IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION. : Case No. 2:13-CV : Judge Watson

Transcription

1 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 1 of 82 PAGEID #: 4849 IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION Libertarian Party of Ohio,: Kevin Knedler, Aaron : Harris, and Charlie Earl, : : Plaintiffs, : : vs. Jon Husted, in his : Official Capacity as Ohio : Secretary of State, and : The State of Ohio, : : : Intervenor-Defendant. : : Case No. 2:13-CV : Judge Watson DEPOSITION of, taken before me, Marissa LaRue, a Notary Public in and for the State of Ohio, at Capital University Law School, 303 East Broad Street, Conference Room 541, Columbus, Ohio, on Monday, August 5, 2014, at 1:59 p.m ARMSTRONG & OKEY, INC. 222 East Town Street, 2nd Floor Columbus, Ohio (614) (800) FAX - (614)

2 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 2 of 82 PAGEID #: APPEARANCES: 2 2 Mr. Mark R. Brown 303 East Broad Street 3 Columbus, Ohio On behalf of the Plaintiffs. 5 Kafantaris Law Offices 6 By Mr. Mark G. Kafantaris 625 City Park Avenue 7 Columbus, Ohio On behalf of the Plaintiffs. 9 Zeiger, Tigges & Little LLP 10 By Mr. John W. Zeiger 3500 Huntington Center 11 Columbus, Ohio On behalf of Mr. Felsoci. 13 Mike DeWine, Ohio Attorney General 14 By Ms. Bridget C. Coontz Assistant Section Chief 15 Constitutional Offices 30 East Broad Street, 16th Floor 16 Columbus, Ohio On behalf of Secretary of State Husted

3 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 3 of 82 PAGEID #: INDEX EXHIBITS IDENTIFIED 4 1 March 4, 2014 Final Transcript My Evans Thoughts Report and Recommendations

4 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 4 of 82 PAGEID #: Monday Afternoon Session, 4 2 August 5, 2014, 3 1:59 a.m BRADLEY ALAN SMITH 6 being by me first duly sworn, as hereinafter 7 certified, deposes and says as follows: CROSS-EXAMINATION 10 BY MR. BROWN: 11 Q. Good afternoon, Professor Smith. 12 A. Good afternoon. 13 Q. Would you state your full name for the 14 record? 15 A. Yes. It's Bradley A. or Bradley Alan 16 Smith. 17 Q. And, Brad, you may want to speak up just 18 a little because, again, I'm deaf in one ear and it's 19 hard on me. 20 A. Okay. 21 Q. Professor Smith, is it your understanding 22 that you have agreed to waive your decisional process 23 privilege for purposes of this deposition? 24 MS. COONTZ: For purposes of the record,

5 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 5 of 82 PAGEID #: the Secretary is the only one that could waive that 5 2 privilege and the Secretary of State is waiving that 3 privilege. 4 Q. Okay. Is there any other privilege, 5 Professor Smith, you would like to assert? 6 A. I will leave that up to my attorney in 7 particular times if there are other privileges that 8 would be applicable. 9 MR. BROWN: For the record, Ms. Coontz, 10 are there any other privileges that he may assert? 11 MS. COONTZ: Wait until you ask the 12 question, and then we'll be able to make that 13 determination question by question. 14 Q. Professor Smith, can you identify your 15 occupation? 16 A. Yes. I am a law professor. I am a 17 Josiah H. Blackmore/Shirley M. Nault Professor of Law 18 at Capital University Law School. 19 Currently, I'm on leave while severing as 20 the visiting Judge John T. Copenhanever, Jr. Chair of 21 Law at West Virginia University. 22 Additionally, I work part time for the 23 law firm of Septoe & Johnson since March of this 24 year.

6 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 6 of 82 PAGEID #: Q. Professor Smith, what is your political 6 2 party affiliation? 3 A. I'm a Republican. 4 Q. How long have you been a Republican? 5 A. Well, as you know, political party 6 affiliation can be a difficult thing. That is, you 7 don't have to do anything to declare that you're a 8 Republican, or a Democrat, or a Libertarian, or 9 Socialist or whatever, but I have voted in Republican 10 Party primaries rather consistently for, I would 11 guess, the last 20 years. 12 Q. Have you ever voted in the Libertarian 13 Party of Ohio Primary? 14 A. No. I don't know if they've ever had a 15 primary during the time I've been a registered Ohio 16 voter. 17 Q. Do you know Jon Husted? 18 A. Yes. 19 Q. How do you know Secretary Husted? 20 A. I have met Secretary Husted on one 21 occasion when he was serving in the Ohio State 22 Senate. And I went to meet with him in the company 23 of Linda Woggon, a director of government affairs or 24 similar title, I can't remember exactly at the time,

7 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 7 of 82 PAGEID #: at the Ohio Chamber of Commerce. We wanted to meet 7 2 with him regarding legislation that he had put forth. 3 I had been the counsel to the Chamber for their 4 political related activities, and so we met to 5 discuss legislation that he had proposed. 6 The meeting went quite poorly with the 7 Secretary, then the Senator, Husted becoming fairly 8 agitated, and we did not get, at all, what we wanted. 9 And that was the only time I had spoken to Secretary 10 Husted in person, or on the telephone, or by I did follow up with a letter to him 12 after that meeting. 13 Q. Could you spell the name of Linda Woggon, 14 the last name? 15 A. Yes. W-O-G-G, I believe it's O-N. It 16 might be I-N, but I think it's O-N. 17 Q. Thank you. 18 A. So, that would have been prior to his 19 election as Secretary of State. 20 Q. Do you consider Secretary Husted a 21 friend? 22 A. No. I don't think you could say that. 23 Q. Do you know Mike DeWine A. Yes.

8 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 8 of 82 PAGEID #: Q. -- Attorney General? 8 2 A. Yes. 3 Q. How do you know Attorney General DeWine? 4 A. I first met DeWine when he was in the 5 United States Senate, I believe. I might have had 6 some minimal contact with him. I do recall, when I 7 was nominated for the Federal Election Commission, he 8 -- I did not meet with him at that time and he did 9 not agree to introduce me to the Committee, but I 10 have gotten to know him slightly in the years since, 11 both when he was in the Senate and as Attorney 12 General. 13 And on two occasions, I have served as a 14 pro bono counsel for the Attorney General in 15 challenges or in lawsuits pertaining to Ohio's 16 election laws when he has chosen to file a brief 17 separately from the State's brief, and I represented 18 him on those two occasions. 19 Q. Can you describe in greater detail those 20 two briefs? 21 A. Yes. One was in a case, I believe it was 22 called COAST, C-O-A-S-T, which is an acronym for, I 23 think, it's something against -- coalition against 24 spending and taxes, and that was a matter pertaining

9 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 9 of 82 PAGEID #: to an Ohio Elections Commission issue on Ohio's false 9 2 statements law. We filed an amicus brief in that 3 case. 4 And the other was in the U.S. Supreme 5 Court, I filed an amicus brief on his behalf in Susan 6 B. Anthony List versus Ohio Elections Commission. 7 That was also a case pertaining to Ohio's false 8 statements law. 9 Q. Regarding the latter of those cases, the 10 Susan B. Anthony List case, when did you file a 11 brief? 12 A. It would have been in late February or 13 early March of this year. 14 Q. So, it would have been at the same time 15 you were acting as the hearing officer in the 16 Libertarian candidates case? 17 A. I don't know for sure. It was about that 18 time. It might have been filed shortly before I got 19 a call from the Secretary of State's office. It 20 might have been filed within a day or two after that 21 event. I don't recall the exact time it had to be 22 filed. 23 Q. Why did Attorney General DeWine ask you 24 to file that brief in the Susan B. Anthony List case?

10 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 10 of 82 PAGEID #: MR. ZEIGER: Object as to form MS. COONTZ: Object. 3 Q. You can answer the question. 4 MS. COONTZ: You can answer. 5 A. Well, I can only speculate as to why he 6 did. What I can say is what I was told, and not by 7 the Attorney General directly, but by aides of his at 8 the time, was that he, you know, felt strongly enough 9 about the issue and had questions, concerns about the 10 constitutionality of the statute, and they, 11 therefore, needed someone or would prefer at least to 12 have someone from outside the Attorney General's 13 office so he can lull himself off from the 14 professional lawyers and career lawyers in the office 15 who would defend the state statute. And I think they 16 felt they -- again, I'm purely speculating, but I was 17 available to do it pro bono. I have a national 18 reputation in the field in the election law and that 19 would be my speculation. 20 MR. ZEIGER: Move to strike. Hearsay. 21 Speculation. 22 Q. And you wrote a very good brief, let me 23 add A. Thank you.

