CARA LESLIE ALEXANDER, et al.,
OF INVESTIGATION, et al.,
) Civil No. 96-2123/97-1288 (RCL)
0002 1 A P P E A R A N C E S 2 3 ON BEHALF OF THE WITNESS: 4 MARK C. HANSEN, ESQ. 5 COURTNEY SIMMONS ELWOOD, ESQ. 6 Kellogg, Huber, Hansen, Todd & Evans 7 1301 K Street, N.W. 8 Suite 1000 West 9 Washington, D.C. 20005 10 (202) 326-7904 11 12 ON BEHALF OF THE PLAINTIFF: 13 LARRY KLAYMAN, ESQ. 14 D.R. BUSTION, II, ESQ. 15 TOM FITTON, ESQ. 16 Judicial Watch 17 501 School Street, N.W. 18 Seventh Floor 19 Washington, D.C. 20 21 22
0003 1 A P P E A R A N C E S continued 2 3 ON BEHALF OF EOP & FBI: 4 ALLISON C. GILES, ESQ. 5 United States Department of Justice 6 Civil Division, Federal Programs Branch 7 901 E Street, N.W. 8 Washington, D.C. 20530 9 (202) 616-0608 10 11 ON BEHALF THE WHITE HOUSE: 12 SALLY PATRICIA PAXTON, ESQ. 13 The White House 14 (202) 456-5079 15 16 ON BEHALF OF HILLARY RODHAM CLINTON: 17 PAUL B. GAFFNEY, ESQ. 18 Williams & Connolly 19 725 Twelfth Street, N.W. 20 Washington, D.C. 20005 21 (202) 434-5803 22
0004 1 A P P E A R A N C E S continued 2 3 ALSO PRESENT: 4 JON D. PIFER, ESQ. 5 Office of General Counsel - FBI 6 935 Pennsylvania Avenue, N.W. 7 Washington, D.C. 20835 8 (202) 324-9655 9 10 11 12 13 14 15 16 17 18 (Index appears following the transcript.) 19 20 21 22
0005 1 P R O C E E D I N G S 2 - - - - - 3 THE VIDEOGRAPHER: Good morning. This is 4 the video deposition of Terry F. Lenzner, 5 Esquire, taken by the counsel for the plaintiff 6 in the matter of Cara Leslie Alexander, et al., 7 versus the Federal Bureau of Investigation, case 8 number 96-2123(RCL) held at the offices of 9 Judicial Watch, 501 School Street, Northwest, 10 Washington, D.C. on this date, March 13, 1998, 11 and at the time indicated on the video screen. 12 My name is Sylvanus Holley. I'm the 13 videographer. The court reporter today is 14 Christy Howarth from the firm of Bossard 15 Associates, Incorporated. 16 Will counsel introduce themselves? 17 MR. KLAYMAN: Yes. I ask that you pan to 18 everybody who's in the room. My name is Larry 19 Klayman. I don't think you have me panned there. 20 I'm the general counsel of Judicial Watch. 21 MR. FITTON: Tom Fitton, legal assistant, 22 Judicial Watch.
0006 1 MR. BUSTION: Don Bustion, attorney of 2 Judicial Watch. 3 MR. GAFFNEY: Paul Gaffney, attorney for 4 the First Lady. 5 THE WITNESS: Terry Lenzner, the witness. 6 MR. HANSEN: Mark Hansen, counsel for Mr. 7 Lenzner, the witness. 8 MS. ELWOOD: Courtney Simmons Elwood 9 representing the witness. 10 MS. PAXTON: Sally Paxton with the White 11 House. 12 MS. GILES: Allison Giles with the 13 Department of Justice representing the defense 14 Executive Office for the President and Federal 15 Bureau of Investigation. 16 MR. PIFER: John Pifer with FBI. 17 MR. KLAYMAN: Swear the witness in 18 please. 19 Whereupon -- 20 TERRY F. LENZNER, ESQ. 21 a witness, called for examination, having been 22 first duly sworn, was examined and testified as
0007 1 follows: 2 EXAMINATION 3 BY MR. KLAYMAN: 4 Q. It's a preliminary matter, I want to 5 raise a continuing objection to the presence of 6 Ms. Sally Paxton insofar as she is a material 7 witness in this case, the White House counsel. 8 We request that -- and in the course of this 9 deposition at a minimum, that you not discuss 10 testimony with the witness, Mr. Lenzner. 11 MS. GILES: On behalf of Ms. Paxton, we 12 don't agree to that request. 13 BY MR. KLAYMAN: 14 Q. Mr. Lenzner, I'm going to show you what 15 I'll ask the court reporter to mark as Exhibit 1. 16 It is the subpoena which you received in this 17 case on or about February 25, 1998. 18 (Deposition Exhibit Number 1 was marked 19 for identification.) 20 MR. HANSEN: Do you want to have one 21 marked as an official exhibit of the deposition? 22 MR. KLAYMAN: I have the exhibit here.
