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IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA


Alexandria Division

THE NATIONAL ORGANIZATION FOR )
MARRIAGE, INC., )
)
Plaintiff, )
)
v. )
)
UNITED STATES OF AMERICA and )
INTERNAL REVENUE SERVICE, )
)
Defendant. )
_______________________________________)

Case No. Case 1:13-cv-01225-J CC-IDD


REPLY IN SUPPORT OF THE UNITED STATES OF AMERICAS
MOTION FOR SUMMARY JUDGMENT

The unmistakable gravamen of Plaintiffs Verified Complaint, its sworn discovery
responses, and its deposition testimony was the alleged existence of a conspiracy stemming from
inside the Internal Revenue Service and involving other unknown individuals, the purpose of
which was the intentional release of Plaintiffs amended 2008 Form 990, Schedule B, i.e., its list
of donors. This view of the case extended to the very last day of discovery, when the United
States took Plaintiffs deposition. DEX 26 at 50-69. Now in the face of a motion for
summary judgment Plaintiff has not only changed its tune but its entire musical genre by
dropping that claim entirely. In its response, Plaintiff failed to mention a conspiracy or its earlier
position that the disclosure was willful. Instead, Plaintiff, for essentially the first time in this
litigation, identified new facts for an alternative theory of the case: that the disclosure of its 2008
Schedule B without the proper redactions was inadvertent, but the result of gross negligence.
Not only is Plaintiffs disclosure of these new facts and theories completely improper
under Fed. R. Civ. P. 37(c)(1), but these facts do not defeat the governments motion for
summary judgment, because, even if true, these facts could not support a finding that the
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accidental release of Plaintiffs 2008 Schedule B rose to the level of gross negligence. Neither
do these facts create any genuine issues of material fact, which could necessitate a trial. Finally,
regarding Plaintiffs response related to its claim of actual damages, Plaintiff does not seriously
dispute the governments arguments on causation, and merely claims that proximate causation is
best left for trial. Moreover, while Plaintiff cited the collateral source rule as a legal bar to the
governments claim of mitigation, the collateral source rule does not apply here because the
United States sovereign immunity has not been waived in this instance with regard to the
collateral source rule, and it otherwise does not apply. Finally, Plaintiff has failed to demonstrate
a genuine issue of material fact relating to proximate causation, making a trial unnecessary.
ARGUMENT
As an initial matter, Plaintiff appears to misunderstand the standards effective in
responding to summary judgment, and thus has failed to adequately carry its burden. Where the
non-moving party will bear the burden of proof at trial, the moving partys obligation is satisfied
upon a showing that there is a lack of evidence to carry the non-moving partys burden on any
essential element of its cause of action. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). Then the nonmoving party must rely on more than conclusory allegations, mere
speculation, the building of one inference upon another, or the mere existence of a scintilla of
evidence in order to avoid summary judgment. Dash v. Mayweather, 731 F.3d 303, 311 (4th
Cir. 2013). Plaintiff must go beyond the pleadings and mere allegations and produce some
specific, material evidence that could support a verdict in its favor. Id.; Celotex, 477 U.S. at 321
n.3. Moreover, the mere existence of some alleged factual dispute cannot defeat a summary
judgment motion the dispute must be both material and genuine, meaning it must be
capable of changing the outcome of the lawsuit. See Bryant v. Bell Atlantic Maryland, Inc., 288
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F.3d 124, 132 (4th Cir. 2002); Sibley v. Lutheran Hosp. of Md., 871 F.2d 479, 483 (4th Cir.
1989) (Murnagan, J ., concurring) (a few isolated disputed facts does not preclude summary
judgment). Applying these proper standards, the Court should grant the United States motion in
all respects.
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I. Plaintiffs New Claims Regarding Unlawful Inspections by Authorized IRS
Employees, Which Occurred After the Publication of Plaintiffs 2008 Schedule B,
Lacks Support as Does Its Claim that Ms. Peters Inspection Preceding the
Disclosure was Unauthorized
In its response to the governments interrogatories, Plaintiff identified only one potential
unauthorized inspection the one that preceded the disclosure of its amended 2008 Form 990,
Schedule B (2008 Schedule B), i.e., Ms. Peters inspection that immediately preceded the
inadvertent disclosure at issue in this case. See Dkt. 68, DEX 1 at 11-12; see generally Dkt. 1
(discussing allegations of inspection or inspections in connection with and before the disclosure
of the 2008 Schedule B only). Plaintiff now claims an indeterminate number of potentially
unauthorized inspections occurring after IRS personnel learned that Plaintiffs 2008 Schedule B
had been disclosed. As described more fully below, Rule 37(c)(1) bars Plaintiff from making
these untimely allegations now, after the close of discovery and in a last-ditch effort to save its
lawsuit. See, infra, part II.
But in any event, the Rule 56 standards enunciated above clearly require Plaintiff who
has the burden of proving that each of these inspections was somehow unlawful and either
willful, grossly negligent or just negligent (its still unclear what Plaintiffs theory is even at this

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What is clear from Plaintiffs response is that it has provided zero evidence to support its claim that the release of
its 2008 Schedule B was willful, intentional or the result of some conspiracy. As such, there is no question
whatsoever that the Court should grant the United States motion pertaining to Plaintiffs claims of a willful
disclosure of its 2008 Schedule B.
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late stage in the case) to provide the Court with more than speculation to survive summary
judgment. As it stands, however, that is all Plaintiff has done. It has not identified a single
supported fact that inspections occurring after the 2008 Schedule B had been publicized were
somehow unauthorized. Instead, Plaintiff has said that, after the press reported that the 2008
Schedule B had been disclosed, IRS management viewed the tax return. Dkt. 73 at 18. Plaintiff
then jumps to the unsubstantiated conclusion that these reviews by management constituted
casual browsing of taxpayer information, violating federal law. Id. Yet Plaintiff has not
identified any facts in support of such speculation, as required to avoid summary judgment. See
Celotex Corp., 477 U.S. at 321-23; Perry v. Kappos, 776 F. Supp. 2d 182, 187 (E.D. Va. 2011)
(Cacheris, J .). In fact, the uncontroverted testimony is that these post-publicity reviews were the
result of diligent federal employees ensuring that a potential breach in the IRS systems was
addressed quickly and appropriately. DEX 27 at 31:24-32:11; 89:8-90:17 (discussing the
purposes for the accesses, including determining whether the return was properly scanned into
the SEIN database, and comparing the redacted and unredacted versions of the return). That
Plaintiff failed to depose a single individual it now speculates was casually browsing other
than the one supervisor who provided the uncontroverted testimony above highlights the utter
lack of evidence supporting Plaintiffs new-found theory. Because Plaintiff bears the burden of
proving that each inspection violated federal law, it had to come forth with evidence, not
speculation, that could support such findings. It has not done so, and its unsubstantiated
allegations about unauthorized, post-publication inspections must be dismissed.
The same analysis applies to Plaintiffs claim regarding Ms. Peters pre-disclosure access
to Plaintiffs account. If, as Plaintiff states, there is no record evidence whether Meisel requested
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a Schedule B as part of his completed 4506-A to the IRS,
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then Plaintiff cannot meet its burden
of proving that Peters access of Plaintiffs return was unlawful. It is not the governments
obligation to demonstrate that this inspection was appropriate; as Plaintiff, NOM must
demonstrate the opposite and the lack of evidence as to whether Meisel requested a Schedule B
favors the governments motion. See Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 308
(4th Cir. 2006) (unsupported speculation insufficient to defeat a summary judgment motion if
the undisputed evidence indicates that the other party should win as a matter of law); Perry, 776
F. Supp. 2d at 187 (The party opposing summary judgment may not rest upon mere allegations
or denials.). Thus, the Court should grant the United States motion regarding all of Plaintiffs
claims of unlawful inspection of its tax return or tax return information.
II. The Court Should Bar Plaintiffs Identification of New Facts Under Its Alternative
Theory of Gross Negligence, Because Such Facts Were Never Identified During the
Course of Discovery
The Court should bar Plaintiffs identification of new facts under its alternative theory of
gross negligence, because it failed to identify these facts when directly asked during the
course of discovery. Rule 37 states that, if a party fails to provide information or identify a
witness as required by Rule 26(a) or (e), the party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless. Fed. R. Civ. P. 37(c)(1). One primary objective of the
discovery provisions is the elimination of surprise in civil trials. See, e.g., Davis v. Marathon Oil

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Nor is there any likelihood that there will be any such evidence to be introduced at a trial. Plaintiffs claim again
amounts to nothing more than speculation that Meisel conceivably could have forgotten to request a Schedule B.
But without evidence that Meisel did not request a Schedule B, Plaintiff cannot prove an unauthorized inspection.
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Co., 528 F.2d 395, 404 (6th Cir. 1975); Woods v. Intl Harvester Co., 697 F.2d 635, 639 (5th Cir.
1983) (trial by ambush is not contemplated by the Federal Rules of Civil Procedure).
For almost four months, the parties engaged in discovery pertaining to Plaintiffs claims
namely that the government knowingly and willfully disclosed information regarding its tax
return in violation of 26 U.S.C. 6103, and that the IRS intentionally inspected its tax return
before disclosing its 2008 Schedule B to a known political activist. While the United States
acknowledges that Plaintiff disclosed a gross negligence theory, when Plaintiff was directly
asked to provide all factual bases to support its theory, the only factual bases provided were the
same as the factual bases for its recently discarded conspiracy allegations theory:
Plaintiff believes such disclosure and/or inspection was grossly negligent or
willful because, among other things, Plaintiffs Schedule B was disclosed to, at
minimum, a known political activist strongly opposed to Plaintiffs ideological
position. This individual was likely to disseminate and is known to have
disseminated Plaintiffs tax return and/or return information. Also, the copy of
Plaintiffs Schedule B that was published by the Human Rights Commission, the
Huffington Post, and other news outlets was altered to obscure the known IRS
markings. Such obscuration supports Plaintiffs claim of gross negligence or
willfulness as the individuals involved in the disclosure sought to hide the fact
that the document came from within the IRS.

DEX 1 at Resp. to 1(f) 6, 7 & 9; DEX 26 at 70-75 (even though he admitted he had no evidence
to support his claims, Brown testified that the IRS was possibly grossly negligent in failing to
have security systems to prevent an unauthorized individual from hacking into its systems, and
further testifying that he believed that it was possible someone other than Peters disclosed the
return). Plaintiff promised to supplement its responses as needed, but never did so. Now,
faced with the United States summary judgment motion, and having abandoned its conspiracy
claims, Plaintiff contends instead that the IRS systems, policies, procedures, training and
supervision somehow constituted gross negligence. Dkt. 73 at 47-53 & at 4, 14. Likewise,
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Plaintiff also never supplemented its response that limited its inspection claims to the inspection
leading to and preceding the inadvertent disclosure. DEX 1 at Resp. to 1 at 13.
In accordance with Rule 37(c)(1), this Court should exclude any evidence Plaintiff offers
in opposition to the United States motion that varies from its discovery response, because it fails
to establish that its omissions were either substantially justified or harmless. In determining
whether to exclude Plaintiffs newly disclosed theories, this Court considers: (1) the surprise to
the United States; (2) the ability of the United States to cure that surprise; (3) the extent to which
allowing the testimony / information would disrupt trial (or in this case the consideration of the
summary judgment motion); (4) Plaintiffs explanation; and, (5) the importance of the
information. See Southern States Rack & Fixture, Inc. v. SherwinWilliams Co., 318 F.3d 592,
596 (4th Cir. 2003); Winston v. Land Transp., LLC, 2007 U.S. Dist. LEXIS 62913 at *7-8 (E.D.
Va. Aug. 27, 2007) (excluding undisclosed damages theory). The nondisclosing party bears the
burden to prove either substantial justification or harmlessness. Gordon v. Petes Auto Service
of Denbigh, Inc., 2011 WL 7782471, at *1 (E.D. Va. Nov. 29, 2011) (internal citations omitted);
see Rambus, Inc. v. Infineon Tech. AG, 145 F. Supp. 2d 721, 727 (E.D. Va. 2001) (Rule 37(c)(1)
automatically imposes the preclusion sanction unless the noncomplying party can show a
substantial justification for the failure and that its failure was harmless). Plaintiffs opposition
makes no attempt to satisfy its burden, or explain its actions or its delays.
The United States was surprised unfairly by Plaintiffs late-articulated theories. Even
though the United States addressed a gross negligence theory in its summary judgment motion, it
addressed it under the framework of Plaintiffs conspiracy allegations. The United States has not
been given an opportunity to prepare a defense based on the new allegations. Thus, this Court
should find that Plaintiffs actions constituted an unfair surprise. See Rambus, 145 F. Supp. 2d at
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728 (unfair surprise occurs when defendant has relied upon discovery responses in the
preparation of its defense selecting what witnesses to depose, deciding what fact discovery to
conduct and preparing its own expert evidence and then plaintiff changed its theory after the
close of discovery through a supplemental report that changed the substance of and bases for the
experts opinions); Cambridge Elect. Corp. v. MGA Electronics, Inc., 227 F.R.D. 313, 324 (C.D.
Cal. 2004) (Learning of plaintiffs liability theories only after they had filed their motion for
summary judgment placed defendants at a distinct disadvantage and constituted unfair surprise).
The United States is unable to cure this surprise, because discovery has now closed and
reopening discovery would reward Plaintiffs attempt at a trial-by-ambush. In this case, the
United States conducted discovery based upon the allegations in Plaintiffs Verified Complaint
and the discovery responses the government received. The discovery period is now over and
there is no ability to cure the surprise by serving additional written discovery regarding
Plaintiffs theory of gross negligence or asking the IRS employees whom Plaintiff deposed
additional questions concerning its new theory.
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The United States is also precluded from
naming additional witnesses that were previously not included in its initial disclosures who could
rebut Plaintiffs claims, whatever they may be. Dkt. 34 (undisclosed witnesses are not permitted
to testify at trial). Thus, Plaintiff cannot show that its failure was harmless. See In re MTBE,