11 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 11 of 82 PAGEID #: Q. -- in that case A. It was cited by the Court. 3 Q. Yes. Do you remember the name of the 4 aide who contacted you on behalf of Attorney General 5 DeWine? 6 A. In the COAST matter, which was some years 7 ago, I don't remember exactly when, I have to look 8 that up, I believe it was Fred Nelson. If he did not 9 originally contact me, he was the person with whom I 10 had a fair amount of contact. 11 On the Susan B. Anthony List case, it 12 was, I believe I have the name correct, Michael 13 Hendershot, I think, was the person. 14 Q. Did you know Mr. Hendershot before he 15 contacted you? 16 A. No. It's odd to say in that, if I 17 remember right, Hendershot had worked at the Vorys 18 law firm at a time when I was of counsel to the Vorys 19 firm, and I believe that he told me that we had met 20 then, but I did not recall that. So, whether I knew 21 him or not Q. Have you met Attorney General DeWine 23 personally, physically? 24 A. Yes.

12 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 12 of 82 PAGEID #: Q. On how many occasions? 12 2 A. Well, again there, it would be less than 3 a half dozen, max, maybe one or two when I was 4 serving on the Federal Election Commission. I met 5 with him once in the context of the COAST matter and 6 that may be it. I don't think I've spoke to him 7 personally at all in the context of the Susan B. 8 Anthony List case. 9 Q. Have you donated to his reelection 10 campaign? 11 A. No. 12 Q. Have you donated to Jon Husted's 13 reelection campaign? 14 A. No. 15 Q. Do you know Governor Kasich? 16 A. Yes. 17 Q. How do you know Governor Kasich? 18 A. I first met Governor Kasich -- he used to 19 stand on his lawn in Westerville when he was a member 20 of Congress and greet people coming and going from 21 Otterbein College events, and we spoke briefly. That 22 would have been, like, that would have been years ago or so, give or take. I have -- believe 24 that I might have seen him at one or two occasions in

13 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 13 of 82 PAGEID #: the years since, but I could not specify. I have not 2 seen him or talked to him or communicated with him in 3 any way since he became governor. 4 Q. Have you contributed to his campaign 5 reelection? 6 A. No. 7 Q. I'm sorry? 8 A. No, I did not. 9 Q. Of course, you were the hearing officer 10 in the matter we're here to discuss, the Libertarian 11 candidates, Libertarian on canvass matter. How did 12 you receive your appointment to become the hearing 13 officer in this matter? 14 A. I received a phone call, it would have 15 been on or about February 24th, I think that was a 16 Monday, it would have been that last Monday, I think, 17 in February, from Jack Christopher and Matt 18 Damschroder. And they inquired as to whether I would 19 be available to serve as the hearing officer in this 20 matter. And we talked a bit about it. I told him I 21 would get back to them the following day, and I did. 22 I accepted, and Jack Christopher sent me the 23 contract. 24 Q. Did either Mr. Christopher or

14 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 14 of 82 PAGEID #: Mr. Damschroder indicate to you why you were 14 2 selected? 3 A. Only that they felt that I was a good 4 choice because I had expertise in the field of 5 elections. 6 I believe that it was mentioned, at one 7 point, by somebody that they, you know, felt that I 8 had a reputation for honesty that was developed at 9 the FEC. 10 During my time at the FEC, one of the 11 things that made a public image was my failure to do 12 the bidding of the Bush Administration and -- prior 13 to the 2004 campaign, and both the Wall Street 14 Journal and Roll Call ran editorials. I remember the 15 Roll Call's was headlined "An Honest Man," and the 16 Journal's was headlined -- I don't know what the 17 Journal's was headlined, but at one point they called 18 me "the only honest man in the Washington bordello." 19 And so I don't think I -- those were referenced, but 20 I believe that there was some reference made in that 21 conversation to the sense they that believed that I 22 had a reputation that would enable me to take on a 23 sensitive matter with some legitimacy that they felt 24 would be required.

15 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 15 of 82 PAGEID #: Q. Did they indicate to you why they felt 15 2 this was a sensitive matter? 3 A. I don't recall that they offered any 4 opinion as to why, except for I think it was fairly 5 obviously to anybody who pays attention to politics 6 that this was a case that would get partisan passions 7 flowing, and would be covered in the press, and that 8 there is -- again, they did not say anything like 9 this to me at all, but it doesn't take a genius to 10 see that there are potential conflicts or at least 11 allegations of conflicts that would come up in this 12 case. 13 Q. Did either Mr. Christopher or 14 Mr. Damschroder suggest to you an outcome in this 15 case? 16 A. No. At no time, in no way, not 17 expressly, nor in anything that, at least, I ever 18 interpreted as some, you know, hidden matter or coded 19 phrase, or anything like that. They were absolutely 20 scrupulous, and, indeed, that was one of the things 21 that I think they emphasized in that initial phone 22 conversation. 23 Q. Do you happen to know the political party 24 affiliations of Mr. Christopher and Mr. Damschroder?

16 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 16 of 82 PAGEID #: A. I do not Q. Would, in your opinion, it have angered 3 and disappointed a bunch of people if you were to not 4 have upheld the protest? 5 A. Yes. One thing that I thought about 6 before taking the position was that it was going to 7 anger and disappoint a lot of people no matter how 8 I -- no matter what recommendation I might make to 9 the Secretary on the protest. 10 And following up, perhaps, a bit on your 11 earlier question, after the initial phone call with 12 Mr. Christopher and Mr. Damschroder, it was a very, 13 very busy time for me for one thing, so I wasn't 14 eager to take on another assignment. I was also I'm at the point in my career where I don't need 16 resumé builders, but I -- so I remember I went and but I thought it was an important thing to do. 18 And I recall and I went and I spoke to 19 the dean at West Virgina, mainly to inform her, see 20 what she thought, but also to let her know that if I 21 did it, it would require me to miss class and make 22 sure she was okay with that. 23 And then I spoke briefly to Atiba Ellis, 24 who's another professor there who works in the field

17 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 17 of 82 PAGEID #: of election law. And one of the things I raised in 17 2 talking with Atiba is -- was, you know, if I did 3 this, it was just going to make people unhappy no 4 matter how I decided to rule, so was it a smart thing 5 to do or not. I didn't know, but, anyway, I decided 6 to accept and notify Mr. Christopher and 7 Mr. Damschroder the following morning, and like I 8 said, then they sent me a contract. 9 Q. Who would it have angered if you upheld 10 the protest? 11 MR. ZEIGER: Objection. Calls for the 12 state of the mind of the third party. 13 A. I can't say anyone in particular. Again, 14 you've got a hot political issue. It doesn't take a 15 genius to know that that's the case. And like any 16 litigation, there are people who are going to be 17 happy and there are people who are going to be 18 unhappy with the result. 19 Q. Who would it have angered if you 20 dismissed the protest? 21 MS. COONTZ: Objection. 22 MR. ZEIGER: Same objection. 23 A. My answer has to be the same. You know, 24 that's about all I can say.

18 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 18 of 82 PAGEID #: Q. Do you think it would have angered the 18 2 Republicans if you dismissed the protest? 3 MS. COONTZ: Objection. 4 MR. ZEIGER: Same objection. 5 THE WITNESS: You want me to answer this? 6 MS. COONTZ: Yes, if you know. 7 A. If I had dismissed the objection, that 8 would have been to keep the Libertarian candidates on 9 the ballot. I presume that would have irritated the 10 protesters. I presume that -- I think -- I just 11 don't know, but I presume that there would have been 12 people within the Republican Party who would have 13 been unhappy with that, but I don't know of anybody 14 in particular. Again, this is just a common sense 15 observation about life and thinking about whether you 16 want to take on a project. 17 Q. You do understand that dismissing the 18 protest would result in the Libertarian candidates 19 remaining on the ballot? 20 A. Right. 21 Q. Did you ever state to Jack Christopher A. Did I ever what? 23 Q. State to Jack Christopher that you 24 understood that it would anger a lot of people if you

19 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 19 of 82 PAGEID #: kept the Libertarian candidates on the ballot? 19 2 A. Well, I -- you're referring to an , 3 and I think that it's not being represented clearly 4 in that sense. At the time that I made an initial 5 decision on this -- now, let me do some timetable 6 here. 7 The hearing concluded sometime around 8 five o'clock on Tuesday, March 4th. We received a 9 final transcript -- I received one at my home shortly 10 after 5 p.m. on Wednesday, March 5th. At that point, 11 I had to drive back to Morgantown to teach my 12 Thursday morning class in administrative law. So, I 13 got the transcript, drove back to Morgantown. I 14 recall I read it some that evening. 15 On Thursday, March 6th, I had an 16 administrative law class, and then I had a number of 17 previously scheduled meetings with students in my 18 election law class to discuss their papers. When 19 that was over, I went back to my apartment in 20 Morgantown and began to work on the matter on 21 Thursday afternoon. 22 At some point late in the evening, around 23 nine o'clock, I had reached a conclusion that would 24 have dismissed the protest. And at that point in

