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1022-AC15411 Division No. 29 )
DEPOSITION OF ED MARTIN TAKEN BY C. JOHN PLEBAN, ESQ. ON BEHALF OF THE PLAINTIFF JUNE 27, 2011
REPORTED BY LAURIE A. PRICKETT CERTIFIED SHORTHAND REPORTER CERTIFIED COURT REPORTER REGISTERED MERIT REPORTER MO CCR #1014 IL CSR #084-003303
IN THE CIRCUIT COURT OF THE CITY OF ST. LOUIS STATE OF MISSOURI
Cause No. 1022-AC15411 Division No. 29
) ) Defendant. )
DEPOSITION OF ED MARTIN, produced, sworn and examined on the 27th day of June, 2011, at the offices of Pleban & Petruska Law, LLC, 2010 South Big Bend, St. Louis, Missouri, before Laurie A. Prickett, Certified Shorthand Reporter within and for the States of Missouri and Illinois, in a certain cause now pending in the Circuit Court of the City of St. Louis, between JEANNE BERGFELD, Plaintiff, and ED MARTIN, Defendant.
A P P E A R A N C E S ON BEHALF OF THE PLAINTIFF: PLEBAN & PETRUSKA LAW, LLC C. John Pleban, Esq. Brandy B. Barth, Esq. 2010 South Big Bend St. Louis, MO 63117
ON BEHALF OF THE DEFENDANT: Thurman Law Firm Derrick R. Good, Esq. P.O. Box 800 301 Main Street Hillsboro, MO 63050
INDEX OF EXAMINATION PAGE Examination by Mr. Pleban Examination by Mr. Good INDEX OF EXHIBITS (Exhibits attached to transcript.) PAGE Exhibit 1-B (Previously Marked/Confidential/Not Attached to transcript.) Exhibit 2 (Previously Marked 11-13-07 Letter) Exhibit 3 (Previously Marked RFT Article) Plaintiff's Exhibit 4 (KSDK Statement) Plaintiff's Exhibit 5 (Mannies Article) Plaintiff's Exhibit 6 (RFT E-mail) 22 36 46 60 65 68 5, 99 97
S T I P U L A T I O N
IT IS HEREBY STIPULATED AND AGREED by and between counsel for the parties that this deposition may be taken in shorthand by Laurie A. Prickett, CSR, CCR, RMR, and afterwards transcribed into printing, and signature by the witness is waived. * * * * * * * * * * ED MARTIN of lawful age, being first duly sworn to tell the truth, the whole truth, and nothing but the truth, deposes and says as follows:
EXAMINATION BY MR. PLEBAN: Q. Would you tell us your name for the record,
please, sir? A. Q. A. Q. A. Q. A. Q. A. Ed Martin. M-a-r-t-i-n, is that correct? Yep. Mr. Martin, where do you reside? 6427 Devonshire, St. Louis Hills. City of St. Louis? Yes. And with whom do you reside at that address? My wife, Carol, and our three children.
Q. A. Q. A.
How long have you lived there? '03. July of '03, I think.
And your educational background? Graduate of St. Peters Prep in Jersey City;
College of the Holy Cross, Massachusetts; and then I did graduate work in Rome, Italy, and St. Louis U Law School for a JD and a Masters. Q. degree? A. Q. A. Q. A. Q. A. '98 -- 1998, spring. Have you ever practiced law? I have. You have? Yes. With whom? I practiced law with -- well, I graduated in And when did you get your juris doctorate
'98, I got licensed, worked for the Archdiocese of St. Louis, although that was in the capacity -- that wasn't practicing law. Mostly education advocacy, clerked for a
judge in the Eighth Circuit Court of Appeals. Q. A. Which one? Pasco Bowman in Kansas City. And worked for
Bryan Cave, and then worked in my own law practice. Q. A. When did you clerk for Judge Bowman? Bowman was August or September of '01 to '02.
And when did you work for the Archdiocese? September '98 until May or so of 2001. I think
that's right. Q. A. And how about for Bryan Cave? Bryan Cave was after clerking, so 2002 summer I think that's right.
until the fall of 2004. Q.
Were you a contract employee at Bryan Cave or
were you an associate? A. Associate. I forget what year associate but I
was an associate. Q. A. And then what did you do after '04? '04 I went out on my own, had my own law
practice that included working with Americans United for Life, which was one of my biggest clients, pro life public interest law firm out of Chicago. I was sort of
working down here on cases and legislation across the country. And that law firm at the time was -- Martin &
Simmons was the name of it because I was working with my father, who's a lawyer in New Jersey, actually. And
since then I went to work for Matt Blunt from, oh, let's see, August of '06 through January of '08. Q. A. Q. With Blunt? Yeah. And then I went back out '08 until today, and
the firm is Ed Martin Law Firm, general practice, all
sorts of -Q. Firm? A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. Ed Martin Law Firm, yeah. LLC or -Yes. And where is your law office? 6037 Hampton Avenue in the City of St. Louis. Do you share a space with anyone? No. And you don't have any partners? No. Nor do you have any associates? I do not. The Simmons that you practiced with previously The name of the firm today is Ed Martin Law
-- who is that? A. That's my dad's -- my dad's firm is Martin &
Simmons, so Simmons was one of his partners. Q. A. Q. A. Q. All right. So this was a New Jersey law firm?
Well, it was -- yeah. With an office here? Right. Mr. Martin, I'm going to ask you some questions
with respect to a lawsuit that's now pending entitled Jeanne Bergfeld versus Ed Martin, and you're acquainted
with that lawsuit? A. Q. Yes. Have you had an opportunity to review the
lawsuit, to review the petition that was filed? A. Uh-huh. MR. GOOD: Chet, one second. I'm going to
remind you say yes, not uh-huh, huh-huh -MR. PLEBAN: Q. A. Q. I'll get there.
Have you ever had your deposition taken before? Yes. All right. If -- let's go through some ground I'm
rules that we're going to use for this morning.
going to ask you some questions with respect to that lawsuit, Bergfeld versus Martin. If at any time you
don't understand a particular question that I've asked you or you haven't heard a question that I've asked you, I want you to stop me, ask me to repeat or rephrase the question in an effort to have you fully hear and understand what I'm asking you. A. Q. Yes. In the event that you don't stop me and ask me Is that agreeable?
to repeat or rephrase, I'll assume that you've heard the question, that you understand it, and that you're giving a full and complete answer to the question that I've asked. Is that agreeable?
A. Q. rules.
Yes. All right. Now, a couple of other ground
And that is, as Mr. Good pointed out, you can't
say uh-huh or huh-uh or yeah because we don't know if that's a yes or no. So where appropriate, if you would And finally,
say yes and no, we would appreciate that.
you have to answer verbally for the record because the court reporter here cannot take down nods of the head, all right? A. Q. Yes, sir. And I'll remind you as we go along because
everybody forgets. A. Q. A. now. Sure. What other depositions have you given? You know, Mr. Pleban, I don't remember right I'm trying to think of that. I think I've had at
least one with matters that you're acquainted regarding my service for the governor. don't remember. And other than that, I
I'm not sure if there's one where I
otherwise would have been deposed. Q. A. Q. So you have a recollection of at least one? Yes. And it was during the governor e-mail
controversy, is that correct? A. Correct.