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See, e.g., Perkins v. United States, 626 F. Supp. 2d 587, 592 (E.D. Va. 2009) (violation of Rule 26(a)(2)(B)
hindered Defendants ability to prepare for the deposition and, without valid justification, undermined the integrity
of the discovery process); Wechsler v. Hunt Health Sys., Ltd., 1999 WL 672902, at *3 (S.D.N.Y. Aug. 27, 1999)
(The estoppel principles applied in this Circuit to contention interrogatory responses implicitly presume unfair
prejudice will result if the responding party subsequently alters his position) (citations omitted); In re MTBE Prods.
Liab. Litig., MDL No. 1358, 2014 WL 494522, at *3 (S.D.N.Y. Feb. 6, 2014) (prejudice, in failing to timely amend
a contention interrogatory, is not required for preclusion under Rule 37(c)(1)); Tennessee v. Murphy-Brown, LLC,
2011 WL 7111560, at *1 (E.D. Va. Sept. 27, 2011).
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2014 WL 494522, at *4 (Plaintiffs omission was no mere procedural technicality, and
advancing a new theory of liability after the close of discovery is not presumptively harmless).
It is also not harmless to this Court. Through its silence, Plaintiff has implicitly conceded
that there was neither conspiracy nor willfulness behind the disclosure. To the extent this was
the sole basis for Plaintiffs gross negligence claim, summary judgment is warranted. If Plaintiff
is permitted to raise bases not claimed in its contention interrogatory responses to avoid
summary judgment, this impinges directly on the Courts time and resources too. Significantly,
because there are no facts that overlap between the issues of gross negligence and actual
damages, Plaintiff estimated that a trial on both issues could take three or four days, whereas a
trial solely on actual damages would likely take only three or four hours.
Nor has Plaintiff established substantial justification for its tardiness. Indeed, Plaintiff
has not offered an explanation for its failure to comply with Rule 26(e). Nor is one apparent
since no less than nine attorneys have expended significant resources litigating Plaintiffs case.
Finally, as noted below, its new theory is unimportant, as Plaintiff cannot establish that the
disclosure was the result of gross negligence, even assuming the facts it proffered in its response.
After applying these five factors, this Court should exclude any evidence in opposition to
the governments motion that deviates from Plaintiffs contention interrogatory responses since it
failed to supplement them in accordance with Rule 26(e) and failed to establish that its violation
was substantially justified or harmless.
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Thus, regarding its gross negligence and post-disclosure

4
See Rambus, Inc., 145 F. Supp. 2d at 735; Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th
Cir. 2001) (preclusion sanction appropriate even where litigants entire cause of action or defense has been
precluded); In re MTBE, 2014 WL 494522, at *3; Teashot LLC v. Green Mountain Coffee Roasters, Inc., 2014 WL
485876, at *8 (D. Colo. Feb. 6, 2014); AVX Corp. v. Cabot Corp., 252 F.R.D. 70, 76-81 (D. Mass. 2008) (plaintiffs
failure to timely supplement its damages computation resulted in sanction that it could not use the supplemental
response in opposing defendants summary judgment motion).
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inspection claims, the Court should conclude that Plaintiff is precluded from offering such
evidence, and grant the governments motion for summary judgment.
III. Even Considering Plaintiffs New Facts, Such Facts Taken as a Whole Do Not
Rise to the Level of Gross Negligence as a Matter of Law
Plaintiffs proffering of several facts which it claims creates a genuine issue of
material fact concerning whether the IRS disclosure was the result of gross negligence fails as
a matter of law to derail the governments motion. This is so because even assuming, arguendo,
the veracity of all these facts,
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taken together they would not rise to the high standard of gross
negligence. Indeed, Plaintiffs opposition does not even seriously argue that the disclosure was
the result of gross negligence, and instead relies largely on its assertion that this determination
needs to be made by the Court only after trial. Dkt. 73 at 12-14.
But, contrary to Plaintiffs position, whether the disclosure of Plaintiffs 2008 Schedule B
was the result of gross negligence can and, here, should be decided, as a matter of law. In
fact, such is the whole purpose behind Rule 56: when the party bearing the burden of persuasion
at trial utterly fails to pinpoint record evidence to dispute a material fact, a trial is superfluous
and a waste of judicial resources. Fed. R. Civ. P. 56 advisory committee note (The very
mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in
order to see whether there is a genuine need for trial) (1963 amendments). Whether a party has
acted with gross negligence is frequently decided on a partys summary judgment motion. See,
e.g., Wilkins v. Montgomery, 2014 U.S. App. LEXIS 8412 at *33-34 (4th Cir. May 5, 2014)
(gross negligence may be determined as a matter of law where plaintiff fails to present a triable

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The government does not accept the truth of most of these facts, and, assuming the Court found them at all
relevant, would dispute them at trial, but it does not dispute them for purposes of its motion, as they are immaterial.
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issue); Hearn v. Lancaster County, 2014 U.S. App. LEXIS 6974 (4th Cir. Apr. 15, 2014); Lutfi
v. United States, 527 Fed. Appx. 236, 244-46 (4th Cir. 2013).
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In any event, the facts Plaintiff cites do not satisfy the high standard of gross negligence
in this Circuit. To put Plaintiffs position in some perspective, Plaintiff is asking this Court to
determine that the IRS systems, procedures, policies, training, and general controls toward
confidential information were so grossly negligent that it generated one confirmed mistake out
of 48,000 processed requests over the course of more than five years. DEX 17. Plaintiff
provides no facts to dispute that there was only one confirmed mistake. Dkt. 73 26.
Plaintiffs error is that it assumes a perfect process exists where no mistakes are ever
made. Dkt 73 51 (The IRS had no procedure in place that could prevent [an] unauthorized
disclosure) (emphasis added). But, like all processes involving humans, mistakes will be made
and will continue to occur. Risk cannot be eliminated, and that is not what the law requires.
Rather, a finding that the disclosure was the result of gross negligence requires that the actions
be marked by wanton or reckless disregard of the rights of another or that they be a flagrant
violation of 26 U.S.C. 6103. See Mallas, 1995 U.S. App. LEXIS 10766, at *8; Scrimgeour,

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The Lutfi case perfectly illustrates why Plaintiffs argument that all cases involving claims of gross negligence
must be tried before a finder of fact fails. In Lutfi, the Fourth Circuit, in affirming a district courts granting of
summary judgment in a case brought under the Federal Tort Claims Act, applied Virginia state law to determine that
as a matter of law under Rule 56 the Lutfi plaintiff could not meet its burden and its claim should be rejected.
527 Fed. Appx. at 244-46. Furthermore, the Lutfi court applied two state court decisions where the trial courts had
taken from the jury the determination of gross negligence either after the plaintiffs case-in-chief or a full trial.
Based on the Virginia Supreme Courts affirming of those two Virginia trial court decisions, and the body of
common law they created, the Lutfi court was able, as a matter of law years later, to determine that gross negligence
did not exist. Indeed, one purpose of our common law system of jurisprudence is to give precedential authority to
prior court decisions, so that courts may efficiently determine when a matter does not rise to the level of injury or
culpability required by law, and thus when the case can be terminated under Rule 12 or Rule 56, without the need
for a costly, time consuming, and wasteful trial. As evinced by the binding precedent in this Circuit, such is the case
here. See Scrimgeour v. Internal Revenue, 149 F.3d 318, 324 (4th Cir. 1998); Mallas v. United States, 1995 U.S.
App. LEXIS 10766 (4th Cir. May 15, 1995).
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149 F.3d at 324. By contrast, simple negligence is the lack of due care, or the failure to do
what a reasonable and ordinarily prudent person would do under the circumstances. Id.
Furthermore, in its opening brief, the United States explained fully how these two
binding cases create a legal threshold for gross negligence. Dkt. 68 at 19-23; see dkt. 73 at 13.
To avoid summary judgment, Plaintiff must have cited record evidence sufficient to satisfy this
high threshold. But, because Plaintiff has failed to provide any theory of how its 2008 Schedule
B was disclosed as a result of the IRS gross negligence, the scattershot allegations contained in
its response do not provide sufficient evidence of the IRS wanton or reckless disregard for
Plaintiffs rights, or a flagrant violation of section 6103. See Perry, 776 F. Supp. 2d at 187. Cf.
In re Publn Paper Antitrust Litig., 690 F.3d 51, 69 (2d Cir. 2012) (requiring, under Sherman
Act, that plaintiff provide evidence in support of their theory in order to avoid summary
judgment). Plaintiff does not contest that the IRS clerk who disclosed the 2008 Schedule B was
sufficiently trained or that she knew that she was required to redact donors names and addresses
before producing a copy of the Schedule B to third-party requestors. Dkt. 68 18; dkt. 73 18.
That this disclosure is the only one that the RAIVS unit (where Peters worked) had in over five
years and 48,000 requests, and that Plaintiff failed to specifically identify reckless systems,
policies or procedures in place in 2011 and how those policies led to the disclosure in this case,
is all the Court needs to determine that Plaintiff has failed to carry its burden in responding to the
governments motion.
IV. Plaintiff Has Failed to Identify any Material Facts in Genuine Dispute Regarding
Gross Negligence
Alternatively, Plaintiff has failed to identify any material facts in genuine dispute
regarding whether the disclosure resulted from gross negligence. Plaintiff attempts to defeat the
governments motion on the issue of gross negligence in two ways: (1) by disputing certain
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facts that the United States relied on in its opening motion, see Dkt. 73 1-26; and, (2) by
identifying new facts that it believes precludes summary judgment. See id. 1-26 (adding
new facts to the United States statement of undisputed facts); and 47-53 (completely new
facts). But neither of these tactics work. As an initial matter, Plaintiffs response failed to
genuinely dispute any of the facts in paragraphs 1-26. Next, the new facts Plaintiff identified
do not create a question of material fact, since Plaintiff did not aver how or why these facts relate
to the inadvertent disclosure that occurred here.
First, Plaintiff has failed to identify evidence contradictory to the governments proffered
facts ( 1-26); it has stated either that the government is relying on circumstantial evidence, or it
has expanded upon the governments material facts in some fashion. Yet, Plaintiff, as the
burden-bearing party at trial, needed to explain why these disputed facts create a material issue,
not just that they are disputed or that the Defendants evidence may be subject to critique. It is
insufficient for Plaintiff to simply question the governments defense of the case, and then
conclude that a dispute exists. See Celotex Corp., 477 U.S. at 324; Perry, 776 F. Supp. 2d at
187; In re Publn Paper Antitrust Litig., 690 F.3d at 70.
Second, at trial, Plaintiff as part of proving that the disclosure occurred as a result of
gross negligence would bear the burden of illustrating, specifically, how the disclosure of its
2008 Schedule B occurred and why the policies, procedures, training, or the like caused the
disclosure. Plaintiff utterly failed to do so in its opposition. Because Plaintiff has not
highlighted its specific theory of how the disclosure occurred, it is impossible to determine that
any of these new, additional facts relate to its allegation that the disclosure occurred as a result of
gross negligence; accordingly, these additional facts are immaterial. Of course, if a fact is plainly
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immaterial, a court should grant the moving partys summary judgment motion. Bryant, 288
F.3d at 132 (citing Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001)).
While the government has demonstrated that Plaintiff has not carried its burden in its
response to summary judgment and how, writ large, Plaintiffs new facts do not create a genuine
issue of material fact collectively, these facts fail to do so on an individual level as well.
Specifically, Plaintiff has cited the following new facts in opposing the governments motion,
each of which is deficient as a matter of law:
The computer system used by the RAIVS clerks would allow an employee to
inadvertently authorize the unredacted Form 990, Schedule B to be printed at the IRS
correspondence print site (rather than within the RAIVS unit), and without the IRS
employee realizing that they had done so. Dkt. 73 48. But, Plaintiff has conceded
and the government has produced uncontroverted evidence that the disclosure of its
2008 Schedule B resulted from Ms. Peters having printed that document to a printer
within her own RAIVS unit and not elsewhere at the IRS that could have been subject to
an accidental disclosure. Dkt. 73 12 (referring to Dkt. 68 12); DEX 8 at GOV-PROD-
000588-595 (printer logs); see also DEX 28 at 9:2-25 (stating that RAIVS employees
could only print to one default printer). Thus, this fact is immaterial.