20 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 20 of 82 PAGEID #: time, I sent Jack Christopher an saying 20 2 something along the lines, I don't remember if you 3 were quoting it, but it was along the lines of what 4 you just said, that it would irritate a lot of 5 people, but I expected to rule in favor or, I guess, 6 to dismiss the protest. 7 Q. Did you send him a draft of that? 8 A. No, I did not. 9 Q. Do you have a draft of that? 10 A. I do not believe that I any longer have a 11 draft of that statement. 12 Q. No. I'm sorry. Do you have a draft of 13 the report and recommendation dismissing the protest? 14 A. Right. That's what I said. I don't 15 believe that I do. I think at that time that I had 16 indicated to Jack that I would send him a final that I would send him a draft after, but I needed to 18 do some more work on it. 19 And one of the things that -- you know, 20 in other words, I saw it was something of a courtesy. 21 They were under tremendous time pressure. This was 22 late Thursday. They wanted to have a decision by 23 Friday, working backwards, to when they would have to 24 notify local boards as to what they could do. And so

21 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 21 of 82 PAGEID #: essentially I wanted to give them a heads-up as soon 21 2 as possible so they could begin preparing a public 3 announcement as to what they might be planning to do. 4 I did not send that draft to Jack is my 5 recollection, because I remember that I was very 6 unhappy with that draft. I remember I did not sleep 7 very well. That night, did not sleep much at all. 8 Now, to add to this, I had to catch an 9 early a.m. flight out of the Columbus airport on 10 Friday in order to go to Chicago to meet with the 11 significant donor to a nonprofit of which I'm 12 chairman. So -- and I recall I ultimately although my alarm was set very early, I eventually 14 got up before the alarm, and I had decided at that 15 point in time that the decision I had reached was 16 simply not an tenable one, and that I was going to 17 have to rewrite one section of the brief, and then 18 come down in the opposite direction and would result 19 in the recommendation that the protest be sustained. 20 Q. But you did, in fact, on March 6th at 21 9:06 p.m. send this to Jack Christopher? 22 MR. ZEIGER: Would you, please, mark 23 this? 24 MS. COONTZ: When you say "this," it's

22 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 22 of 82 PAGEID #: not going to be clear on the transcript. I mean, do 22 2 you want to mark this or what -- 3 MR. BROWN: I am as soon as he 4 authenticates it. 5 A. Yes. I think that is an , 6 certainly identified as an to me, and, yes, I 7 remember sending him an along those lines. 8 MR. BROWN: Okay. And I'd like to mark 9 this as Plaintiff's Exhibit (EXHIBIT MARKED FOR IDENTIFICATION.) 11 Q. Okay. Brad, let's return to that 12 marked as Plaintiff's Exhibit 1. In that , you 13 say "Done;" correct? 14 A. Uh-huh. 15 Q. Which means that the report was finished? 16 MS. COONTZ: Objection. I -- if that's 17 what it means. 18 A. I don't know that that's what it means. 19 It means that I thought I reached a conclusion. 20 Obviously I didn't view the report as finished 21 because I didn't attach a copy of it, and as I noted 22 there, I had to do cleanup, spellcheck, and get it 23 shortly, and, of course, I never sent that to him. 24 Q. But you did send a final version at some

23 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 23 of 82 PAGEID #: point to Jack Christopher? 23 2 A. On the following morning, yes. 3 Q. And it would have been based on the 4 original you say that's done, I'm sorry, the 5 original document that you say is done in this 6 marked as Plaintiff's Exhibit 1? 7 MR. ZEIGER: Could you read that question 8 back for me please? 9 (The last question was read by the 10 reporter.) 11 MR. ZEIGER: Object to the form. 12 Q. I guess what I'm trying to get at, 13 Professor Smith, you did not simply start a brand 14 new A. No. 16 Q. -- document? 17 Which means the final document that you 18 did send to Jack Christopher is another draft of the 19 document that you claim you did not send to 20 Mr. Christopher? 21 A. That would be right. I would have 22 continued to work off that draft. 23 Q. So, it would be possible to go into the 24 final document you sent to Mr. Christopher and

24 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 24 of 82 PAGEID #: electronically discover the history? 24 2 A. I have no idea if that's the case or not. 3 Q. Can I get a copy of the final document in 4 electronic form that you sent to Mr. Christopher? 5 A. I should have that. I believe that would 6 be recoverable if I don't have it, but I assume I 7 have it on my computer. 8 MR. BROWN: Bridget, can you see that we 9 get a copy of that MS. COONTZ: I can see what I can do. 11 MR. BROWN: -- in its electronic form? 12 MS. COONTZ: I'll see what I can do. 13 MR. BROWN: Thank you. 14 Q. Since we don't have the original document 15 that you didn't send, please describe what was in 16 that original document. 17 A. Well, the report as I recall, and I don't 18 have it in front of me, consists of a couple parts. 19 First was a lengthy factory citation. 20 Then there was a part dealing with a 21 claim that certain members were not -- or certain 22 petition circulators were not eligible to circulate 23 petitions because they were not members of the 24 Libertarian Party. I don't believe that part would

25 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 25 of 82 PAGEID #: have been changed in any significant way And then there was the second claim that 3 certain petition or certain signatures gathered were 4 not eligible because the gatherers had not filled in 5 a box on the petition form that requires them to 6 state who paid them. And in that section I would 7 have altered the analysis to conclude that the 8 protest should be upheld, thus leading to the 9 recommendation that the Libertarian candidates would 10 not appear on the ballot. 11 Q. So, let me break it into parts. What was 12 your conclusion in relation to standing, the 13 protesters -- the unaffiliated protesters' standing 14 to preserve the challenge? 15 MR. ZEIGER: Object as to form. The 16 question does not indicate a time frame and is 17 ambiguous. 18 MR. BROWN: John, this is not even your 19 client. 20 MR. ZEIGER: I am entitled to make 21 objections when questions are clearly objectionable 22 and poorly put. 23 MR. BROWN: But you're wasting my time. 24 MR. ZEIGER: And I will continue to do

26 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 26 of 82 PAGEID #: so MR. BROWN: You're wasting my time. If 3 Bridget has an objection, let her raise it. If 4 Professor Smith wants to answer the question, let 5 him. 6 MR. ZEIGER: Professor Smith can answer 7 any question his counsel suggests to him, but you, 8 sir, will not dictate to me what objections I can 9 make on behalf of my client. 10 MR. BROWN: Your client's not here. 11 MR. ZEIGER: You know, if you had any 12 idea what you were doing, you might be a successful 13 lawyer. 14 Go ahead. I'm entitled to make 15 objections as to any improper questions put to any 16 witnesses in this matter. 17 THE WITNESS: Would this be a good time 18 to break for a minute or two or do you want to plow 19 ahead? 20 MR. BROWN: I'm ready to go. 21 MR. ZEIGER: Would you read back the 22 pending question, please? 23 (The last question was read by the 24 reporter.)

27 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 27 of 82 PAGEID #: MS. COONTZ: Can I ask you a question, 27 2 Mark? 3 MR. BROWN: Yeah. Go ahead. 4 MS. COONTZ: Are we talking about 5 the Linnabary -- which protesters? The Earl -- 6 Felsoci only? 7 MR. BROWN: Well, we're talking about all 8 of the -- actually, there was an unaffiliated 9 protester for Earl and there was an unaffiliated 10 protester for Linnabary. 11 MS. COONTZ: Okay. I just wanted to 12 clarify for purposes of the MR. BROWN: Either of those unaffiliated 14 protesters. 15 A. What time frame are you asking? 16 Q. I'm asking in conjunction with your draft 17 report and recommendation that you say on March 6th 18 at 9:06 p.m. is done. 19 A. My recollection would be that I had 20 concluded at that time that all of the protesters had 21 standing. 22 Q. Now, to the second part of the draft as 23 of March 6th, 2014 at 9:06 p.m., you then concluded, 24 am I correct, that the protest should still be

28 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 28 of 82 PAGEID #: dismissed. Why? 28 2 A. My recollection -- 3 MR. ZEIGER: Objection as to form. 4 A. My recollection, which is iffy, and if 5 the parts of the earlier drafts are recovered and 6 shows otherwise, I will apologize, but my 7 recollection is that at that time I concluded that 8 the protesters had standing, that the protesters' 9 claim that certain petitioners were not members of 10 the Libertarian Party and therefore not eligible to 11 circulate petitions should be rejected, and that the 12 question of completing the box should be rejected. 13 That's my recollection as to where I stood at the 14 point that I would have sent this to Jack and was 15 thinking that I was done. But, again, as I've 16 indicated, I had serious reservations about that 17 almost immediately, and for that reason, did not send 18 that report along and was not comfortable Q. Why did you conclude that the employer 20 statement box need not have been completed? 21 A. Well, I viewed the question as a question 22 of law, not really one of fact, one in which there 23 was simply two very murky opinions about what the 24 Ohio Supreme Court might rule or might control the

29 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 29 of 82 PAGEID #: outcome. And at that point, I guess with significant 2 reservations, I concluded that probably the better 3 reading was to say that the law did not require that 4 box to be completed for these particular circulators. 5 Q. Because they were independent 6 contractors? 7 A. I don't remember precisely if that would 8 have been the reasoning or whether it would have been 9 a little finer, but basically that, you know, we can 10 say that they didn't need -- that it did not need 11 completed. And I don't know if it would be because 12 they were independent contractors. I mean, that's I think that's the -- that was the basic thrust of 14 it. One can find nuances with how I might 15 characterize that, I guess. The bottom line holding 16 was that I felt that they would not have to complete 17 the box. 18 Q. Could it have been because you read the 19 Ohio Court of Appeals decision in the Evans case and 20 believed that that case distinguished between 21 independent contractors and employees? 22 MS. COONTZ: Objection as to form. 23 MR. ZEIGER: Join. 24 A. Well, at the time, as I've indicated, I