Who took that deposition? I don't recall if it was the Special Counsel or
the Special Master but it was done by -- Joe Maxwell or who did that I don't remember but I think that was -- he would have been -- it was during that time period. don't know who that attorney was. Q. A. remember? Q. A. Q. A. Yeah. It was -Okay. Who was paired with the gentleman? Do you I
Leonatti. Yes, Lou -So it would have been Lou Leonatti or Joe I don't recall well. And that was two years ago?
Maxwell, I suspect. Q. A. Q. A. Q. All right. Yes.
Three years ago? Let's see, '07, so -- fall of '07 probably. I think so. Okay. When did you leave the
governor's office? A. I was -- it was January of '08 when I formally I was no longer Chief of Staff
separated from there.
about Thanksgiving of '07 but in the six or seven weeks after that, I worked with them on transition also. would have been '08 or so -- January of '08. It
Now, what have you done to prepare
yourself for today's deposition? A. lawyer. Q. When you gave your deposition in the governor's Just reviewed the petition and spoke with my
e-mail case, were you represented by counsel at that time? A. Q. A. Q. A. Q. A. Q. A. Q. A. Yes. Who was that? Frank Bergin. Out of Jeff City? No. St. Louis.
B-e-r-g-a-n? B-e-r-g-i-n, I believe. What firm is he with? He is with -- Clayton. He's in Clayton? Yeah, he's in Clayton. I don't remember the
name of his firm right now. Q.
I could remember it but --
Other than reviewing the petition and speaking
with Mr. Good, have you done anything else to prepare yourself for the deposition today? A. Q. No, sir. Okay. Was there a period that you were
appointed to the Election Board for the City of St.
Louis? A. Q. A. Q. A. Yes, sir. When was that? I don't recall the date specifically. Generally? It would have been '05 through '06, about that
time period. Q. A. Q. And who made that appointment? Matt Blunt, Governor Blunt. And what was your function when you were a
member of the Election Board in the city? A. Well, there were four commissioners and I was
Chairman of the Board of Election Commissioners. Q. A. Q. You were appointed as the chairman? Correct, and confirmed by the senators. And were you the chairman for your entire
tenure on the board? A. Q. A. Blunt. Q. A. Q. And when was that? September of '06, as I recall. What were your general duties and Yes. All right. And why did you leave the board?
I was appointed Chief of Staff to Governor Matt
responsibilities as a member of the Election Board?
Well, there are four members of the Commission,
as you may know, and the four are charged with running Board of Election. So there are two Democrats and two
Republicans by statute, so the four positions are meant to run the elections, you know, supervise and run the elections in a general sense. jobs. So that was what we did. They're not full-time And there was a chairman
of one party and a -- I think it's the treasurer, whatever it is -- secretary or treasurer is the title of another party, so there were those two, and that was the basis of what we did. Q. A. Q. A. much. Q. A. Q. And you received those moneys? Yes. All right. Who are the other members of the Okay. Yeah. And was that a paid position for you? There is a statute that --
Some stipend? Some stipend, yeah. I can't recall exactly how
Election Board that you served with at the time; do you recall? A. Yeah. At the time I served with Clarence Dula
and Angel McCormick Franks, and I believe that for much or most of my tenure, the fourth spot was vacant. Q. Okay. How many -- when you got there in '05,
when you were appointed by Matt Blunt in '05, how many employees did the election board have -- full-time employees? A. Q. I don't recall. Are you acquainted with Jeanne Bergfeld, who is
the plaintiff in this case? A. Q. A. Q. A. Yes. How are you acquainted with Jeanne? She worked at the Election Board. What did she do there? I believe -- the titles are all going to escape
me but the Election Board had six top positions, sort of managers, and she was one of the six; three of one party and three of the other. exact title right now. Q. position? A. Q. Correct. And did she hold that particular position in But she held some sort of the managerial I don't recall the title -- the
'05 when you arrived? A. Q. Yes. Okay. Were you acquainted with Jeanne Bergfeld
prior to '05? A. Q. Not that I recall. Did you know her husband, Joe Bergfeld, prior
to '05? A. Q. Not that I recall, no. Fair to say you didn't know anything about
Jeanne Bergfeld or her family prior to the time that you got to the Election Board? A. I think so but I don't know what you mean by
her family or -Q. Well, any of the -- Joe Bergfeld and kids or
anybody associated with her familywise. A. I don't recall knowing anything about the
Bergfeld family, right. Q. A. Q. All right. Joe or her. Now, you say that this was a part-time position
that you held as a Commissioner for the Election Board. About how many hours a week would you estimate in '05 that you spent there? A. It would be -- it's hard for me to recall. I
can describe in general terms -- when we started in '05 whenever the confirmation came through, there was a real sense of trying to learn what was going on and get acquainted, so probably a lot of time. And then
depending on an election, when there was elections in the city, time would speed up. So initially the concern was getting sort of
oriented, and I would say, you know, it could be anywhere from five to ten, sometimes 20 hours. It just depended I can't
on the number of -- you know, what was going on.
recall in '05 if we had municipal elections right after we were confirmed but it just depended on the time of the year. Q. All right. So if I understand your testimony
correctly, at the beginning when you were first appointed, you needed to orient yourself to the inner workings of the Election Board? I'm assuming you had no
familiarity with it prior to that -- or internal familiarity with how they ran things prior to '05? A. Well, as to the first part of what you just
said, yes, we had to begin at the beginning getting acquainted. As to your second, yes, I had very little
knowledge of elections except as a voter, and I don't know if I was a poll worker. To step back, I would say the time spent down there just depended upon the time of year. At the very
beginning, what we had was a situation where a lot of people expected a lot of work to be done at the Election Board. We'd been coming off of a lot of different kinds But then at
of things, so that was the first thing.
elections, you know, we had implementation of HAVA, Help America Vote Act, as well as elections in that period.
So there was up and down of when you would have time. mean, it just was -- it just depended. to tell you in terms of specifics. Q. Now, you said that Jeanne Bergfeld was -- had
I don't know well
some managerial position, although you're not certain as to what her specific title was, correct? A. I don't remember those titles. Yeah, I don't
remember them. Q. What did she do? What were her duties and
responsibilities? A. You know, I can describe the general set-up in
the office but as to the specific duties, I don't recall them. I just would be -- you know, I just don't recall
them well enough to talk about them. Q. A. Q. presently? A. I don't recall the specifics of the -- of those Did you ever know what her duties were? Oh, yeah, of course. But you don't have a recollection of them
management positions at this time, no. Q. And was she a Republican or a Democrat
appointment? A. Q. A. She was -- well, appointment or position? Position. She occupied -- of those six positions, three
were Democrats and three were Republicans, and Ms. Bergfeld was one of the Republicans paired with a Democrat. Q. was? A. Q. Keena Carter, K-e-e-n-a. And do you remember who else occupied those Do you remember who her Democratic counterpart
other three positions or two positions on the Republican side and the Democratic side? A. Well, when I began, I know Jim -- I think Jim
O'Toole was the Democrat -- the top spot in the Democrat. I think Gary Stout may have been the acting Republican. And then beyond that, I'm not so sure at that moment when I started if the other two were filled or how they were filled. I don't know for sure. I think they were but I
The timing of when and who was in those When you asked at the beginning,
spots is lost to me. I'm not sure. Q. A. Q.
