EFTA00594390.pdf

152 1 IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR 2 BROWARD COUNTY, FLORIDA 3 CASE NO. CACE 15-000072 4 5 BRADLEY J. EDWARDS and PAUL G. CASSELL, 6 Plaintiffs/Counterclaim Defendants, 7 vs. 8 9 ALAN M. DERSHOWITZ, 10 Defendant/Counterclaim Plaintiff. 11 12 13 14 VIDEOTAPED DEPOSITION OF 15 PAUL G. CASSELL 16 TAKEN ON BEHALF OF THE DEFENDANT 17 VOLUME II, PAGES 152 to 335 18 19 20 Saturday, October 17, 2015 21 8:32 a.m. - 12:14 p.m. 22 425 North Andrews Avenue 23 Suite 2 Fort Lauderdale, Florida 33301 24 25 Theresa Tomaselli , RMR ESQUIRE DEPOSITION SOLUTIONS EFTA00594390  153 1 APPEARANCES OF COUNSEL 2 On behalf of the Plaintiffs: 3 SEARCY DENNEY SCAROLA 4 BARNHART & SHIPLEY. P.A. BY: JOHN SCAROLA, ESQUIRE 5 2139 Palm Beach Lakes Boulevard West Palm Reach. Flprida 33409 6 Tel : Fax: 7 E-mail : 8 On behalf of 9 BOIES SCHILLER & FLEXNER, LLP 10 BY: SIGRID STONE McCAWLEY, ESQUIRE 401 East Las Olas Boulevard 11 Suite 1200 Fort Lau ida 33301 12 Tel : Fax: 13 E-mail : 14 On behalf of the Defendant: 15 WILEY REIN LLP 16 BY: RICHARD A. SIMPSON. ESQUIRE AND: NICOLE A. RICHARDSON. ESQUIRE 17 1776 K Street Northwest Washington 20006 18 Tel : Fax: 19 E-mail : 20 Also on behalf of the Defendant: 21 COLE, SCOTT & KISSANE, P.A. 22 BY: THOMAS EMERSON SCOTT, JR. , ESQUIRE 9150 South Dadeland Boulevard 23 Dadeland Centre II - Suite 1400 Miami , Fl 24 Tel : Fax: 25 E-mail : ESQUIRE DEPOSITION SOLUTIONS EFTA00594391  154 1 APPEARANCES CONTINUED 2 Telephonically on behalf of Jeffrey Epstein: 3 DARREN K. INDYKE. PLLC 4 BY: DARREN K. INDYKE, ESQUIRE 575 Lexington Avenue 5 4th Floor New York, 0022 6 Tel : 7 Also Present: 8 DON SAVOY, Videographer 9 BRADLEY J. EDWARDS ALAN M. DERSHOWITZ (Telephonically) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ESQUIRE DEPOSITION SOLUTIONS EFTA00594392  155 1 INDEX OF EXAMINATION 2 WITNESS PAGE 3 PAUL G. CASSELL 4 CONTINUED DIRECT EXAMINATION 160 BY MR. SIMPSON 5 6 INDEX TO EXHIBITS 7 EXHIBIT DESCRIPTION PAGE 8 9 Cassell's I.D. Exhibit No. 4 - document 203 10 produced by the witness 11 Cassell's I.D. Exhibit No. 5 - copy of 229 address book 12 Cassell's I.D. Exhibit No. 6 - series of 309 13 e-mails, Bates numbered BE-510 - -514 14 15 16 17 18 19 (Original Exhibits have been attached to the original transcript.) 20 21 22 23 24 25 ESQUIRE DEPOSITION SOLUTIONS EFTA00594393  156 1 DEPOSITION OF PAUL G. CASSELL 2 Saturday, October 17, 2015 3 4 THE VIDEOGRAPHER: We are now on the video 5 record. Today is Saturday, the 17th day of 6 October, 2015. The time is 8:32 a.m. We are 7 here at 425 North Andrews Avenue, Fort 8 Lauderdale, Florida, for the purpose of taking 9 the videotaped deposition of Paul G. Cassell . 10 The case is Bradley J. Edwards and Paul 11 G. Cassell versus Alan M. Dershowitz. 12 The court reporter is Terry Tomaselli , and 13 the videographer is Don Savoy, both from Esquire 14 Deposition Solutions. 15 Will counsel please announce their 16 appearances for the record. 17 MR. SCAROLA: Jack Scarola on behalf of the 18 Plaintiffs. 19 MR. SIMPSON: Richard Simpson of Wiley Rein 20 on behalf of the Defendant and Counterclaim 21 Plaintiff, Alan Dershowitz. With me is my 22 colleague, Nicole Richardson, and Thomas Scott of 23 Cole, Scott & Kissane, also for Mr. -- Professor 24 Dershowitz. 25 MR. SCAROLA: Before we begin the deposition, ESQUIRE DEPOSITION SOLUTIONS EFTA00594394  157 1 we were informed for the first time yesterday 2 morning of the existence of a recording of a 3 telephone communication between Alan Dershowitz 4 and a woman identified only as Rebecca. 5 That information was conveyed to us 6 subsequent to Professor Dershowitz's sworn 7 testimony that no recording existed, but now that 8 we know that the recording existed and that it 9 was obviously made according to the 10 representations given to us, prior to the 11 completion of the responses to our earlier 12 discovery requests, I would like to know whether 13 it is the Defendant's position that it is 14 necessary for us to propound a new discovery 15 request to get information that clearly should 16 have been disclosed in response to the earlier 17 discovery request. 18 Is that the position that you're taking? 19 MR. SIMPSON: First, Mr. Scarola, I believe 20 you have mischaracterized Professor Dershowitz's 21 testimony. You didn't ask the question whether 22 he made a recording. Yesterday morning, he 23 provided that information in response to a 24 different question. 