30 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 30 of 82 PAGEID #: was clearly looking at two decisions that really 30 2 pertained to that statute at all, the Evans case and 3 is it Rothen-something? What is it called? 4 Q. I think it was Rothenberger. 5 A. Rothenberger. And against the background 6 of, I guess, those two cases, and, yes, I concluded 7 that they didn't have to sign the box. I don't know 8 that I can say a whole lot more. They were 9 convoluted. I looked at those two cases. Obviously, 10 that would have been the decision I must have 11 reached. 12 Q. Professor Smith, you got it right the 13 first time. 14 MR. ZEIGER: Object. Argument. 15 A. Well, I was Q. That was a joke. 17 A. Yes. I think so. I was not happy with 18 that. 19 Q. And you slept on it and changed your 20 mind? 21 A. It would probably be more fair to say 22 that I did not sleep on it. I knew I had to get up 23 again very early to drive 2 1/2 hours, 3 hours 24 really, to Port Columbus to catch an early morning

31 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 31 of 82 PAGEID #: flight. I was operating on very little sleep. I had 2 been up very late Wednesday night, reading through 3 the transcript and thinking about it. And, again, I 4 remembered that I was very uncomfortable that night, 5 so I slept fitfully through the night and eventually 6 woke up before my alarm even though my alarm was set 7 at a very early hour. And at that point when I woke 8 up, I knew that I was not going to stick with that 9 decision. 10 Q. What time did you wake up? 11 A. I would probably reverse engineer that if 12 I knew when I -- if I double-checked that flight 13 departure time, but it was probably sometime around 14 three-thirty in the morning I would guess, maybe 15 four. I don't know. If would be awfully early. I 16 know I left the apartment at approximately 5 a.m., 17 and I would have been up by that time, since I would 18 have set my alarm for 40 minutes or an hour before, 19 and I woke up before the alarm. I would have been up 20 for some time, but those would be approximate 21 guesses. 22 Q. So, obviously, when you woke, you were 23 extremely tired? 24 A. Yes. It's fair to say I was tired.

32 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 32 of 82 PAGEID #: Q. Extremely groggy? 32 2 A. I don't know that I would say extremely 3 groggy, but, yes, I was tired. I don't think I was 4 groggy. I was tired. I very, very -- 5 Q. Probably not thinking clearly? 6 MS. COONTZ: Objection. 7 A. No, I would not agree. 8 Q. Subject to influence, perhaps, because of 9 your exhaustion? 10 MS. COONTZ: Objection. 11 A. No, I would not agree. 12 Q. Did you receive an from Jack 13 Christopher that morning at 3:30 a.m.? 14 A. I checked my right before I left 15 the house. I hadn't done it beforehand because you 16 would see -- you know, you don't usually get a lot of 17 s in the morning, but knowing I'd be running 18 and in the car, I decided to check my again 19 right before I left. And at that time, yes, I had 20 received an from Jack, so I would have opened 21 that . Again, I don't know, but it probably 22 would have been approximately 5 a.m. 23 Q. Is that the first you had received 24 from Mr. Christopher after stating to him that you

33 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 33 of 82 PAGEID #: were going to dismiss the protest? 33 2 A. I believe so, yes. 3 Q. And did he, in that , convince you 4 to change your mind? 5 A. No. 6 Q. Did Mr. Christopher disagree with your 7 conclusion? 8 A. No. 9 Q. Is this a copy of the you received 10 from Mr. Christopher at 3:30 a.m.? 11 A. Yes, I believe it is. 12 Q. Can you look at that second -- page 2, 13 Professor Smith, just to make sure that's accurate? 14 A. Again, I believe it is. 15 MR. BROWN: I'd like to mark this as 16 Plaintiff's Exhibit (EXHIBIT MARKED FOR IDENTIFICATION.) 18 Q. Professor Smith, can you look at that 19 for me? 20 A. Yes. 21 Q. This is the dated March 7th, 2014, 22 3:30 a.m. from Jack Christopher to Brad Smith. 23 A. (Inaudible.) 24 THE COURT REPORTER: Is that a "yes"?

34 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 34 of 82 PAGEID #: A. Excuse me. Would you ask the question 34 2 again? 3 Q. I'm just identifying the . 4 A. Yes. 5 Q. This is the dated March 7th, 2014, 6 3:30 a.m. from Jack Christopher to Brad Smith? 7 A. Okay. Yes. 8 Q. And in the text of that , does not 9 Jack Christopher go to great lengths to explain to 10 you why the Evans case requires that independent 11 contractors also fill in the employer statement box? 12 A. Well, I would MS. COONTZ: Objection as to 14 characterization. 15 A. I was going to say I would need the 16 characterization of the opinion there, but he does 17 voice his opinion of the case and suggest that 18 conclusion. 19 Q. And that's contrary to the conclusion you 20 had reached at 9:06 p.m. the night before? 21 MS. COONTZ: Objection. Misstates the 22 evidence. There's nothing in the record that 23 Professor Smith's conclusions had anything to do with 24 the Evans case. You can answer if you --

35 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 35 of 82 PAGEID #: MR. BROWN: Let me ask him again MR. ZEIGER: Note my objection. Also 3 misstates prior testimony. 4 Q. Well, let's go back to the testimony 5 then, Brad. In your draft that you did not send on 6 March 6th, 9:06 p.m., I know you don't have it in 7 front of you, but did you include a discussion of the 8 Evans case? 9 A. I believe that I did. 10 Q. And what was your conclusion about the 11 Evans case in that draft? 12 A. I believe I concluded that the 13 petitioners were not required to complete the box on 14 the back. 15 Q. And is Mr. Christopher's 16 inconsistent with that conclusion? 17 A. I think that would be a reasonable 18 characterization. He's voicing, yes. He's 19 commenting on Evans and would seem to conclude that 20 there should be disclosure. 21 Q. So, is it safe to say that you and 22 Mr. Christopher, judged by your draft on March 6th at 23 9:06 p.m., came to inconsistent, contradictory 24 conclusions about the Evans case?

36 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 36 of 82 PAGEID #: A. Again, I -- no. I don't think that's 36 2 entirely correct. Certainly, one can read it that 3 way, but I think the Evans case, we would all agree, 4 is very confusing. I think it's, perhaps, more 5 nuance than a yes/no switch. But I -- yes. That is 6 fairly -- obviously, as of that time frame, my 7 inclination was that the petition box did not need to 8 be filled in. And in this , Jack Christopher 9 seems to suggest that he reads the case to suggest 10 that that box should be completed. 11 MR. ZEIGER: "That time frame," referring 12 to the evening before? 13 THE WITNESS: My -- as of the time I sent 14 the that's marked as Plaintiff's Exhibit 1, I 15 obviously, because it would have been impossible for 16 me, otherwise, to come to a different conclusion on 17 the protest, believed that the box did not need to be 18 completed. 19 Jack Christopher's would suggest 20 that he interprets the Evans case to require that to 21 be done. 22 In doing both the draft and the final 23 report, I referenced the Evans case, the Rothenberger 24 case, and, I believe, some other legal authority, and

37 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 37 of 82 PAGEID #: I guess one might call them principles of logic and 37 2 deductions that one would pull out of them. 3 And when you asked the original question, 4 I believe, Counselor, you asked that Jack Christopher 5 disagreed with my conclusion in the -- in my 6 nine-o'clock draft. I don't think that's correct. 7 For one thing, again, he had not seen that draft, and 8 so I think that was an incorrect characterization. 9 Q. Did you think your draft was going to 10 upset Jack Christopher? 11 A. No. I -- no. No. I didn't -- in fact, 12 throughout this, Jack was perpetually, sort of, 13 differential to your conclusion, your decision, what 14 do you want to do. I felt that -- and my -- again, 15 here, I have to say, I am speculating. If my 16 attorney doesn't want to shut me off, I'm just 17 speculating. My sense was that Jack Christopher 18 viewed his job as getting a correct decision done on 19 a timely basis, but did not feel a -- he never 20 indicated to me any strong, vested interest in 21 anything other than a correct legal conclusion, and 22 he always deferred to me on that issue. He is not 23 who I was referring to when I say this will 24 disappoint a bunch of people. I think if that had