0008 1 Perhaps you could, you know, for your own 2 edification put one on there. It's just easier. 3 I won't have to bring them back and forth if you 4 have no objection. 5 MR. HANSEN: You don't want the witness 6 to work from what you're marking as the official 7 exhibit? 8 MR. KLAYMAN: He can certainly work from 9 that if you prefer. That's fine. 10 MR. HANSEN: Why don't we do that. I'll 11 trade with you. 12 MR. KLAYMAN: Sure. Let's just make sure 13 we get them back so keep them in a pile. 14 MR. HANSEN: Of course. I'll be happy to 15 do that. 16 BY MR. KLAYMAN: 17 Q. Have you seen that document before, 18 Mr. Lenzner? 19 A. Yes, I have. 20 Q. You received this document on February 21 25th, 1998? 22 A. On or about that date, yes.
0009 1 Q. And what did -- what, if anything, did 2 you do with the document at the time you received 3 it? Did you bring it to the attention of any 4 counsel? I'm not asking for what was discussed, 5 not interested in attorney client communications. 6 A. I think I took it downtown since it was 7 delivered to my mailbox and discussed it with 8 Mr. Shapiro who was then my counsel. When he 9 advised me -- 10 MR. HANSEN: Mr. Klayman has told you not 11 to get into any communication to or from 12 Mr. Shapiro, your counsel. 13 BY MR. KLAYMAN: 14 Q. Well, I don't want any confidential 15 communications but some communications obviously 16 are not if it's just a matter of when you 17 received something. That wouldn't be subject to 18 attorney client privilege. You are a lawyer, 19 Mr. Lenzner? 20 A. Yes, sir. I took it and discussed it 21 with Mr. Shapiro. 22 Q. You did receive this subpoena served on
0010 1 you personally? 2 A. It was left in my mailbox. 3 Q. Are you saying you didn't get it, it 4 wasn't handed to you? 5 A. No, sir. 6 Q. Okay. And -- 7 A. They called my house, and I told them 8 that I was going to be out and to just leave it 9 in my mailbox. 10 Q. That's what you asked them to do? 11 A. They wanted to serve it on me, and I said 12 just leave it in the mailbox. 13 Q. Do you remember who you spoke with? 14 A. I spoke to a lady and then I think a man. 15 Q. Do you remember any names? 16 A. I don't. 17 Q. Okay. Now you've discussed this with 18 Mr. Shapiro. What, if anything, was decided upon 19 in terms of appearing for the deposition at that 20 time? 21 A. I decided because of a statement that 22 Mr. Shapiro made to me that I needed to seek new
0011 1 counsel, and I solicited and retained Mr. Hansen 2 and his law firm. 3 Q. I'm not asking you for any communications 4 with Mr. Shapiro, but why did you seek new 5 counsel, I'm asking you, Mr. Lenzner? 6 A. I decided that it would be better for him 7 and for me in view of the fact that I just 8 discovered his connection to this proceeding that 9 I have a separate independent counsel. 10 Q. Are you saying that that was the first 11 time you learned of the fact that Howard Shapiro 12 had some involvement in the FBI files 13 controversy? 14 A. No, it's the first time that I learned 15 that he had a connection to this lawsuit. 16 Q. In other words, that he had been 17 subpoenaed to testify? 18 A. Correct. 19 Q. But you knew previously that, in fact, he 20 was one of the individuals involved in the 21 original discovery of Filegate matters? 22 A. I remember reading in the newspapers
0012 1 recently after his appearance with me at 2 the grand jury that he was related to that 3 incident. I did not remember that before I hired 4 him. 5 Q. You appeared with him at the grand jury 6 that was investigating the Filegate matter? 7 A. No. 8 Q. What grand jury are you talking about? 9 A. I'm talking about a grand jury that 10 was -- that I was publicly identified as 11 testifying before a week or two ago. 12 Q. You're talking about the matter involving 13 Kenneth Starr and the so-called Monica Lewinsky 14 matter? 15 MR. HANSEN: Objection to the 16 characterization. 17 MR. KLAYMAN: Just trying to get general 18 identification. 19 THE WITNESS: It was conducted by 20 Mr. Starr's employees. 21 BY MR. KLAYMAN: 22 Q. Related to the Monica Lewinsky matter?
0013 1 A. I'd rather not go into the questions and 2 answers they asked -- 3 Q. No, I didn't ask you questions. It's 4 just that that was what the grand jury was 5 looking into as reported in the press? 6 A. As reported in the press, that's correct. 7 Q. Okay. I'm just trying to identify in 8 time. And when did you then contact the new 9 lawyers? 10 A. I think the day that I decided that I 11 should not continue with Mr. Shapiro, which would 12 have been either the day I received the subpoena 13 in my mailbox or the day after. 14 Q. And who did you contact? 15 A. I contacted Mark. 16 Q. Mr. Hansen? 17 A. Mr. Hansen. 18 Q. And what law firm does he work for? 19 MR. HANSEN: I identified on the record. 20 THE WITNESS: Hansen, Huber, Kellogg. Is 21 that what it is? 22 MR. HANSEN: You have my card.
0014 1 BY MR. KLAYMAN: 2 Q. Okay. And that was on the 25th of 3 February, correct? 4 A. It would have been either the same day or 5 the day after I received the subpoena. 6 Q. Are you aware of the date that anyone 7 from that law firm contacted Judicial Watch to 8 try to reschedule your deposition? 9 A. Am I aware of the date? No, I think it 10 was some time soon after that, after our first 11 meeting. 12 Q. What date do you say that is? 13 A. I need a calendar if you want to ask 14 me -- 15 Q. Give me a rough approximation. 16 A. A day or two after I received the 17 subpoena. 18 Q. Your counsel told you that they contacted 19 Judicial Watch? 20 MR. HANSEN: Objection to what counsel 21 told Mr. Lenzner and what Mr. Lenzner told 22 counsel.