25 MR. SCAROLA: His exact testimony was: I ESQUIRE DEPOSITION SOLUTIONS EFTA00594395  158 1 never thought to record it, but that's fine. 2 MR. SIMPSON: We don't -- we don't need to 3 make that -- 4 MR. SCAROLA: We don't need to discuss that. 5 The question is -- 6 MR. SIMPSON: What you're saying does -- 7 MR. SCAROLA: -- are you going to produce the 8 recording without the necessity of a new request 9 to produce, or will it be necessary for us to 10 file a new request to produce? 11 MR. SIMPSON: As Mr. Scott indicated 12 yesterday, we will respond to you to the 13 discovery request. We will confer at a break and 14 respond to that question. I don't want to take 15 time on the record debating it. After Mr. Scott 16 and I have conferred at a break, we will respond 17 further to your question. 18 MR. SCAROLA: All right. So that the record 19 is clear, it is our position that the recording 20 itself, any evidence of any communication between 21 Mr. Dershowitz and Rebecca and/or Michael , any 22 notes with respect to any such communications, 23 text messages, e-mails, and an accurate privilege 24 log as to everything that is being withheld is 25 responsive to the earlier request to produce, and ESQUIRE DEPOSITION SOLUTIONS EFTA00594396  159 1 that the obligation was to have provided it to us 2 previously and is to provide it to us now. 3 We understand that you're considering that 4 and you will respond, so we can proceed with the 5 deposition. 6 MR. SIMPSON: Yes. And we disagree about 7 that, and as you know, we have a motion to compel 8 regarding your inadequate privilege log. 9 MS. McCAWLEY: Just before we begin, I'm 10 sorry, I didn't announce my appearance for the 11 record. Sigrid McCawley from Boies, Schiller & 12 Flexner, and I have a standing objection that I'd 13 just like to repeat on the record. 14 MR. SCOTT: Feel better that you got that off 15 your chest? 16 MS. McCAWLEY: With respect to -- excuse me. 17 With respect to my client, 18 she is asserting her attorney/client privilege 19 with her attorneys and is not waiving it through 20 any testimony here today, and that I object to 21 any testimony elicited that would be used as a 22 subject of waiver for her attorney/client 23 privilege. 24 MR. SIMPSON: Would you reswear the witness, 25 please? ESQUIRE DEPOSITION SOLUTIONS EFTA00594397  160 1 Thereupon, 2 PAUL G. CASSELL, 3 having been first duly sworn, was examined and testified 4 as follows: 5 THE WITNESS: I do. 6 CONTINUED DIRECT EXAMINATION 7 BY MR. SIMPSON: 8 Q. Good morning -- 9 A. Good morning. 10 Q. -- Mr. Cassell. 11 As of December 30th, 2014, had you ever met 12 with in person? 13 A. Yes. 14 Q. And how many times had you met with her in 15 person? 16 A. Once. 17 Q. When was that? 18 A. Approximately May 2014. 19 Q. May of 2014? 20 A. Yes. 21 Q. Who was present for that meeting? 22 A. I'm just pausing for a second because I 23 don't -- I think we're -- 24 Q. I -- I'm not -- 25 A. -- clearly not trying to get into ESQUIRE DEPOSITION SOLUTIONS EFTA00594398  161 1 attorney/client communication. 2 Q. I'm not asking you for what was said at this 3 point. I'm just asking you who was present. I'm going 4 to ask you where it was, those kind of questions. 5 A. Sure. Yeah. The main person who was present 6 was Bradley J. Edwards, my Co-Plaintiff in this case. 7 Q. Okay. And obviously was 8 present? 9 A. Yes. 10 Q. Anyone else present? 11 A. You know, there were -- this was at the 12 Farmer, Jaffee office here, and so persons who were 13 associated with the law firm were assisting, but those 14 were the main people. 15 Q. Okay. Do you remember any of those other 16 people associated with the law firm who were present? 17 A. Present for, you know, coming in and 18 assisting, I believe Brad's assistant, , was there, 19 and perhaps others at the firm, but it was -- it was 20 basically Brad and I. 21 Q. Was there anyone else who attended for the 22 entire meeting or a substantial portion of the meeting? 23 A. No. 24 Q. Okay. How long did the meeting last? 25 A. Approximately all day. ESQUIRE DEPOSITION SOLUTIONS EFTA00594399  162 1 Q. And when you say "all day," what time period 2 are you referring to? 3 A. 9:00 to 5:00. 4 Q. 9:00 to 5:00. Okay. And was that through 5 lunch; you just stayed through eight hours; is that -- 6 what's your recollection of that? 7 A. Yeah, I remember we were working very hard 8 on -- on it, so I think we had, if I recall correctly, 9 had lunch brought in and worked straight through that. 10 Q. Any other meetings in person with 11 before December 30th of 2014? 