Jim O'Toole, former State Rep? Former State Rep; yes, sir. All right. Now, sometime while you were a
Commissioner and during the period of time I guess when you were the chairman, Jeanne Bergfeld was terminated from her position, is that correct? A. Correct.
And what role did you play in that termination? Well, as Board of Election Commissioners, we
made those decisions, so that was the role we played -- I played. Q. Okay. And you had a meeting, and ultimately,
for whatever the reason, Jeanne Bergfeld was let go? A. Yeah. I mean, as to the specifics, what -- I I can
don't know the specifics of those moments.
describe if you'd like in general how we approached personnel and what we did as best I could but I don't recall the day there would have been this meeting or that meeting. But the basics of what we did are very -- are
public record and, so, yes, I think what you're saying is right but I don't know the specifics. Q. A. What's a matter of public record? Well, in terms of when things happened and what
meetings occurred. Q. A. Oh, all right. When you said there was a meeting on this
topic, I don't know to say -- I don't recall to say yes or no. Q. At some point in time, the board with you
participating voted to terminate the employment of Jeanne Bergfeld, correct? A. Correct.
And you did that in -- I'm assuming in the
context of an executive session or closed meeting? A. Q. Your assumption -- I think that's right. All right. And you were subject to the
Sunshine Law, at least I assume, to the extent that you had to advertise the meeting, you had to go into an open session, and close the meeting and go into an executive session, correct? A. Q. What's the question? You were subject to the Sunshine Law; in other
words, you had to advertise the meeting -A. Q. Correct. -- and then you began the meeting, and for
personnel matters, you would go into a closed session, correct? A. That is how the board functioned and if your
question is about whether we're subject to the Sunshine Law, the answer is yes. Q. And personnel matters were handled in a closed
session then? A. Personnel matters were -- well, again, is your
question about the Sunshine Law or about how everything functioned? We handled all of our personnel decisions What I don't
according to that law, the Sunshine Law.
know is when you asked earlier about the specifics of
those meetings. Q. I'm not asking you about the specifics. I'm
just asking you when you dealt with personnel issues, did you deal with those in an open session or a closed session? A. Personnel decisions were made in closed session
but the fact that they occurred had to be made public. Q. I understand. All right. And then ultimately,
do you remember when Jeanne Bergfeld was terminated? A. Q. I don't recall the date. And ultimately Jeanne Bergfeld filed a lawsuit,
is that correct? A. Q. Yes. And you were sued, as well as the other members
of the election board who participated in that decision at the time? A. Q. Correct. Okay. And then ultimately that lawsuit was
settled, was it not? A. Q. Correct. Let me hand you what's been marked -- and it's
subject to a Protective Order, as Exhibit 1-B and ask you if you recognize this, sir. A. lawsuit. It appears to be the agreement from that
And does your signature appear on
that agreement? A. Q. A. Q. Yes. And that would be on page five? Correct. All right. And that is your signature, Edward
J. Martin, Jr., correct? A. Q. A. No, Edward R. Martin. Okay. The signature is correct. The -- underneath it
is incorrect. Q. All right. The middle initial should be an R
rather than a J? A. Q. Correct. And according to the document that you have in
front of you, you signed that on November 7, 2007, is that correct? A. Q. Correct. Now, you had reviewed the lawsuit that was
filed by Jeanne Bergfeld prior to the time that you signed this Settlement Agreement and General Release, had you not? A. Q. I'm sorry. Could you repeat that?
You reviewed the lawsuit that was filed by
Jeanne Bergfeld prior to the time that you saw or signed
this release, is that correct? A. Q. A. Q. The original lawsuit? Yes. Yes. The original lawsuit against you and the other
members of the Election Board? A. Q. Yes. So you were acquainted with its contents, is
that correct? A. Q. Yes. Now, your deposition was never taken in that
case, was it? A. Q. A. Not that I recall, no. And you and I have never met before, have we? If we've ever met -- if we've ever been in the
same room, it was at social events in the city but I don't think so. Q. All right. And we certainly haven't talked
about this case? A. Q. No, sir. Did we ever meet in the context of the original
lawsuit that Jeanne Bergfeld filed in connection with the Board of Election Commissioners? A. Q. Not that I recall, no. All right. Did you have an opportunity to
review this document with legal counsel before you signed it? A. Q. Yes. Who was the attorney who represented you at And by that point, I mean in connection with
the lawsuit filed by Jeanne Bergfeld against you and the other members of the Election Board. A. Q. Frank Bergin. So that would be the same fellow who
represented you in connection with the governor e-mail dispute? A. Q. Yes. And did you have an adequate opportunity to
meet with Mr. Bergin and discuss the contents of Exhibit 1-B here before you signed it? A. Q. Yes. Did you have any questions of Mr. Bergin before
you signed it? A. Q. I don't recall if I had questions. Did you sign the document freely and
voluntarily? A. Q. document? A. Yes. Yes. Did you agree with the contents of the
Did you agree to be bound by the contents of
the document? A. Q. Yes. All right. Let's turn to page three. On page
three, there is under paragraph six a Non-Disparagement provision in the document, is that correct? A. Q. Yes. And were you aware of that provision at the
time that you signed the document? MR. GOOD: MR. PLEBAN: Go off for just a second. Sure.
(Discussion was held off the record.) Q. Could you go ahead, Mr. Martin, and read that
into the record, please, paragraph six on page three of Exhibit 1-B? A. Paragraph six, "Non-Disparagement. The
Bergfelds agree that they shall not make any disparaging, denigrating, or derogatory statements or cause anyone else to make the same about the Board or its present and former Commissioners including but not limited to Martin, Franks, and Dula, agents, attorneys, accountants, officers, shareholders, directors, employees and other representatives, including but not limited to any negative statements concerning the termination of Bergfeld's employment with the Board. The Board and the
Commissioners agree that they shall not make any disparaging, negative, denigrating, or derogatory statements or cause anyone else to make the same about the Bergfelds." Q. And you had read that paragraph, the
Non-Disparagement provision, before you signed the contract, is that correct -- or the settlement agreement? A. Q. A. Q. A. Q. Yes, sir. And you agreed to be bound by that? Yes, sir. And that was as of November 5, 2007? Yes, sir. Okay. Subsequent to November 5, 2007, did you
make disparaging remarks about Jeanne Bergfeld? A. Q. Not that I recall, no. Are you saying that you didn't or are you
saying you don't have a present recollection of making disparaging remarks? A. I'm saying I don't recall making -- I don't
recall talking about Jeanne Bergfeld and I don't recall making derogatory comments about her so -Q. Okay. Is there also a confidentiality
provision in Exhibit 1-B, the settlement document? A. Q. Yes, sir. And is that found in paragraph seven on page
six? A. Q. please? A. Yes. Paragraph seven, "Confidentiality. The Yes. Can you read that into the record for us,
parties hereby agree that the terms of this agreement shall be and remain strictly confidential such that none of the parties shall disclose the terms of this agreement except as provided herein or except as may be required by law. The parties are permitted only to disclose the
substance of the letter provided for in paragraph five and to state that the lawsuit has been resolved satisfactorily. Beyond those permitted disclosures, the
parties agree not to make any public statements concerning the subject matter of the lawsuit or this agreement. The parties and their attorneys represent and
warrant that they have not heretofore divulged, revealed, or publicized any of the terms of this agreement or structure of the settlement to any person. The Bergfelds
shall not directly or indirectly encourage, induce or cause any other person or entity to make a request to obtain information concerning this lawsuit, the allegations therein, or this agreement. The Bergfelds
hereby represent that they have not encouraged, induced or caused any other person or entity to make a request to
obtain information concerning this lawsuit, the allegations therein, or this agreement. Nothing
contained herein, however, shall prevent the parties from discussing the terms of this agreement with financial advisor, accountants, attorneys or immediate family so long as those individuals first agree to keep the information confidential and not disclose it to anyone. Any disclosure by such individuals shall be deemed a disclosure by the party who provided the information to that individual." Q. Subsequent to the -- November 7 when you signed
-- of 2007 when you signed this document, did you at all times keep the terms of this agreement confidential? A. Q. A. Q. What was the first part, "Subsequent to"? Subsequent to -So after November 7? Yes. Did you keep the terms of this agreement
confidential? A. Well, I certainly -- yes. The answer is yes.
