIZABETH J. SHAPIRO, ESQUIRE
U.S. Department of Justice
19 Civil Division
Federal Programs Branch, Room 988
20 901 E Street, N.W.
Washington, D.C. 20530
21 (202) 514-5302
22
3
1 APPEARANCES (CONT'D):
2 On behalf of the Department of Defense:
3 BRAD WIEGMANN, ESQUIRE
Office of General Counsel
4 Department of Defense
1600 Defense Pentagon
5 Washington, D.C. 20310
(703) 695-3392
6
MARIANE FILICE, ESQUIRE
7 American Forces Information Service
601 N. Fairfax Street
8 Alexandria, Virginia 22314-2007
(703) 428-1204
9
10 On behalf of the Witness:
11 MARK T. QUINLIVAN, ESQUIRE
ANNE L. WEISMANN, ESQUIRE
12 U.S. Department of Justice
Federal Programs Branch
13 901 E Street, N.W.
Washington, D.C. 20530
14 (202) 514-3346
15 ALSO PRESENT:
16 Sylvanus Holley
Tom Fitton
17
18
19 * * * * *
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4
1 C O N T E N T S
2 EXAMINATION BY: PAGE
3 Counsel for Plaintiffs 10
4
* Proceedings in chambers of Judge Lamberth
5 from page 19, line 19, to page 23, line 7.
6
INSTRUCTIONS TO CERTIFY:
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51 14 138 22
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53 8 139 17
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70 9 147 15
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76 19 148 8
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87 1 162 8
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5
1 BERNATH DEPOSITION EXHIBITS: PAGE
2 No. 1 - Order 11
3 No. 2 - Subpoena 18
4 No. 3 - Fox News Sunday Transcript 55
5 No. 4 - Documents Responsive to Subpoena 77
6 No. 5 - Bernath Biography 155
7
8
9
10 * * * *
11
12
13
14
15
16
17
18
19
20
21
22
6
1 P R O C E E D I N G S
2 VIDEO TECHNICIAN: Good morning.
3 This is the video deposition of Clifford
4 Bernath, taken by the counsel for the
5 plaintiff in the matter of Cara Leslie
6 Alexander, et al., versus Federal Bureau of
7 Investigation, et al., in the U.S. District
8 Court for the District of Columbia, Case
9 Number 96-2123 RCL, held in the offices of
10 Judicial Watch, 501 School Street, Southwest,
11 Washington, D.C., on this date,
12 April 30, 1998, and at the time indicated on
13 the video screen, which is 10:06 a.m.
14 My name is Sylvanus Holley. I'm
15 the videographer. The court reporter today
16 is Shari Broussard from the firm of Beta
17 Reporting. Will counsel please identify
18 themselves?
19 MR. KLAYMAN: Would we pan to each
20 counsel and individual in the room. My name
21 is Larry Klayman, general counsel of Judicial
22 Watch.
7
1 MR. FITTON: Tom Fitton, legal
2 assistant with Judicial Watch.
3 MR. BOSTION: Don Bostion, staff
4 counsel for Judicial Watch.
5 MR. QUINLIVAN: Mark Quinlivan from
6 the Department of Justice, representing
7 Mr. Bernath in his official capacity.
8 MS. WEISMANN: Anne Weismann from
9 the Department of Justice, representing
10 Mr. Bernath in his official capacity.
11 MR. WIEGMANN: Brad Wiegmann from
12 the Department of Defense, Office of General
13 Counsel.
14 MS. FILICE: Mariane Filice from
15 the American Forces Information Service,
16 General Counsel, Department of Defense.
17 MS. SHAPIRO: Elizabeth Shapiro
18 from the Justice Department representing EOP
19 and the FBI.
20 MS. PAXTON: Sally Paxton with the
21 White House.
22 MR. STIER: Max Stier with Williams
8
1 & Connolly on behalf of the First Lady in her
2 personal capacity.
3 MR. KLAYMAN: Let me ask the woman
4 who just identified herself. I'm sorry I
5 didn't catch your name. Could you repeat
6 that?
7 MS. FILICE: Mariane Filice.
8 MR. KLAYMAN: You're with?
9 MS. FILICE: American Forces
10 Information Service and that's an entity of
11 the Department of Defense and I'm general
12 counsel.
13 MR. KLAYMAN: The gentleman next to
14 you, you're with the Department of Defense
15 generally?
16 MR. WIEGMANN: That's right.
17 MR. KLAYMAN: What's your title?
18 MR. WIEGMANN: I'm an attorney.
19 MR. KLAYMAN: Department of
20 Defense?
21 MR. WIEGMANN: That's right.
22 MR. KLAYMAN: In what capacity are
9
1 both of you here today?
