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***ROUGH DRAFT TRANSCRIPT***
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CASE NAME: BRADLEY J. EDWARDS and PAUL G. CASSELL vs.
ALAN M. DERSHOWITZ
WITNESS NAME: PAUL G. CASSELL
DATE OF DEPOSITION: 10/16/15
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This is an unedited, unproofread,
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ESQUIRE DEPOSITION SOLUTIONS
(954) 331-4400
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THE VIDEOGRAPHER: We are now on the video
record. Today is Friday, the 16th day of
October, 2015. The time is 1:33 p.m.
We are here at 110 Southeast 6th Street,
Suite 1850, in Fort Lauderdale Florida for the
purpose of taking the videotaped deposition of
Paul G. Cassell. The case is Bradley J. Edwards
and Paul G. Cassell versus Alan M. Dershowitz.
The court reporter is Terry Tomaselli and the
videographer is Don Savoy, both from Esquire
Deposition Solutions. Will counsel please
announce their appearances for the record.
MR. SCAROLA: Jack Scarola appearing on
behalf of Bradley Edwards and Professor Paul
Cassell. With me is Joni J. Jones from the Utah
Attorney General's Office.
MS. McCAWLEY: Sigrid McCawley on behalf of
Virginia Roberts from Boies Schiller & Flexner.
MR. SIMPSON: Richard Simpson on behalf of
Defendant and Counter-Claim Plaintiff Alan
Dershowitz. And with me is my colleague Nicole
Richardson and Thomas Scott from the firm of Cole
Scott & Kissane. Ms. Richardson and I are from
the firm of Wiley Rein.
MR. SWEDER: Kenneth Sweder from the firm of
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Sweeder & Ross for Professor Dershowitz.
Thereupon,
PAUL G. CASSELL,
having been first duly sworn, was examined and testified
as follows:
THE WITNESS: I do.
DIRECT EXAMINATION
BY MR. SIMPSON:
Q. Good morning or good afternoon, I guess?
A. Afternoon, yes.
Q. If I ask any questions today that you can't
understand, would you please let me know and I'll
attempt to rephrase or clarify it?
A. Sure.
Q. You're a former United States District Judge;
is that correct?
A. That's correct.
Q. When were you a judge?
A. From about 2002 'til about November 2007.
Q. Okay. So you were appointed by the first
President Bush?
A. Yes.
Q. Uh, second President Bush?
A. Second President Bush, yes.
Q. And then after resigning as a judge, you
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became a professor at the University of Utah; is that
correct?
A. Yeah I was professor -- excuse me -- before I
was a professor in the evening hours while I was a judge
from 2002 to 2007. And then I resumed full time
teaching at the University of Utah in around November of
2007 when I left the bench.
Q. Okay. And since you've left the bench, have
you also been affiliated with a law firm?
A. Yes.
Q. Could you tell me what that affiliation is
what --
A. Sure. I'm a special counsel with Hatch James
and Dodge. It's a law firm, small boutique litigation
law firm in Salt Lake City, Utah, and I occasionally do
cases with them.
Q. Is it fair to say that since 2007, since
resigning as a judge, you've been engaged at least on a
part-time basis in the practice of law?
A. Yes.
Q. And, in particular, in one of the cases
that's at issue here, what has been referred to as the
underlying CVRA case; you're familiar with that case?
A. Yeah. Let me be clear just the juxtaposition
of the causes, the CVRA case is not through Hatch James
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and Dodge. That's through the University of Utah. I'm
pro bono work through the University of Utah.
Q. You have entered an appearance in that case?
A. Correct.
Q. And in order to enter that appearance, you
were admitted pro hac vice; is that correct?
A. That's right.
Q. And to be admitted pro hac vice, you
certified that you were familiar with the applicable
rules including the rules of the southern district of
Florida; is that right?
A. That's right.
Q. And you're also familiar with the rules of
professional responsibility; is that correct?