38 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 38 of 82 PAGEID #: been the case, I would have said this will disappoint 2 you, and that was not my thinking at all. 3 Q. Why did Jack Christopher send you an 4 at 3:30 a.m., discussing the Evans case in 5 such detail? 6 MS. COONTZ: Objection. Calls for 7 speculation. 8 MR. ZEIGER: Objection. 9 A. I have no idea. I presume that he, to 10 speculate like me, was having a sleepless night. 11 MR. ZEIGER: Move to strike. 12 Q. Wouldn't he have likely seen your 13 draft MS. COONTZ: Objection. Calls for 15 speculation. 16 Q. -- and therefore thought he had something 17 to add about the Evans case? 18 MS. COONTZ: Objection. Calls for 19 speculation. 20 MR. ZEIGER: Object. 21 A. I don't know how he would have. 22 Q. Just in the middle of the night, he 23 decided to get up and write about Evans? 24 MS. COONTZ: Objection. There's no

39 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 39 of 82 PAGEID #: question. There's no need to answer Q. What is the likelihood of that? 3 A. Apparently 100 percent, because he did. 4 Q. It does look strange, though, doesn't it, 5 Professor Smith? 6 MS. COONTZ: Objection. 7 MR. ZEIGER: Objection. Argumentative. 8 MR. BROWN: That was another joke. 9 MR. ZEIGER: Hard to tell. 10 MR. BROWN: You got to have a sense of 11 humor. 12 Q. Brad -- Professor Smith, after you 13 received this at 3:30 a.m., you sent an 14 back to Jack Christopher, apparently, at 4:56 a.m.; 15 am I correct? 16 A. There is -- Plaintiff's Exhibit 2 shows 17 me an that's marked at 4:56 a.m., so I guess 18 that would be the time. I had earlier said it would 19 be approximately 5 a.m., so that would be about 20 right. I note in that that I am in the car, 21 and I remember sending that while I was still 22 on the surface streets of Morgantown, so that was 23 very shortly after I had left the house. 24 Q. Do you know that's illegal?

40 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 40 of 82 PAGEID #: A. I don't know if it is in West Virginia or 2 not. 3 Q. You asked -- I'm sorry, Professor Smith. 4 You asked Jack Christopher to call you. Did he call 5 you? 6 A. Yes. 7 Q. How long did you speak with him? 8 A. I do not recall. 9 Q. Do you recall the context -- or I'm 10 sorry. Do you recall the conversation? 11 A. I recall the conversation only in general 12 terms. I told him that I was unhappy with the draft. 13 I think I -- I don't know if I used this exact term, 14 but I told him I was going to rule the opposite 15 direction of what I had indicated the night before. 16 I indicated -- we talked about time frame 17 because I told him, basically, I'm in the car. I 18 said, "I'll have some time to work on it at Port 19 Columbus Airport. I will have a bit of time when I 20 arrive in Chicago because I've got a little bit of 21 time before I have to catch another flight and I will 22 be able to work on it on the plane." 23 And we talked about what time I might get 24 him an actual draft of the report and whether that

41 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 41 of 82 PAGEID #: would meet the Secretary's need for releasing it and 41 2 so on, and what would happened if I couldn't get it 3 rewritten within that time frame, what we would be 4 looking at. 5 We also talked about our Bernese Mountain 6 dogs. Each of us own Bernese Mountain dogs. 7 We talked a little bit about hockey. 8 Jack is a big hockey fan I learned in the course of 9 our discussions. 10 We talked about the fact that we were 11 both up in the middle of the night. 12 Q. And what time did you finish your report 13 that day? 14 A. I don't recall. I sent Jack a copy of it 15 that morning, I believe, from the Chicago airport. I 16 think that is correct. And I asked him, at that 17 point, to -- before releasing it or giving it to the 18 Secretary, if they could have somebody to review it 19 for typographical errors, to make sure the page 20 numbering was consistent and so on, again, because I 21 knew that the document would, quite likely, become 22 public, because I did not have the time to do that 23 given my schedule. 24 And, again, as I point out throughout

42 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 42 of 82 PAGEID #: this, I have, you know, no staff, no secretaries, no 42 2 clerks to work on this, so essentially I asked him to 3 play that role in cleaning it up. I don't recall if 4 I asked him to run it by me again. I think I 5 probably did, but I don't recall. 6 Q. But it was in the morning that you sent 7 this final report to Mr. Christopher? 8 A. I think so, but I don't know off the top 9 of my head. I think you may have an there 10 that would refresh my memory. 11 Q. 10:55 a.m.? 12 A. I wouldn't deny that. If there's an 13 from me going out about that time with that 14 attached, then that would probably be the time. 15 Q. What time did you arrive in Chicago? 16 A. I don't recall. My flight, I think, was, 17 perhaps, an eight o'clock -- I don't recall if I was 18 on an 8 a.m. flight or a 7 a.m. flight. Of course, 19 then I would be on central time, and I don't know if 20 my computer, which was sending it off, was using that 21 central or eastern time, because I don't know how 22 those things work and so on. 23 Q. But you finished the report in the 24 airport? Is that what you testified to? I'm sorry.

43 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 43 of 82 PAGEID #: A. I remember -- I believe I remember 43 2 actually working on it in O'Hare Airport. It's 3 possible I finished on the plane, but my recollection 4 is that I worked on it in the O'Hare Airport. 5 Q. Do you remember how long it took you to 6 correct the draft, correct it from the version that 7 you didn't send on Thursday night? 8 MR. ZEIGER: Object as to form. 9 A. All I can say is that I would have had 10 some time in the Port Columbus Airport, and I don't 11 know how much time that was, whether it was minutes or an hour before boarding. I had -- you 13 know, it's about an hour-long flight. I'm trying to 14 recall. I had my computer open for about the moment 15 they said you can use electronic devices. And then I 16 believe I worked on it in the O'Hare Airport. And, 17 you know, if it was sent at 10:56, if that is the 18 correct time that it was sent, that probably means, 19 at least, an hour and a half or more at O'Hare. 20 Q. I'm not going to introduce this, but this 21 will refresh your memory on the time, I think. 22 A. Uh-huh. Okay. Again, this says it you sent me something which suggests 10:55 a.m. That 24 corresponds with my memory that it was in the

44 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 44 of 82 PAGEID #: morning, probably from O'Hare, but at the time, 44 2 again, I don't know when these dates are printed on 3 s, if that's now central time, if it's still 4 eastern time. So, I -- but obviously it was 5 sometime -- it would have been, what, either 11:55 6 a.m. or 10:55 a.m. if that's central time if I'm 7 figuring that right. Something like that is probably 8 correct. 9 Q. Okay. That's fine. I was just looking 10 for a basic time frame. 11 Let's return, just a minute, Brad -- how 12 is everybody doing? Anybody want a break? 13 A. I'm fine. 14 Q. Let's return, just a minute, to the bunch 15 of people that you disappointed or that you 16 threatened to disappoint by dismissing the protest. 17 MS. COONTZ: Objection as to 18 characterization. 19 MR. ZEIGER: Join. 20 Q. Who is in that bunch? 21 A. I think that this is a general comment. 22 I'm giving a heads-up to the folks who are going to 23 have to make a quick decision. The Secretary's going 24 to have to make a very quick decision, and he's going

45 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 45 of 82 PAGEID #: to have to look at this and decide very quickly if he 2 wants to adopt this recommendation or not. And, you 3 know, I see this was more as, you know, I'm tired, 4 it's late at night. 5 I've developed, I think, by this point, a 6 cordial and pleasant working relationship, 7 professional relationship with Jack Christopher, and 8 I don't think this is a prediction on my part or 9 review that there are particular people who I'm 10 concerned with; rather, as I indicated earlier, one 11 would have to be pretty stupid, with no knowledge of 12 politics, to think that however one decides this, it 13 would be -- there would be people who would be 14 disappointed. 15 And, again, it does not take any great 16 political insight and certainly no -- it does not 17 take any political insight to understand that many 18 people within the Republican Party wanted the protest 19 to succeed. And so I think it's just a general 20 recognition that, you know -- how we rule on this is 21 going to leave some people upset, but this is what I 22 think I'm going to do. 23 Q. What makes you think the Republican Party 24 would be upset?