2 MR. WIEGMANN: We are representing
3 the Department of Defense.
4 MR. KLAYMAN: Are you representing
5 Mr. Bernath?
6 MR. QUINLIVAN: I'm going to object
7 to those questions. Neither of these
8 individuals are under oath.
9 MR. KLAYMAN: What I want to know
10 is whether they're here as a representative
11 of their agency or whether they're here as a
12 representative of Mr. Bernath.
13 MR. QUINLIVAN: We are here
14 representing Mr. Bernath in his official
15 capacity.
16 MR. KLAYMAN: Are they here
17 representing him in his personal capacity?
18 MR. QUINLIVAN: I am not under
19 oath.
20 MR. KLAYMAN: Are you refusing to
21 identify that for the court?
22 MR. WIEGMANN: We're certainly not
10
1 representing Mr. Bernath in his personal
2 capacity. We're representing the Department
3 of Defense. I don't know how much clearer I
4 can make it.
5 MR. KLAYMAN: Ms. Paxton, you're
6 here on behalf of the White House?
7 MS. SHAPIRO: Ms. Paxton is always
8 here on behalf of the White House.
9 MR. KLAYMAN: We register our
10 continuing objection to any consultation
11 between Ms. Paxton and the witness.
12 VIDEO TECHNICIAN: Will the court
13 reporter please swear in the witness?
14 Whereupon,
15 CLIFFORD H. BERNATH
16 was called as a witness, and having been
17 first duly sworn, was examined and testified
18 as follows:
19 EXAMINATION BY COUNSEL FOR PLAINTIFFS
20 BY MR. KLAYMAN:
21 Q Please state your name?
22 A Clifford H. Bernath.
11
1 Q Where were you born?
2 A St. Louis, Missouri.
3 Q What year?
4 A 1946.
5 MR. KLAYMAN: Mr. Bernath, I'm
6 going to show you what I'll ask the court
7 reporter to mark as Exhibit 1.
8 (Bernath Deposition Exhibit
9 No. 1 was marked for
10 identification.)
11 BY MR. KLAYMAN:
12 Q This is an order of the court in
13 this case dated April 27th, 1998. Have you
14 ever seen this document before?
15 A I believe I have.
16 Q When did you see it?
17 A I don't recall. Certainly in the
18 last couple of days. I haven't read all of
19 the -- all the court papers in any
20 specificity, so -- but it looks familiar.
21 Q How did you come to see it?
22 A I don't know.
12
1 Q Was it sent to you?
2 A I don't know. It -- I'm really not
3 sure that I have seen it. It looks like some
4 of the court papers that have been delivered
5 to me through the counsel, but I cannot say
6 that I have seen this specific one.
7 Q Before I ask you further questions
8 what is that device that is in front of you?
9 A This is a tape recorder.
10 Q Can the camera pan on that? Is
11 that yours?
12 A Yes, it is.
13 Q Why are you bringing that to this
14 deposition?
15 A I feel that I'm entitled to my own
16 tape recording of this proceeding. I don't
17 see where it's any different from your video.
18 Q Are you aware there is an official
19 transcription of the deposition on video and
20 transcribed?
21 A I'm not aware of --
22 Q Did anyone ask you to bring that
13
1 tape recorder?
2 A No.
3 Q What do you intend to do with the
4 tape?
5 A This is my personal tape, my
6 personal tape recorder.
7 Q Just so you're advised, that's not
8 an official recording of this deposition.
9 You're aware of that?
10 A That's correct.
11 Q Take an opportunity to review this
12 record. You can read it. Have you had a
13 chance to read it?
14 A Yes.
15 Q Does that refresh your recollection
16 as to whether you have seen it before?
17 A Yeah, I don't believe I have seen
18 this. I just don't know. You know, it looks
19 like every other court paper.
20 Q Well, let's get to the substance of
21 it.
22 A Okay.
14
1 Q Were you ever advised that you were
2 to appear for a deposition, as ordered by the
3 court, on April 28th, 1998?
4 A That was --
5 MR. QUINLIVAN: I'm going to object
6 to that question to the extent that it
7 involves the substance of any attorney/client
8 communications that were made with the
9 witness.
10 MR. KLAYMAN: That is not covered
11 by the attorney/client privilege to ask him
12 whether he's been advised he was ordered by
13 the court to appear.
14 MR. QUINLIVAN: I'm directing the
15 witness not to respond to the extent that it
16 asks him to communicate the substance of any
17 attorney/client communications that he had.
18 BY MR. KLAYMAN:
19 Q Can you answer that question given
20 that limitation which I object to? You have
21 to answer. It's not a question of
22 consultation here. I just want a simple
15
1 answer. Your lawyer gave an instruction to
2 you. I don't want his testimony. I want
3 yours.