0015 1 MR. KLAYMAN: That's not an 2 attorney-client communication. 3 MR. HANSEN: Well, I disagree. And I 4 instruct Mr. Lenzner not to answer anything 5 having to do with communications with the firm, 6 this attorney. 7 MR. KLAYMAN: Certify it. 8 BY MR. KLAYMAN: 9 Q. At the time that you met with Mr. Hansen 10 on or about February 25th, did you discuss with 11 him objecting to the request for documents in the 12 subpoena? 13 MR. HANSEN: Objection, 14 mischaracterization of testimony with regard to 15 meeting and objection as to anything that was 16 discussed -- 17 BY MR. KLAYMAN: 18 Q. Did you speak with him on February 19 25th? 20 A. I spoke with Mr. Hansen on or about 21 either that date or the day after -- or a day or 22 two afterwards.
0016 1 Q. And during that conversation, did you 2 instruct him to object to documents that were 3 requested by Judicial Watch as set forth in 4 Deposition Exhibit 1? 5 MR. HANSEN: Objection to any 6 communications to or from counsel by Mr. Lenzner. 7 Instruction not to answer. 8 MR. KLAYMAN: Certify it. 9 BY MR. KLAYMAN: 10 Q. At any time did you instruct Mr. Hansen 11 or anyone in his firm to object to documents 12 requested in this subpoena, which is noted as 13 Exhibit 1? 14 MR. HANSEN: Objection. Instruction not 15 to answer if it calls for communications to or 16 from counsel for Mr. Lenzner regarding the 17 representation. 18 BY MR. KLAYMAN: 19 Q. You can respond. 20 A. I believe the question calls for an 21 answer that is privileged. 22 MR. KLAYMAN: Certify it.
0017 1 BY MR. KLAYMAN: 2 Q. At any time up to including today, did 3 your counsel tell you that they had a 4 conversation or any kind of communication with 5 Judicial Watch where Judicial Watch said it was 6 okay to object to documents as requested in 7 Exhibit 1 today, March 13, 1998? 8 MR. HANSEN: Objection. Same objection. 9 Mr. Klayman, you're asking for confidential 10 attorney-client communication. 11 BY MR. KLAYMAN: 12 Q. You can respond. 13 A. I believe it's privileged. 14 MR. KLAYMAN: Certify it. 15 BY MR. KLAYMAN: 16 Q. Are you aware that counsel, your counsel, 17 have just objected to the documents requested in 18 the subpoena listed as Exhibit 1 today, that's 19 when Judicial Watch has received these 20 objections? 21 MR. HANSEN: What are referring to, 22 Mr. Klayman? Do you have a document in front of
0018 1 you? 2 BY MR. KLAYMAN: 3 Q. I'm going to ask that we'll mark it as 4 Exhibit 2. If you'd like some identification -- 5 I was asking a foundation question. The letter 6 which I received today, March 13, 1998, which 7 attaches a document, Written Objections and 8 Responses to plaintiffs' Document Subpoena of 9 Nonparty Terry F. Lenzner, Esquire. 10 (Deposition Exhibit Number 2 was marked 11 for identification.) 12 MR. HANSEN: That was submitted to you, 13 Mr. Klayman, pursuant to our agreement. 14 MR. KLAYMAN: There was no agreement. 15 MR. HANSEN: That's not true, 16 Mr. Klayman. It was in the -- 17 MR. KLAYMAN: I'm not going to argue with 18 you on the record. That's why I'm developing the 19 record right now. 20 MR. HANSEN: My letter and your letter 21 document agreement are in the pleadings, Mr. 22 Klayman. You can ask Mr. Lenzner anything you
0019 1 want about the document request, but the 2 agreement is documented. 3 BY MR. KLAYMAN: 4 Q. Have you seen this document before, 5 Exhibit 2, this letter I've just identified of 6 March 13th, 1998? 7 A. Yes. 8 Q. With attached objections. When was the 9 first time you saw this? 10 MR. HANSEN: In this specific form? Are 11 you asking in this specific form signed by 12 Ms. Elwood or are you asking -- 13 MR. KLAYMAN: Please don't pollute the 14 testimony, Mr. Hansen. The question is very 15 simple, have you ever seen this document before. 16 It's inappropriate to make speaking objections. 17 Certify this. 18 MR. HANSEN: Objection, Mr. Klayman. I'm 19 asking you if you'll clarify your question as to 20 whether you're talking about the signed letter 21 from Ms. Elwood or something else. The document 22 is two documents, not one.