12 A. No. 13 Q. Any telephone calls with her that you -- you 14 had, obviously, before December 30th, 2014? 15 A. I believe there were a couple of -- of 16 telephone calls. 17 Q. And can you tell us when those were? 18 A. Let's see. Roughly September 2014. Give or 19 take a month. I mean, you know, sometime after May and 20 before December 30th. 21 Q. Okay. And were those telephone calls between 22 just you and or was anyone else on the 23 line? 24 A. No. It was just the two of -- just 25 and I. ESQUIRE DEPOSITION SOLUTIONS EFTA00594400  163 1 Q. Okay. And are you able to distinguish the 2 calls in your mind as two separate telephone calls? 3 A. I -- I think there were either one or two 4 calls. I think there may have been two, but it -- it 5 would not have been more than two that I can recall. 6 Q. Okay. How long did each of the telephone 7 calls last? 8 A. Less than five minutes. 9 Q. I'm going to ask you a question now, but 10 before you answer it, pause, because I believe you will 11 be instructed not to answer it -- 12 A. Okay. 13 Q. -- but want to -- I think -- we disagree on 14 the privilege -- 15 A. Sure. 16 Q. -- we believe it's been waived. 17 My question is: During the meeting, did you 18 discuss Professor Dershowitz? 19 MS. McCAWLEY: I'm going to object to any 20 discussion of what my client told you during any 21 situation where you were representing her as 22 an -- an attorney. 23 MR. SIMPSON: So -- and I think we had an 24 agreement yesterday, if you follow your own 25 counsel's instruction on not answering, are you ESQUIRE DEPOSITION SOLUTIONS EFTA00594401  164 1 also going to follow Miss McCawley's instructions 2 on not answering on behalf of -- 3 MR. SCAROLA: Mr. Cassell will follow the 4 instructions of counsel. It is 5 not his privilege to waive, and he is ethically 6 obliged to respect the direction coming from 7 counsel. 8 MR. SIMPSON: Yes, I'm -- I'm simply, 9 Mr. Scarola, making my record that the witness 10 MR. SCAROLA: I understand that. 11 MR. SIMPSON: Right. We disagree. 12 MR. SCAROLA: I understand, but you can 13 assume the same way I have authorized you to 14 assume that Professor Cassell will follow my 15 instructions, Professor Cassell will also follow 16 all instructions concerning the assertion of 17 attorney/client privilege expressed on the record 18 by Miss McCawley on behalf of 19 MR. SIMPSON: All right. 20 BY MR. SIMPSON: 21 Q. So, Mr. Cassell, based on that, I will assume 22 that if I ask you what you recall the discussion being 23 at the meeting or at each of the phone calls, that 24 you're not going to answer those questions; is that 25 correct? ESQUIRE DEPOSITION SOLUTIONS EFTA00594402  165 1 MS. McCAWLEY: Yes. 2 THE WITNESS: Yeah, obviously not. 3 BY MR. SIMPSON: 4 Q. Okay. 5 A. I mean, I have a duty to my client which I'm 6 going to respect. 7 Q. All right. So we'll -- we'll take that up 8 later with the judge. 9 As of December 30th, 2014, had you spoken 10 about this case with David Boies, and the question is 11 just: Had you spoken -- 12 MS. McCAWLEY: Objection. 13 BY MR. SIMPSON: 14 Q. -- not what the discussion was. 15 MS. McCAWLEY: Objection. It's the 16 common-interest privilege. 17 BY MR. SIMPSON: 18 Q. I'm only asking if there was a discussion, no 19 substance at all. Just, was there a discussion? 20 MS. McCAWLEY: I'm going to instruct you not 21 to answer that. 22 MR. SIMPSON: Okay. You're taking the 23 position that the fact of whether or not -- 24 MS. McCAWLEY: Yes, because you're also 25 trying to get into the timing of communications, ESQUIRE DEPOSITION SOLUTIONS EFTA00594403  166 1 and all that goes into the advice that they were 2 giving her and surrounding that advice, so I 3 would object to that. 4 MR. SCAROLA: Could I have the question read 5 back? 6 (Thereupon, a portion of the record was read 7 by the reporter.) 8 MS. McCAWLEY: And I would like to clarify 9 what case as well that you're referring to. 10 MR. SIMPSON: All right. Let me ask the 11 question, and -- and I will note for the record 12 that yesterday, the witness testified that the 13 fact that Mr. Boies was representing 14 was significant to him. So it's sort of 15 being used as a sword and a shield here, but I 16 have only asked the question. I'll clarify. 17 MR. SCAROLA: We haven't used it any way yet. 18 MR. SIMPSON: Well , the -- the witness 19 volunteered. Shall I put it that way? And we 20 have a waiver. 