4 THE WITNESS: I don't know what the
5 lawyer's instruction means. I need to ask
6 what that means.
7 MR. KLAYMAN: You can do it
8 publicly if you'd like. Well, the thing is
9 on its face.
10 MR. QUINLIVAN: The witness is
11 entitled to consult with counsel.
12 MR. KLAYMAN: I object to
13 consulting with counsel with regard to the
14 question. Your instruction was pretty clear.
15 You didn't want him to say anything with
16 regard to what you had discussed with him as
17 to whether there was a date set by the court
18 of his deposition of April 28. But I'm
19 asking the question whether you got that
20 information, if at all, from anyone other
21 than your counsel.
22 THE WITNESS: From anyone other
16
1 than my counsel?
2 MR. KLAYMAN: Yes.
3 THE WITNESS: Let's see. I
4 received your subpoena, which was about what?
5 A week or so before the -- the date of this
6 thing. I also received a letter from you
7 asking that it be postponed.
8 BY MR. KLAYMAN:
9 Q That's not the question I asked
10 you.
11 I asked you whether or not you were
12 advised that the court had ordered you to
13 appear for a deposition at Judicial Watch on
14 April 28th, 1998?
15 MR. QUINLIVAN: Before the witness
16 responds I would repeat --
17 MR. KLAYMAN: Please don't provide
18 testimony.
19 MR. QUINLIVAN: I --
20 MR. KLAYMAN: Please don't provide
21 testimony.
22 MR. QUINLIVAN: Excuse me. I'm
17
1 stating for the record. I'm also restating
2 that we will be objecting that the witness
3 not respond to the substance of any
4 attorney/client communications that were had.
5 MR. KLAYMAN: We'll be going to the
6 court immediately on that, but I want this
7 answer before we do.
8 THE WITNESS: I'm still a little
9 confused about the -- which time you're
10 asking me. I received a subpoena that asked
11 me to -- that directed me to be at this
12 hearing on the 28th, which was Friday. Is
13 that right? I don't have a calendar in front
14 of me.
15 I received a letter from you saying
16 that it had been postponed and I was under no
17 other obligation to report.
18 BY MR. KLAYMAN:
19 Q I'm asking you whether or not you
20 ever received information that the court had
21 ordered you to appear on April 28th, 1998.
22 A I'm saying yes, I --
18
1 Q The subpoena did not require you to
2 appear on April 28th, 1998?
3 A When was the date on the subpoena?
4 MR. KLAYMAN: I'm show you what
5 I'll ask the court reporter to mark as
6 Exhibit 2.
7 (Bernath Deposition Exhibit
8 No. 2 was marked for
9 identification.)
10 THE WITNESS: April 24th was the
11 date I was subpoenaed.
12 BY MR. KLAYMAN:
13 Q That's correct. That's the
14 subpoena which you received, Exhibit 2?
15 A Yes, and then it was your letter
16 that -- that postponed this date.
17 Q We did not send a letter postponing
18 that date, but we'll let the letter speak to
19 itself. We'll get to that later.
20 A Okay.
21 MR. KLAYMAN: Were you advised from
22 any source that the court had ordered you to
19
1 appear on April 28th, 1998?
2 (Witness conferred with counsel)
3 MR. QUINLIVAN: I will restate the
4 objection. The objection is to the extent
5 that that question asks for the witness to
6 reveal the substance of any communications
7 with his counsel, we are objecting to that
8 question.
9 BY MR. KLAYMAN:
10 Q Did you learn that you had to
11 appear on April 28th from any source other
12 than your counsel?
13 A No.
14 Q We're going to go to the court.
15 Take a brief recess.
16 VIDEO TECHNICIAN: We're going off
17 video record at 10:18.
18 (Recess)
19 MR. KLAYMAN: Mr. Curley, this is
20 Larry Klayman. We are sitting around the
21 table with counsel. We've commenced the
22 deposition of Mr. Bernath and an issue has
20
1 arisen as to whether or not we can be
2 permitted to ask Mr. Bernath whether he
3 received notification of the court's order of
4 April 27th, 1998, requiring his appearance
5 for a deposition at Judicial Watch on
6 April 28th, 1998.
7 The order was dated the 27th. As
8 you remember, it ordered him to appear on
9 the 28th. I'll let counsel correct me if I'm
10 not stating this correctly, but they object
11 to my getting that information if the
12 communication of that order came from
13 counsel.
14 I foresee a problem. We'd like to
15 get into the area of what was occurring in
16 the last several days after the court issued
17 its order and certainly with regard to his
18 whereabouts and what he was advised about the
19 court's order in terms of compliance with it
20 would not be covered within the scope of
21 attorney/client privilege. So we wanted to
22 raise this with the court at the earliest
21
1 possible time to avoid duplication and having
2 to come in with a motion for protective order
3 later.