0020 1 MR. KLAYMAN: I'm asking -- well, I take 2 it as one document, what's handed me today. 3 BY MR. KLAYMAN: 4 Q. Have you ever seen the top sheet, this 5 March 13th, 1998, cover letter before today? 6 A. Not until it was shown to me just now. 7 Q. Now turning to the pleading, which is 8 Written Objections and Responses to Plaintiffs' 9 Document Subpoena of Nonparty Terry F. Lenzner, 10 Esquire, have you ever seen this document before 11 today in its final signed form, which is signed 12 by Mark Hansen dated March 13th, 1998? 13 A. I saw this document this morning, this 14 exact document. 15 Q. Did you work on this document with 16 Mr. Hansen this morning? 17 A. We worked on it previously. 18 Q. I asked you whether you worked on it this 19 morning. 20 A. I reviewed it this morning. 21 Q. When did you first start working on this 22 document? I take it in draft form?
0021 1 A. That's correct. 2 Q. When did you first start working on it 3 then? 4 A. A couple of days ago. 5 Q. On Wednesday? 6 A. What's today? No, I think we actually -- 7 I'd have to search my memory on that, but I think 8 we had a meeting on this earlier than that. I'm 9 not certain. I'd have to go back and check. 10 Q. Was a draft provided to you of these 11 objections or did you discuss it first and then 12 was a draft prepared after that? 13 A. Well, we had a discussion about whether 14 or not I had documents responsive to these 15 requests. 16 Q. But you didn't actually prepare 17 objections at that time? 18 A. Not at that time. 19 Q. And, in fact, you didn't prepare 20 objections until this morning, correct? 21 MR. HANSEN: Objection, misstates 22 testimony.0022 1 BY MR. KLAYMAN: 2 Q. You can respond. 3 A. I think that's incorrect. 4 Q. Well, then when did you prepare 5 objections? I'm talking about in written form? 6 MR. HANSEN: Objection, asked and 7 answered. 8 THE WITNESS: I believe it was Tuesday or 9 Wednesday. I saw a draft some time in that time 10 period. I took it home, I read it, I responded 11 the next day, and then I was shown the final 12 version of that this morning. 13 BY MR. KLAYMAN: 14 Q. How was the draft sent to you? 15 A. It arrived in my office. My secretary 16 opened my mail and handed it to me, as I recall. 17 Q. It was mailed to you? 18 A. It was either mailed or messengered. It 19 arrived in my office, that's all I know. 20 MR. KLAYMAN: Mr. Hansen, do you have a 21 copy of this agreement that you claim that you 22 had with me?0023 1 MR. HANSEN: Sure. Would you like to 2 take the time to go through it? On or about 3 March 10, 1998, we had a telephone conference. 4 After that telephone conference, I sent you a 5 letter, March 10, 1998, with an Exhibit 1 to a 6 pleading we filed with the court. It states in 7 the second paragraph -- 8 MR. KLAYMAN: Can I just see the letter 9 please? 10 MR. HANSEN: I'm sorry? No, I'm going to 11 read it and then I'll hand it to you. 12 MR. KLAYMAN: All right. 13 MR. HANSEN: Into the record. Is that 14 all right? "Also thank you for extending us 15 additional time to respond to your document 16 request. We will submit Mr. Lenzner's responses 17 including objections by Friday, March 13th." You 18 sent back a letter, which is also an exhibit, in 19 which you stated that you objected to postponing 20 Mr. Lenzner's deposition, but you made no 21 statement in your letter back about the agreement 22 on the document response, and you've made no such
0024 1 statement until today. Here's the documents I'm 2 referring to if you want to look at it. 3 MR. KLAYMAN: Shall we mark this as an 4 exhibit? 5 MS. ELWOOD: I'd like to get a copy. 6 MR. KLAYMAN: We'll make a copy of it for 7 you. 8 MS. ELWOOD: Yeah, thank you. Because 9 that's -- 10 MR. KLAYMAN: Sure. Mark that as Exhibit 11 3. 12 (Deposition Exhibit Number 3 was marked 13 for identification.) 14 MR. KLAYMAN: I'm not going to depose 15 you, Mr. Hansen, so I'm not going to take the 16 court's time and put on the record materials 17 which are -- which can obviously be argued in 18 legal pleadings. I'm just trying to develop a 19 foundation here. 20 BY MR. KLAYMAN: 21 Q. Mr. Lenzner, did your attorney tell you 22 that there was any agreement to extend the time
0025 1 to object to documents until March 13th, 1998? 2 MR. HANSEN: Objection to what transpired 3 between Mr. Lenzner and his attorney and 4 instruction not to answer. Privileged 5 attorney-client communication. 6 MR. KLAYMAN: Certify it. That is not 7 privileged attorney-client communications. This 8 is a fact which you've just identified as being a 9 matter of public record in a pleading. Obviously 10 it can't be subject to an attorney-client 11 privilege. 12 MR. HANSEN: Well, since you make a 13 statement, I'll make a statement. It certainly 14 can if you're asking about the conversations. If 15 you'd like to ask him if he saw a copy of the 16 pleading or the letter, that would be perfectly 17 appropriate. But since you asked specifically 18 about conversations, that's covered by the 19 privilege. 20 BY MR. KLAYMAN: 21 Q. You are aware, Mr. Lenzner, that 22 originally Judicial Watch agreed to reschedule
0026 1 your deposition but then when Judicial Watch 2 learned that your claim to reason for not being 3 able to be here was on a personal vacation, 4 Judicial Watch withdrew any such understanding? 5 You are aware of that? 6 A. Yes. 7 Q. And you are aware that we've gone through 8 the process with the court in the last few days 9 to enforce our original subpoena requiring your 10 appearance here today on March 13th, correct? 11 A. On my appearance here, yes. 12 Q. And throughout this entire time period 13 after you received this subpoena up to and 14 including today, you were aware that you could be 15 forced to testify today, March 13th, 1998, 16 pursuant to Exhibit 1, the original subpoena? 17 A. Well, at the time that you reached the 18 agreement to allow me to travel, I thought at 19 that time the 13th was off, but then you changed 20 your decision and put it back on the 13th. 21 Q. Were you advised that I changed the 22 decision when I learned that, in fact, you
0027 1 weren't leaving for business reasons but were 2 leaving to go on a personal vacation? 3 A. Oh, I'm sorry. Time out. I forgot to 4 put my microphone on. 5 MR. KLAYMAN: Did you get the sound on 6 that? 7 THE VIDEOGRAPHER: Yes, it's on there. 8 MR. HANSEN: And while you're putting the 9 microphone on, I'll instruct you to answer if you 10 can without disclosing attorney-client 11 communications that are privileged. 12 THE WITNESS: What was the question 13 again? 14 BY MR. KLAYMAN: 15 Q. Were you aware -- 16 A. Up? Up? Okay. 17 MR. KLAYMAN: Read back the question. 18 (The record was read as requested.) 19 THE WITNESS: I had learned that you had 20 changed your decision, yes. 21 BY MR. KLAYMAN: 22 Q. When did you learn that?