21 BY MR. SIMPSON: 22 Q. But, in any event, my question is: Have you 23 spoken -- before December 30th of 2014, had you spoken 24 with David Boies about ' allegations 25 regarding Professor Dershowitz? ESQUIRE DEPOSITION SOLUTIONS EFTA00594404  167 1 MR. SCAROLA: Without getting into the 2 substance of any such discussions, you can answer 3 that question. 4 THE WITNESS: My recollection is no. 5 MR. SCOTT: I think you're right on that one. 6 BY MR. SIMPSON: 7 Q. Okay. So the answer is, no, you had not 8 spoken with him? 9 A. My recollection -- 10 MR. SCAROLA: Judge Scott has issued a 11 ruling, so -- 12 MR. SCOTT: I wrote several opinions on that 13 actually. 14 MR. SCAROLA: -- we'll proceed. 15 THE WITNESS: Let me go back -- 16 MR. SCOTT: In the context of criminal 17 lawyers. 18 THE WITNESS: I'm trying to remember if I 19 wrote any opinions on that one when I was a 20 judge. My -- I don't recall , but -- I don't 21 recall . I -- my recollection is I had not 22 personally spoken to David Boies before December 23 30th, 2014. 24 BY MR. SIMPSON: 25 Q. Okay. Had you, before December 30th of 2014, ESQUIRE DEPOSITION SOLUTIONS EFTA00594405  168 1 spoken with any other lawyers at Mr. Boies' firm? 2 A. My recollection is, no. 3 Q. And after December 30th of 2014, have you 4 spoken with Mr. Boies about 5 allegations against -- 6 MS. McCAWLEY: Again, I'm going to object. 7 BY MR. SIMPSON: 8 Q. -- Professor Dershowitz? 9 MS. McCAWLEY: Sorry. I will let you finish. 10 I'm objecting to this. I think it gets into 11 the substance of conversations under the 12 common-interest privilege, whether there was a 13 conversation, but you're getting into the 14 substance of what the conversation was about, and 15 I think that is a violation of her -- her 16 privilege. 17 MR. SCAROLA: And just so that I can clarify 18 our position on the record, I think that we can 19 identify the general subject matter in order to 20 support our position that it falls within the 21 common-interest privilege. So we are willing to 22 answer the question about the general subject 23 matter to support our assertion of 24 common-interest privilege, but not get into the 25 substance of the communications beyond that. ESQUIRE DEPOSITION SOLUTIONS EFTA00594406  169 1 MR. SIMPSON: And I believe it's the same 2 question that was answered a moment ago for a 3 different time period, and again, I'm not asking 4 for any substance. I'm just asking whether, 5 since December 30th, 2014, you have discussed the 6 allegations by against Professor 7 Dershowitz. 8 THE WITNESS: I would like to confer with my 9 counsel on that question. It gets into a 10 complicated legal issue that I'm not sure I 11 can -- 12 MR. SIMPSON: You want to confer on a 13 privilege issue; is that right? 14 THE WITNESS: I want to confer with my 15 counsel before answering that question anyway. 16 MR. SIMPSON: I just want to clarify -- 17 MR. SCAROLA: With respect to privilege. 18 MR. SIMPSON: All right. As long as it's 19 with respect to privilege, you're entitled to do 20 that. 21 THE WITNESS: Okay. 22 THE VIDEOGRAPHER: We are going off the video 23 record, 8:45 a.m. 24 (Thereupon, a recess was taken.) 25 THE VIDEOGRAPHER: We are back on the video ESQUIRE DEPOSITION SOLUTIONS EFTA00594407  170 1 record, 8:47 a.m. 2 MR. SCAROLA: As it turns out, while we may 3 reach some issue of privilege at some point in 4 this discussion, the answer to your pending 5 question is, no, so there's no privilege concern. 6 MR. SIMPSON: All right. I'll -- I'll ask 7 the witness for the -- 8 MR. SCAROLA: Sure. 9 MR. SIMPSON: -- the -- the answer. I'll 10 move to -- I'll reask the question. 11 THE WITNESS: Sure. That will be good. 12 BY MR. SIMPSON: 13 Q. My question is: I believed you had already 14 answered the question as to before December 30th, 2014, 15 you had discussed IIII ' allegations against 16 Professor Dershowitz, and you said, no; is that right? 17 MR. SCAROLA: David Boies. 18 MR. SIMPSON: David Boies. I'm sorry. 19 THE WITNESS: Before December 30th, no 20 discussions that I can recall with David Boies. 21 BY MR. SIMPSON: 22 Q. After December 30th, 2014, did you have any 23 discussions with David Boies about Professor Dershowitz? 24 A. Can I -- 25 MR. SCAROLA: You can answer yes or no. ESQUIRE DEPOSITION SOLUTIONS EFTA00594408  171 1 THE WITNESS: Yes. 2 BY MR. SIMPSON: 3 Q. You did. 4 A. Yes. 5 Q. What was the substance of those 6 communications? 