You know, what the reporter has reported and all seems to bring that in question but -Q. A. Q. A. Seems to conflict a little bit with that? Well, I mean, we'll see -We'll see where it goes? Well, we'll see what he's saying was said but I
certainly did maintain that confidentiality. Q. And when you saw that confidentiality provision
in the settlement agreement, you saw that before you signed it on November 7, 2007, is that correct? A. Q. I saw it. You saw it, you read it; in other words, before
you signed it, you were aware that there was a confidentiality provision in the settlement document, correct? A. Q. Correct. And you agreed to be bound by that
confidentiality agreement before you signed the document? A. Q. Yes, sir. And you agreed to be bound by it after you After you signed it on
signed the document, correct?
November 7, you agreed to be bound by it? A. Q. I signed it on November 7. Right. And you agreed to be bound by the
confidentiality provision after you signed the document on November 7, 2007, correct? A. Q. I agreed to it at the time I signed it. Right. And this is in futuro, so you agreed to
be bound by confidentiality after you signed the -- in other words, it didn't just apply to November 7. agreed to be bound by confidentiality on and after You
November 7, 2007 when you signed the document, correct? A. asking. Q. Sure. What I'm asking you is that the I'm not sure what I understand what you're
confidentiality provision was going to exist and remain that these terms of the settlement and the provisions of paragraph seven on page three of Exhibit 1-B were going to remain in full force and effect from and after November 7, 2007? A. Q. A. I agreed -- I signed this agreement here. Okay. So if that's what you're saying that legal
conclusion of what this is, then I agree that I signed this document. mean. But I don't know -- I'm not sure what you
If you're asking me to say -- I mean, I signed
this agreement. Q. Let me put it to you this way. You didn't sign
a confidentiality agreement on November 7 and intend to talk about the terms of this settlement on November 8, 2007, did you? A. Q. No, but I don't know -- no. And so you agree to the provisions that if
there was an inquiry, that the only response that would be made is that lawsuit has been resolved satisfactorily; you saw that language in there, correct?
A. Q. A. Q.
Uh-huh. Yes? I'm sorry. All right. What was the question? You saw the provision in paragraph
seven on page three that if there is an inquiry with respect to this lawsuit and Jeanne Bergfeld, that the response would be that the lawsuit has been resolved satisfactorily; you saw that provision in there at the time that you signed it, correct? A. Q. A. Q. I just read seven so I certainly saw it. On November 7? Correct. That's when I signed it. So in
And you intended to be bound by that.
other words, if somebody was going to ask you about the lawsuit and ask you about Jeanne Bergfeld after November 7, 2007, your response would be that the lawsuit has been satisfactorily resolved, correct? A. I signed this agreement. I don't know what
you're asking. Q. I want to know whether or not you intended to
be bound by it after you signed it. A. Q. A. Q. I signed this agreement, yes. Well, I got that part. And that's what the agreement says, right? Well, that's what it says to me. Is that what
it says to you? A. I'm not sure I understand the question. Am I
missing the question? MR. GOOD: Q. Apparently. Apparently.
Everybody else in the room, I All I want to know is when you
think, understands it.
signed it on November 7, did you intend to be bound by confidentiality after November 7? A. Q. A. Q. It's that simple.
That's this agreement, right? Yeah. Yes. All right. There we go. So according to the
agreement, it says the parties are permitted only to disclose the substance of the letter provided for in paragraph five -- and we'll get to that in a minute -A. Q. Uh-huh. -- and state that the lawsuit has been resolved Do you see that?
satisfactorily. A. Q. Yes.
And so according to the agreement,
at least the way I read it, that is, if there's an inquiry with respect to Jeanne Bergfeld and her employment with the Board of Election Commissioners, this lawsuit, the response is the lawsuit has been resolved satisfactorily, and the letter speaks for itself,
Is that how you read it at that time? There's three parts of that sentence. What is
the question? Q. Let me put it to you this way. Why don't we do
it this way.
If on November 8, 2007 somebody asks you
about -- a reporter would ask you about the employment of Jeanne Bergfeld and the lawsuit that she filed, what was your understanding as to the terms of this agreement as to how you were to respond? A. There was confidentiality and, you know, it was
my intention -- and what we generally did was refer questions to the Board, especially on November 8, but to not talk about that beyond saying that the lawsuit was done and refer it to the Election Board. That's
generally -- you know, to me, there wasn't a specific -I didn't have -- I didn't sit down and think of the steps. That would just be what I would have said on And that's probably what happened on
November 8 because there was a settlement. Q. Well, I'm using November 8 as one date. Any
time after you signed this document -- any time after you signed the document -A. Q. Right. -- what was your response for this agreement if
an inquiry was made about Jeanne Bergfeld and her
employment with the Board of Election? A. When I got inquiries about the Election Board,
I generally responded in a very general sense, if that's what you mean. We had a series of people that left so it
was a very general response about what happened. Q. generally. Bergfeld. A. Q. Right. And the settlement document, by the way, that This is very specific. I'm not asking you
I'm asking you specifically about Jeanne
your lawyers drafted, not us -- I'm asking you very specifically what the parameters of that agreement were. I don't care about anybody else. A. Q. All right. What was your understanding per this agreement
as to what your response would be after November 7, 2007 as is it relates to Jeanne Bergfeld and her employment with the Board of Election? A. I would generally have no response. I would
not respond to that if we got inquiries, try not to talk about that subject. Q. Okay. That's generally what we did.
When you say try not to talk about it, I Does that mean you try your
mean, what does that mean?
best but sometimes it wouldn't work out for you, or what? A. Well, it means -- as you know, when someone's
in a public setting, as I was, there's lots of questions brought up by lots of people, and so there's lots of opportunities for people to ask things. And generally, I So you did
knew and was trying not to talk about that.
not address the subject if you could, and I think even as to the issue at hand, you know, I don't quite know the specifics of how the subject came up. But generally, the
confidentiality meant we tried not to talk about it and we tried to, like you said, have the people understand that the lawsuit was resolved and everybody went away and leave it at that. Q. Okay. Let me hand you what's been marked as
Plaintiff's 2 and ask you if you recognize that document. A. Q. A. Q. A. Uh-huh. That's a yes? Yes, sir. All right. Sorry. And what is that document?
Well, I believe it's the letter signed by the
commissioners when Ms. Bergfeld left that was referred to in this -- in the settlement. Q. Okay. And that's the letter that's referenced
in paragraph five of Exhibit 1-B? A. Q. A. Uh-huh. Is that right? Yes.