0028 1 A. I think the day before yesterday. 2 Q. Were you ever advised, Mr. Lenzner, that 3 I had agreed that you wouldn't have to produce 4 documents here today? 5 MR. HANSEN: Objection to -- if you can 6 answer that without referring to the 7 attorney-client communications, please do so. If 8 you can't, please -- 9 BY MR. KLAYMAN: 10 Q. You can respond. 11 A. That was a subject of a communication 12 with my counsel. 13 Q. Were you so advised? 14 MR. HANSEN: Objection. Instruct not to 15 answer. 16 THE WITNESS: I believe it's a privileged 17 communication. 18 MR. KLAYMAN: Certify it. 19 BY MR. KLAYMAN: 20 Q. Was it your understanding quite apart 21 from anything your counsel might have said that 22 you didn't have to produce documents today?
0029 1 A. Yes, that was my understanding. 2 Q. How did you reach that understanding? 3 MR. HANSEN: Objection if it calls for 4 attorney-client communication. 5 THE WITNESS: It does. 6 MR. KLAYMAN: Certify it. 7 BY MR. KLAYMAN: 8 Q. I'll show you what I'll ask the court 9 reporter to mark as Exhibit 4. 10 A. Do we have a 3? 11 MR. HANSEN: I think 3 -- is 3 the 12 exhibit you marked but then didn't question him, 13 Mr. Klayman, just so I'm keeping clear? 14 MR. KLAYMAN: As of -- as of this time. 15 MR. HANSEN: Exhibit 3 is the pleading -- 16 MR. KLAYMAN: We'll make a copy of that 17 later. 18 (Deposition Exhibit Number 4 was marked 19 for identification.) 20 BY MR. KLAYMAN: 21 Q. Have you seen this document before? 22 A. Yes.
0030 1 Q. Who prepared the first draft of this 2 document? 3 A. Either my office or Mr. Hansen's. 4 Q. Mr. Hansen's office prepared the first 5 draft, did it not? 6 MR. HANSEN: Objection, misstatement of 7 testimony. 8 BY MR. KLAYMAN: 9 Q. This was provided to you by Mr. Hansen's 10 office, was it not? 11 MR. HANSEN: Objection, misstatement of 12 testimony. 13 THE WITNESS: I thought that we actually 14 typed this in our office. 15 BY MR. KLAYMAN: 16 Q. Did you dictate the terms to someone? 17 How did it arrive? 18 A. I reviewed a document that had some 19 errors in it, and I -- and I asked my assistant 20 to correct those errors. That's why I thought it 21 was typed in our office. 22 Q. How did that document arrive to you?
0031 1 A. I think it came from Mr. Hansen's office. 2 Q. How long have you been an attorney, 3 Mr. Lenzner? 4 A. Since 1964. 5 Q. We'll run through your background, but 6 you have done litigation practice, I take it? 7 A. Yes. 8 Q. About how many years did you practice as 9 a litigator? 10 A. Including government service? 11 Q. Yes. 12 A. Twenty-four. 13 Q. And during that period, you are aware 14 that when documents are -- 15 A. Can I correct that? 16 Q. Sure. 17 A. Excuse me. Can I correct that? Let me 18 recalculate that. It should actually be 34, 34 19 years. 20 Q. During that period of time, you prepared 21 affidavits in your practice as a litigator? 22 A. Yes.