4 MR. CURLEY: The earliest possible
5 time today would be after -- the judge has a
6 plea at 2:30, so it would be after that.
7 MS. WEISMANN: Mr. Curley, this is
8 Anne Weismann for the Justice Department. I
9 just want to state if you're going to make
10 any representation to the judge about what
11 this call was about, that we do not agree
12 entirely with Mr. Klayman's characterization.
13 It is our understanding there was a
14 specific question on the table, an objection
15 was made to the extent that the question
16 called for the witness to reveal the
17 substance of an attorney/client
18 communication.
19 MR. KLAYMAN: Well, that is
20 incorrect.
21 MR. CURLEY: Well, I will assure
22 both of you that I'll represent to the judge,
22
1 that there's a dispute in the deposition and
2 if the parties want to bring it before the
3 court, the time to do that would be this
4 afternoon after the plea that the judge must
5 take at 2:30 this afternoon.
6 MS. WEISMANN: I'm sorry. What
7 time is that again?
8 MR. CURLEY: The judge will take a
9 plea at 2:30 and then it would be after the
10 plea.
11 MR. KLAYMAN: That will be fine.
12 Just to clarify, Mr. Curley, what we're
13 looking for is it find out whether or not
14 Mr. Bernath was notified of the court order
15 and by whom regardless of whether it was an
16 attorney or not.
17 MR. CURLEY: Okay.
18 MR. KLAYMAN: Thank you.
19 Shall we call back on that to
20 confirm?
21 MR. CURLEY: Well, I would ask that
22 you call and let chambers know if you will be
23
1 coming in this afternoon.
2 MR. KLAYMAN: Well, I anticipate
3 that we will. If anything changes, I will
4 let you know.
5 MR. CURLEY: Okay.
6 MR. KLAYMAN: Thank you.
7 VIDEO TECHNICIAN: We're back on
8 video record at 10:30.
9 BY MR. KLAYMAN:
10 Q Mr. Bernath after you received the
11 subpoena, which is Exhibit 2, what if
12 anything, did you do with the subpoena?
13 A I notified my the general counsel
14 that I had received the subpoena.
15 Q Who was the general counsel?
16 A Mr. Wiegmann.
17 Q Did you advise him of whether you
18 intended to comply with the subpoena or not?
19 MR. QUINLIVAN: I object to that
20 question. Again, that calls for
21 attorney/client communications, so I'm
22 directing the witness not to answer to the
24
1 extent that question, because it calls for a
2 communication of that which was discussed
3 between attorney and client.
4 BY MR. KLAYMAN:
5 Q Did there come a point in time when
6 you undertook plans to travel out of the
7 Washington, D.C., area in the last two weeks?
8 A The plans for the travel actually
9 began almost probably about two months ago,
10 but yes, I traveled this weekend.
11 Q What plans are you talking about
12 that began two months ago?
13 A When the Kansas City University
14 asked for me to address several of their
15 classes on journalism and military media
16 relations related activities.
17 Q Who at Kansas state made that
18 request?
19 A Dr. Carol Oukrup.
20 Q How is that spelled?
21 A O-u-k-r-u-p.
22 Q Did that request come directly to
25
1 you or was it, generally, to the Department
2 of Defense?
3 A No, it came directly to me.
4 Q Did you accept the invitation?
5 A I did.
6 Q When did you accept the invitation?
7 A About two months ago.
8 Q So you knew of that invitation to
9 appear at Kansas State before you received
10 the subpoena which was Exhibit 2?
11 A Oh, yes.
12 Q According to that travel plan did
13 you fill, then, out travel vouchers with the
14 Department of Defense? Was there any kind of
15 documentation you had to fill out to be able
16 to travel?
17 A Yes. I don't have to fill out
18 documentation, but they did have to get the
19 plane ticket and the reservations and they
20 don't do that until about a week prior.
21 Q You don't have to fill out any kind
22 of travel voucher or requisition with the
26
1 Department of Defense, something to that
2 effect?
3 A No, I'm on what they call blanket
4 travel orders so I have travel orders that
5 can be -- that stand for a year.
6 Q Do you have to report to anyone to
7 get authorization to travel?
8 A I got permission from my boss to do
9 the travel.
10 Q Who was this?
11 A Mr. Kenneth Bacon.
12 Q How that was authorization
13 conveyed?
14 A Orally. I went in and I said I've
15 got this invitation. Do you have any problem
16 with my going and he said no.
17 Q When did you do that?
18 A Probably right after I got it. So
19 it was month, two months ago.
20 Q So you're saying there is nothing
21 in writing which authorized you to go to this
22 event at Kansas State?