And paragraph five says, "Letter.
days of the filing of the dismissal with prejudice of the lawsuit, the Board shall provide a letter to Bergfeld in the form of Exhibit A hereto." correspondence, is that correct? A. Q. Yes, sir. All right. And does your signature appear on And Exhibit 2 is that
that correspondence? A. Q. A. Q. A. be. Q. A. Q. A. Q. A. Q. You didn't see him sign it? No. I believe it to be his. Yes, sir. And the correspondence is dated what? November 13, 2007. And do you recognize the signature of Mr. Dula? I think that's his signature. I believe it to
And how about Ms. Franks, McCormick Franks? Yes. That appears to be her signature, too. And that clearly is your signature?
All right. Yes, sir.
And this time, apparently your lawyer's got
your middle initial right; it's R, correct? A. Q. A. Yes. And do you know who prepared this document? What's the question?
Q. A. Q.
Do you know who prepared the document? No, sir. All right. Could you read that into the
record, please? A. November 13, 2007, "To whom It May Concern:
Jeanne Bergfeld served the Board of Election Commissioners for the City of St. Louis over a 12-year period as a conscientious and dedicated professional. Ms. Bergfeld's departure from the Board arose from perceived differences on the best methods and organizational systems to meet new election requirements mandated by federal and state law. the contrary is not accurate." Q. Do you agree that Jeanne Bergfeld served the Any implication to
Board of Election Commissioners for the City of St. Louis over a 12-year period as a conscientious and dedicated professional? A. Q. Yeah. I signed the letter. I asked you whether or
I didn't ask you that.
not you agreed that she was a conscientious and dedicated professional. A. agreed to. Q. Well, do you believe that Jeanne Bergfeld over Well, I signed the letter and that was what we
a period of 12 years that she served on the Board of
Election Commissioners was a conscientious and dedicated professional? A. Q. A. Q. Yes. And that's why you signed the letter? Correct. And I'm assuming, Mr. Martin, that if you
didn't believe that, you wouldn't sign something -- a letter like this that you wouldn't believe was true, would you? A. Q. Correct. For whatever personal reason you might have
had, correct? A. Q. I'm sorry? For whatever reason, you wouldn't sign a letter
or document that you didn't believe was true, correct? A. Q. I'm not sure what that means. Well, you wouldn't sign a letter that was
false; in other words, you wouldn't sign a letter saying that she's a conscientious and dedicated professional if you didn't believe that was the case, would you? A. Q. Correct. All right. October of 2010, you were running
for some kind of public office, is that right? A. Q. Yes, sir. What kind of public office were you running for
at that time? A. Q. A. Q. A. Q. A. I was running for Congress. Congress of the United States? Yes, sir. And against whom? Against Congressman Russ Carnahan. And as a member of what party were you running? I am a Republican. I was running as a
Republican. Q. And were you the Republican candidate against
Mr. Carnahan? A. Q. A. Q. A. Q. Yes, sir. When did you toss your hat into that ring? Well, I -- the summer of 2009, approximately. When was the election? November 2010. And I'm assuming that from the summer of 2009
until the election in November of 2010, you were campaigning for the office? A. my life. Q. And I'm assuming that during that period of It was certainly part of what I was doing with
time, as well, you were attempting to, as candidates, I guess, do, to try to raise some money to finance and support your campaign. Is that a fair statement?
I was running for office, so that includes a
lot of things including raising money, yes. Q. A. What else does it include? Well, meeting voters and studying issues and
getting acquainted with all parts of the district and -Q. All right. In other words, you were -- you had
a view toward trying to persuade people to vote for you so that you could be elected to the Congress of the United States in that district, as simply as I can put it? A. What was the first part, the
characterization -Q. Persuading people to vote for you, that you
were the better candidate over Carnahan, and to send to you Congress as opposed to Carnahan? A. Well, during that time, of course, there was a
primary, so for a chunk of that time, there was of a Republican primary. Q. A. So when was the Republican primary? August of 2010. So the first part of it would
be communicating to either registered voters and others, and certainly persuading voters -Q. That you were the better candidate over
Carnahan -A. I think -- yes.
Q. A. Q.
-- as simply as I can put it -- right? Correct. Now, as you mentioned before, I guess when you
campaign for public office, you answer a lot of questions from a lot of people. A. Q. correct? A. Q. Yes, sir. For the period of summer of 2009 until the Yes, sir. And some of those are media people, is that Fair statement?
election of 2010, do you know how many media interviews you did during that period of time? A. Q. A. Q. A. No, sir. Do you have any estimate at all? I don't really have an estimate. Okay. Did you have a campaign staff?
For a period of that -- for a part of that
period, we had a campaign staff. Q. A. What part? Starting in -- well, starting in January of '09
we had a campaign manager, and then a few months later -well, I had a secretary, too. So we had a staff -- sort
of a scheduler secretary starting in January of '09 with a campaign manager, and then after that, we had two or three more -- well, one or two more paid people including
a press person. Q. A. Q. A. Q. Who was your press person? Theresa Petry, P-e-t-r-y. P-e-t-r-y? Yes, sir. What was her background or what is her
background? A. Q. A. She was a TV reporter as well as -In St. Louis? I think in Springfield. MR. GOOD: A. Yeah. That's where she started. Springfield NBC
And also in St. Louis.
and then maybe WB-11 in St. Louis many years ago -- I mean a few years ago. Q. A. And how long did she serve as your PR person? It was about April of that year of '09 until
the election day -- November election day. Q. And what were her general duties and
responsibilities? A. Well, she was hired to help with communications
but in a start-up sort of challenger campaign, communication is everything from thinking about press to e-mails to communicating on sort of general messaging. So she did a lot of things. I can't say actually a very It sorted of ebbed and
day-to-day -- a job that was set.
flowed in terms of what was going on. Q. A. Q. A. Did she do press interviews? She did some press interviews. Was that with or without your approval? Generally with. It depended on, again, how
quickly things moved.
But once we had a sort of rapport,
it depended on the level of what was asked or how things came about. Q. All right. What I'm getting to is you would
know what kind of media interview or what kind of media statements she would be making before she made them? A. Q. Generally, yes. And was that kind of a -- maybe not a written
rule but kind of a rule of the campaign, that before she did a media interview, before she made a public comment, she would check with you and clear it with you? A. earlier. Well, I think you asked a different question Yes, that is -- the general rule would be --
everybody that worked on the campaign, you'd sort of be -- you know, you'd be working together to know before you said something to the press or others, but there were times where as to depending on the level of what you were talking about, especially Theresa or the campaign manager might answer that question or inquiry. what you asked earlier. I thought that's
I'm not sure I understand your answer. Well, depending on the kind of question. If
someone asked about -- you know, if a press inquiry was about, say, you know, "I just got this press release. this what's on going on" or -- there wouldn't be an automatic everything-gets-run-past-me thing. But as to Is
larger questions of how do we handle, you know, the vote in Congress before we put out a statement, or we just got a call from The Hill about Carnahan's "X" or "Y", and how do you handle it? relationship. Q. So it was sort of a working
Is that what you were asking or -So in other words, as a general
rule, she would not answer media inquiries without first consulting with you; however, there might be a time or two that something came up on the spot that she would answer the question? A. That is -- that's the general rule. We would
meet inquiries in the process and I would be involved in that, yes. Q. And if there was an occasion, rare as perhaps
that might be, that she would make a statement to the media without first consulting with you, you would have knowledge of that statement at some point in time after the statement was made, is that correct? A. As a general practice. If you're asking --
