Deposition excerpt hints at disputed privilege waiver in settlement talks involving Boies, Dershowitz and McCawley

02:46:40 02:46:43 02:46:46 02:48:50 02:46:54 02:46:55 02:46:55 ON GO OA bh & ND 02:46:56 02:46:58 9 02:47:00 1 0 02:47:00 1 1 02:47:03 1 2 02:47:06 1 3 02:47:06 1 4 02:47:07 1 5 02:47:08 1 6 02:47:12 1 7 02:47:16 1 8 02:47:20 1 9 02:47:23 20 02:47:26 21 02:47:29 22 02:47:30 23 02:47:32 24 02:47:35 25 02:47:39 02:47:44 02:47:43 02:47:44 02:47:46 02:47:46 02:47:48 On Oo kh Wh = 02:47:49 czars 9 o247s2 10 02:47:55 11 02:47:55 12 o2a7ss 13 o2arss 14 o2aaco 15 o24a02 16 o24s05 17 ozasos 18 02:48:10 19 ozasto 20 o24a10 21 oraeit 22 ore 23 024811 24 o2zas12 25 280 settlement discussions, Mr. Boies will not, at least at this time, describe what was actually said. However, Mr. Boies does state that Mr. Dershowitz's description of what was said is not true.” A. That's the one. Q. You read that? A. Yeah. I -- I learned of it -- yeah, I don't remember whether I read or how I got it, but yeah, that's the one. Q. In light of that statement by Mr. Boies, would you agree that any privilege has been waived? A. Iwould not. Q. So-- A. That's -- that’s a newspaper article. Q. It's a pub -- it's a quote. Let me clarify. That's a statement -- quoting a statement issued by Ms. McCawley and quoting Mr. Boies as saying, Mr. Dershowitz's description of what was said is not true, so that’s a public statement by Mr. Boies saying that Mr. Dershowitz's testimony is not true; is that a waiver in your view? A. No. And that would require -- I'm with -- I'm just putting you on notice, talking about notice, if you want me to, I could give you the law professor ESQUIRE DEPOSITION SOLUTIONS (954) 331-4400 281 answer as to why that's not a waiver. Off the top of my head, I can start talking about that. Q. No. I don't -- I don't need that. A. Right. That's why I just wanted to let you know, So... Q. But I really wanted to clarify -- and what I wanted to clarify was -- A. Ido not -- let me just be clear, so the record is clear: I absolutely do not believe that's a waiver and I could give you an extended answer, but I know time is drawing short -- Q. All right. A. -- so... Q. But you -- what I want to clarify is that, notwithstanding that statement, you will continue to answer all my questions about the substance of discussions with Mr. Boies; you're continuing not to answer, you're continuing -- MS. McCAWLEY: Yes -- MR. SCAROLA: You just said you -- MS. McCAWLEY: -- I believe -- MR. SCAROLA: -- continue to answer. MS. McCAWLEY: I'm sorry. MR. SIMPSON: I'm sorry. MS. McCAWLEY: Continue not to answer. ESQUIRE DEPOSITION SOLUTIONS (954) 331-4400 33 of 46 sheets 02.48:13 02:48:15 02:48:15 02:48:16 02:48:19 02:48:22 02:48:22 on Om hb &© Nh 02:48:25 ozaaz7 9 024828 10 02:48:31 1 1 ozaa33 12 oz4eas 13 ozaeas 14 ozaeze 15 ozan3e 16 ozaa30 17 ozaear 18 0248-43 19 ozaear 20 o248-47 24 o2aeso 22 o24e51 23 024852 24 oz4es3 25 02:48:57 02:48:58 02:49:01 02:49:03 02:49:05 02:49:05 02:49:08 On Om bh & HN 02:49:10 © 02:49:12 o2ao14 10 czas 11 ozaais 12 ozaora 13 02:49:23 14 ozaa.26 15 o24930 16 ozaoze 17 ozao26 18 o249a7 19 024033 20 o24e39 21 o2aga2 22 024950 2S ozaos2 24 o2aoss 25 282 MR. SCAROLA: Why don't you start over again? MR, SIMPSON: No. I just want -- MS. McCAWLEY: We disagree with your characterization of that as a waiver. It was a statement that was issued in order to stop the waivers that Mr. Dershowitz was trying to engage in, and we -- we don't agree that's a waiver and we will not allow any testimony regarding those communications. MR. SIMPSON: Okay. I disagree with the position and the characterization, but I just wanted to clarify on the record, I didn't have to ask those questions again. MR. SCAROLA: Sure. MS. McCAWLEY: I understand. MR. SIMPSON: And, obviously, our position is that if it hadn’t already been -- if it hadn't already been waived -- either it wasn't privileged or hadn't been waived, it's now waived. THE WITNESS: And my -- just -- MR. SIMPSON: I don't have a question. THE WITNESS: I know, but I -- but I think now in light of, since the record has these characters, I just want to put one sentence into ESQUIRE DEPOSITION SOLUTIONS (954) 331-4400 283 the record, which is: It doesn't seem to me that an attorney can inject into a deposition confidential settlement proceedings, have somebody deny that, and then say, aha, they're no longer confidential settlement proceedings, so that's -- MR. SIMPSON: There's no question pending. I move to strike the comments. THE WITNESS: Right. I just didn't want your comments to -~ to reflect back on my earlier answer. BY MR. SIMPSON: Q. I want to go back, Mr. Cassell, get back to yesterday's exhibits. I'm going to hand you what was marked yesterday as Cassell Exhibit Number 2, which is the joinder motion, and when you have that in front of you -- A. Got it. Q. Do you have that in front of you? A. Ido. Q. Allright. Would you -- find my copy of it -- if you would turn to page -- bottom of page 3, part of -- top of page 4; do you have that? A. Got it. Q. All right. I'm going to read it. Tell me if ESQUIRE DEPOSITION SOLUTIONS (954) 331-4400 Page 280 to 283 of 335 10/20/2015 01:08:15 PM HOUSE_OVERSIGHT_010873