The redaction of the Schedule B was done by hand. Dkt. 73 49. This fact is
immaterial because Plaintiff has not provided any evidence that, had the redactions been
performed in some other fashion, the disclosure at issue would not have occurred.
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The redactions were not reviewed by other supervisors or employees in the mail
room before disclosure. Id. Furthermore, other than the imprinted watermark and audit
trail, the IRS lacked procedures to prevent an unauthorized disclosure. Id. 51.
Finally, quality review (QR) occurred for only two percent of the responses to 4506-
As. Id. 47. These facts are immaterial because Plaintiff has failed to identify specific
facts supporting that these procedures, including a larger percentage of QR, would have
prevented this disclosure, and that failure to have these procedures flagrantly violated
section 6103 or constituted wanton or reckless disregard for its rights. Furthermore,
Plaintiff has failed to assert whether its 2008 Schedule B was reviewed or not, and thus it
is impossible to determine whether this fact is material.


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Indeed, there is an argument that electronic redactions may be more susceptible to hacking or electronic removal
than ones done by hand, which are permanent and unrecoverable.
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Two previous reviews of the RAIVS unit by Exempt Organizations management
failed to identify that RAIVS provided a Schedule B even when not requested. Id. 50.
As noted above, this fact is also immaterial since there is no record evidence that Meisel
did not request a Schedule B, which would be Plaintiffs burden at trial.

Once a user is given access to the SEIN database, there were no systemic
restrictions from accessing information regarding taxpayers beyond their job
assignments. Id. at 52. This fact is immaterial because (a) Plaintiff has failed to
provide any evidence that Ms. Peters accessed Plaintiffs tax return when she was not
supposed to, and (b) whether she or any other employees ever accessed any other
information beyond their official duties is not at issue in this case.

Sherry Whitaker was responsible for maintaining who had access to the SEIN
database. It is unclear why Plaintiff believes this fact is material, because Ms. Peters, as
part of her job responsibilities as a RAIVS clerk was required to respond to Form 4506-A
requests for Form 990s, and thus, regardless, Ms. Peters would have had access to
Plaintiffs Form 990. See dkt. 68 5-6; dkt. 73 3-6 (facts undisputed by Plaintiff).

Accordingly, because Plaintiff has not demonstrated the existence of any material facts in
genuine dispute, the Court should grant the United States motion for summary judgment relating
to Plaintiffs claim that the disclosure of its 2008 Schedule B was the result of gross negligence.
V. Plaintiff Cannot Demonstrate That It Is Entitled to any Actual Damages
A. Sovereign Immunity Bars the Collateral Source Rule from Applying Here
This Court should reject Plaintiffs argument that Virginias collateral source rule (the
Rule) precludes the government from offsetting its damages with the donations it received as a
result of solicitations referencing the disclosure or its lawsuit against the IRS. First, the United
States has not waived its sovereign immunity to allow the Court to apply Virginias Rule.
8

Where, as here, the United States waives its sovereign immunity from suit, the governments
consent to be sued must be construed strictly in favor of the sovereign, and not enlarg[ed] ...

8
Plaintiffs opposition omits an analysis of why Virginias Rule applies. The failure to redact occurred in Utah, the
tax return was sent to Massachusetts, transmitted to HRC in D.C., where it was published online. While Plaintiff
may have solicited donations in Virginia, it has not applied choice-of-law rules to show the Virginia Rule governs.
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16

beyond what the language requires. United States v. Nordic Vill., Inc., 503 U.S. 30, 33-34
(1992) (internal citation omitted); see United States Dept of Energy v. Ohio, 503 U.S. 607, 627
(1992) (declining to extend waiver to punitive fines where statutory waiver was ambiguous).
Here, section 7431 provides that a taxpayer may be entitled to actual damages sustained by the
plaintiff as a result of such unauthorized inspection or disclosure.
9
26 U.S.C. 7431(c)(1)(B)
(emphasis added). Unlike the Federal Tort Claims Act, Congress did not incorporate state law or
suggest that taxpayers would be entitled to a windfall if it did not sustain any actual damages
(or is not otherwise entitled to punitive damages).
10
As such, this Court should narrowly
construe the United States waiver of sovereign immunity, and find the Rule inapplicable here.
Second, even if the Rule applies, this Court should reject its application here. The
Virginia Rule provides that compensation received by a tort victim from a collateral source is not
credited against the damages owed by the tortfeasor. See Acuar v. Letourneau, 531 S.E. 2d 316,
320 (Va. 2000). Virginia courts have applied the Rule to insurance payments, social security
benefits, public and private pension payments, unemployment and workers compensation
benefits, vacation and sick leave allowances, and other payments made by employers to injured

9
In disputing this reading, Plaintiff argues that the governments reliance on Kittrell v. RRR, LLC, 280 F. Supp. 2d
517, 523 (E.D. Va. 2003), is misplaced since it involves joint tortfeasors. Kittrell involved the definition of actual
damages very similar to those in this case. Id. at 522 (plaintiff's attempt to recover actual damages for Lease A
when no such damages were suffered runs counter to the CLAs language and remedial purpose and to existing
authority. Such damages must be sustained to be recoverable.). If Plaintiff did not sustain any injury then it is
not entitled to actual damages. Its attempt to distinguish Johnson v. Sawyer also falters. There, the Fifth Circuit
remanded the case so that the district court could determine, in part, whether an intervening act (the publication of a
tax evasion conviction) would break the chain of causation or require the mitigation of actual damages resulting
from a disclosure. 120 F.3d 1307 (5th Cir. 1997). Plaintiffs interpretation is thus simply unsupported.
10
Unlike section 7431, the Supreme Court has interpreted the FTCA to mean what [it] say[s], namely, that the
United States waives sovereign immunity under circumstances where local law would make a private person
liable in tort. United States v. Olson, 546 U.S. 43, 44 (2005). Even if state law applies, it cannot expand the
Governments liability beyond that which could flow from an analogous private activity. Scheib v. Florida
Sanitarium and Benevolent Assn, 759 F.2d 859, 864 (11th Cir. 1985).
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17

employees, both contractual and gratuitous. Payne v. Wyeth Pharm., Inc., 2008 WL 4890760,
at *4-5 (E.D. Va. Nov. 12, 2008) (internal citation omitted). In other words, traditionally, the
Rule has only been applied to payments or procedures put in place before a tort occurs, not to
affirmative actions taken by a plaintiff after an injury to reap a windfall. Id. at *4 (the Rule
rewards plaintiffs favored status prior to the injury); see also Walker v. Long, 57 Va. Cir. 419,
420 (Va. Cir. Ct. 1993) (any windfall plaintiff receives does not result from plaintiffs act taken
after treatment was rendered). Thus, in rejecting the Rules application to debts discharged in
bankruptcy, the court found that expanding the Rule to affirmative actions taken after an injury
creates incentives for plaintiffs to unfairly reap a windfall. See Payne, 2008 WL 4890760, at *5
(When a plaintiff can thus take affirmative steps after the injury to ensure that there will be
double recovery if he or she succeeds in the lawsuit, equity no longer favors a windfall for the
plaintiff and the collateral source rule should not apply). Further support is found in Illustration
5 in the Restatement (2nd) of Torts 920 (Benefit to Plaintiff Resulting from Defendants
Tort): A charges B with being member of a secret order. B brings an action for defamation
alleging as special damage the loss of income by B as a surgeon. A can show in mitigation of
damages that because of the false charge, B has been enabled to attract crowds to lectures given
by him, to his great profit. Thus, here, Plaintiff took actions after it was allegedly injured to
solicit donations from new and existing donors directly based on the IRS disclosure here. Dkt.
68 41-45. Plaintiffs affirmative actions should not allow it to receive a windfall as a result.
11


11
None of the cases Plaintiff relies on save its position. First, in Szedlock v. Tenet, this Court rejected the argument
that the Rule barred consideration of federal retirement benefits in calculating plaintiffs back pay. See 139 F. Supp.
2d 725, 736 (E.D. Va. 2001), affd, 61 F. Appx 88 (4th Cir. 2003). Second, in Diviney v. Vantrease, the court was
interpreting West Virginia law that conflicts with Payne. 2012 WL 5252060, at *4 (W.D. Va. Oct. 24, 2012); see
also Chisholm v. UHP Projects, Inc., 205 F.3d 731, 744 (4th Cir. 2000) (applying Rule to maritime law, in context
similar to workmens compensation). No one claims that either West Virginia or maritime law applies here.
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18

B. Plaintiff has Failed to Demonstrate a Material Fact Regarding Causation
Plaintiff is unable to demonstrate which of the governments proffered material facts,
specifically, are in genuine dispute concerning whether its claimed actual damages were
proximately caused by the IRS disclosure. Furthermore, the one fact Plaintiff identifies relating
to Meisels claimed status as a media internet blogger is immaterial. Thus, Plaintiffs response
fails to preclude summary judgment.
12
Instead, Plaintiff asks the Court to determine that the
intervening acts and superseding causes Meisels receiving the 2008 Schedule B, his holding
it for over a year, then disseminating the 2008 Schedule B to the Human Rights Campaign,
which, in turn, further disseminated it to the Huffington Post, and so on are insufficient to
break the causal chain between the inadvertent disclosure to Meisel and Plaintiffs alleged actual
damages. In fact, Plaintiff does not dispute that these separate events occurred; instead, it argues
only that they were foreseeable as a result of the disclosure, and therefore compensable as
actual damages. Dkt. 73 at 22-26 (citing Jones v. United States, 9 F. Supp. 2d 1119 (D. Neb.
1998)).
13
Because there are no facts in dispute, a trial on this issue will, in no way, expand the
Courts understanding of these matters and is a waste of resources.