0032 1 Q. And sometimes you prepared affidavits for 2 Federal Court usage? 3 A. Yes. 4 Q. In fact, most of your time was spent in 5 the Federal Court system, was it not? 6 A. Yes. 7 Q. And you were an assistant U.S. Attorney 8 in New York? 9 A. Yes. 10 Q. And you are aware that when you prepared 11 affidavits and did not have them notarized, you 12 would have to make a specific declaration at the 13 end of the affidavit? 14 A. When you didn't have them notarized? 15 Q. Yes, when you didn't have them notarized. 16 A. I don't remember that quite frankly. 17 Q. You're not aware that you have to make a 18 certain declaration under the U.S. code that 19 you're signing the affidavit under penalty of 20 perjury? 21 A. I thought that was -- I thought the 22 beginning of the affidavit usually said something
0033 1 to that effect, but I don't remember it being at 2 the end. 3 Q. Are you aware that you have to make a 4 specific reference to the U.S. code provision 5 when you prepare a declaration for an affidavit 6 in the Federal Court system? 7 MR. HANSEN: Objection to the form. 8 THE WITNESS: No, I was not aware of 9 that. 10 BY MR. KLAYMAN: 11 Q. Approximately how many affidavits did you 12 prepare while you were engaged in the litigation 13 practice? 14 A. Most of the affidavits that I prepared 15 were for government agents in support of search 16 warrants, wire taps. I'm trying to think of a 17 case in my civil practice where I had any 18 significant experience with affidavits. And, by 19 the way, we had form affidavits in the Southern 20 District of New York. And I can't think of any 21 off the bat, but I can certainly supplement the 22 record if you want.
0034 1 Q. Thank you. And at the end of those 2 affidavits you would either have it notarized or 3 you would have someone swear under penalty of 4 perjury and list a U.S. statute -- statutory 5 provision? 6 MR. HANSEN: Objection to the form. 7 Mischaracterizes his testimony. 8 THE WITNESS: Well, my practice in the 9 60s in New York, as well as the Department of 10 Justice, and I thought our affidavits started 11 exactly this way, "Being duly sworn, deposes and 12 says." 13 BY MR. KLAYMAN: 14 Q. I'm not asking about the beginning. I'm 15 talking about how you actually make a sworn 16 declaration. Your are aware that if you don't 17 have it notarized it must say under penalty of 18 perjury, correct? 19 A. No. 20 MR. HANSEN: Mr. Klayman, is there some 21 point? This is a notarized affidavit. Is there 22 some point to your questioning?
0035 1 MR. KLAYMAN: I'm just asking the 2 question. I don't have to give you my point. 3 THE WITNESS: I felt this was a standard, 4 adequate affidavit. 5 BY MR. KLAYMAN: 6 Q. Turning back to Exhibit 1 -- and I'm 7 going to make reference to Exhibit 2. Exhibit 1 8 asks for the production of certain documents. 9 Did you have an opportunity when you got the 10 subpoena to review the definitional section for 11 documents? 12 A. I read it. 13 Q. Based on your experience as a litigator, 14 pretty standard stuff? 15 MR. HANSEN: Objection to the form. I 16 don't know what you mean by "standard stuff." 17 BY MR. KLAYMAN: 18 Q. Standard boilerplate? 19 MR. HANSEN: Same objection. 20 THE WITNESS: Are you referring to the -- 21 BY MR. KLAYMAN: 22 Q. The definitional section of what
0036 1 documents mean. You did understand it, did you 2 not? 3 MR. HANSEN: Paragraph 1, Page 2, 4 Mr. Klayman? 5 BY MR. KLAYMAN: 6 Q. That's it, yes. You did understand the 7 definitional section? 8 A. Yes. 9 Q. I ask the question with regard to Request 10 Number 1, which requests any all records, 11 correspondence, notes, communications or other 12 documents produced pursuant to a Congressional 13 subpoena, grand jury subpoena, or a voluntary 14 agreement with the Department of Justice or other 15 official investigatory agency of the United 16 States, including the office of Independent 17 Counsel Ken Starr, concerning or relating to the 18 disclosure to White House personnel (including 19 employees, detailees, volunteers, and interns) or 20 to other persons in the White House (including 21 Hillary Rodham Clinton), of FBI background 22 investigation files or summary reports of former
0037 1 Reagan and Bush Administration appointees and 2 employees, and others. Did you review that 3 specific request? 4 A. Yes. 5 Q. Did you have any such documents? 6 A. I don't believe I've ever had any such 7 documents. 8 Q. Did you do a search to see whether you 9 had any such documents? 10 A. A search was made, but there was no way 11 to search for documents that I know don't exist. 12 Q. You were subpoenaed, were you not, as 13 Terry Lenzner, Chairman of Investigative Group, 14 Inc? You can look at the first page of the 15 subpoena. 16 A. Uh-huh. 17 Q. Did you do a search throughout your 18 various investigative organization to see whether 19 any such documents existed? 20 MR. HANSEN: I'm going to object to that 21 question. The subpoena was to Mr. Lenzner 22 personally. There's been no subpoena to the
0038 1 Investigative Group, Inc., but you can answer the 2 question. 3 MR. KLAYMAN: Well, you can read the 4 subpoena, sir. 5 MR. HANSEN: I'm just noting who the 6 subpoena was -- 7 MR. KLAYMAN: Well, it's clear in its 8 face, Mr. Terry F. Lenzner, Chairman, 9 Investigative Group, Inc. We subpoenaed him in 10 that capacity. 11 MR. HANSEN: Well, you know, we can have 12 a dispute over what your subpoena does -- 13 MR. KLAYMAN: Apparently, we are. 14 MR. HANSEN: But I'm letting you ask 15 Mr. Lenzner what was done in response to your 16 request. 17 THE WITNESS: I knew that there were 18 no documents responsive to this request in 19 the custody or -- in my custody or control by 20 virtue of the fact that I've never seen such a 21 document, I've never held such a document, and 22 I've never seen a document like that in our