7 MS. McCAWLEY: I'm going to object to that. 8 You -- it's under the common-interest privilege 9 and it's privilege to waive, and she's 10 not waiving it. 11 MR. SIMPSON: Okay. 12 MR. SCAROLA: We -- we assert the 13 common-interest privilege with regard to the 14 substance as well. 15 MR. SIMPSON: All right. And that -- that 16 will be -- that will be asserted as to all 17 questions about the substance of the discussions 18 with Mr. Boies; is that right? 19 MR. SCAROLA: I can't say that for sure. 20 MR. SIMPSON: All right. Let me ask my 21 question then. 22 MR. SCAROLA: And let -- maybe this -- maybe 23 this will help you and maybe it won't. But, 24 obviously, there have been some public statements 25 with regard to this general area. If the ESQUIRE DEPOSITION SOLUTIONS EFTA00594409  172 1 communications were not considered to be 2 privileged at the time that they were made, we 3 can answer questions about that. If they were 4 considered to be privileged at the time they were 5 made, we can't answer questions. 6 So I can't tell you that there's a blanket 7 assertion. We need to hear the question. 8 THE WITNESS: I need the question back. 9 MR. SIMPSON: All right. 10 BY MR. SIMPSON: 11 Q. What did you discuss with Mr. Boies about the 12 allegations against Professor Dershowitz? 13 MR. SCAROLA: And that is common-interest 14 privilege information and we do assert a 15 privilege. 16 BY MR. SIMPSON: 17 Q. Did you discuss with Mr. Boies any 18 discussions he had had with Professor Dershowitz? 19 MS. McCAWLEY: Objection. 20 MR. SCAROLA: Same objection. Same 21 instruction. 22 BY MR. SIMPSON: 23 Q. Did you discuss with Mr. Boies any documents 24 that Mr. Boies had reviewed? 25 MR. SCAROLA: Well, let me -- again, I don't ESQUIRE DEPOSITION SOLUTIONS EFTA00594410  173 1 want to be asserting a privilege to questions as 2 to which the answer is no, so you can answer 3 generally as to whether the subject matter was 4 covered in any discussion that you had with 5 Mr. Boies. 6 THE WITNESS: Okay. 7 MR. SCAROLA: Okay. If the answer is no. If 8 the answer -- as I sink down in this chair, if 9 the answer may be yes, you can't respond. 10 MR. SIMPSON: I -- I -- that's a new version. 11 MS. McCAWLEY: I'm afraid -- yeah, I want 12 to -- I'm sorry. I want to confer on that 13 because I have an objection. 14 THE WITNESS: I have to say I want to confer, 15 I'm confused, too, so let's take a short break. 16 MR. SIMPSON: Again, you're conferring on the 17 privilege now, not the substance? 18 THE WITNESS: That's right. 19 MR. SCAROLA: Can we go off the record? 20 MR. SIMPSON: Yes. 21 THE VIDEOGRAPHER: Going off the video 22 record, 8:48 a.m. 23 (Thereupon, a recess was taken.) 24 THE VIDEOGRAPHER: We are back on the video 25 record, 8:52 a.m. ESQUIRE DEPOSITION SOLUTIONS EFTA00594411  174 1 MR. SCAROLA: Because of concern about a 2 an inadvertent potential waiver of the 3 work-product privilege, while it is not our 4 intent to assert a privilege with regard to 5 nonexistent communications, any effort to 6 identify the subject matter of communications in 7 the questions that you asked will require that we 8 assert work-product privilege with regard to 9 those questions. 10 MR. SIMPSON: Okay. We disagree, obviously, 11 on that position. 12 MR. SCAROLA: We understand. 13 MR. SIMPSON: So I will ask some additional 14 questions and we will see if the witness answers 15 them. 16 MR. SCAROLA: If it begins: "Did you talk 17 about," the answer is going to be an assertion of 18 privilege. 19 MR. SIMPSON: Okay. 20 MR. SCAROLA: Okay? 21 MR. SIMPSON: I'll ask the questions. 22 BY MR. SIMPSON: 23 Q. Did you discuss with Mr. Boies any meetings 24 Mr. Boies had had with Professor Dershowitz? 25 MS. McCAWLEY: Objection. ESQUIRE DEPOSITION SOLUTIONS EFTA00594412  175 1 MR. SCAROLA: Objection. Same instruction. 2 BY MR. SIMPSON: 3 Q. Did you discuss with Mr. Boies his views as 4 to the credibility of 5 MR. SCAROLA: Same objection. 6 MS. McCAWLEY: Objection. 7 MR. SCAROLA: Same instruction. 8 BY MR. SIMPSON: 9 Q. Did you discuss with Mr. Boies any 10 allegations about sexual misconduct by Les Wexner? 11 MR. SCAROLA: Same objection. 12 MS. McCAWLEY: Objection. 13 MR. SCAROLA: Same instruction. 14 MR. SIMPSON: That's the same question you 15 allowed to be answered. Did you -- let me ask it 16 a different way. 17 BY MR. SIMPSON: 18 Q. Did you discuss, in any way, Les Wexner with 19 Mr Boies? 20 MR. SCAROLA: Same objection. 21 MS. McCAWLEY: Objection. 22 MR. SCAROLA: Same instruction. 23 MR. SIMPSON: He's instructed not to answer 24 whether that topic was discussed? 