12
First, however, Plaintiff again incorrectly asserts that proximate cause is an issue of fact that cannot be determined
on a summary judgment motion. This is false. Proximate causation may be granted on summary judgment motion.
See, e.g., Zee Co., Inc. v. Williams, Mullen, Clark & Dobbins, P.C., 547 Fed. Appx. 166, 169-71 (4th Cir. 2013);
Wolf v. Fauquier County Bd. of Suprs, 2007 WL 2688418 at *5-6 (E.D. Va. Sept. 12, 2007) (Cacheris, J .) (granting
summary judgment, in part, because plaintiff failed to adduce evidence for a reasonable fact finder to conclude that
the defendants negligence was proximately caused by plaintiffs injuries).
13
While Jones may be instructive on the fact that a plaintiff must prove proximate causation (which Plaintiff also
does not dispute, Dkt. 73 at 19), it is distinguishable when it comes to the issue of foreseeability. In Jones, unlike
here, the IRS agent knew in advance he was disclosing confidential information to an informer someone who by
very definition shares information with others; neither fact is present here. The evidence demonstrates that Ms.
Peters did not know the requestor and was unaware of the disclosure until after it had been widely publicized.
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19

Specifically, Plaintiff asserts that the issues of fact are whether it was foreseeable to the
IRS (1) that Meisel would republish the 2008 Schedule B, (2) that HRC, the Huffington Post,
and Karger would further disseminate or use the information in the Schedule B, and (3) that
Plaintiff would stop at nothing to identify the source of the 2008 Schedule B. Dkt. 73 at 25.
Plaintiffs fatal error, once again, is failing to identify material record evidence relating to these
so-called issues of fact. See Wolf, 2007 WL 2688418 at *5-6 (Although [plaintiffs] claims are
significant, in order for the Court to deny summary judgment, there must be evidence in the
record for a reasonable finder of fact to find that the Defendants negligence was the proximate
cause of Plaintiffs injuries) (emphasis added). The only fact that Plaintiff points to is that the
IRS was aware that Meisel claimed to be a media internet blogger. Dkt. 73 at 25. But this fact is
immaterial, because the uncontroverted evidence is that the IRS determined that Meisel was not
a member of the media. PEX 3 at 33. Thus, this undisputed fact that Meisel claimed to be a
media internet blogger is immaterial to foreseeability, because the IRS had determined that
Meisel was not in fact a media internet blogger. Plaintiff has not claimed that it was foreseeable
that a non-media internet blogger would have disseminated the 2008 Schedule B in the fashion
Meisel did,
14
and caused Plaintiffs claimed actual damages, making its argument ineffective.
Because the Court should decide that Meisels actions (and those of HRC and the
Huffington Post, as well) constituted unforeseeable independent actions and superseding causes
of Plaintiffs claimed actual damages, the Court need go no further in its damages analysis and
may grant the governments motion. For, where the proximate causation link is broken,

14
Plaintiff initially had claimed that gross negligence existed because Meisel was a known political activist, a
claim it does not repeat in its response. See DEX 1 at Resp. to Interrs. #1, 6, 7, 9.
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20

liability no longer attaches to the defendant. Dkt. 73 at 23 (citing, Paroline v. United States, -- S.
Ct. --, 2014 WL 1612426 (Apr. 23, 2014)). Thus, because the Court should determine that these
third-party actions were not reasonably foreseeable, damages occurring as a result of those
actions, and after those actions, are not compensable as actual damages.
Separately, Plaintiff has not illustrated or created any issues of material fact as to why it
needed to file five FOIA and one Privacy Act request, why costs incurred providing testimony
to Congress,
15
or how the disclosure proximately caused it to incur various legal expenses.
Plaintiff needed to explicitly demonstrate what each request and expense was for, and how the
disclosure proximately caused each one. All it has stated is that such information is a question of
fact for trial. Dkt. 73 at 25.
16
This is insufficient to carry its burden, and the Court should grant
the United States motion for summary judgment on Plaintiffs claims of actual damages.
CONCLUSION
For these reasons, this Court should grant the United States motion, enter judgment in
favor of the Plaintiff for $1,000 only, and deny its claims for attorneys fees and costs since it
cannot establish that it was a prevailing party under 26 U.S.C. 7430.



15
In fact, Plaintiffs testimony to Congress centered squarely on its claims of conspiracy, and to that end, Plaintiff is
thus trying to claim actual damages for a theory of its case that it has dropped entirely. See DEX 29 at
https://www.youtube.com/watch?v=ySdiyWji9cY (link to Eastman testimony before Congress claiming proof of a
willful, felonious disclosure by IRS employees).
16
Given that Plaintiff itself claims that it caused TIGTAs initial investigation into the disclosure, it is hard to see
how Plaintiff created a material fact that its other expenditures to determine the disclosures source was anything
other than an independent cause of its damages.
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21

Respectfully submitted,

Date: May 23, 2014
KATHRYN KENEALLY
Assistant Attorney General
Tax Division

PHILIP M. SCHREIBER*
BENJ AMIN L. TOMPKINS*
CHRISTOPER D. BELEN
Trial Attorneys, Tax Division
U.S. Department of J ustice
Post Office Box 14198
Ben Franklin Station
Washington, DC 20044
(202) 514-6069 (Mr. Schreiber)
(202) 514-5885 (Mr. Tompkins)
(202) 307-2089 (Mr. Belen)
Fax: 202 514-9868
E-Mail: philip.m.schreiber@usdoj.gov
benjamin.l.tompkins@usdoj.gov
christopher.d.belen@usdoj.gov


DANA J . BOENTE
UNITED STATES ATTORNEY

_/s/___________________________
David Moskowitz
Assistant U.S. Attorney
2100 J amieson Avenue
Alexandria, Virginia 22314
Telephone: (703) 299-3845
Fax: (703) 299-3983
E-Mail: david.moskowitz@usdoj.gov

Attorneys for the United States of America

* Admitted pro hac vice
Case 1:13-cv-01225-JCC-IDD Document 77 Filed 05/23/14 Page 21 of 22 PageID# 1529



CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on May 23, 2014, I will electronically file the foregoing with
the Clerk of Court using the CM/ECF system, which will send a notification of electronic filing
to the following:
J ason Torchinsky
Shawn Toomey Sheehy
Holtzman Vogel J osefiak PLLC
45 North Hill Drive, Suite 100
Warrenton, VA 20186
(540) 341-8808 (telephone)
(540) 341-8809 (fax)
jtorchinsky@hvjlaw.com
ssheehy@hvjlaw.com



/s/
David Moskowitz
Assistant U.S. Attorney
2100 J amieson Avenue
Alexandria, Virginia 22314
Telephone: (703) 299-3845
Fax: (703) 299-3983