46 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 46 of 82 PAGEID #: MR. ZEIGER: Object. Calls for the state 2 of mind of the third party. 3 A. Well, all I can say is that there are -- 4 again, I don't know -- I can't speak to any 5 particular individual, but it was, I think, well 6 known that, and it came out in the testimony at the 7 hearing, that the elements of the Democrat Party had 8 worked very hard to help get the Libertarian 9 candidates on the ballot, and I think the logical 10 corollary is that Republicans were not particularly 11 interested in seeing the Democrats -- or I'm sorry the Libertarians on the ballot. 13 So, again, this is not any inside 14 information. This is not anybody I've talked to. 15 This is not anything anybody has said to me or 16 signaled to me. It's just a recognition, just as I'm 17 sure, for example, that, you know, when John Roberts 18 put the final, you know, period on his opinion in the 19 Affordable Care Act case, he knew he was going to 20 anger a lot of people and he would -- had he ruled 21 otherwise, he would have angered a lot of people as 22 well. 23 Q. Back to the bunch of people. The bunch 24 of people you're discussing, they're people within

47 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 47 of 82 PAGEID #: the SOS, aren't they? 47 2 A. No. 3 MS. COONTZ: Objection. Asked and 4 answered. 5 A. No. 6 Q. Your bunch of people included anyone in 7 the world? 8 A. No. 9 Q. Did the bunch of people include Halle 10 Pelger? 11 A. I don't know who Halle Pelger is. 12 MS. COONTZ: Objection. 13 Q. How about Brandi Seskes? 14 A. No. Brandi -- is she -- well, I believe 15 I met Brandi in the course of this. I believe she 16 might have helped with some of the logistics, but I'm 17 not entirely sure that I know who she is. I think 18 maybe I know. Certainly she would not -- no. She 19 would not have been a person I was thinking of if she 20 is the person who I think maybe she is. 21 Q. How about Jon Husted? Would he have been 22 disappointed? 23 A. I have no idea. 24 Q. Mike DeWine? Would he have been

48 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 48 of 82 PAGEID #: disappointed? 48 2 A. I do not know. 3 Q. John Kasich? 4 A. I do not know. 5 Q. But there were a bunch of people, you 6 just don't know? 7 A. I don't know who. As I said, this was 8 not done with any specific intent or, again, on the 9 basis of anything anybody had said. 10 Q. How about John Zeiger? Would he have 11 been disappointed? Would he have been in the bunch? 12 MR. ZEIGER: Calls for the state of mind 13 of a third party. Object. 14 A. Well, I can objectively state that 15 Mr. Zeiger, whom I had never met before the day of 16 the hearing, was the attorney for the protesters, and 17 I think, again, one does not need to have a sixth 18 grade degree or diploma, or completed sixth grade, I 19 guess, to maybe draw conclusions. I don't see the 20 relevance of that. 21 Q. Do you know who hired Mr. Zeiger to 22 represent Mr. Felsoci? 23 A. No, I do not. 24 Q. Shot in the dark, how about Matt

49 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 49 of 82 PAGEID #: Damschroder? Would he have been upset with your 49 2 initial decision? 3 MS. COONTZ: Objection. Asked and 4 answered. 5 MR. ZEIGER: Same objection. Calls for 6 the state of mind of a third party. 7 A. I don't think so. 8 Q. Why? 9 A. Because what was very clear to me in our 10 first conversation, with Matt and Jack in my first 11 phone conversation, was that they wanted somebody to 12 give them a good, fair, impartial decision, and that 13 was what they wanted, and somebody who had the 14 credibility that they would not be subjected to 15 baseless attacks that they were doing this as a 16 political hack. I think that they were very sincere 17 and wanted the case handled appropriately and fairly 18 under Ohio law. 19 MR. BROWN: Well, we are an hour into 20 this. How about a quick break and then I've got just 21 a few more questions? 22 MS. COONTZ: Sure. That's fine. 23 MR. BROWN: John, you good with that? 24 MR. ZEIGER: You're asking questions at

50 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 50 of 82 PAGEID #: the moment. Whatever works for you is fine with me (Recess taken.) 3 MR. BROWN: We're back. 4 Q. Professor Smith, thank you for your 5 patience. Just a few more questions. And I hate 6 to -- hate to beat a dead horse, but let's, if we 7 can, return to Plaintiff's Exhibit 1. 8 A. Yes. 9 Q. Which is your to Jack Christopher, 10 on March 6th, 2014 at 9:06 p.m. You state in that 11 that all you need to do is a bit of cleanup 12 and a spellcheck? 13 A. Yes. 14 Q. Which indicates that the document really 15 is done? 16 A. If that's how one wants to characterize 17 it. 18 Q. But you state it's done? 19 A. Yes. 20 MS. COONTZ: Objection. Mischaracterizes 21 the , and I believe that was asked and 22 answered. You can answer. 23 MR. KAFANTARIS: I think he said "yes." 24 A. I begin by saying "Done."

51 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 51 of 82 PAGEID #: Q. So, we have a finished report that 51 2 restores the Libertarian Party candidates to the 3 ballot. 4 MS. COONTZ: Objection. Mischaracterizes 5 the evidence. You can answer it however you -- 6 A. Was there a question or was there more to 7 come? 8 Q. That's a comment. Let me turn it into a 9 question. Did you have a finished report that 10 restored the Libertarian Party candidates to the 11 ballot? 12 A. No. As I indicated here, it needed some 13 cleanup and spellcheck, and before I submitted it, I 14 obviously changed my conclusions. 15 MS. COONTZ: Objection. I would also 16 object to the basis that it mischaracterizes the 17 evidence. The evidence talks -- or the talks 18 about a protest, not putting anybody on the ballot or 19 that the hearing officer had that authority. 20 Q. In your March 7th to Jack 21 Christopher, which apparently conveyed the new final 22 report, you also state that it simply needs to be 23 cleaned up clerically, so was that not a final 24 report?

52 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 52 of 82 PAGEID #: A. No. In my mind -- well, it depends on 52 2 how one wants to characterize final. In my mind, 3 when I sent it to the Secretary, that made it, pretty 4 much, a finished product, although I think -- I don't 5 know. I don't -- I don't know that I would have 6 thought if I had some other second thought, but I 7 never did at that point. I asked it to be cleaned up 8 because, again, it had been done under very tight 9 time constraints, without secretarial support, and 10 without me having a time at all to go back and make a 11 final review, so -- but that was the report that I 12 submitted to the Secretary. And at what point does 13 it become a final report, I guess that, to me, is 14 when it becomes a final report, but. 15 Q. But the fact that it needs to be 16 clerically cleaned up, doesn't render it any less 17 final, does it? 18 MS. COONTZ: Objection. Asked and 19 answered. 20 A. Yes. Well, I don't think that's the 21 point. I think the point is whether or not the 22 report is actually submitted to the Secretary of 23 State. 24 Q. And your testimony is that you never

53 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 53 of 82 PAGEID #: submitted the initial final report that you 53 2 referenced in your March 6th memo? 3 A. I believe that's the case. I don't 4 recall doing that and I have no record that suggests 5 that I did that. And I remember I was very unhappy 6 with the decision at the time. I remember I called 7 my wife and told her I was very unhappy with the 8 decision, and I didn't know if I should do it. 9 She said, "Do what you think is right and 10 send a right answer in," and so. 11 Q. If we discovered that you did send that 12 report to Mr. Christopher, would that change your 13 testimony? 14 MR. ZEIGER: Objection. 15 MS. COONTZ: Objection. 16 A. Well, if it were shown that I did, it 17 would certainly change my testimony as to whether I 18 did or did not, but it would not change my testimony 19 as to the unhappiness I had with the decision and the 20 decision which was mine alone to issue a final report 21 as I did, recommending that the Secretary uphold the 22 protest. 23 Q. Why did you send this memo, this , 24 on March 6th at 9:06 p.m. --

54 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 54 of 82 PAGEID #: MS. COONTZ: Objection. Asked and 54 2 answered. 3 Q. -- to Jack Christopher? 4 MR. ZEIGER: Joined. 5 A. I do think I've asked and answered that. 6 The reason is again that essentially I felt it was a 7 nice courtesy given the rough time frames we were all 8 engaged in to give them as much heads-up as possible 9 as to, you know, that something was going to be 10 coming, and they might start preparing for that. 11 Q. If you were so unhappy with it, why did 12 you not wait until the morning? 13 A. Because I knew I was going to have to 14 leave the house at about 4 or 5 a.m., or earlier or 15 later, but around that time. And, in other words, I 16 felt tremendous pressure to get it done on that 17 Thursday evening so that the decision could be made 18 on Friday, which was the deadline the Secretary has 19 to make a decision if we're going to make everything 20 work under the Ohio statutes. 21 Q. How much time did you put in on it on 22 Thursday? 23 A. Well, as I mentioned earlier, I had my 24 morning -- I worked on it Wednesday in the sense of

55 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 55 of 82 PAGEID #: looking at the cases, looking at the transcript, 55 2 jotting down, I presume, some notes here and there. 3 On Thursday, I had my morning class, I had some 4 meetings with students, and it's probably fair to say 5 I worked on it for -- I mean, if I sent this to Jack 6 at 9:06 p.m., I probably worked on it for eight to 7 nine hours, would be my guess, almost nonstop from 8 the point at which I left the law school and went 9 back to my apartment to work on it. 10 Q. So, you put an enormous amount of effort 11 and time into this report? 12 A. Yes. It took quite a while to draft up 13 the factual matters and have to refer back to the 14 transcript. Like I said, I have no staff to do that, 15 so I spent a lot of time actually just doing that and 16 a lot of time looking at the case law and really 17 trying to determine from these cases what I thought 18 was the best legal conclusion. 19 Q. And you're a smart guy. 20 A. Thank you. 21 Q. I know that. So, you were, I'm sure, 22 relieved, happy to have finished this report? 23 A. Yes. 24 Q. Do you often change your mind overnight?