27
1 A That's correct.
2 Q Was there any memoranda going to
3 and from Mr. Bacon and yourself?
4 A No.
5 Q Any notations that you made on
6 paper or on computer or anything to that
7 effect?
8 A Not that I'm aware of. I travel
9 frequently.
10 Q Was there anyone who was authorized
11 to go on that travel with you?
12 A There was no need to -- for any
13 official person to go with me.
14 Q Who was in charge with doing the
15 travel arrangements, getting the airline
16 tickets and things like that?
17 A My staff.
18 Q Who on your staff?
19 A Mr. Mark Huffman.
20 Q How is that spelled?
21 A H-u-f-f-m-a-n.
22 Q What is his position?
28
1 A He's my secretary -- was my
2 secretary.
3 Q When was he asked to do that?
4 A I don't recall. Probably a week or
5 two before the travel. At least two weeks
6 before the travel.
7 Q Did he actually have the airline
8 ticket in hand for you two weeks before the
9 travel?
10 A The ticket doesn't arrive until a
11 few days, but I had the confirmation prior to
12 that.
13 Q You have the written confirmation
14 in your possession, custody and control at
15 the Pentagon?
16 A It exists somewhere at the Pentagon
17 right now.
18 Q When did you actually receive the
19 ticket?
20 A I don't recall. Two, three days
21 before the travel. Maybe even more.
22 Q Do you still have the airline
29
1 ticket, the stubs from that ticket?
2 A They exist also. They're with my
3 travel papers.
4 Q Where are those kept?
5 A They're back in -- I guess they're
6 back in my office right now with my
7 secretary, with the American Forces
8 Information Service.
9 Q Who is your secretary there?
10 A Kitty Stepp.
11 Q S-t-e-p-p?
12 A Uh-huh.
13 Q Does she have a formal job title?
14 A She's my secretary.
15 Q When was it that you actually left
16 to go on this trip to Kansas State?
17 A Saturday.
18 Q Prior to your leaving to go on the
19 trip were you aware that Judicial Watch
20 wanted to take your deposition on Friday,
21 the 24th of April?
22 A Before I left I had received your
30
1 letter asking for the extension for the delay
2 of this. So when I left, there was -- I was
3 not under any understanding that there would
4 be a deposition that day.
5 Q So no one communicated to you the
6 position of Judicial Watch, that it wanted to
7 take your deposition beginning at 10:00 a.m.
8 last Friday, April 24th, 1998, in Judicial
9 Watch's offices?
10 MR. QUINLIVAN: Before the witness
11 answers I'm going to object to that question
12 to the extent that it calls for the witness
13 to disclose the substance of any
14 attorney/client communications.
15 MR. KLAYMAN: That would be a
16 nonresponse because he said he did not have
17 that knowledge. So I don't understand what
18 you're saying.
19 In other words, you can't have
20 attorney/client privilege even assuming, our
21 position, that it's an incorrect invocation
22 on something which never occurred.
31
1 MR. QUINLIVAN: The objection
2 stands.
3 BY MR. KLAYMAN:
4 Q You can respond.
5 MR. QUINLIVAN: Let me --
6 MR. KLAYMAN: I just asked simply
7 whether he had knowledge. Let me rephrase
8 the question if that helps.
9 BY MR. KLAYMAN:
10 Q Did you have knowledge that
11 Judicial Watch was requiring your deposition
12 at 10:00 a.m. on Friday, April 24th, 1998?
13 A I have knowledge that you had
14 requested it. I have knowledge that it was
15 being objected to and when I left, I had no
16 knowledge that there was going to be -- when
17 I left, I left with a clear schedule so far
18 as this concerned.
19 Q Well, that contradicts what you
20 just told me before after your counsel made
21 that objection.
22 Why is it that you're amending your
32
1 response to my question after your counsel
2 objects?
3 MR. QUINLIVAN: Objection. That
4 mischaracterizes the witness' testimony. The
5 witness' testimony does not contradict
6 itself.
7 MR. KLAYMAN: So he's, therefore,
8 now waived the attorney/client privilege
9 because he's now provided the information
10 that it came from you?
11 MR. QUINLIVAN: The witness has not
12 waived any attorney/client privilege.
13 BY MR. KLAYMAN:
14 Q Where did you get the information
15 that Judicial Watch was requiring your
16 deposition at 10:00 a.m. on Friday,
17 April 24th?
18 MR. QUINLIVAN: I'm going to object
19 to that question to the extent it calls for
20 the witness to disclose the substance of
21 attorney/client communications.
22 BY MR. KLAYMAN:
33
1 Q Did you get the information that
2 Judicial Watch was requiring your attendance
3 at 10:00 a.m. on April 24th, 1998, from any
4 source other than your counsel?