E-Mail: david.moskowitz@usdoj.gov
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Brian Brown March 14, 2014
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1
*** C O N F I D E N T I A L ***
I N THE UNI TED STATES DI STRI CT COURT
FOR THE EASTERN DI STRI CT OF VI RGI NI A
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
:
THE NATI ONAL ORGANI ZATI ON FOR :
MARRI AGE, I NC. , :
:
Pl ai nt i f f , :
:
v. : Case No.
: 13- 1225- J CC- I DD
THE UNI TED STATES OF AMERI CA, :
et al . , :
:
Def endant s. :
:
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Deposi t i on of BRI AN BROWN, a wi t ness her ei n, at
t he of f i ces of U. S. Depar t ment of J ust i ce, Tax
Di vi si on, 555 Four t h St r eet , N. W. , Washi ngt on, D. C. ,
commenci ng at 9: 46 a. m. on Fr i day, Mar ch 14, 2014,
and t he pr oceedi ngs bei ng t aken down by st enot ype and
t r anscr i bed by Cat her i ne B. Cr ump, a Not ar y Publ i c i n
and f or t he Di st r i ct of Col umbi a.
Defendant
Exhibit
_____________
26
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2
1
APPEARANCES:
2
On behal f of t he Pl ai nt i f f :
3
WI LLI AM E. DAVI S, ESQ.
Fol ey & Lar dner
4
2 S. Bi scayne Boul evar d, Sui t e 1900
Mi ami , Fl or i da 33131
5
( 305) 482- 8404
wdavi s@f ol ey. com
6
J ASON BRETT TORCHI NSKY, ESQ.
7
Hol t zman, Vogel , J osef i ak, PLLC
45 Nor t h Hi l l Dr i ve, Sui t e 100
8
War r ent on, Vi r gi ni a 20186
( 540) 341- 8808
9
j t or chi nsky@hvj l aw. com
10
NOEL J OHNSON, ESQ.
Act Ri ght Legal Foundat i on
11
12
On behal f of t he Def endant s:
13
PHI LI P M. SCHREI BER, ESQ.
BENJ AMI N L. TOMPKI NS, ESQ.
14
U. S. Depar t ment of J ust i ce
Tax Di vi si on
15
P. O. Box 14198
Washi ngt on, D. C. 20044
16
( 202) 514- 6069
phi l i p. m. schr ei ber @usdoj . gov
17
18
19
20
21
22
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1
I N D E X
2
WI TNESS: Br i an Br own
3
EXAMI NATI ON PAGE
4
By Mr . Schr ei ber : 6
5
6
EXHI BI T NO. DESCRI PTI ON PAGE
7
120 - Not i ce of Deposi t i on 10
8
121 - Ver i f i ed Compl ai nt 33
9
122 - Pl ai nt i f f ' s Responses t o Def endant ' s
10
Fi r st Set of Request s f or Pr oduct i on 77
11
123 - Pl ai nt i f f ' s Suppl ement al Response t o
12
Def endant ' s Fi r st set of Request s f or
13
Pr oduct i on 80
14
124 - Expense Recei pt s of J ohn East man 86
15
125 - I t emi zat i on of Lexi s/ Nexi s Char ges 90
16
126 - J une 28, 2012 Let t er t o Zachar y Kest er 93
17
127 - Act Ri ght Legal Ser vi ces I nvoi ces 94
18
128 - Act Ri ght Legal Ser vi ces I nvoi ces 96
19
129 - Mar ch 30, 2012 E- mai l f r omMar y Haas 124
20
130 - 2007 I RS For m990 126
21
131 - 2008 I RS For m990 129
22
132 - 2008 I RS Amended For m990 130
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33
1
A. Yes.
2
Q. When was t hat ?
3
A. Late 2012.
4
[Exhibit No. 121 was marked
5
for identification.]
6
BY MR. SCHREI BER:
7
Q. Mr . Br own. , t he cour t r epor t er has
8
mar ked and I ' mhandi ng you what has been i dent i f i ed
9
as Exhi bi t 121, whi ch i s t he ver i f i ed compl ai nt t hat
10
NOM f i l ed agai nst t he Uni t ed St at es i n t hi s case. Do
11
you see t hat , si r ?
12
A. Yes.
13
Q. Ar e you f ami l i ar wi t h t hi s document ?
14
A. Yes.
15
Q. I f you woul d t ur n t o page 25, and t he
16
number s ar e on t he t op.
17
MR. DAVI S: I t ' s doubl e- si ded.
18
THE WI TNESS: Okay.
19
BY MR. SCHREI BER:
20
Q. Mr . Br own, i s t hat your si gnat ur e?
21
A. Yes.
22
Q. Di d you si gn t hi s document on Sept ember
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34
1
27, 2013?
2
A. Yes.
3
Q. You si gned under t he penal t y of per j ur y;
4
i s t hat cor r ect ?
5
A. Yes.
6
Q. Do you have an under st andi ng of what i t
7
means t o ver i f y a compl ai nt ?
8
A. It's to declare under penalty of perjury
9
that it is true.
10
Q. And i s t hi s what your i nt ent was when
11
you si gned t hi s ver i f i cat i on?
12
A. Yes.
13
Q. How di d you det er mi ne t hat you coul d
14
swear t hat t he f act s i n t hi s compl ai nt wer e t r ue?
15
A. Because, to the best of my knowledge,
16
all of the facts that we put forward were accurate.
17
Q. I guess wi t h what l evel of cer t ai nt y di d
18
you f eel you needed i n or der t o make t he
19
det er mi nat i on?
20
MR. DAVI S: Obj ect i on t o f or m.
21
BY MR. SCHREI BER:
22
Q. Do you under st and t he quest i on, si r ?
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1
A. Not really.
2
Q. You under st and di f f er ent degr ees of
3
cer t ai nt y?
4
A. Yes.
5
Q. Okay. Wel l , t hen wi t h r egar d t o t he
6
f act s al l eged i n t he compl ai nt t hat you swor e under
7
oat h wer e t r ue, t o what degr ee of cer t ai nt y di d you
8
f eel comf or t abl e needi ng t o be made awar e of t hat t he
9
f act s wer e act ual l y t r ue?
10
MR. DAVI S: Obj ect i on t o t he f or m.
11
BY MR. SCHREI BER:
12
Q. A hundr ed per cent ? Sevent y per cent ?
13
A. I was very certain that the facts we put
14
forward were true.
15
Q. Okay. I f you wi l l t ur n t o par agr aph 14
16
on page 4 of t he compl ai nt , Mr . Br own.
17
A. Um-hum.
18
Q. I ' msor r y. Par agr aph 14 on page 4.
19
The f i r st sent ence, par t of i t says t hat : On
20
Mar ch 30, 2013, NOM became awar e t hat t hei r
21
unr edact ed Schedul e B t o i t s 2008 I RS For m990
22
cont ai ned t he names and addr esses of i t s donor s,
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50
1
A. Yes.
2
Q. Of cour se, t o t he best of your
3
knowl edge, you wer e t r ut hf ul dur i ng your i nt er vi ews
4
wi t h t he TI GTA agent s?
5
A. Correct.
6
Q. I f you coul d t ur n t o par agr aph 76 of t he
7
compl ai nt , si r .
8
Let me ask you t hi s bef or e we l ook at t hat
9
l anguage: I s i t your cont ent i on t hat t her e was any
10
agr eement bet ween any i ndi vi dual s, i ncl udi ng anyone
11
at t he I RS, t o pur posef ul l y gi ve a t hi r d par t y
12
wi t hout aut hor i zat i on t he 2008 Amended 990 Schedul e B
13
wi t hout pr oper r edact i ons?
14
MR. DAVI S: Obj ect i on t o f or m.
15
THE WI TNESS: Can you ask t he quest i on agai n?
16
BY MR. SCHREI BER:
17
Q. Sur e. I s i t your posi t i on, i s i t NOM' s
18
posi t i on, Mr . Br own, t hat t her e was any agr eement
19
bet ween any t wo i ndi vi dual s t o pur posef ul l y gi ve a
20
t hi r d par t y t he unr edact ed copy of NOM' s 2008 Amended
21
For m990 Schedul e B wi t hout pr oper r edact i ons?
22
MR. DAVI S: Same obj ect i on.
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51
1
THE WI TNESS: At t he t i me t hat t hi s occur r ed
2
and t o t he pr esent , t he r eal i t y t hat gi ven t he
3
hi st or y of t he at t empt s t o i dent i f y, t ar get , and
4
puni sh donor s t o NOM and gr oups t hat suppor t
5
t r adi t i onal mar r i age, t he f act t hat I bel i eve i t was
6
HRC or " Huf f i ngt on Post " , r egar dl ess, sai d t hat t hey
7
r ecei ved t hi s f r oma whi st l ebl ower , sayi ng t hat i t
8
was a whi st l ebl ower l ed me t o bel i eve and cl ear l y
9
meant someone wi t hi n t he I RS when you say
10
whi st l ebl ower .
11
So gi ven t he r eal i t y t hat ever yone I had
12
spoken wi t h had sai d t hey had never seen anyt hi ng
13
l i ke t hi s bef or e, t hey had never seen t hi s document
14
made publ i c, and t he f act t hat i t was NOM' s document
15
out of any possi bl e document t hat coul d have been
16
r el eased r i ght bef or e a Pr esi dent i al el ect i on i n
17
whi ch J oe Sol monese ser ved as cochai r t o t he
18
Pr esi dent ' s r eel ect i on campai gn and t hat Mi t t Romney
19
was one of t he donor s, al l of t hese f act s, you put
20
t wo and t wo t oget her and i t seems t hat somehow t hi s
21
was pur posef ul l y r el eased f r omt he I RS t o do damage
22
t o t he Nat i onal Or gani zat i on f or Mar r i age.
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1
BY MR. SCHREI BER:
2
Q. Okay. I ' mgoi ng t o unpack t hat a l i t t l e
3
bi t . The answer i s, yes, you do cont end t her e was an
4
agr eement by some t wo par t i es, at l east , t o
5
pur posef ul l y di scl ose t he Schedul e B i nf or mat i on?
6
A. I believe that is the case.
7
Q. And t hat ' s st i l l your cont ent i on t oday?
8
A. I believe that's the case today.
9
Q. You sai d t hi s happened dur i ng a
10
Pr esi dent i al r eel ect i on campai gn or Pr esi dent i al
11
campai gn. I don' t know i f you sai d " r eel ect i on" . I
12
don' t want t o put wor ds i n your mout h.
13
Ar e you awar e, si r , t hat t he gover nment ' s
14
cont ent i on i s t hat t he di scl osur e occur r ed i n 2011?
15
What I mean i s t he di scl osur e f r omt he I RS t o t he
16
t hi r d par t y.
17
A. At the time that this was written, I was
18
not aware of that. Now I am.
19
Q. When you say now, do you mean as of t hi s
20
moment because I ' maski ng you or as of dur i ng t he
21
cour se of t hi s l i t i gat i on?
22
A. Even before we discussed today, I
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1
understand that that's now what the government is
2
saying. Before today, I realized that that's what
3
you're saying.
4
Q. So gi ven t hat i nf or mat i on, how does t he
5
f act t hat t he di scl osur e f r omt he I RS occur r ed a year
6
bef or e i t was publ i shed on HRC and Huf f Post ' s
7
websi t e, how does t hat change, i f i t does at al l ,
8
your vi ew about whet her t hi s was an i nt ent i onal
9
di scl osur e?
10
A. I don't think it does. Whether it was a
11
year earlier or before, the only -- it is not the
12
only reason that the timing makes me think that.
13
It's of who we are and what other attempts have been
14
made to get our donors.
15
What I mean is that whether it was in 2011 or
16
2012, everyone knew that there was going to be a
17
Presidential election coming up and, therefore, to
18
me, it doesn't make much of a difference whether it
19
occurred in March or in 2011.
20
Q. Who do you bel i eve was i nvol ved i n t he
21
agr eement t o r el ease NOM' s t ax r et ur n?
22
A. I don't know.
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Q. You can' t i dent i f y any i ndi vi dual s who
2
wer e par t of t hat agr eement ?
3
A. I don't know.
4
Q. Do you have any i dea as t o when such an
5
agr eement may have occur r ed?
6
A. I don't know.
7
Q. Do you have any i dea as t o wher e i t
8
mi ght have occur r ed?
9
A. No.
10
Q. Do you have any i dea as t o t he met hod by
11
whi ch t he conspi r at or s or t he peopl e who wer e
12
agr eei ng communi cat ed?
13
A. No. What I know is that the Human
14
Rights Campaign said there was a whistleblower and
15
that the Human Rights Campaign somehow received this
16
and put this up on their site.
17
Q. I s i t your under st andi ng t hat
18
whi st l ebl ower i n your mi nd meant somebody f r omwi t hi n
19
t he I RS?
20
A. Correct.
21
Q. Not a t hi r d par t y who r ecei ved t he t ax
22
i nf or mat i on, t he t ax r et ur n?
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A. Correct.
2
Q. You sai d, al so, i t occur r ed dur i ng - -
3
whi l e Gover nor Mi t t Romney was r unni ng f or Pr esi dent ?
4
A. Correct.
5
Q. And t hat was one of t he r easons why you
6
bel i eved i t was an i nt ent i onal di scl osur e?
7
A. It was one of many factors.
8
Q. Ri ght . You sai d one of t hem. Okay.
9
A. Right.
10
Q. Ar e you awar e t hat bef or e t hi s
11
di scl osur e even t ook pl ace t hat Gover nor Romney had
12
admi t t ed t o donat i ng $10, 000 t o NOM i n 2008?
13
A. I am aware.
14
Q. And t hat was i n t he publ i c r ecor d?
15
A. I am aware.
16
Q. What ot her f act s do you bel i eve exi st
17
t hat l ed you t o t he concl usi on t hat t he di scl osur e of
18
NOM' s t ax r et ur n was i nt ent i onal ?
19
MR. DAVI S: Let me j ust ask you i s your
20
quest i on as of t he si gni ng and ver i f i cat i on of t hi s
21
compl ai nt or as he si t s her e t oday?
22
MR. SCHREI BER: As he si t s her e t oday.
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MR. DAVI S: Okay.
2
MR. SCHREI BER: Thank you f or cl ar i f yi ng.
3
THE WI TNESS: The r eal i t y t hat even as of
4
t oday, I ' mnot awar e of any ot her si ngl e i nst ance
5
t hat t he unr edact ed Schedul e B wi t h t hi s SMI PS code
6
comi ng di r ect l y f r omt he I RS, of t hat occur r i ng.
7
Ther e seems t o be a r ecor d of t hi s never happeni ng
8
bef or e.
9
Why t hen when i t di d happen di d i t happen t o
10
a gr oup t hat has seen donor s har assed and i nt i mi dat ed