56 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 56 of 82 PAGEID #: A. Yes Q. Any examples? Had you done that in any 3 other cases you worked on? 4 A. Well, I've -- well, okay. Let's see. 5 Yes. I've done that on some very large cases at the 6 Federal Election Commission. I don't know that I 7 could name specific cases, but I know that there have 8 been some where I simply felt uncomfortable. Some 9 were involving regulations rather than cases. Some 10 were involving cases. I go home and think about 11 things more. Again, this was all done within a very 12 tight time frame that didn't leave a lot of room for 13 one to think about it as much as I would have liked. 14 Q. I mean, I'm looking at your time sheet, 15 and according to your time sheet, you put over almost hours into this report. 17 A. Okay. 18 Q. And then just changed your mind 19 overnight? 20 A. Yes. 21 Q. For no reason other than you changed your 22 mind? 23 MR. ZEIGER: Object. Misstates. 24 Argumentative.

57 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 57 of 82 PAGEID #: A. No. It was not for no reason. the 57 2 reasons would be those given in the final report that 3 was submitted to the Secretary of State. 4 Q. Did you collaborate with anyone on this 5 report? 6 A. No. As I've indicated, one of the real 7 difficulties is that there was essentially nobody to 8 bounce ideas off of, no clerks to give me opinions on 9 a better reading of a case or to find evidence that 10 might be hard for me to find in a record or what have 11 you. 12 Q. Except for Jack Christopher? 13 MS. COONTZ: Objection. There's no 14 question. You don't need to answer. 15 Q. Except for Jack Christopher? 16 MS. COONTZ: Objection. 17 MR. ZEIGER: Note an objection for lack 18 of foundation. 19 MR. BROWN: Are you telling him not to 20 answer the question? 21 MS. COONTZ: There is no question to 22 answer. 23 A. I don't know what the question is. 24 Q. Jack Christopher did collaborate with you

58 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 58 of 82 PAGEID #: on this final report; correct? 58 2 MS. COONTZ: Objection. Asked and 3 answered. 4 A. No. Jack did not collaborate with me on 5 this final report. 6 Q. Then why did Jack Christopher send to 7 you, on March 7th at 3:30 a.m., a lengthy analysis of 8 the Evans case? 9 MS. COONTZ: Objection. Calls for 10 speculation. Asked and answered. If you know. 11 MR. ZEIGER: Object as to form. Calls 12 for the state of mind of third parties. 13 A. I don't know. 14 Q. Did Mr. Christopher's 3:30 a.m., March 15 7th factor into your new final report? 16 A. No. 17 Q. Not at all? 18 MS. COONTZ: Objection. 19 Q. Withdraw the question. Did you read the 20 3:30 a.m. from Jack Christopher? 21 A. As I said, I read it just before I left 22 the house. I remember being stunned to find that 23 in my box. Usually, you're just clearing out 24 the trash that comes in overnight. And, again,

59 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 59 of 82 PAGEID #: judging by the time that I sent him a message from my 2 car, I must have read it a few minutes before 5 a.m. 3 Q. Did you happen to have any communications 4 with Mr. Christopher before March 6th about your 5 resolution of the case? 6 A. I'm not quite sure how to answer that. 7 If you mean my resolution of the case, how I was 8 going to rule on the substance -- 9 Q. Yes, that's it. 10 A. -- the answer is no. I did have 11 conversations with him about the timing of, you know, 12 when it needed to be done, what the format needed to 13 be, what would be beneficial to the Secretary in 14 terms of a format that he could deal with easily and 15 so on. 16 Q. So, Mr. Christopher is clairvoyant? 17 MS. COONTZ: Objection. You don't need 18 to answer. 19 Q. He just, all of a sudden, for no reason 20 at all, sent you an ? 21 MS. COONTZ: Objection as to the 22 question. 23 MR. ZEIGER: I'm going to note that this 24 is argumentative, improper questioning, not

60 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 60 of 82 PAGEID #: appropriate MR. BROWN: Brad's a friend of mine. He 3 knows to some extent I'm teasing him. 4 MR. ZEIGER: This isn't about friendship. 5 This is a legal proceeding and you ought to treat it 6 as such. 7 MR. BROWN: You should too, John. 8 MR. ZEIGER: I am. 9 MS. COONTZ: Wait. Is there a question? 10 Q. Well, the question is, again, why did 11 Mr. Christopher send you this lengthy ? 12 MS. COONTZ: Again, asked and answered. 13 MR. ZEIGER: Object as to form. Calls 14 for the state of mind of the third party. Improper 15 question. Improper form. 16 MR. BROWN: It just doesn't add up. It's 17 like Foghorn Leghorn. It don't add up. 18 MS. COONTZ: Objection. Move to strike. 19 Argumentive. 20 MR. ZEIGER: Join. Also note objection 21 to facial expressions by counsel to the witness are 22 inappropriate. 23 MR. BROWN: Well, I've got to comment on 24 that because I have no idea what you're talking

61 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 61 of 82 PAGEID #: about, John MR. ZEIGER: Well, you ought to look in 3 the mirror then. If you have a question, ask the 4 question, but let's not be making faces at the 5 witness and let's not be challenging the witness with 6 argumentive stuff. Let's ask questions about facts. 7 MR. BROWN: Since this is on the record, 8 Bridget, have I been making strange faces at Brad? 9 MS. COONTZ: I am not -- we're here to 10 ask questions. Just ask questions of the witness so 11 we can get this deposition wrapped up. 12 MR. BROWN: I agree. So, I'd ask 13 Mr. Zeiger to, please, quit injecting extraneous 14 matters into the deposition. 15 MR. ZEIGER: I haven't injected any 16 extraneous matters into the deposition. Appropriate 17 questions would move the deposition along in an 18 appropriate way. 19 Q. Brad, were you paid to act as the hearing 20 officer in this case? 21 A. Yes. 22 Q. Do you remember how much? 23 A. I believe -- my recollection was $250 per 24 hour, I think.

62 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 62 of 82 PAGEID #: Q. Do you remember roughly what your final 62 2 bill was? 3 A. I believe it was in the neighborhood of 4 $15, Q. In your final report, you did conclude 6 that the unaffiliated protesters had standing to 7 challenge the Libertarian candidates? 8 A. Yes. 9 Q. Was that your conclusion from the 10 beginning? 11 A. I believe I answered earlier, yes. 12 Q. Were you made aware that at least two 13 lawyers in the Secretary's office had rendered 14 opinions that they did not have standing? 15 A. No. 16 MS. COONTZ: Objection. 17 A. I'm sorry. 18 MR. ZEIGER: Add an objection as to lack 19 of foundation. 20 Q. Do you know Gretchen Quinn? 21 A. She may have been one of the attorneys or 22 one of the people working in Jack Christopher's 23 office. I don't know. 24 Q. Do you know Matt McClellan?

63 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 63 of 82 PAGEID #: A. No. I cannot say I do MR. BROWN: Just one more thing. I know 3 that Bridget and I have talked about this. We were 4 delivered over 100 s this morning and we have 5 not had the opportunity to go through all of those 6 s. So, Bridget, I think we agree that this 7 deposition will continue. 8 We may not have to do anymore, Brad, but 9 just in case, I reserve the right to call you again 10 to finish up the deposition. 11 MS. COONTZ: No objection. 12 THE WITNESS: I always enjoy our time 13 together, my colleague. 14 MR. BROWN: With that, I have no further 15 questions today. 16 MS. COONTZ: I have some questions for 17 the witness DIRECT EXAMINATION 20 BY MS. COONTZ: 21 Q. Professor Smith, we've had a lot of talk 22 about the fact that you essentially change your 23 initial decision in this case; is that correct? 24 A. Yes.

64 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 64 of 82 PAGEID #: Q. What portion of your decision did you 64 2 change? We talked about the standing issue. 3 A. My recollection is the only portion that 4 changed was my analysis of the box issue, for want of 5 a better term, where the circulator needs to fill in 6 employer information in a box on the back of a 7 petition. 8 Q. And did you change your conclusion with 9 respect to the employer box before or after receiving 10 Jack Christopher's ? 11 A. Before. 12 Q. Did you ever give any indication to Jack 13 Christopher when you sent Plaintiff's Exhibit 1 that 14 your initial decision was based on the Evans case? 15 A. Not that I'm aware of, no. 16 Q. When you were contacted to serve as the 17 hearing officer in this case, did Jack Christopher or 18 Matt Damschroder give you any indication as to how 19 they wanted you to decide in this case? 20 A. No. As I believe I had said earlier, 21 there was, not only not in that conversation, but in 22 no conversation did either of those individuals or 23 anyone else indicate how they wanted me to decide the 24 case.

65 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 65 of 82 PAGEID #: Q. If anyone had told you how to decide this 2 case, would you have listened to them? 3 A. Well, certainly, I would not have taken 4 the position had it been done before I agreed to take 5 it. After I agreed to serve, I don't -- not only 6 think I would not -- I would not have listened to 7 them. I think I would have been rather upset by 8 that. 9 Q. So, just to be clear, did anyone tell you 10 how to decide this case? 11 A. No. 12 Q. On what did you base your decision? 13 A. My reading of the law and I would say the 14 facts of the case, but as I indicated in my report, 15 reviewed these ultimately as legal questions. It was 16 my reading of the law as set forth in that final 17 report. 18 Q. Now, in Plaintiff's Exhibit 1, you talk 19 about disappointing people, and that was referring to 20 denying the protest; correct? 21 A. Yes. 22 Q. Did you feel that if you upheld the 23 protest, you would also be disappointing people? 24 A. Yes.