5 A No.
6 MR. KLAYMAN: Are you going to
7 withdraw your objection?
8 MR. QUINLIVAN: No. My objection
9 stands as to the substance any of
10 communications.
11 BY MR. KLAYMAN:
12 Q Were you aware of counsel filing
13 any motion on Thursday, April 23rd, 1998,
14 with the court asking that your deposition
15 not take place on April 24th, 1998?
16 MR. QUINLIVAN: I'm going to object
17 to that. This may become a standing
18 objection, but I'm going to object to that
19 question to the extent it asks the witness to
20 disclose the substance of attorney/client
21 communications.
22 MR. KLAYMAN: Were you aware that a
34
1 motion had been filed on April 23rd, 1998, in
2 the evening when you left for your trip?
3 (Witness conferred with counsel)
4 MR. KLAYMAN: I object to providing
5 testimony here. Let him answer the question,
6 please. This is inappropriate.
7 MR. QUINLIVAN: It's not
8 inappropriate. Counsel can consult with the
9 witness.
10 MR. KLAYMAN: It's inappropriate.
11 MR. QUINLIVAN: You can answer that
12 specific question.
13 THE WITNESS: Can you repeat the
14 question?
15 BY MR. KLAYMAN:
16 Q Were you aware that a motion had
17 been filed on Thursday, April 23rd, 1998,
18 before you left on your trip?
19 A Yes.
20 Q How did you learn of that?
21 MR. QUINLIVAN: I'm going to object
22 to that to the extent it asks the witness to
35
1 disclose the substance of attorney/client
2 communications.
3 MR. KLAYMAN: Are you going to
4 instruct him not to answer?
5 MR. QUINLIVAN: Yeah, I'm going to
6 instruct him not to answer.
7 MR. KLAYMAN: Certify this whole
8 line of questioning.
9 BY MR. KLAYMAN:
10 Q Were you concerned that the court
11 may not grant the motion to relieve you from
12 having to appear on Friday, April 24th, 1998,
13 before you left on your trip?
14 A No.
15 Q Why were you not concerned?
16 MR. QUINLIVAN: I'm going to object
17 to this question to the extent it calls for
18 the witness to disclose any attorney/client
19 communications.
20 MR. KLAYMAN: Are you instructing
21 him not to answer?
22 MR. QUINLIVAN: I'm instructing him
36
1 not to answer to the extent it calls him to
2 reveal the substance of attorney/client
3 communications.
4 BY MR. KLAYMAN:
5 Q What is your understanding of an
6 attorney/client communication, Mr. Bernath?
7 A First of all, let me state I am not
8 a lawyer, so I do not know legal definitions.
9 My understanding is that when I talk to a
10 lawyer, that anything I say is privileged.
11 Q Did anyone tell you that when you
12 talk to a lawyer about something which is
13 publicly known, that that's privileged?
14 MR. QUINLIVAN: I'm going to object
15 to that question to the extent it calls for
16 the witness to reveal the substance of
17 attorney/client communications even to the
18 answer to that question. If the witness has
19 independent knowledge --
20 MR. KLAYMAN: Certify it.
21 I'm entitled to find out, because
22 you're instructing him not to answer anything
37
1 that's an attorney/client communication, if
2 he understands what an attorney/client
3 communication is under the law, whether he's
4 been advised as to what that is.
5 MR. QUINLIVAN: That is correct.
6 Also, if the knowledge of the witness has
7 been communicated through attorney/client
8 communications, that is also subject to
9 privilege.
10 MR. KLAYMAN: I'm entitled to know
11 the definition upon which he is operating.
12 BY MR. KLAYMAN:
13 Q What have you been advised the
14 subject to an attorney/client privilege is?
15 MR. QUINLIVAN: I'm going to object
16 to that question to the extent it calls for
17 the witness to reveal the substance of
18 attorney/client communications.
19 MR. KLAYMAN: I'm just asking for
20 his general definition, not with specific
21 communications between his counsel and
22 himself.
38
1 BY MR. KLAYMAN:
2 Q What definition are you operating,
3 Mr. Bernath, at to be able to make a decision
4 as to whether you're going to respond or not
5 by virtue of attorney/client privilege?
6 What's the definition, as you have been told
7 it is?
8 MR. QUINLIVAN: If you're asking
9 him what is the definition of attorney/client
10 communication, what he has been told, I'm
11 going to object because that, again, calls
12 for the substance of attorney/client
13 communications.
14 BY MR. KLAYMAN:
15 Q Let me ask for your understanding,
16 generally, regardless of what you've been
17 told, what is an attorney/client privilege
18 communication such that you don't have to
19 respond to my questions?