Q. A. Q.
Yes, as a general -Yes, I think that's right. But more often than not, she would consult with
you before she made a media comment? A. Yes, except -- and I don't know how important
it is but depending on the time in the campaign as things were -- the speed that things were going, you just had different -- it was a different environment. So in
April, May, June we were settling into a rhythm where we knew how things were coming, and when inquiries came, it was like, you know, "Can you come see us on Friday?" When you got to past the primary, you had a lot more things happening faster and so it was just a different kind of -- so yes, I think so. I mean, I think what
you're describing seems to be our general practice. Q. All right. I'm going to hand you what's been
mark as Exhibit 3 and ask you, sir, if you recognize that. A. Q. A. Q. Yes. And what do you recognize that as? A printout of the Riverfront Times article. Okay. And you did an interview with the
Riverfront Times sometime before October 20, 2010, is that right? A. Yes.
And the reporter was a Nicholas Phillips, is
that right? A. Q. Yes, sir. And do you know actually when you did the
interview with Mr. Phillips? A. I don't recall. I mean -- and I don't even
remember right now if it was one time or if he attended events or what we had in terms of -- you know, sometimes a reporter would -- we would talk to him at the campaign office and then he'd attend something with us. recall the specifics of that one. Q. All right. Did you know Mr. Phillips prior to I don't
the time that you did the interview with him? A. Q. A. Q. No, sir. Had you ever met him before? Not that I know. Had you ever done any other sort of interview
before October 20, 2010 with the Riverfront Times or anybody on its staff? A. Interview with Riverfront Times, no. Their
staff -- they had some staff -- a gentleman named Chad Garrison who did a bunch of -- he would do blogging more, and I was either familiar -- don't know if I've met Chad but I was familiar with him to have interacted with him over the course of the campaign and probably previous to
that. Q. All right. Now, how did it come about that you
did the interview with Nicholas Phillips? A. Q. A. I don't recall that. Did you contact him or did he contact you? I don't recall for sure but -- my impression is
that he contacted us but I don't know for sure. Q. Were there times when your campaign would
contact the news media to solicit an interview? A. I don't think we ever did that. We certainly
put out press releases on issues but I don't know that we pitched sort of would you interview so I don't know that that was something we did. something we did. Q. All right. And I'm using the date of October I don't recall that to be
20, 2010 because, according to the article, that's the publication date. publication date? A. Yes, I think so. I don't know if the paper Do you recall that as being the
copy comes out on another day but I think you're right. It certainly was that last 12 days of the campaign. Q. All right. During the course of your interview
with Nicholas Phillips, did the subject of Jeanne Bergfeld come up? A. We talked a lot about the Election Board for
sure so I think that that's -- I think so.
I mean, I
think that -- we talked a lot about the Election Board and what happened there and I think he brought that up, yes. Q. All right. If you turn to page six and if you
look at the fourth paragraph from the bottom, starting with, "In 2006," it says, "Jeanne Bergfeld, an Assistant Director of Operations, filed a federal lawsuit claiming she was wrongfully terminated by Martin and his two colleagues for being not Republican enough." the next paragraph says, "Martin denies it." And then And
according to the article, you are quoted here as saying, 'She said she was a Republican. Nobody ever questioned
that,' end quote, "he tells RFT, adding that Bergfeld was a patronage employee who had enjoyed, quote, 'twelve years of not having to do anything,' end quote, and who, quote, 'wasn't interested in changing,'" end quote. you say that? A. I don't recall saying that specifically like Did
that, no, but I don't recall the whole interview specifically so -Q. A. Well, what do you recall saying specifically? Well, I remember talking -- I think to this
guy, to Nick, about the Election Board and the history of the Election Board. One of the things that we did was
took on the structure down there that had been -- there had been four top people and there became six based on a 1993 lawsuit, and part of that was what was going on, was that there had been no real -- since '93, there had been no real effort to address what we were -- what the structure was. So we had redundancy. And I remember
talking about that fact and I don't -- I just don't remember specifically saying that. I mean, I've read it and I don't -- you know, when I talked to him and others about what we did down there at the Election Board -- and I saw Rainsford's quote in there. What we saw was a system that was really We
not -- no one had been willing to change the system.
talk a lot about how there had not been -- you know, they went from four supervisors to six and no one changed what they did. So that was one of the things that had been
carrying on and that was the kind of stuff we took on. So I just don't remember specifically saying that. Q. This Mr. Phillips has you quoted here -- this
is not talking about the system but he has you quoted about specifically talking about Jeanne Bergfeld; as a matter of fact, talking about her lawsuit that -- that federal lawsuit that she filed? A. Q. Uh-huh. Do you recall him talking to you specifically
about Jeanne Bergfeld and her lawsuit that she filed? A. sure. I don't know for sure. I don't recall for
I mean, I know -- again, we covered -- I don't
know if this was done in one interview or two, if he was present a bunch of times, but we covered a lot of subjects. So again, what I know we talked a lot about is I just don't remember that.
what had gone on there.
When I saw it, I was surprised that I had -- that I was quoted that way and, that -- I don't know. recall saying that. Q. The next paragraph said, "Martin concludes," I just don't
quote, 'We did everything we could appropriately to have her do her job but it wasn't in the cards,'" end quote. Do you recall telling the reporter that? A. Yeah. Again, I don't recall that conversation I mean, the
specifically especially as to Ms. Bergfeld.
conversation -- I've talked and been more careful to talk in general terms, try to, about what we had down there in terms of the change in structure and so -- and this duplication, this addition of two new -- you know, people were let go in '93 and then, by lawsuit, put back on the board, and then nothing changed. don't recall saying that. Q. But I just don't -- I I don't know. This is Do you
I really don't.
Well, this isn't in general terms.
about Jeanne Bergfeld is what you're quoted.
agree with that? A. That's what I'm quoted as, sure. But again, if
you look at -- the thing that we're talking about is doing her job. We had a problem with the Election Board
which had famous problems in 2000 and beyond of -- a lot of people down there were in places without job descriptions or redundancy. So the idea of saying to
people that people weren't doing their job, we had a problem down there regularly all throughout the staff of the Republicans and Democrats not doing their jobs together. There's supposed to be oversight by statute.
So I don't -- I recall -- I know I talk a lot about that. I just don't remember saying that about her. Q. Democrats. Well, this isn't talking about Republicans and You say here, and I quote, "We did everything
we could appropriately to have her," referencing Jeanne Bergfeld -A. Q. Uh-huh. -- "do her job but it wasn't in the cards." Now, you're You're not
That's what you're quoted as saying here.
saying that you don't recollect saying that?
denying then that you didn't say it; you're saying you don't recollect saying it. A. No. Is that fair?
The premise of what you just said -- of
what you just said is not what you said two questions
You read me this question about Republican enough,
which I don't remember saying to him about Ms. Bergfeld, and then we talked about how there were different -there was a problem there, which is well-known. Rainsford and everybody else will talk about how people were not -- that the slots that were statutorily required, Republican and Democrat, people weren't doing that. Not just at the top, but certainly at the top So I don't recall having this I just don't recall
there was this redundancy.
conversation about Ms. Bergfeld. that. Q.