66 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 66 of 82 PAGEID #: Q. Did that affect your decision to serve as 2 a hearing officer in this case? 3 A. No. As I had indicated, I gave some 4 thought before that to the fact that no mater how one 5 rules, there are going to be disappointed people, and 6 I felt that there would be people who would be people 7 I -- you might say I did not want to disappoint in 8 the sense that I am very sympathetic to small 9 parties, third parties. I am very sympathetic to 10 Libertarian ideas. I normally describe myself as a 11 Libertarian. At the same time, I generally vote 12 Republican, so for me, it was as -- it was not a 13 sense that I could disappoint a lot of people whose 14 opinions I didn't care about. Either ruling would 15 disappoint people whose opinion, by and large, to 16 some level, I do care about. 17 But in the end, that was not a factor in 18 deciding to take it, and thus not a factor in 19 deciding to -- it was a factor I discounted in 20 deciding to take it and, therefore, could not have 21 been a factor in deciding to rule on it. I knew that 22 came with the territory. 23 Q. Have you ever have any conversations with 24 the Secretary of State Husted about this particular

67 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 67 of 82 PAGEID #: case? 67 2 A. No. 3 Q. Have you had any conversations with 4 Attorney General DeWine about this case? 5 A. No. 6 MS. COONTZ: I have nothing further at 7 this time. 8 MR. ZEIGER: I have some questions EXAMINATION 11 BY MR. ZEIGER: 12 Q. Sir, Mr. Felsoci, my client, did not 13 appear at the protest hearing, did he? 14 A. No. 15 Q. Have you ever met or talked with 16 Mr. Felsoci? 17 A. No. 18 Q. At any time other than the course of the 19 protest hearing and today's deposition, have you ever 20 met with or talked to any of the legal counsel for 21 Mr. Felsoci? 22 A. Not to my knowledge. 23 Q. And other than during the course of that 24 protest hearing, have you ever spoken with anyone

68 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 68 of 82 PAGEID #: that you understood to represent Mr. Felsoci, whether 2 a lawyer or otherwise? 3 A. No. 4 Q. Sir, the protest was involving, not only 5 the Libertarian candidate or candidates for governor 6 and lieutenant governor, but also the candidate for 7 attorney general? 8 A. If that was what Mr. Linnabary was 9 pursuing, then that was correct. 10 Q. And Mr. Linnabary -- well, strike that. 11 Your report and recommendation as you 12 finally submitted it to the Secretary of State was, 13 in fact, adopted by Secretary of State Husted? 14 A. I believe that is correct. 15 Q. And was the adoption of your 16 recommendation and report by Secretary of State 17 Husted challenged by Mr. Linnabary in the Ohio 18 Supreme Court? 19 A. I don't know. I have -- I believe that 20 is the case, but I haven't paid that much attention. 21 I know there was some Ohio Supreme Court decision 22 that essentially upheld the Secretary of State's 23 determination, and I know that there was some 24 preliminary decision from the Federal District Court

69 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 69 of 82 PAGEID #: that upheld that, but I have not really paid a whole 69 2 lot of attention to what exactly they said. 3 Q. Are you aware, sir, that the Ohio Supreme 4 Court expressly upheld your conclusion that 5 independent contractors were required to disclose the 6 identity of the person employing them to collect 7 signatures under Revised Code (E)(1)? 8 A. Well, I don't know if I was aware that 9 they had expressly ruled on that point, but, as I 10 indicated, I was, at least, generally aware that they 11 upheld the Secretary's decision, which obviously he 12 had adopted my report. 13 Q. Were you aware that the Ohio Supreme 14 Court ruled that there had to be, quote, strict 15 compliance, end quote, with Revised Code Section (E)(1) by people soliciting petition 17 signatures? 18 A. As it pertains to this case? 19 Q. Uh-huh. 20 A. No. Again, I did not read that Ohio 21 Supreme Court decision. That may surprise people, 22 but I did not. I've learned long ago to read as 23 little as one can of criticisms that are made of you 24 or that might be made of you, or things that you can

70 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 70 of 82 PAGEID #: no longer change or address Q. Are you aware, sir, that the Ohio Supreme 3 Court upheld your conclusion that in the absence of 4 compliance with RC (E)(1), that petitions are 5 defective and legally invalid? 6 MR. KAFANTARIS: Objection to the 7 characterization. The decision speaks for itself. 8 MR. ZEIGER: You may answer. 9 A. Again, I'm aware of the general 10 conclusion of the Ohio Supreme Court that upheld the 11 Secretary's decision. 12 Q. And upheld your report and recommendation 13 of the conclusions of your report and recommendation 14 to Secretary Husted; correct? 15 A. Well, the Secretary adopted my report in 16 total, so I guess that would be correct. 17 MR. ZEIGER: Thank you. I have no 18 further questions. 19 MR. BROWN: Just a quick redirect RECROSS-EXAMINATION 22 BY MR. BROWN: 23 Q. On one of the s, Professor Smith, 24 your final document is described as Recommendation

71 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 71 of 82 PAGEID #: Report 2, WordPerfect document, and implies -- does 71 2 that imply that there is a Recommendation Report 1? 3 MR. ZEIGER: Note an objection, outside 4 the appropriate scope of recross-examination. Also, 5 that Counsel keeps referring to documents that the 6 Counsel has not identified -- 7 MR. BROWN: John, I reserve the right to 8 continue this deposition, so this -- 9 MR. ZEIGER: Would you mind not MR. BROWN: -- redirect stuff MR. ZEIGER: Would you mind not 12 interrupting, please? 13 MR. BROWN: You quit interrupting. 14 MR. ZEIGER: I'm not interrupting. I'm 15 stating an objection. 16 MR. BROWN: Let me finish the deposition, 17 dude. 18 MR. ZEIGER: Excuse me, but I am entitled 19 to express an objection. 20 MR. BROWN: Go for it. 21 MR. ZEIGER: I was in the middle of it 22 until you inappropriately interrupted. Courtesy 23 should be extended. 24 As I said, you are now referring to a

72 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 72 of 82 PAGEID #: document that you've referred to twice previously You have not indicated in the record that you have 3 identified the document, and you are asking the 4 witness to answer questions about a document that you 5 have failed to identity properly. I would appreciate 6 it if you would use a proper procedure, identify the 7 document, put the document in front of the witness, 8 and allow the witness to respond appropriately. 9 Q. Brad, the document is not here. We're 10 looking for the document and that's why I ask this 11 question. 12 MR. ZEIGER: That's not, in fact Q. The document MR. ZEIGER: -- correct. You have the 15 document in front of you. 16 Q. -- the Recommendation Report 2 document. 17 My question was does that imply there is a 18 Recommendation Report 1 document? 19 MR. ZEIGER: Note an objection. The 20 questioner is holding a document marked March 5, , 10:55 a.m. . He has declined to identify 22 it and declines to put it in front of the witness. 23 A. I'm not sure right now what's going on 24 and what document --

73 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 73 of 82 PAGEID #: Q. I'm not either A. -- he's looking at, and -- okay. This is 3 not a March 5 document. It was a March 7 document. 4 All right. Yes. And this is the -- it 5 appears to be the that I sent to Jack with my 6 final report, as I said I believe, sent from O'Hare 7 Airport in Chicago. I cannot state what I was 8 thinking. I'm not very good at having organized 9 systems of filing things. It could be that, you 10 know -- there could have been a Recommendation Report There might not have been. Recommendation Report 12 1 might have been nothing more than something that I 13 had captioned inappropriately and just decided to 14 start over. If there was a Recommendation Report 1, 15 I just do not know, but we will turn over to you that 16 which is appropriate to be turned over and can be 17 found. 18 Q. That's all I ask. I was just trying to 19 figure out if maybe there were A. At least I assume we will do that. I 21 shouldn't speak for my counsel. 22 MS. COONTZ: Absolutely. 23 MR. BROWN: If there are two, could you 24 give us both?

74 Case: 2:13-cv MHW-TPK Doc #: Filed: 09/24/14 Page: 74 of 82 PAGEID #: MS. COONTZ: Yes. We'll discuss what's 74 2 out there and whatever exists. 3 MR. BROWN: That's all I was trying to 4 get at. I have no further questions. 5 MR. ZEIGER: Before we conclude the 6 deposition, I will tender to the reporter the 7 from Brad Smith, dated March 7th, 2014 at 10:55 a.m., 8 that was put before the witness but not appropriately 9 identified. I'm identifying it as Deposition Exhibit 10 3 and would indicate that this is the document in 11 front of the witness during the last series of 12 questions. 13 MR. BROWN: You can do whatever you want, 14 John. 15 MS. COONTZ: We can go off the record. 16 (Discussion off the record.) 17 THE COURT REPORTER: Would the witness 18 like to read? 19 MS. COONTZ: Yes. 20 (The deposition concluded at 3:40 p.m.)

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