0039 1 offices. 2 BY MR. KLAYMAN: 3 Q. Just to be clear, you did not search with 4 other employees of your firm? You did not ask 5 them to conduct a search, correct? 6 A. That's correct. 7 Q. And you didn't even search yourself, did 8 you, in response to Request Number 1? 9 MR. HANSEN: Objection. 10 Mischaracterization, misstatement of prior 11 testimony. Mr. Lenzner testified a search was 12 done. 13 MR. KLAYMAN: Please don't put words in 14 his mouth. 15 Certify this. I'm asking you not to give 16 the witness testimony. I'm going to warn you 17 only once, Mr. Hansen. 18 MR. HANSEN: Mr. Klayman, let me, since 19 you make a speech, you do not have the right to 20 misstate the witness' testimony. The witness 21 previously testified on that subject. You don't 22 then have the right to ask a question that
0040 1 misstates his testimony. That's a proper 2 objection. 3 MR. KLAYMAN: Well, not a speaking 4 objection. I'm asking you not to make speaking 5 objections. 6 Certify this. 7 BY MR. KLAYMAN: 8 Q. You did not search even within your own 9 custody, possession, and control, Mr. Lenzner, 10 because based on your testimony you stated you 11 knew you didn't have any documents, correct? 12 A. A search was conducted, but a search for 13 these particular papers was not conducted because 14 I know for absolute certainty that I have never 15 had in my possession, custody, or control 16 documents responsive to Request Number 1. 17 Q. And you didn't ask any of you employees 18 to conduct a search, did you? 19 A. Well, the answer would be the same 20 because -- our organization has never had access, 21 custody, or control of any such documents. 22 Q. Did you issue any formal directive to
0041 1 other employees, independent contractors, or 2 others who work with your firm to look for 3 documents in response to Request 1? 4 A. I don't believe so. 5 Q. Did you issue any kind of directive to 6 any of your employees, independent contractors, 7 or anyone who works with your firm to look for 8 documents in response to all of the requests in 9 this subpoena? 10 A. Well, as I said, certain documents were 11 obtained and reviewed in response to one of these 12 requests. 13 Q. Please answer my question. You 14 understood my question? 15 MR. HANSEN: Please let the witness 16 answer your question. 17 MR. KLAYMAN: No, he's not answering my 18 question. I want the question answered. 19 MR. HANSEN: You don't get to cut the 20 witness off, Mr. Klayman. Mr. Lenzner, finish 21 your answer. You can ask a follow-up question, 22 Mr. Klayman if you're not satisfied with the
0042 1 answer. 2 MR. KLAYMAN: Object. Certify this. 3 This is an interference to my questioning. 4 THE WITNESS: I think what I said was 5 that we did search for some documents responsive 6 to one of these requests. Those documents were 7 reviewed by Mr. Hansen's assistant. 8 BY MR. KLAYMAN: 9 Q. Which request is that? 10 A. I frankly don't remember. 11 Q. Take your time. If you want to look 12 through it, look through it. Tell me what 13 request that was. 14 MR. HANSEN: May Mr. Lenzner be permitted 15 to look at the document response that we 16 submitted to you? 17 MR. KLAYMAN: No. We'll do that after he 18 identifies, if he can identify. 19 MS. PAXTON: While we're waiting, I don't 20 think we got a copy of Exhibit 2. Do you have a 21 copy for us? 22 MR. KLAYMAN: Your counsel got a copy,
0043 1 did they not? Ms. Giles? 2 MS. GILES: Not with a cover letter. 3 MR. KLAYMAN: You didn't get one? 4 MS. GILES: Just the subpoena, not a 5 cover letter. 6 MR. KLAYMAN: Here. 7 MS. GILES: Thank you. 8 THE WITNESS: I think the documents that 9 were reviewed were from Request 3 and Request 15. 10 BY MR. KLAYMAN: 11 Q. Request 3. How did you do a document 12 search for documents called for in Request 3? 13 A. I obtained documents responsive to that 14 including appointment books, desk calendars, and 15 provided them to Mr. Hansen. 16 Q. Those were just your personal appointment 17 books and desk calendars; is that correct? 18 A. That's correct. 19 Q. You did not ask your employees, 20 contractors, subcontractors, and others that work 21 with your firm to look, did you not? 22 A. Well, this request says, "Any and all
0044 1 calendars, desk calendars, appointment books, 2 journals, logs or diaries created or maintained 3 by or for Terry Lenzner," and I assumed that my 4 response would have been to turn over my own desk 5 calendars and it didn't go any further than me. 6 Q. I'm just trying to get an understanding 7 of your search. 8 A. I understand. Well, that's my response. 9 Q. There are employees that work for you 10 that undertake tasks on a daily basis at your 11 instruction and command, correct? 12 A. Yes. 13 Q. And they mark up those daily events 14 because you've instructed them to carry out those 15 events, correct? 16 A. Could you explain "mark up"? 17 Q. Well, put them in a desk calendar. You 18 say go do this, go attend that meeting for me, 19 put that in your calendar, correct? 20 A. I'm not understanding. In other words, 21 if I tell somebody I'd like you to go meet with 22 lawyer X, would they put that in my calendar?