You're not denying that you had this
conversation with Nicholas Phillips about Jeanne Bergfeld, are you? A. Q. Are you denying that?
I'm saying that I don't recall the specifics. I heard that. You're not denying that you had
the conversation, are you? A. I'm for the denying that I had what
conversation? Q. The quote. Are you saying that you didn't say
this to -- by this, I mean, quote, "She said she was a Republican. Nobody ever questioned that" -- that
Bergfeld was a patronage employee who enjoyed, quote, "12 years of not having to do anything," and who, quote, "wasn't interested in changing." Are you telling me that
you were misquoted on that? A. I'm telling you that I don't remember saying
that specifically to this young man so -Q. But are you saying that you didn't say that?
Are you saying that under no circumstances would I ever say that because of the confidentiality agreement? A. Well, what I'm saying is I don't recall saying
that to him so -- and I, you know, know the agreement and, you know -- so I don't remember having that conversation with him. I do remember having -- I do I just
remember talking about the issues around that. don't know if I said that about Ms. Bergfeld. Q.
Are you telling me that you wouldn't have said
that because of the confidentiality agreement? A. I certainly -- I know that that is not -- you
know, that is not probably honoring that agreement sufficiently or being careful enough. Q. A. Q. A. Probably? Yeah, but I just -Probably not honoring the agreement? Well, I -- you know, so I just don't -- I mean, What I know is I had a
you asked me the question. conversation.
I don't remember having that about Ms.
Bergfeld and -- you know, I don't know. Q. Can you think of any way that if you were
quoted accurately, that that quote honors the agreement? Can you think of any way that that honors the agreement? A. Q. A. Q. it. A. If this is an accurate quote, it's certainly Probably not, no. Probably not? Probably not? You're a lawyer.
Again, I don't know if -You've got the agreement there. Take a look at
not something that -- but I don't know that that's an accurate quote. Q. A. Q. I really don't.
If it is an accurate quote, Mr. Martin -Sure. -- can you tell me -- can you think of any way
that that honors the confidentiality and the non-disparagement aspects of the settlement agreement, Exhibit 1-B that you signed? A. Q. Not really, no. Take your time. Do you need some time to look?
Do you need any time to look over both the documents? A. Q. A. No. Well, when you say probably, I mean -Keep asking questions. Come on. You can
grandstand. Q. probably.
Just ask the questions. I'm trying -- you say Either
I'm not grandstanding.
It's like being a little bit pregnant.
you are or you're not, and so either it honors the agreement or it doesn't. And you're a lawyer, and so
stop playing games with me and just tell me yes or no and we'll get on with it a whole lot easier. But when you
say probably, it's not going to help us get on with this. So can you think of any way that that honors the agreement if that quote is accurate? A. Q. A. If that quote is accurate, no. No, it doesn't honor the agreement? Well, you asked me a question. Your question So
was can you think of a way, so the answer is no. that's your question. Q. All right. Okay.
Now, obviously when you're
running a campaign -- and this is less than a month before the election, correct, that this article appears? A. Q. The article appears less than a month, yes. Okay. And when you do interviews, whether they
be TV interviews or whether you do print media interviews, you're interested in how you're portrayed in those interviews, correct? So you're interested in what
the finished product is in an interview, and you read the article, correct? A. Q. Yes. Because you're sensitive as to how you're going
to be portrayed in an article, correct?
Yes. All right. And you didn't know what Nicholas
Phillips was going to write about you, did you? A. Q. No. And so when this came out, did you read it when
it came out on or maybe even before October 20, 2010? A. I don't know when I read it. I'm sure I read
it at some point. Q. Do you know whether or not you had an advance
copy of it before it actually appeared in public? A. I don't recall that. I don't think so but I
don't recall. Q. After you read the article -- do you remember
how long after October 20 you read it? A. 20 -Q. A. October 20. I'm just using October 20 -No, I don't remember. I know the -- October
I think I saw the paper copy so I don't know
when that was but I don't recall. Q. A. As soon as it came out? I don't know that. It just depended on what
was going on. Q. Okay. What steps, if any, did you take to
correct statements that were attributed to you about Jeanne Bergfeld?
A. Q. A.
I don't recall taking any steps. Why not? I think that the -- I think it was just a busy
time and I don't think it just registered to do anything to take steps at that point. Q. steps? A. I just didn't think to do that. I mean, I What do you mean it didn't register to take
don't know when I read that article. before election day.
I think I read it
I don't know whether I would have
had sort of the time to read the whole thing and think about it, and I just didn't think to take steps. The
first time -- you know, it may surprise you but not a lot of people -- it didn't seem like a lot of people read the Riverfront Times article. So the first time that it
became a prominent issue was when you had a press conference. So that was the first time that I really
registered that that was -- you know, that that was something that was that significant. I don't know that
-- I don't know that I'd read it closely before then but I know that's where it sort of exploded into the community. Q. The article, according to the document, came This is now June 27,
out on or about October 20, 2010. 2011.
What steps have you taken between October 20, 2010
and today, June 27, 2011, to correct any aspect of this article as it relates to Jeanne Bergfeld? A. so -Q. A. So what does that mean? I've been dealing with Jeanne Bergfeld by her That's what I think is probably -Well, there's a lawsuit. You filed a lawsuit
conduct through you. Q. A. Q.
So the answer to my question is none? Well, what's the question? What steps have you taken between October 20,
2010 and June 27, 2011 to correct the statements that are contained in the Riverfront Times article about Jeanne Bergfeld? A. We've been in regular contact with you as her
lawyer so -Q. A. lawyer. Q. Other than that, what steps have you taken? We've been in regular contact with you as her I don't know what -So the answer is none other than regular
contact with me as her lawyer? A. Q. I suppose. In which you filed an answer denying that you
made the statements? A. Q. Uh-huh. Yes?
Yes. Other than that -- other than filing an answer
to the lawsuit denying that you made the statements, what other steps have you taken to correct any misstatement in the Riverfront Times article about Jeanne Bergfeld? A. Q. That's the only steps I've taken. All right. Did you make a public statement
that you were sued by Jeanne Bergfeld for violating the terms of the previous settlement document that goes back to your days with the St. Louis Board of Election Commissioners and that you called the suit a political ploy by a Carnahan supporter, the attorney in the case, Chet Pleban? A. It sounds like what I would say. I don't
recall the specifics of it. Q. A. So you don't deny making that statement? Well, I need to see the statement to know
exactly what you're saying I said but -(Plaintiff's Exhibit 4 marked for identification.) Q. Let me hand you what's been marked as
Plaintiff's 4 and ask you if you've ever seen that document before or whether that refreshes your recollection, actually, more appropriately? A. I haven't seen this document before.
Does that refresh your recollection of a
statement that was made to KSDK? A. It certainly looks like -- I mean, yes, it I
looks like it and sounds like what I would have said. don't know whether it was a statement in person or on tape or if it was a press release. I don't recall the
context of that but that sounds like something I would say and believe. Q. So you are taking responsibility for making a
statement that Jeanne Bergfeld's lawsuit was a political ploy by a Carnahan supporter, the attorney in the case, Chet Pleban? A. Q. A. Q. A. Q. A. I'm not sure what was -The last line -Yeah. -- do you see it? Yes. Did you say that? I don't know if I said it exactly in those
words or -Q. A. What did you say? It's hard for me -- I don't recall that. I
mean, KSDK -- were they there with a camera? know.