11
i n Cal i f or ni a, whi ch has a f eder al l awsui t pr ot ect i ng
12
donor i dent i t y because of t hi s har assment and
13
i nt i mi dat i on, whi ch has mul t i pl e f r i vol ous compl ai nt s
14
f i l ed agai nst i t , NOM, f or campai gn f i nance and ot her
15
r easons i n an at t empt t o get our donor s? Why woul d
16
t he one mi st ake be t he or gani zat i on t hat t he ot her
17
si de most want s t o f i nd t hei r donor s?
18
That does not make sense.
19
BY MR. SCHREI BER:
20
Q. So your concl usi on f r omt hat i s,
21
t her ef or e, i t was i nt ent i onal ? That ' s one f act or
22
t hat cont r i but es t o your bel i ef t hat i t was
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i nt ent i onal ?
2
A. Correct.
3
Q. Okay. So you' r e not awar e of any ot her
4
di scl osur es f r omt he I RS i nvol vi ng Schedul e B?
5
A. I'm aware of other disclosures of
6
Schedule B. I'm not aware of any other disclosure of
7
a Schedule B with the live code that was on ours.
8
Q. Okay. Thank you. I under st and your
9
di st i nct i on now.
10
I s i t your under st andi ng t hat t hose ot her
11
di scl osur es wer e al so i nt ent i onal , t he ones wi t hout
12
t he SMI PS and t he di agonal wat er mar k l i ne?
13
A. I don't know enough about -- without --
14
I don't know enough about the cases to say one way or
15
another.
16
Q. I ' l l par aphr ase i t , but besi des t he
17
f act or s you' ve l i st ed, i ncl udi ng t hat t hi s has
18
happened t o anybody el se and j ust happened t o happen
19
t o NOM, what ot her f act s can you speak t o t hat
20
suppor t your concl usi on t hat t hi s was an i nt ent i onal
21
di scl osur e?
22
A. Well, there were repeated attempts to
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1
get to the truth of what had occurred. I believe
2
there were five, four or five, FOIA requests. There
3
seemed to be no movement at all in attempting to get
4
us any information. Our FOIA requests were met with
5
no substantive information at all on what had
6
occurred.
7
The fact that the only way that we've gotten
8
any information at all is through filing the
9
lawsuit --
10
Q. Thi s l awsui t ?
11
A. This lawsuit. Is another factor.
12
Again, I'm not a lawyer, but it does seem that
13
the little I know about -- what I do know about the
14
sort of perfect record of the IRS not releasing
15
unredacted 990 Schedule Bs and the fact that ours was
16
released at the time it was released to the very
17
group that most wanted it, that is the most important
18
factor.
19
Q. I s i t your under st andi ng t hat i t was
20
di r ect l y r el eased t o t he Human Ri ght s Campai gn by t he
21
I RS? Let me cl ar i f y t he quest i on.
22
I s i t your under st andi ng, Mr . Br own, t hat t he
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Schedul e B unr edact ed was di r ect l y pr ovi ded by t he
2
I RS t o t he Human Ri ght s Campai gn?
3
A. Well, originally, when we made this
4
complaint going on the statements made about a
5
whistleblower, that was my understanding at the time.
6
Q. What about now?
7
A. Now there may be different ways. It may
8
have come from a third party.
9
Q. Do you have t hat under st andi ng or ar e
10
you j ust guessi ng at t hat poi nt - - at t hi s poi nt ?
11
A. I don't have enough facts in front of me
12
to determine where it came from. I understand that
13
there's a theory that it came from a third party and
14
that's a potential --- that's another potential
15
source, that it couldn't have come from a third party
16
to HRC, but at some point, it had to come from the
17
IRS. That doesn't change.
18
Q. So t he f act t hat t her e may have been an
19
i nt er medi ar y doesn' t change your vi ew t hat i t went
20
f r omt he I RS t o t he Human Ri ght s Campai gn?
21
A. It doesn't change my view that it was
22
intentional.
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1
Q. Sor r y. That ' s what I meant .
2
A. No. It doesn't change my view that it
3
was intentional.
4
Q. You wer e t al ki ng about t he at t empt s t o
5
get t o t he t r ut h wi t h mul t i pl e FOI A r equest s. Those
6
wer e t o t he I RS and TI GTA. Cor r ect ?
7
A. Correct.
8
Q. And you sai d t hat you di dn' t r ecei ve any
9
i nf or mat i on back f r omt hose FOI A r equest s?
10
A. Not anything substantive.
11
Q. To your knowl edge, di d t he gover nment i n
12
t hi s l awsui t pr ovi de you wi t h t he TI GTA Repor t of
13
I nvest i gat i on t hat TI GTA conduct ed? Have you seen
14
t hat document ?
15
A. I believe it was one of the many
16
documents I looked through in preparing for this, but
17
as far as specifics from it, I don't recall specifics
18
from that.
19
Q. You don' t r ecal l seei ng a 113- page
20
Repor t of I nvest i gat i on we pr ovi ded t o counsel as
21
par t of our pr oduct i on i n t hi s case?
22
A. Yes. I do recall seeing the 113 pages,
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but as far as the sort of information that we would
2
desire to know, you know, as far as how this
3
occurred, who did it, who the information went to,
4
what were the controls within the IRS to stop this
5
from happening, that doesn't -- that's not answered
6
from my cursory reading of the 113-page document.
7
Q. Okay. You al so t r i ed t o get
8
i nf or mat i on, amI cor r ect , si r , f r omei t her member s
9
of Congr ess or st af f t o member s of Congr ess?
10
Cor r ect ? I nf or mat i on r egar di ng what had happened
11
wi t h r egar d t o t he di scl osur e.
12
A. There may be E-mails to that effect. My
13
interest in communicating with members of Congress
14
was for them to do something to figure out what had
15
occurred, not so much to get information from them
16
immediately on what had occurred, but to investigate
17
to find out.
18
Q. So you don' t r ecal l sendi ng an E- mai l t o
19
peopl e on your st af f r egar di ng t he f act t hat
20
i ndi vi dual s on t he Hi l l who had r ecei ved i nf or mat i on
21
f r omTI GTA had t o be car ef ul i n t el l i ng you what
22
t hei r i nf or mat i on was because of 26 U. S. C. Sect i on
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6103? Do you r ecal l t hat E- mai l ?
2
A. I recall an E-mail saying that that's
3
what members of Congress are saying, that they need
4
to be careful in what they relay to us because of
5
this interpretation of the law that we don't get to
6
know about our own -- breach of our own 990. I do
7
recall that.
8
Q. I s t hat your under st andi ng, i s i t your
9
under st andi ng t hat ' s t he same i nt er pr et at i on t hat
10
TI GTA and t he I RS wer e t aki ng wi t h r egar d t o t hat
11
st at ut e and t hat ' s why t hey coul dn' t gi ve you
12
i nf or mat i on?
13
A. That's right.
14
Q. So cer t ai n i ndi vi dual s who wor k on t he
15
Hi l l , i ncl udi ng el ect ed member s of Congr ess, al so
16
coul dn' t pr ovi de t he or gani zat i on wi t h t he
17
i nf or mat i on you wer e l ooki ng f or wi t h r egar d t o how
18
t he di scl osur e happened?
19
A. Well, there could be -- immediately
20
provide -- by provide, the idea, the hope, was that
21
there would be a congressional hearing and there are
22
potentially different interpretations of -- the
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1
interpretation that TIGTA has and the IRS has may not
2
be the same as the interpretation of all members of
3
Congress.
4
Q. I t seems t o me t hat t he r eason you sent
5
t hat E- mai l was t hat st af f er s and Congr ess wer e bei ng
6
car ef ul because of t he i nt er pr et at i on t hat t hey wer e
7
al so adopt i ng of t he st at ut e.
8
A. Well, I believe -- maybe I should look
9
at the E-mail.
10
Q. We' l l show i t t o you i n a l i t t l e bi t .
11
A. Okay.
12
Q. I s i t your vi ew t hat any member s of
13
Congr ess or congr essi onal st af f er s wer e i nvol ved i n
14
any agr eement or conspi r acy t o di scl ose t he For m990
15
Schedul e B f r om2008?
16
A. No.
17
Q. Or t hat t hey wer e i nvol ved i n
18
st onewal l i ng NOM' s at t empt s t o f i nd out what had
19
happened?
20
A. No.
21
Q. I f you woul d t ur n back t o t he compl ai nt ,
22
Mr . Br own. Par agr aphs 76 t hr ough 78 r ef er t o HRC and
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J oe Sol monese. I s t hat how you pr onounce hi s l ast
2
name? Do you know?
3
A. Sol-mon-ease.
4
Q. And how t he r et ur n was di scl osed and how
5
he became a nat i onal co- chai r man of Pr esi dent Obama' s
6
r eel ect i on campai gn a day af t er t he di scl osur e
7
occur r ed. Wel l , a day af t er i t was publ i shed on
8
HRC' s websi t e, I shoul d say.
9
Do you see t hat , si r ?
10
A. Yes.
11
Q. I ' mj ust cur i ous what concl usi on shoul d
12
be dr awn f r omt hese t hr ee par agr aphs, 76, 77, and 78
13
of your compl ai nt .
14
A. Well, our conclusion was that and is
15
that, again, given that there was -- that this had
16
never happened before as far as we were aware and
17
other folks who dealt with this, that the fact that
18
this did happen to this group that's right in the
19
middle of a heated Presidential campaign that has a
20
long history of its donors and itself being targeted
21
for intimidation and harassment, that that would
22
occur and go to the organization and be published by
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1
the organization whose head is a supporter and
2
joining the campaign as cochair, that there was some
3
significance to that.
4
What the significance is and how far up the
5
chain the disclosure went, we didn't know and,
6
obviously, we didn't get any information in any other
7
way through the FOIA requests. I think there was
8
also a Privacy Act request.
9
There was no other -- so, therefore, that's
10
why we moved forward with the lawsuit, because all of
11
these things taken together, of course, we don't know
12
for certain, but all of these things taken together,
13
it just seems inconceivable that that would happen to
14
us in this election time given these other facts like
15
the fact that the Human Rights Campaign was the one
16
who released and Joe Solmonese was a cochair of the
17
Obama Reelection Campaign. What the ultimate
18
significance of that is, you know, we don't know, but
19
these are facts.
20
Q. I guess what I ' maski ng i s as you si t
21
her e t oday, can you dr aw any concl usi ons about t he
22
f act t hat he was t he pr esi dent of HRC and t hat a day
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af t er HRC publ i shed i t on t hei r websi t e, he st epped
2
down t o become a nat i onal co- chai r man of Pr esi dent
3
Obama' s r eel ect i on campai gn? What concl usi on do you
4
dr aw as you si t her e t oday?
5
A. That the Human Rights Campaign thought
6
that it was in their best interest to publish a donor
7
list that they somehow -- that they got in what looks
8
-- they got in a way that they should not have and
9
that Joe Solmonese at the time thought that it was a
10
good idea to go ahead and post that on their website,
11
and Joe Solmonese, after doing that, is lifted up to
12
cochair of President Obama's election campaign.
13
Q. Do you know when he was appoi nt ed t o be
14
co- chai r man of t he el ect i on campai gn?
15
A. It was probably -- I don't know the
16
date, no.
17
Q. Do you t hi nk i t was wi t hi n one day of i t
18
bei ng publ i shed?
19
A. No.
20
Q. So what ' s t he causat i on t her e f r omyour
21
per spect i ve bet ween t he t wo event s?
22
A. The causation --
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Q. Was he l i f t ed up t o t hat nat i onal
2
co- chai r man st at us because of t he di scl osur e of NOM' s
3
Schedul e B?
4
A. No.
5
Q. Do you know how many co- chai r men
6
Pr esi dent Obama had dur i ng hi s r eel ect i on campai gn?
7
A. Many.
8
Q. Thi r t y- f i ve?
9
A. Sounds correct.
10
Q. Do you cl ai mt hat J oe Sol monese - - I ' m
11
goi ng t o scr ew up hi s name. How do you pr onounce i t ?
12
I ' msor r y.
13
A. Sol-mon-ease.
14
Q. Do you cont end t hat he was i nvol ved i n
15
obt ai ni ng t he Schedul e B unr edact ed f r omt he I RS i n
16
t er ms of - - l et me wi t hdr aw t he quest i on and ask a
17
bet t er one.
18
Do you cont end t hat he had an agr eement or
19
pr ovi ded pr essur e or i nf l uence on anybody at t he I RS
20
t o obt ai n t he t ax r et ur n t hat was di scl osed i n t hi s
21
case?
22