25 MR. SCAROLA: Yes. ESQUIRE DEPOSITION SOLUTIONS EFTA00594413  176 1 MS. McCAWLEY: Yes. 2 MR. SIMPSON: Okay. 3 BY MR. SIMPSON: 4 Q. Did you discuss former Prime Minister Barak 5 with Mr. Boies? 6 MR. SCAROLA: Same objection. 7 MS. McCAWLEY: Objection. 8 MR. SCAROLA: Same instruction. 9 BY MR. SIMPSON: 10 Q. Yesterday, you mentioned that one of the 11 reasons that supported your conclusion that it -- you 12 had an adequate basis to allege in the joinder motion 13 that the allegations against Professor Dershowitz was 14 that Mr. Boies was representing -- yes, 15 ; do you recall that testimony? 16 A. Yes. 17 Q. And you said that because of how highly 18 regarded Mr. Boies was, I think you mentioned the Bush 19 v. Gore case; is that right? 20 A. Yes. 21 Q. I used to work for his opponent in Bush v. 22 Gore case. They are both very good. 23 A. I'm trying -- I was trying to remember. I'm 24 sorry to take time, but who was the other lawyer? 25 Q. Ted Olson. ESQUIRE DEPOSITION SOLUTIONS EFTA00594414  177 1 A. Ted, that's right. That's.. . 2 Q. But that's a side note. 3 My question is: Given your high regard for 4 Mr. Boies, would you -- would his views as to the 5 credibility of be something that would 6 be important to you in evaluating the case? 7 MS. McCAWLEY: Objection. 8 MR. SIMPSON: Are you instructing him not to 9 answer? 10 MS. McCAWLEY: I mean, is it a hypothetical? 11 MR. SIMPSON: No. I'm just asking whether 12 his views -- those views -- I'm not asking what 13 the views are. I'm simply asking whether those 14 views would be important to him. 15 MR. SCAROLA: You may answer that question. 16 THE WITNESS: Yes. 17 BY MR. SIMPSON: 18 Q. And if I -- I may have asked this already, 19 but did you discuss with Mr. Boies his views as to the 20 credibility of 21 MS. McCAWLEY: Objection. 22 MR. SCAROLA: Same objection Same 23 instruction. 24 BY MR. SIMPSON: 25 Q. Prior to December 30th of 2014, had you ESQUIRE DEPOSITION SOLUTIONS EFTA00594415  178 1 discussed ' allegations of sexual 2 misconduct against Professor Dershowitz with Bob 3 Josefsberg? 4 A. Me personally? 5 Q. Yes, you personally. 6 A. No. 7 Q. After December 30th of 2014, had you -- did 8 you discuss with Mr. Josefsberg ' allegations 9 against Professor Dershowitz? 10 A. Not personally, no. 11 Q. You say not personally. Are you aware of 12 someone else who had those discussions of -- with Mr. -- 13 had any discussions on that topic with Mr. Josefsberg? 14 MR. SCAROLA: To the extent that that 15 question would call for any information that was 16 communicated to you in the context of the 17 common-interest privilege, you should not answer. 18 THE WITNESS: All right. I'm not going to... 19 MR. SCAROLA: So you -- you can answer it if 20 any such communication came to you outside the 21 context of the common-interest privilege, but you 22 may not include in your response any information 23 derived from the common-interest privilege. 24 BY MR. SIMPSON: 25 Q. And my question right now is not the ESQUIRE DEPOSITION SOLUTIONS EFTA00594416  179 1 substance. We will get to that. But, to your 2 knowledge -- put -- let me rephrase that. 3 Did someone tell you that they had discussed 4 with Mr. Josefsbergs Josefsberg, the allegations made 5 by against Professor Dershowitz? 6 MR. SCAROLA: You may only answer that 7 question to the extent that you had any 8 communication regarding that subject matter with 9 someone outside the common-interest privilege, or 10 the attorney/client privilege for that matter. 11 BY MR. SIMPSON: 12 Q. I'm simply -- I'm not asking for substance, 13 just the name if you did. 14 MR. SCAROLA: Well , I understand that, but 15 following along the same lines as before, you are 16 asking us to identify the subject matter of a 17 communication that is privileged. We won't 18 answer questions regarding the subject matter of 19 privileged communications, but if 20 Professor Cassell had a conversation with Sam 21 Smith standing on the street corner about Bob 22 Josefsberg, he can answer that question. 23 BY MR. SIMPSON: 24 Q. Did you have a conversation with anyone -- 25 just narrow question: Did you have a conversation with ESQUIRE DEPOSITION SOLUTIONS EFTA00594417  180 1 anyone who told you that they, that person, had 2 discussed the subject matter of 3 allegations against Professor Dershowitz with 4 Mr. Josefsberg? Just did you discuss it with anyone? 5 MR. SCAROLA: Same objection. Same 6 instruction. 7 MR. SIMPSON: Okay. 8 MR. SCAROLA: If you want to rephrase the 9 question to ask him whether he had such a 10 conversation with anyone outside the 11 attorney/client or work-product privilege, that's 12 a question that we are obliged to answer. 