0045 1 Q. In their calendar. 2 MR. HANSEN: Objection, calls for 3 speculation. 4 THE WITNESS: It might. 5 BY MR. KLAYMAN: 6 Q. Based on your experience. I'm not asking 7 for speculation. 8 A. Frankly, I can't remember seeing any 9 calendar that reflected such an entry, but I'm 10 sure -- my guess is they might. 11 Q. Okay. Now Request Number 15, how did you 12 go about searching for those documents? 13 A. I believe we identified certain materials 14 and boxes of materials that we felt might be 15 responsive to that request and, again, provided 16 them to Mr. Hansen's law firm. 17 Q. Are you saying that there were documents 18 that were responsive to Request Number 15? 19 MR. HANSEN: Objection, 20 mischaracterization. 21 BY MR. KLAYMAN: 22 Q. As written?
0046 1 A. I thought that there were documents that 2 we produced to Mr. Hansen's firm that conceivably 3 could be responsive to those requests, yes. 4 Q. We're going to go through each of these 5 requests, but let me just ask you a question at 6 this point in time. You've claimed in Request 7 Number 15 in these objections, which plaintiffs 8 maintained have been waived as untimely -- is 9 that funny? 10 MR. HANSEN: Mr. Klayman, I think it's a 11 terrible thing when lawyers renege on their 12 agreements. The practice of law is an honorable 13 profession practiced by honorable people. And 14 one of those honorable dimensions of the practice 15 is the lawyers should live up to their 16 agreements. And I really do take serious offense 17 that you're trying to not live up to your 18 agreements. 19 MR. KLAYMAN: I take serious offense at 20 you're having provided inaccurate if not false 21 information about me in the court. That's what I 22 take serious offense to.
0047 1 MR. HANSEN: You can identify a single 2 such thing -- 3 MR. KLAYMAN: We have. It's on the 4 record. 5 MR. HANSEN: No, actually, is you're 6 redacting -- actually, you retracted one of 7 things you told to the judge yesterday as untrue 8 after he ruled. 9 MR. KLAYMAN: We can argue about that 10 later, Mr. Hansen. My position is that the 11 objections have been waived. 12 BY MR. KLAYMAN: 13 Q. But my question is is whether or not you 14 identified documents that were responsive that 15 have not been produced in response to Request 16 Number 15. 17 MR. HANSEN: Objection, asked and 18 answered. 19 BY MR. KLAYMAN: 20 Q. You can respond. 21 A. My understanding is they were not 22 produced based on our objections in the responses
0048 1 that I've got in front of me that's marked as 2 Exhibit 2. 3 Q. I was asking about 15. 4 A. That's included in Exhibit 2. 5 Q. So there were documents that were 6 responsive that haven't been produced? 7 MR. HANSEN: Objection, asked and 8 answered. Mischaracterizes -- 9 BY MR. KLAYMAN: 10 Q. Yes or no. I'm just asking for yes or 11 no. 12 MR. HANSEN: It's a mischaracterization. 13 Objection. 14 THE WITNESS: I'm sorry. I'm -- 15 BY MR. KLAYMAN: 16 Q. There were documents in response to 17 Exhibit 15 that were not produced? 18 A. There were documents that conceivably 19 could have been responsive to the Request 15 that 20 were not produced. 21 Q. Did you prepare -- were those documents 22 withheld on claim of privilege or some other
0049 1 basis? 2 MR. HANSEN: Objection, document speaks 3 for itself. 4 MR. KLAYMAN: We don't have the 5 documents, so how do we know? 6 MR. HANSEN: Mr. Klayman, I'm talking 7 about Exhibit 2 referred to by Mr. Lenzner. The 8 document speaks for itself. 9 THE WITNESS: It's the -- it responds to 10 request at the bottom of Page 7. 11 BY MR. KLAYMAN: 12 Q. So documents were withheld on the claim 13 of privilege? 14 MR. HANSEN: Objection, asked and 15 answered. 16 BY MR. KLAYMAN: 17 Q. Correct? 18 A. I think they were denied based on all 19 these statements. 20 Q. Okay. You didn't write this paragraph in 21 response to Request Number 15, did you? 22 A. Did I write this, no.
0050 1 Q. That was your lawyer who wrote that, 2 correct? 3 A. That's correct. 4 Q. And you never reviewed this particular 5 paragraph until you just read it just now? 6 MR. HANSEN: Objection, 7 mischaracterization of prior testimony. 8 THE WITNESS: Actually, I think I read it 9 in draft and then in final form. 10 BY MR. KLAYMAN: 11 Q. Was there a privilege log prepared for 12 the documents that were responsive or arguably 13 responsive which were not produced? 14 A. I don't know. 15 Q. Do you know what I mean by "privilege 16 log"? 17 A. Yes, I do. 18 MR. HANSEN: Mr. Klayman, your request is 19 so wildly overbroad that no legitimate privileged 20 log could possibly be prepared for this. The 21 objection speaks for itself. 22 MR. KLAYMAN: Mr. Hansen, again, you're
Goto Next Section of this deposition