A. I don't know whether he did personally.
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The significance of this is in that Joe Solmonese was
2
in a position of power, some position of power, some
3
connection to a position of power, and the fact that
4
then he receives somehow our unredacted 990 is an
5
important point to make.
6
It doesn't mean that it's causal. What it
7
means is that he's in a position of power and
8
closeness to the President of the United States and
9
his organization is the organization that first
10
releases the unredacted 990.
11
Q. Ot her t han what you have di scussed i n
12
t he past 45 mi nut es or so, any ot her f act s t hat you
13
can t hi nk of t hat you cont end suppor t t he concl usi on
14
t hat t he di scl osur e of NOM' s Amended 2008 For m990
15
Schedul e B i n unr edact ed f or mwas i nt ent i onal ?
16
MR. DAVI S: By t he I RS?
17
MR. SCHREI BER: Thank you. By t he I RS. I t
18
was a mout hf ul .
19
MR. DAVI S: Yeah. I ' ve been on t hat si de of
20
t he t abl e.
21
THE WI TNESS: Can I br i ef l y t al k t o you
22
out si de?
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69
1
BY MR. SCHREI BER:
2
Q. You have t o answer t o t he best of your
3
knowl edge, si r .
4
A. Okay. There are -- again, briefly
5
looking -- or, again, it's based on internal
6
discussions with counsel. So I can't.
7
MR. DAVI S: Wel l , t hen - -
8
THE WI TNESS: I can' t answer .
9
MR. SCHREI BER: Okay. Why don' t we t ake a
10
f i ve- mi nut e br eak.
11
Of f t he r ecor d.
12
[ Recess. ]
13
BY MR. SCHREI BER:
14
Q. Mr . Br own, a f ew mi nut es ago, we wer e
15
di scussi ng t he TI GTA Repor t of I nvest i gat i on, t he ROI
16
t hat you sai d you had r evi ewed at l east t o some
17
ext ent ; i s t hat r i ght ?
18
A. Correct.
19
Q. Af t er havi ng r evi ewed t hat document , was
20
t her e anyt hi ng i n t hat document t hat changed your
21
vi ew t hat t he di scl osur e was i nt ent i onal ?
22
A. No.
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70
1
Q. Do you r ecal l anyt hi ng speci f i cal l y f r om
2
t hat ROI , any memor andums of i nt er vi ews f r omt hat
3
ROI ?
4
A. No. It was very cursory the last time I
5
looked over -- when I looked over it.
6
Q. Now, your compl ai nt al so cl ai ms t hat t he
7
di scl osur e was gr ossl y negl i gent ; i s t hat r i ght ?
8
A. Yes.
9
Q. Can you t el l me t he f act s t hat you know
10
exi st t hat suppor t your concl usi on t hat t he
11
di scl osur e was gr ossl y negl i gent ?
12
A. Those were all conversations with
13
counsel.
14
Q. Wel l , t o t he ext ent t hey r el at e t o
15
f act s, I ' mnot sur e t hat ' s pr ot ect ed by wor k pr oduct .
16
MR. DAVI S: To t he ext ent t hat you have
17
become awar e of any f act s t hat suppor t t hat not i on
18
f r omei t her r eadi ng deposi t i ons, t he TI GTA r epor t , or
19
ot her wi se i ndependent of communi cat i ons wi t h counsel ,
20
you may r espond.
21
THE WI TNESS: Can you r est at e t he quest i on
22
now?
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71
1
MR. SCHREI BER: Can you r ead i t back.
2
[ Wher eupon, t he pendi ng quest i on was r ead
3
back by t he cour t r epor t er . ]
4
MR. DAVI S: I assume t hat t he t i mef r ame of
5
your quest i on i s as he si t s her e t oday as opposed t o
6
t he t i me t hat t he compl ai nt was - - because you' r e
7
wor ki ng of f of t he compl ai nt .
8
MR. SCHREI BER: Yes. Let ' s st i pul at e t hat
9
unl ess speci f i cal l y asked about t he compl ai nt , t hat
10
we ar e t al ki ng about hi s knowl edge and cont ent i ons as
11
he si t s her e t oday or NOM' s knowl edge and cont ent i ons
12
as he si t s her e t oday. Thank you f or cl ar i f yi ng.
13
THE WI TNESS: I do have some knowl edge f r om
14
deposi t i ons and ot her s t hat t he r el ease of t he 990,
15
agai n, was - - t hat t her e i s a per f ect r ecor d i n t hese
16
unr edact ed 990s becomi ng publ i c, t hat t he per son t hat
17
t her e i s a cl ai mt hat was wi t hi n t he I RS t hat
18
r el eased t hi s document never has done anyt hi ng l i ke
19
t hi s bef or e and does not her sel f r ecal l doi ng t hi s,
20
and i t seems t o me ver y r easonabl e t hat she mi ght not
21
be t he onl y per son t hat had access t o t he 990 t hat
22
was r el eased.
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72
1
BY MR. SCHREI BER:
2
Q. So how do t hose f act s suppor t t he
3
cont ent i on t hat t he r el ease was gr ossl y negl i gent ?
4
A. It seems to me reasonable to say that
5
there was not enough control or oversight, that some
6
other person could have gotten that and released to
7
someone outside the public -- in the public.
8
Q. Do you have any evi dence t o suppor t t he
9
f act t hat somebody ot her t han t he cl er k t hat we
10
cont end r el eased i t di d, i n f act , r el ease i t ?
11
A. No. I do not have evidence.
12
Q. Do you have an under st andi ng based on
13
any of t he document s t hat you r evi ewed of t he
14
di agonal wat er mar k t hat was r eveal ed on t he t ax
15
r et ur n t hat was di scl osed, what t hat means?
16
A. I don't know exactly what the diagonal
17
watermark means, no.
18
Q. So you ar e assumi ng t hat , possi bl y, mor e
19
t han one i ndi vi dual coul d have r el eased t hat
20
document ?
21
A. Yes.
22
Q. Or di scl osed i t f r omt he I RS?
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73
1
A. Correct, and that --
2
Q. I s - - sor r y. Go ahead.
3
A. And that that individual was not the
4
only individual within the IRS who had access to our
5
unredacted 990.
6
Q. Do you have any evi dence t o i ndi cat e
7
t hat anybody ot her t han t hi s cl er k at t he I RS di d, i n
8
f act , r el ease t he Amended 2008 For m990 Schedul e B
9
wi t hout pr oper r edact i ons?
10
A. I do not.
11
Q. I s i t al so your cont ent i on - - i t wasn' t
12
cl ear f r omyour pr i or answer . I j ust want t o
13
cl ar i f y. I s i t al so your cont ent i on, si r , t hat t he
14
f act t hat t hi s r et ur n was di scl osed by t he I RS i s
15
i t sel f evi dence of gr oss negl i gence?
16
A. From what I have learned from the
17
process, again, outside of discussions with counsel,
18
it seems to me that the process by which these are
19
secured is not secure.
20
Q. I s t her e any evi dence t o suggest t hat
21
t he di scl osur e t hat r esul t ed i n t hi s case of your
22
2008 Amended For m990 Schedul e B was a r esul t of a
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74
1
l ack of secur i t y of t hat document ?
2
A. The fact that Wendy Peters does not
3
recall releasing it, the fact that this has never
4
occurred before, the fact that from, again, outside
5
of conversations with counsel, what I know about the
6
communications within the IRS as far as what the
7
belief of security versus what the actual security
8
was, that those are two very different things, that
9
is what leads me to the conclusion that it was very
10
possible that this could -- that this information or
11
another organization's information could become
12
public.
13
Q. Can you cl ar i f y what you mean by " bel i ef
14
of secur i t y ver sus act ual secur i t y" ?
15
A. It's my understanding that there was --
16
in higher levels of the IRS, there was a belief that
17
these sorts of documents were not open to a broader
18
range of employees, that their view was that there
19
was much more limited access than there actually was.
20
That in and of itself is a part of the reason
21
why I believe that it's likely that this came from
22
within the IRS and that it possibly was not Wendy
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75
1
Peters. It could have been someone else and we don't
2
have -- it does not seem to me that there are
3
protocols in place if the higher-ups in the IRS
4
believed that this was sort of a foolproof system
5
and, in fact, later on through our lawsuit have
6
realized that that is not the case, that is very
7
troubling to me and that inclines me to believe that,
8
yes, it's still -- from my understanding of what
9
gross negligence is, yeah, that is gross negligence.
10
Q. Any ot her f act or s, Mr . Br own, ot her t han
11
what you have ment i oned t hat suppor t your cont ent i on
12
t hat t he di scl osur e of NOM' s t ax r et ur n was gr ossl y
13
negl i gent ?
14
A. No.
15
Q. Par agr aph 121 of t he compl ai nt , si r ,
16
t hi s i s a subsect i on ent i t l ed " Damages" on t op of t he
17
page. Do you see t hat ?
18
A. Yes.
19
Q. I n t he mi ddl e of 121, par agr aph 121, i t
20
says: " At mi ni mum, Def endant Uni t ed St at es of
21
Amer i ca i s l i abl e f or $1, 000 f or each unaut hor i zed
22
di scl osur e t o each r eci pi ent of t he di scl osur e and
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189
1
CERTI FI CATE OF DEPONENT
2
3
I have r ead t he f or egoi ng 188 pages whi ch
4
cont ai n t he cor r ect t r anscr i pt of t he answer s made by
5
me t o t he quest i ons t her ei n r ecor ded.
6
7
8
______________________________
9
Br i an Br own
10
11
- - -
12
13
Subscr i bed and swor n t o bef or e me t hi s
14
______ day of _______________________, 2014.
15
16
17
18
_____________________________
19
20
Not ar y Publ i c i n and f or
21
22
My Commi ssi on Expi r es:
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1
CERTI FI CATE OF NOTARY PUBLI C
2
3
I , CATHERI NE B. CRUMP, t he of f i cer bef or e
4
whomt he f or egoi ng deposi t i on was t aken, do her eby
5
t est i f y t hat t he wi t ness whose t est i mony appear s i n
6
t he f or egoi ng deposi t i on was dul y swor n by me; t hat
7
t he t est i mony of sai d wi t ness was t aken by me
8
st enogr aphi cal l y and t her eaf t er r educed t o
9
t ypewr i t i ng under my di r ect i on; t hat sai d deposi t i on
10
i s a t r ue r ecor d of t he t est i mony gi ven by sai d
11
wi t ness; t hat I amnei t her counsel f or , r el at ed t o,
12
nor empl oyed by any of t he par t i es t o t he act i on i n
13
whi ch t hi s deposi t i on was t aken; and f ur t her , t hat I
14
amnot a r el at i ve or empl oyee of any at t or ney or
15
counsel empl oyed by t he par t i es her et o nor
16
f i nanci al l y or ot her wi se i nt er est ed i n t he out come of
17
t he act i on.
18
______________________________
19
CATHERI NE B. CRUMP
20
Not ar y Publ i c i n and f or t he
21
Di st r i ct of Col umbi a
22
My Commi ssi on Expi r es: Oct ober 31, 2017
Case 1:13-cv-01225-JCC-IDD Document 77-1 Filed 05/23/14 Page 34 of 34 PageID# 1564
1
1 IN THE UNITED STATES DISTRICT COURT
2 FOR THE EASTERN DISTRICT OF VIRGINIA
3 ALEXANDRIA DIVISION
4 -o0o-
5
6 THE NATIONAL ORGANIZATION FOR)
MARRIAGE, INC., )
7 ) Civil No. 13-1225-JCC-IDD
Plaintiff, )
8 )
v. )
9 )
UNITED STATES OF AMERICA, )
10 )
Defendant. )
11 _____________________________)
12
13 30(b)(6) VIDEOTAPED DEPOSITION, VOLUME III
14 WITNESS: SHERRY WHITAKER
15 Taken on Tuesday, March 11, 2014
16 at 12:56 p.m.
17
CITY CENTER BUILDING
18 2484 Washington Boulevard
Ogden, Utah 84401
19
20
REPORTED BY: Michelle Mallonee, RPR, CSR
21
ATKINSON-BAKER COURT REPORTERS
22 500 N. Brand Blvd., Third Floor
Glendale, CA 91203
23 (818) 551-7300
www.depo.com
24
FILE #A8027FA
25
Defendant
Exhibit
_____________
27
Case 1:13-cv-01225-JCC-IDD Document 77-2 Filed 05/23/14 Page 1 of 9 PageID# 1565
2
1 APPEARANCES
2
3 FOR PLAINTIFF:
4 WILLIAM E. DAVIS, ESQ.
FOLEY & LARDNER, LLP
5 Two South Biscayne Boulevard, Suite 1900
Miami, Florida 33131
6 Telephone: (305) 482-8404
Email: wdavis@foley.com
7
8 JASON TORCHINSKY, ESQ.
SHAWN SHEEHY, ESQ.
9 HOLTMAN VOGEL JOSEFIAK, PLLC
45 North Hill Drive, Suite 100
10 Warrenton, Virginia 20186
Telephone: (540) 341-8808
11 Email: jtorchinsky@hvjlaw.com
ssheehy@hvjlaw.com
12
KAYLAN L. PHILLIPS, ESQ.
13 ACT RIGHT LEGAL FOUNDATION
209 West Main Street
14 Plainfield, Indiana 46168
Telephone: (317) 203-5599
15 Email: kphillips@actrightlegal.org
16
17 FOR DEFENDANT:
18 BENJAMIN L. TOMPKINS, ESQ.
U.S. DEPARTMENT OF JUSTICE, TAX DIVISION
19 P.O. Box 14198
Washington, DC 20044
20 Telephone: (202) 514-5885
Email: benjamin.l.tompkins@usdoj.gov
21
22 PHILIP M SCHREIBER, ESQ.
U.S. DEPARTMENT OF JUSTICE, TAX DIVISION
23 P.O. Box 14198
Washington, DC 20044
24 Telephone: (202) 514-6069
Email: philip.m.schreiber@usdoj.gov
25
Case 1:13-cv-01225-JCC-IDD Document 77-2 Filed 05/23/14 Page 2 of 9 PageID# 1566
3
1 FOR THE IRS:
2 ALAN S. KLINE, ESQ.
INTERNAL REVENUE SERVICE, OFFICE OF CHIEF COUNSEL
3 One Newark Center, Suite 1500