20 A Mr. Klayman, I just answered the
21 question for you what my opinion is. I also
22 said to you that I'm not a lawyer, so my
39
1 understanding is what I say to a lawyer is --
2 comes under the privilege.
3 Q I previously asked you the question
4 whether or not you were informed of the
5 court's order of April 27th which required
6 your attendance before Judicial Watch for
7 deposition on April 28th. You refused to
8 answer that question insofar as the
9 information may have been obtained from
10 counsel. We took a break to go into that
11 room to make a call to the court.
12 Did you consult with counsel during
13 the period between the question I asked and
14 the conference with the court?
15 A On that question?
16 Q Yes.
17 A I certainly talked to the counsel
18 and, to be truthful, I'm not sure what we --
19 whether it was about that question. I think
20 we talked in general.
21 Q You can't remember?
22 MR. QUINLIVAN: This is a standing
40
1 objection to the substance -- we are
2 directing the witness not to reveal the
3 substance of any attorney/client
4 communications.
5 MR. KLAYMAN: I'm just asking
6 whether there was a consultation. I'm
7 entitled to ask that.
8 MR. QUINLIVAN: I understand and
9 I'm directing the witness to the extent it
10 calls for the substance, he's directed not to
11 respond.
12 BY MR. KLAYMAN:
13 Q Was there a consultation?
14 A We talked.
15 Q Was the subject matter of that
16 consultation the question that I just asked?
17 MR. QUINLIVAN: I'm going to object
18 and district the witness not to respond to
19 that question on the basis of attorney/client
20 privilege.
21 BY MR. KLAYMAN:
22 Q In which hotel did you stay at
41
1 Kansas State?
2 A The Ramada Inn.
3 Q Where is that located?
4 A It's in Manhattan, Kansas. I don't
5 remember the address.
6 Q Is it a downtown Ramada Inn?
7 A Yes.
8 Q You obviously did something in
9 Kansas State. What did you do?
10 A I gave seven different lectures on
11 Monday, I gave two different lectures and met
12 with faculty on Tuesday.
13 Q When did you finish your lectures
14 and meeting with faculty on Tuesday?
15 A On Tuesday it was a dinner and
16 meeting with the faculty and we ended up
17 about 8:30 in the evening.
18 Q That concluded your
19 responsibilities at Kansas State?
20 A Yes, it did.
21 Q Up to the point in time when you
22 completed at 8:30 in the evening had anyone
42
1 ever asked you to see whether you could get a
2 flight back to Washington, D.C., that
3 evening?
4 MR. QUINLIVAN: I'm going to object
5 to that question to the extent it calls the
6 witness to reveal attorney/client
7 communications.
8 MR. KLAYMAN: Whether or not he's
9 been asked to do travel plans? Is that what
10 you're saying?
11 MR. QUINLIVAN: That wasn't your
12 question, counsel.
13 MR. KLAYMAN: That is my question.
14 MR. QUINLIVAN: Well, then please
15 rephrase your question.
16 BY MR. KLAYMAN:
17 Q Up to the point that you concluded
18 on Tuesday your duties and responsibilities
19 and speaking to people at Kansas State had
20 anybody ever asked you to see whether you
21 could get a flight back to Washington, D.C.,
22 that evening on Tuesday?
43
1 MR. QUINLIVAN: I'm going to object
2 to that question to the extent it calls for
3 the witness to reveal attorney/client
4 communications.
5 BY MR. KLAYMAN:
6 Q Please respond.
7 MR. QUINLIVAN: I'm directing the
8 witness to the extent it calls for him to
9 reveal the substance of attorney/client
10 communications, that he should not answer
11 this question.
12 MR. KLAYMAN: Certify it.
13 BY MR. KLAYMAN:
14 Q Do you know whether anyone actually
15 looked into whether or not a flight was
16 available to get back to Washington, D.C.,
17 the evening of Tuesday, the 28th of April?
18 MR. QUINLIVAN: The same objection.
19 To the extent that this question calls for
20 the witness to reveal the substance of
21 attorney/client communications, I'm directing
22 the witness not to respond.
44
1 BY MR. KLAYMAN:
2 Q When did you travel back to
3 Washington, D.C.?
4 A On Wednesday morning. The flight
5 left Kansas City at 11 o'clock in the
6 morning.
7 Q When did you arrive back in
8 Washington, D.C.?
9 A Plane landed at 2:15 in the
10 afternoon.
11 Q Between the time that you received
12 the subpoena of Judicial Watch and the time
13 that you arrived back in Washington, D.C., on
14 Wednesday, the 29th of April, did you ever
15 consult with anyone in preparation for this
16 deposition?
17 A State the time frame again that
18 you're asking about.
19 Q Between the date that you received
20 the subpoena and the date you landed back in
21 Washington, D.C., at 2:55 on Wednesday,
22 April 29th, did you ever consult with anyone
45
1 about your deposition?