A. Sure.
Q. Okay. As a judge, did you ever strike a
party's pleadings because they were impertinent,
scandalous, irrelevant?
A. I don't recall doing that immediately.
Q. Okay. To the best of your knowledge, you
don't recall any instance of doing that?
A. I mean what I did, I think, there were two
cases where I referred people to the Bar which was a way
of dealing with the pleadings that were inappropriate in
those cases.
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Q. Okay. But other than referring the two
parties to the Bar, you never entered, to your
recollection, striking a party's pleadings; is that
right?
A. That's right.
Q. Okay. I want to ask you a few questions
about the issue of striking pleadings. Would you agree
with me that courts generally disfavor a motion to
strike?
A. No.
Q. And that striking allegations from a pleading
is a drastic remedy to be resorted to only when required
for the purposes of justice and only when the
allegations to be stricken have no possible relation to
the controversy?
A. I think that's what some courts have said,
yes.
Q. And is it fair to say -- is that what you
represented to the court in response to
Professor Dershowitz's application to intervene?
A. That's right.
Q. And you wouldn't have represented that to the
court unless you believed it to be accurate; is that
right?
A. That's right.
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Q. Would you also agree that if there is any
doubt as to whether the allegations might be an issue in
the action, courts will deny the motion?
A. That was our position in our response to
Professor Dershowitz's motion to strike, yes.
Q. And in considering a motion to strike, the
court must consider the pleadings in the light most
favorable to the party making the pleading, correct?
A. Yeah, that's our position, that was our
position, yes.
Q. Okay. In your view, is it -- for an attorney
to ask a leading question at a deposition, does the
attorney have to have a good-faith basis to believe that
that question is true or the facts assumed in that
question are true?
A. I mean, that's a broad question, but as a
general rule, yeah.
Q. As a general rule -- I'm not being very
articulate --
A. Yeah.
Q. -- you don't ask a leading question about a
fact unless you have a good-faith basis to believe that
facts is true, correct?
A. I think that's right. I mean I don't know if
over the last day and a half, you know, narrow questions
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have been given very long answers. I am assuming you
want narrow answers; is that true?
Q. Well, that wasn't my question, but why don't
we stay on that --
A. I mean, I could discuss that at great length.
I didn't know if that's what you wanted me to do.
Q. I would like you to give a fair answer to my
questions and I'll let you answer your questions and if
follow up, I would ask that one at a time for the court
reporter.
I would ask that you answer the question
fairly and I'll try not to interrupt you. And then if
you would do your best to answer the questions, and as I
said, if you don't understand it, let me know.
A. Right.
MR. SCAROLA: Excuse me. I'm going to
interrupt you for just a moment. Pardon me.
There is this page that was placed in front of
me, and I don't know whether this was intended as
a delivery of something.
MR. SCOTT: No. You had asked for a copy of
the entry from Professor Dershowitz's book when
he made reference to it. I said I'd give you a
copy in the last deposition, and that's it. We
made a copy of it.
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MR. SCAROLA: Okay. Thank you. I had also
asked for all of the information regarding
communications with Rebecca, which I was told
that I would get today. Is that available?
MR. SCOTT: No. I told you that we would
consider if that -- I apologize. I said we will
consider that and you can put it in a request and
we will respond.
THE WITNESS: I would sure like to see that
before I answer any more questions. Is that
something you could make available?
MR. SIMPSON: I don't think that's necessary
to answer the questions I'm going to ask. I'm
not going to ask you any questions -- I won't ask
you any questions about Professor Dershowitz's
communications with this Rebecca that you've
heard about. You were in the room while he
testified, correct?
THE WITNESS: Right, but I mean there are --
there are broader subjects that extend beyond
those communications, so if you're going to ask
any questions about those broader subjects, I
would like to see the communications. That would
be helpful to me.
BY MR. SIMPSON:
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Q. I'm just going to ask you questions about
the case and about your knowledge, and all I ask is that