Newark, New Jersey 07102
4 Telephone: (609) 575-4531
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:13-cv-01225-JCC-IDD Document 77-2 Filed 05/23/14 Page 3 of 9 PageID# 1567
31
1 Q. Let's go through each of the individuals you 13:34:33
2 named in Washington. 13:34:35
3 Who is Joseph Grant? 13:34:37
4 A. He was the TEGE acting commissioner at that 13:34:38
5 time. 13:34:40
6 Q. And who was David Fish? 13:34:41
7 A. He was an analyst under Exempt Organization. 13:34:43
8 Q. Who was Melinda Williams? 13:34:54
9 A. She's an analyst under Exempt Organization. 13:34:56
10 Q. And who is Lois Lerner? 13:34:59
11 A. She was the director of the Exempt Organization. 13:35:02
12 Q. Did you have discussions with them that didn't 13:35:04
13 occur on email, or were all of your communications with 13:35:06
14 them by email? 13:35:10
15 A. All the communications would have been via 13:35:11
16 email, except for Laurice and David Fish. 13:35:14
17 Q. Okay. What conversations did you have with 13:35:17
18 David Fish? 13:35:19
19 A. It would have been, "This is the information we 13:35:21
20 have. What information have you obtained since we were 13:35:23
21 first alerted to it?" They would have been strictly 13:35:25
22 dealing with the research that we're finding on the 13:35:29
23 disclosure. 13:35:31
24 Q. Okay. And how did that research process happen? 13:35:32
25 Who conducted the research? 13:35:35
Case 1:13-cv-01225-JCC-IDD Document 77-2 Filed 05/23/14 Page 4 of 9 PageID# 1568
32
1 A. As I stated earlier, JaLynne Archibald started 13:35:38
2 the research. And when I returned back to work, I also 13:35:40
3 did the necessary research. 13:35:45
4 Q. Okay. Tell me how that research process works. 13:35:47
5 A. You pull up On-Line SEIN. You verify was the 13:35:50
6 necessary information redacted through the SEIN process, 13:35:57
7 which was the imaging folks. It was. So we pulled up 13:36:00
8 the unredacted version, which displays the entire form. 13:36:07
9 The Schedule B was showing there. That rules out the 13:36:11
10 fact that imaging did not follow their procedures. They 13:36:14
11 followed their IRM correctly. 13:36:18
12 Q. Is RAIVS a part of imaging? 13:36:25
13 A. No, two separate functions. 13:36:28
14 Q. Who is in charge of the RAIVS unit? 13:36:30
15 A. W&I or the direct manager. 13:36:33
16 Q. Okay. Let's talk about an organizational chart. 13:36:35
17 Ben Aaron Johanson was -- what was his job function? 13:36:38
18 A. Then was front line manager of the RAIVS unit. 13:36:43
19 Q. Was he under W&I? 13:36:46
20 A. Yes. 13:36:48
21 Q. Okay. Who is above him? 13:36:48
22 A. Would be the department manager. And at that 13:36:51
23 time, I cannot remember who was department manager. 13:36:54
24 Currently, it's Midge Ward. 13:36:58
25 Q. Did you communicate with Ben Johanson's -- or 13:37:01
Case 1:13-cv-01225-JCC-IDD Document 77-2 Filed 05/23/14 Page 5 of 9 PageID# 1569
89
1 to ensure that any steps or enhancements or improvements 15:22:48
2 are made, such as we did on this case, which was: Moving 15:22:52
3 RAIVS' access to the unredacted version out; putting in 15:22:57
4 the extra additional steps of quality review of those 15:23:00
5 disclosures; and looking at the IRM to make sure that any 15:23:04
6 IRM procedures need clarity or enhancements to avoid a 15:23:10
7 disclosure. 15:23:17
8 Q. Now, you were also shown emails that you had 15:23:17
9 sent in connection with being notified of this 15:23:21
10 disclosure. Do you recall that? 15:23:24
11 A. Yes. 15:23:26
12 Q. You were even asked why you would be working on 15:23:26
13 Sunday. 15:23:29
14 A. Which is a normal practice. 15:23:30
15 Q. Was that because this was an important issue? 15:23:32
16 A. A disclosure is always an important issue. 15:23:38
17 Whether I was on leave or whether I was not, they 15:23:41
18 contacted me because a disclosure is something we take 15:23:44
19 very serious. So I was contacted, even though I was on 15:23:48
20 leave. 15:23:51
21 Q. And you testified the goal was to find out what 15:23:52
22 happened? 15:23:55
23 A. Correct. Find out the situations. Find out 15:23:55
24 what we needed to correct. Find the full story of the 15:23:58
25 situation. 15:24:02
Case 1:13-cv-01225-JCC-IDD Document 77-2 Filed 05/23/14 Page 6 of 9 PageID# 1570
90
1 Q. And you were shown the audit trail on pages 38 15:24:03
2 and 39 of the TIGTA report. Do you recall that? It was 15:24:08
3 Exhibit 41. It was that big document. 15:24:12
4 A. Yes. 15:24:16
5 Q. Do you recall being asked about all the accesses 15:24:16
6 from approximately April 5 to April 13? 15:24:19
7 A. Correct. 15:24:21
8 Q. Why were those accesses -- why did those 15:24:23
9 accesses occur? 15:24:27
10 A. We needed it to -- for research purposes. We 15:24:28
11 were looking at the case, trying to figure out what the 15:24:30
12 situation was, how it happened, what needed to be 15:24:33
13 improved, what needed to be changed. 15:24:37
14 Q. So you're trying to figure out why the 15:24:39
15 disclosure occurred? 15:24:41
16 A. Correct, and how to correct it from ever 15:24:42
17 happening again. 15:24:44
18 Q. Another point of clarification. You were shown 15:24:59
19 the 2007 return. I think you testified it was an amended 15:25:01
20 2007 return? 15:25:06
21 Did you have any understanding that there was 15:25:07
22 two 2007 returns filed? 15:25:12
23 A. I notified -- I looked at it and said it was an 15:25:15
24 amended, based on what was marked on the filing. Without 15:25:19
25 looking at the account -- filers mark sometimes what they 15:25:22
Case 1:13-cv-01225-JCC-IDD Document 77-2 Filed 05/23/14 Page 7 of 9 PageID# 1571
92
1 Case: National Organization of Marriage v. United States
of America
2 Case No.: 13-cv-1225-JCC/IDD
Reporter: Michelle Mallonee
3
WITNESS CERTIFICATE
4
State of Utah )
5 ss.
County of Salt Lake )
6
7
8
9
10
11
12 I, Sherry Whitaker, HEREBY DECLARE: That I am the
witness referred to in the foregoing testimony; that I
13 have read the transcript and know the contents thereof;
that with these corrections I have noted this transcript 1
14 truly and accurately reflects my testimony.
15
16
__________________________
17 Sherry Whitaker
18 SUBSCRIBED and SWORN to at _____________________________,
_____________________, this _______ day of _____________,
19 2014.
20
__________________________
21 Notary Public
22
23
24
25
Case 1:13-cv-01225-JCC-IDD Document 77-2 Filed 05/23/14 Page 8 of 9 PageID# 1572
93
1 CERTIFICATE
2
State of Utah )
3 ss.
County of Salt Lake )
4
5
6 I hereby certify that the witness in the
foregoing proceeding was duly sworn to testify to the
7 truth, the whole truth, and nothing but the truth in the
within-entitled cause;
8
That said deposition was taken at the time
9 and place herein named;
10 That the deposition is a true record of the
witness' testimony;
11
That the testimony of said witness was
12 reported by me in stenotype and thereafter transcribed
into typewritten form;
13
I further certify that I am not of kin or
14 otherwise associated with any of the parties of said
cause of action, and that I am not interested in the
15 event thereof.
16
17
18
19
________________________________
20 Michelle Mallonee, RPR, CSR
Utah CSR #267114-7801 15:27:05
21 Expires May 31, 2014
22
23
24
25
Case 1:13-cv-01225-JCC-IDD Document 77-2 Filed 05/23/14 Page 9 of 9 PageID# 1573
1
1 IN THE UNITED STATES DISTRICT COURT
2 FOR THE EASTERN DISTRICT OF VIRGINIA
3 Alexandria Division
4 -o0o-
5
6 THE NATIONAL ORGANIZATION FOR)
MARRIAGE, INC., )
7 ) Civil No. 13-1225-JCC-IDD
Plaintiff, )
8 )
v. )
9 )
UNITED STATES OF AMERICA, )
10 )
Defendant. )
11 _____________________________)
12
13 30(b)(6) VIDEOTAPED DEPOSITION, VOLUME II
14 WITNESS: DAVID HAMILTON
15 Taken on Tuesday, March 11, 2014
16 at 10:57 a.m.
17
CITY CENTER BUILDING
18 2484 Washington Boulevard
Ogden, Utah 84401
19
20
REPORTED BY: Michelle Mallonee, RPR, CSR
21
ATKINSON-BAKER COURT REPORTERS
22 500 N. Brand Blvd., Third Floor
Glendale, CA 91203
23 (818) 551-7300
www.depo.com
24
FILE #A8027FA
25
Defendant
Exhibit
_____________
28
Case 1:13-cv-01225-JCC-IDD Document 77-3 Filed 05/23/14 Page 1 of 5 PageID# 1574
2
1 APPEARANCES
2
3 FOR PLAINTIFF:
4 WILLIAM E. DAVIS, ESQ.
FOLEY & LARDNER, LLP
5 Two South Biscayne Boulevard, Suite 1900
Miami, Florida 33131
6 Telephone: (305) 482-8404
Email: wdavis@foley.com
7
8 JASON TORCHINSKY, ESQ.
SHAWN SHEEHY, ESQ.
9 HOLTMAN VOGEL JOSEFIAK, PLLC
45 North Hill Drive, Suite 100
10 Warrenton, Virginia 20186
Telephone: (540) 341-8808
11 Email: jtorchinsky@hvjlaw.com
ssheehy@hvjlaw.com
12
KAYLAN L. PHILLIPS, ESQ.
13 ACT RIGHT LEGAL FOUNDATION
209 West Main Street
14 Plainfield, Indiana 46168
Telephone: (317) 203-5599
15 Email: kphillips@actrightlegal.org
16
17 FOR DEFENDANT:
18 BENJAMIN L. TOMPKINS, ESQ.
U.S. DEPARTMENT OF JUSTICE, TAX DIVISION
19 P.O. Box 14198
Washington, DC 20044
20 Telephone: (202) 514-5885
Email: benjamin.l.tompkins@usdoj.gov
21
22 PHILIP M SCHREIBER, ESQ.
U.S. DEPARTMENT OF JUSTICE, TAX DIVISION
23 P.O. Box 14198
Washington, DC 20044
24 Telephone: (202) 514-6069
Email: philip.m.schreiber@usdoj.gov
25
Case 1:13-cv-01225-JCC-IDD Document 77-3 Filed 05/23/14 Page 2 of 5 PageID# 1575
9
1 A. Yes. 11:01:12
2 Q. What have you done, sir, to prepare yourself for 11:01:15
3 testifying on those topics here today? 11:01:19
4 A. Well, I reviewed my records as far as the 11:01:23
5 investigation into the disclosure. And I met with 11:01:27
6 attorneys, too. 11:01:34
7 Q. Other than meeting with attorneys, did you meet 11:01:36
8 with anyone else to prepare yourself for this deposition 11:01:37
9 today? 11:01:41
10 A. I checked my facts on one issue there I was a 11:01:43
11 little bit unclear on with a fellow system administrator 11:01:49
12 in SOI. 11:01:54
13 Q. What were the facts that you checked, and who 11:01:55
14 was the administrator? 11:01:57
15 A. The administrator was Allison Child. And I was 11:01:58
16 checking to see how our On-Line SEIN system handled 11:02:03
17 users' printers, whether they had a choice of printing to 11:02:11
18 any printer that they had access to or whether they were 11:02:17
19 restricted to one printer. 11:02:21
20 Q. And what did you learn by virtue of that 11:02:23
21 consultation? 11:02:25
22 A. That we -- that On-Line SEIN users can only 11:02:26
23 print to their default printer. 11:02:30
24 Q. And that was the case in January of 2011? 11:02:33
25 A. Yes. 11:02:36
Case 1:13-cv-01225-JCC-IDD Document 77-3 Filed 05/23/14 Page 3 of 5 PageID# 1576
61
1 Case: The National Organization for Marriage, Inc., v.
The United States of America, Internal Revenue Service
2 Case No.: 13-cv-1225-JCC/IDD
Reporter: Michelle Mallonee 12:50:16
3
WITNESS CERTIFICATE
4
State of Utah )
5 ss.
County of Salt Lake ) 12:50:16
6
7
8 I, David Hamilton, HEREBY DECLARE: That I am the
witness referred to in the foregoing testimony; that I
9 have read the transcript and know the contents thereof;
that with these corrections I have noted this transcript
10 truly and accurately reflects my testimony.
11
12
__________________________
13 David Hamilton
14 SUBSCRIBED and SWORN to at _____________________________,
_____________________, this _______ day of _____________,
15 2014.
16
__________________________
17 Notary Public
18
19
20
21
22
23
24
25
Case 1:13-cv-01225-JCC-IDD Document 77-3 Filed 05/23/14 Page 4 of 5 PageID# 1577
62
1 CERTIFICATE
2
State of Utah )
3 ss.
County of Salt Lake )
4
5
6 I hereby certify that the witness in the
foregoing proceeding was duly sworn to testify to the
7 truth, the whole truth, and nothing but the truth in the
within-entitled cause; 12:50:16
8
That said deposition was taken at the time
9 and place herein named;
10 That the deposition is a true record of the
witness' testimony; 12:50:16
11
That the testimony of said witness was
12 reported by me in stenotype and thereafter transcribed
into typewritten form; 12:50:16
13
I further certify that I am not of kin or
14 otherwise associated with any of the parties of said
cause of action, and that I am not interested in the
15 event thereof.
16
17
18
19
________________________________
20 Michelle Mallonee, RPR, CSR
Utah CSR #267114-7801 12:50:16
21 Expires May 31, 2014
22
23
24
25
Case 1:13-cv-01225-JCC-IDD Document 77-3 Filed 05/23/14 Page 5 of 5 PageID# 1578
Defendant
Exhibit
_____________
29
Case 1:13-cv-01225-JCC-IDD Document 77-4 Filed 05/23/14 Page 1 of 1 PageID# 1579