2 A I consulted with general counsel.
3 Q What is the general counsel's name
4 again?
5 A Mr. Wiegmann.
6 Q Did you meet with him and discuss
7 areas of anticipated testimony and document
8 production?
9 MR. QUINLIVAN: I'm going to object
10 to that question because it calls for the
11 witness to reveal attorney/client
12 communications.
13 MR. KLAYMAN: Not the fact that you
14 met.
15 MR. QUINLIVAN: That was not your
16 question, counsel.
17 MR. KLAYMAN: That is the --
18 MR. QUINLIVAN: Well, then please
19 rephrase the question.
20 MR. KLAYMAN: Are you familiar with
21 the law that says that you're entitled to
22 have identified the date of a communication,
46
1 the general subject matter of the
2 communication and the participants of the
3 communication? Are you aware of that law?
4 MR. QUINLIVAN: I am very familiar
5 with the law, counsel. That was not your
6 question.
7 MR. KLAYMAN: Then why are you
8 instructing him not to answer questions
9 because that's all I'm trying to ask? I'm
10 just trying to identify occurrences. I'm not
11 asking for the actual communication of what
12 was discussed, just the general subject
13 matter.
14 MR. QUINLIVAN: Counsel, the
15 objection stands.
16 MR. KLAYMAN: Certify it.
17 BY MR. KLAYMAN:
18 Q Prior to your deposition here today
19 did you meet with anyone in an
20 attorney/client capacity to discuss your
21 deposition?
22 A I had a meeting, yes.
47
1 Q When did that meeting occur?
2 A At approximately 3 o'clock
3 yesterday afternoon.
4 Q Who was present at that meeting?
5 A Mr. Wiegmann, Ms. Filice and
6 counsel to my left.
7 Q What's his name?
8 A Mark, and I can't remember your
9 last name.
10 MR. QUINLIVAN: For the record it's
11 Quinlivan.
12 BY MR. KLAYMAN:
13 Q How long did that meeting take
14 place? How long was that meeting.
15 A A little over two hours.
16 Q During that meeting did you go over
17 document production?
18 A I'm sorry. I don't under the
19 question. Document production.
20 Q Did you discuss the production of
21 documents today?
22 MR. QUINLIVAN: I'm going to object
48
1 to that. Again, to the extent that it calls
2 for the substance of what counsel discussed
3 with the witness we're going to object ton
4 attorney/client.
5 MR. KLAYMAN: I can't identify
6 whether he discussed document production? Is
7 that what you're saying?
8 MR. QUINLIVAN: I'm saying that to
9 the extent it calls for the substance of what
10 was communicated between the witness and
11 counsel, we're objecting on attorney/client.
12 MR. KLAYMAN: I didn't ask for
13 actually what was communicated, just whether
14 the general subject matter of document
15 production was discussed.
16 MR. QUINLIVAN: That goes to the
17 substance of what was communicated between
18 counsel and the witness.
19 MR. KLAYMAN: Certify it.
20 BY MR. KLAYMAN:
21 Q From the time that you received the
22 subpoena up to that meeting at 3:00 p.m.
49
1 yesterday, and lasted two hours, have you
2 ever discussed this subpoena with anyone? I
3 believe you mentioned earlier general
4 counsel.
5 A General counsel is the only one
6 that I discussed the subpoena with. I made
7 my boss aware that it arrived, but I didn't
8 discuss it with him.
9 Q Which boss was that?
10 A Mr. Kenneth Bacon.
11 Q Did you give him a copy of the
12 subpoena?
13 A I did not give him a copy of the
14 subpoena.
15 Q Was a copy of the subpoena given to
16 anyone after you received it?
17 A I did not give a copy of the
18 subpoena to anybody other than general
19 counsel.
20 Q That occurred at the time you
21 received the subpoena?
22 A Yes.
50
1 Q During the time that you were in
2 Kansas did you discuss your deposition with
3 anyone?
4 MR. QUINLIVAN: I'm going to object
5 to that question. The witness can answer
6 that question, but he cannot answer to the
7 extent that it asks him to reveal the
8 substance of attorney/client communications.
9 BY MR. KLAYMAN:
10 Q Did you discuss your deposition
11 with anyone while you were in Kansas?
12 A I did not discuss my deposition
13 with anybody. I did not discuss my
14 deposition with anybody in Kansas.
15 Q Did you receive calls from
16 Washington, D.C., informing you that you had
17 to appear for deposition today?
18 MR. QUINLIVAN: I'm going to object
19 to that question because it asks for the
20 substance of attorney/client communication.
21 MR. KLAYMAN: Are you instructing
22 him not to answer?