13 The question, as you phrased it, is a 14 question that we are precluded from answering. 15 MR. SIMPSON: That's a very strange notion of 16 privilege. 17 BY MR. SIMPSON: 18 Q. But let me ask it this way: Did you discuss 19 with anyone who is not an attorney -- let me rephrase it 20 a different way. 21 You testified yesterday about your 22 understanding of the scope of the alleged 23 common-interest privilege, correct? 24 A. Yes. 25 Q. Putting aside the people within the scope of ESQUIRE DEPOSITION SOLUTIONS EFTA00594418  181 1 that privilege -- 2 A. Yes. 3 Q. -- that you identified -- 4 A. Uh-huh. 5 Q. -- your definition of it -- 6 A. Right. That's right. 7 Q. -- did you discuss the topic did anyone 8 tell you they had discussed the topic of 9 allegations against Professor Dershowitz with 10 Mr. Josefsberg? 11 MR. SCAROLA: You may not answer that 12 question to the extent the question still 13 encompasses attorney/client privileged 14 communications. If you want to rephrase the 15 question to exclude both common-interest 16 privileged communications and attorney/client 17 privileged communications, that's a question we 18 are prepared to answer. 19 Otherwise, we are prohibited from answering 20 the question as phrased as a consequence of it 21 encompassing privileged communications. 22 MR. SIMPSON: As he defined the 23 common-interest privileged group, it included 24 attorney/client, but I think at this point the 25 explanations you're providing aren't really ESQUIRE DEPOSITION SOLUTIONS EFTA00594419  182 1 helpful. So please just instruct him to answer 2 or not answer, and we will let the judge decide. 3 MR. SCAROLA: Well , the instruction -- I only 4 gave the explanation in the hope that it might 5 facilitate the examination and allow you to move 6 to areas where you can get substantive 7 information. 8 I apologize if you consider it a waste of 9 time. So I will simply instruct Professor 10 Cassell not to answer the question as phrased. 11 If you ever want an explanation as to the basis 12 of my instruction, I'm prepared to give that to 13 you 14 MR. SIMPSON: Thank you. That -- that's a 15 helpful way to proceed. 16 MR. SCAROLA: Okay. 17 BY MR. SIMPSON: 18 Q. Have you -- well, let's start this way: Have 19 you discussed with any of the attorneys within what you 20 described as the common-interest attorney/client group, 21 whether that person had discussed with Mr. Josefsberg 22 allegations against Professor 23 Dershowitz? 24 MR. SCAROLA: Same objection. Same 25 instruction. ESQUIRE DEPOSITION SOLUTIONS EFTA00594420  183 1 BY MR. SIMPSON: 2 Q. Have you discussed with anyone who is not an 3 attorney for IIII whether -- strike that. 4 Has anyone who is not an attorney for 5 told you that they had discussed with 6 Mr. Josefsberg the allegations against -- by 7 against Professor Dershowitz? 8 MR. SCAROLA: Same objection. Same 9 instruction. 10 BY MR. SIMPSON: 11 Q. Have you personally spoken with anyone else 12 at Mr. Josefsberg's firm, other than him, about 13 allegations against Professor Dershowitz? 14 A. Not to my knowledge. 15 MS. McCAWLEY: I'm sorry. I'm sorry. Can 16 you read that back? 17 MR. SCAROLA: Was a communication with anyone 18 else in Bob Josefsberg -- Bob Josefsberg's firm, 19 personal communication between Professor Cassell 20 and any firm member of Bob Josefsberg. 21 MS. McCAWLEY: Okay. 22 BY MR. SIMPSON: 23 Q. And the answer was, not that you recall? 24 A. Not to my knowledge. I don't know all the 25 members of his firm, but I certainly have no ESQUIRE DEPOSITION SOLUTIONS EFTA00594421  184 1 recollection of talking to, you know, anyone who is -- 2 who was in his firm. 3 Q. Okay. 4 A. I -- I think the record should be clear, 5 I'm -- I'm an attorney and a law professor in Salt Lake 6 City, Utah, and my understanding, he's an attorney here 7 in Florida. So I don't ordinarily interact with -- 8 with, you know, attorneys in Florida, other than the 9 ones that I'm interacting with on -- on this case. 10 MR. SCAROLA: Which is now occurring on a 11 very regular basis. 12 BY MR. SIMPSON: 13 Q. Mr. Cassell -- 14 MR. SCOTT: No teaming, Mr. Scarola, please. 15 BY MR. SIMPSON: 16 Q. -- did -- didn't you testify yesterday that 17 the fact that Mr. Josefsberg's firm had filed a 18 complaint against IIII , who is also your client, 19 to be significant to your evaluation of the case? 20 A. Yes. 21 Q. And if it -- if that was significant to 22 evaluation of the case, why are you telling us you don't 23 normally talk with attorneys in Florida? Doesn't he 24 represent -- at one point, represent the same client? 