DISTRICT OF COLUMBIA
         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
                                            Washington, D.C.
                                    Thursday, April 30, 1998

        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:


         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

         7      On behalf of the White House:

                   Special Associate Counsel to the President
         9         The White House
                   1600 Pennsylvania Avenue, N.W.
        10         Washington, D.C.  20500
                   (202) 456-5079

        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

                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



         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
                   MARIANE FILICE, ESQUIRE
         7         American Forces Information Service
                   601 N. Fairfax Street
         8         Alexandria, Virginia  22314-2007
                   (703) 428-1204

        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


        19                   *  *  *  *  *





         1                  C O N T E N T S

         2   EXAMINATION BY:                            PAGE

         3      Counsel for Plaintiffs                    10

             * Proceedings in chambers of Judge Lamberth
         5   from page 19, line 19, to page 23, line 7.

                Page  No.   Line No.     Page No.   Line No.
                       35          7           91          9
                       36         20           92          7
                       43         12           95         19
                       46         16          110          2
                       48         19          132         19
                       51          2          136          9
                       51          8          137         11
                       51         14          138         22
                       53          8          139         17
                       70          9          147         15
                       76         19          148          8
                       87          1          162          8




         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




        10                   *  *  *  *














         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.


         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


         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


         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


         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:


        20             BY MR. KLAYMAN:

        21        Q    Please state your name?

        22        A    Clifford H. Bernath.


         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.


         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


         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.


         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


         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


         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


         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 --


         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


         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


         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


         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,


         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


         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


         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


         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


         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?


         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?


         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


         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


         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.


         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


         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:


         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


         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


         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


         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


         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.


         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


         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


         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


         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


         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?


         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.


         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


         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,


         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.


         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


         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.


         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.


         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?



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