25 A. Right. ESQUIRE DEPOSITION SOLUTIONS EFTA00594422  185 1 Q. And so wouldn't it be natural for you to be 2 speaking with -- at least within the realm of something 3 one might expect for you to speak? 4 A. If I were a solo representative of 5 , that would be the case, but I think you're 6 obviously aware that I have co-counsel on this case, and 7 there are other attorneys who are also participating in 8 this matter. 9 So I think it would be obvious that if 10 there's a division of labor, it might not be along the 11 lines that you're suggesting. And I can't go any 12 further without going into work product and other issues 13 surrounding IIII ' representation. 14 Q. Has Mr. Boies ever told you that he believes 15 was mistaken in her accusations against 16 Professor Dershowitz? 17 MR. SCAROLA: Same objection. Same 18 instruction. 19 MS. McCAWLEY: Same instruction. 20 THE WITNESS: I'd like to confer with my 21 counsel on a attorney/client privilege issue in 22 connection with that question. 23 MS. McCAWLEY: Can I just write down the 24 question and -- 25 MR. SIMPSON: I'll -- I'll rephrase it. ESQUIRE DEPOSITION SOLUTIONS EFTA00594423  186 1 BY MR. SIMPSON: 2 Q. Have you ever -- I'll rephrase the question. 3 Have you ever discussed with Mr. Boies his 4 views as to whether or not IIII is mistaken in 5 her allegations against Professor Dershowitz? 6 MS. McCAWLEY: Objection. 7 MR. SCAROLA: Same objection. Same 8 instruction. 9 BY MR. SIMPSON: 10 Q. Prior to December 30th of 2014, had you 11 personally reviewed any of the flight logs that had been 12 referred to in the testimony in this case? 13 A. All right? 14 Q. My only question is whether you personally 15 reviewed them. 16 A. Yes. 17 Q. What flight logs have you reviewed; how would 18 you describe them? 19 A. Both Exhibit 1 and Exhibit 2 that were shown 20 to Mr. Dershowitz yesterday. 21 Q. If -- I believe those were Exhibits 6 and 22 7-- 23 A. Okay. 24 Q. -- but can we agree that flight logs were 25 marked as exhibits? ESQUIRE DEPOSITION SOLUTIONS EFTA00594424  187 1 A. Right. The two composite exhibits of flight 2 logs I had examined previously. 3 Q. Okay. So the same documents that Professor 4 Dershowitz was shown at his deposition; is that right? 5 A. That's my recollection, yes. 6 Q. Okay. When did you review those? 7 A. So one of the reviews was in May 2014. There 8 may have also been an earlier review at an earlier -- 9 earlier time, but I definitely remember reviewing them 10 in May -- approximately May 2014. 11 Q. Would -- do you -- isn't it true that those 12 flight logs support Professor Dershowitz's testimony 13 that he was never on a plane with IIIIIII? 14 A. No. 15 Q. How do they not? What is -- what is the 16 explanation for your conclusion in that regard? 17 A. Right. We talked about this yesterday, so 18 I'll incorporate to speed things up some of the 19 testimony that I gave yesterday. 20 What the flight logs showed was, to my mind, 21 evidence of potential doctoring, evidence of -- of 22 selective presentation of evidence. Mr. Dershowitz had 23 presented to a law enforcement agency, at their request, 24 apparently what I understood to be the -- the -- I 25 understood that he had been requested by a law ESQUIRE DEPOSITION SOLUTIONS EFTA00594425  188 1 enforcement agency to provide flight logs relevant to 2 this investigation. 3 And rather than providing all the flight logs 4 that were available at that time, he appears to have 5 provided flight logs that went from January 2005 through 6 September 2005, knowing that he appeared on an 7 October -- I may be off by one month here -- but on an 8 October 2005 flight log. 9 So that, to my mind, had indicated that 10 Professor Dershowitz was providing selective information 11 to law enforcement. Those concerns -- this is, you 12 know, there's -- there's more to it. 13 The other problem was that the flight logs 14 that Mr. Dershowitz had produced were inconsistent with 15 the flight logs that Dave Rogers, one of Mr. Epstein's 16 pilots had, so there were now inconsistencies on these 17 flight logs. And it seemed to be -- it seemed to me to 18 be surprising that during the period of time where 19 was involved, Mr. Dershowitz was not 20 appearing on those flight logs. 21 Now, it is possible, I suppose, and that 22 seems to be Mr. Dershowitz's position, that the reaso