I don't know whether it came up in the context of
a press conference, what the date of it was --
It's less than two weeks from election day.
See the first sentence? A. I know. It had to be because it was after you But I just don't know what the topic But I certainly
did your lawsuit.
was to say that's exactly what I said. -- it seems plausible at the time. Q.
And what factual basis did you have to make
that statement? A. Well, there was a lot happening at the end of
the campaign, and you are who you are and -Q. Okay. So what factual basis did you have to
make a statement that this was a political ploy by a Carnahan supporter, myself? have to make that statement? A. Q. politics? A. Q. A. Q. I know your public persona but not much more. I'm asking about my politics. No, I don't know your politics, Chet. Do you know anything about my relationship with I don't recall the specifics of it so -Let's back up. Do you know anything about my What factual basis did you
Russ Carnahan? A. Q. I don't know that. Do you know anything about my relationship with
the Carnahan family?
No, sir. Did you know that I sued his father -- Russ
Carnahan's father when he was the Governor for assaulting Larry Washington, a cameraman with Channel 2? know that? A. Q. I did not know that. So what factual basis, if any, did you have to Did you
say that I was a Carnahan supporter? A. Well, I'm not sure what -- again, I'm not sure I think that was in the
what I said specifically.
context of what was referred to as another fairly, you know, despicable attack, so the article is written about how -- you know, that attack and a lawsuit. And so I
don't know if -- you know, I don't know how that came about but, you know, again I don't recall the KSDK reporter, but there we are. Q. Well, did you -- instead of saying that I was
some Carnahan supporter and this was all politically motivated, why didn't you say that the article in the Riverfront Times wasn't accurate? A. I don't know. I don't know what the context of
the question was so I don't know. Q. At any time did you say to any reporter after
the lawsuit was filed that the -- you were misquoted by Nicholas Phillips?
At that point in the campaign, there was so
much happening, I don't recall getting those questions, I don't recall thinking about it. I just don't -- like I And the
said to you, I didn't engage at that level.
first I really saw was when you did the press conference, it came to my attention that there was that issue. I
don't know -- and was that days before the election or -Q. Well, obviously, you made some comment as to
the lawsuit, right? A. Q. A. Q. Yes. I mean, you didn't ignore the lawsuit, did you? Yes, right. And according to at least this Exhibit 4, the
comment that you made was the lawsuit was filed because somehow I was a Carnahan supporter. That's according to
that, or are you misquoted there, too? A. Again, I don't know what that's from. Did we
put out a statement or did I make that statement in a -I don't know what that refers to so I just don't recall that. Q. A. Okay. Maybe we can give you a little help.
I'll bet you can. (Plaintiff's Exhibit 5 marked for identification.)
Let me hand you what's been marked as
Plaintiff's 5. aren't you? A. Q. A. Q. A. Q. I am.
You're acquainted with Joe Mannies,
How are you acquainted with Joe Mannies? Over the years -He's a political reporter? Correct. And he was a political reporter for the St.
Louis Post Dispatch, and he retired and went with the Beacon, right? A. Q. A. Q. look. A. Q. Yes; uh-huh. Have you ever seen this article before? I don't recall seeing it but -Well, take a look. Finished reading it? Sure. All right. Now, according to the document, Joe Do you see Before you answer, take a
Mannies put that article out on October 21. that? A. Q. Yes.
And that would have been a day after the
Riverfront Times article appeared on October 20, right? A. Q. Correct. All right. And let me direct you to the second It says, "Martin's
to last paragraph on page one.
campaign alleged that the new suit was somehow tied to Carnahan and asserted that Bergfeld lawyer, Chet Pleban, was a Carnahan supporter." A. Q. Yes, sir. So now that's the second time that somebody Do you see that?
said -- connected to you, somebody said that the lawsuit was because I was a Carnahan supporter. A. Q. A. Q. Yes, sir. Did you make that statement on that day? I don't recall that. Okay. But you were -- obviously you read the Do you see that?
Joe Mannies -- you read this article on or about October 21? A. Q. I don't recall doing that, either. Are you telling me that nobody from your
campaign brought this issue to your attention? A. Q. A. What issue? The issue of Jeanne Bergfeld's lawsuit. Are you asking me if somebody read the St.
Louis Beacon -Q. I'm asking you now whether or not Jeanne
Bergfeld -A. Q. A. Of course. And how was it brought to your attention. Chet Pleban was having a press conference.
That's how we found out about it. Q. A. Q. And what did -- and who told you that? I don't recall that. What did you, in concert with your campaign,
decide to do with about the lawsuit and how to respond publicly to it? A. What was the strategy? What I know is
I don't recall specifically.
that in the last ten days of the campaign -- I'd never run for office. The intensity of things going on -- it
was right around the time that we had this website pop up that was sort of a smear, so that was what we were really dealing with around that time. And so I don't recall
that strategy -- that was a bigger concern because we didn't know -- there were people from New Mexico and all over that appeared to be doing that thing. recall the strategy. When I referred to there was a press conference, I remember that press conference to address the Catholic smear -- the anti-Catholic smear, and that was -- you know, there were people present for that. I don't know what the strategy would have been. And So I don't
-- to be candid, I think we were mostly trying to ignore any noise outside of just getting through to the election day, and that was really the main thrust of what we were doing.
So it's fair to say that you didn't intend to
ignore the lawsuit and the public comment about the lawsuit? A. What's fair to say is the description of the
last ten days of a campaign that now had national implications and people present and national groups piling in on both sides, that the noise from a start-up little business, a campaign, was so intense that we had our head down. So we certainly wouldn't ignore a lawsuit
and we certainly wouldn't ignore a lawsuit that was dramatically announced in a press conference, but we were mostly just trying to keep our head down and get organized to be able to get through election day. that was really the focus. Q. So you don't recall what, if any, strategy was So
going to be used as it relates to the lawsuit? A. I don't recall that. (Plaintiff's Exhibit 6 marked for identification.) Q. Let me hand you what's been marked as Exhibit 6
and ask you if you recognize that document. A. No, I don't recognize it but I see it's
Riverfront Times. Q. Let me direct your attention to -- and by the
way, the date of this article is October 21, 2010, is
that correct -A. Q. Yes. -- at least according to the document itself,
and it's, again, by Nicholas Phillips? A. Q. A. Q. Uh-huh. Yes? Yes. And let me direct your attention to page two,
about the middle of the paragraph, and it reads, "As for Martin, he responded to the latest legal action via an e-mail from his press secretary, Theresa Petry." that e-mail is quoted as follows. And
"Chet Pleban is a
well-known supporter of Congressman Carnahan and in the last 12 days of what is proving to be a highly-contested election, it is no surprise that personal attacks like this will be brought against Ed Martin and his campaign. They started with attacking Ed's family and now they're coming after him directly. ploy." A. Q. A. Q. Do you see that? "Play" was the last word. "Play". Yes, sir. And were you aware that Theresa Petry responded It's purely a political
to Nicholas Phillips with that e-mail on or before October 21, 2010?
I mean, I certainly was aware that Theresa -I don't
that's who would respond, and, I mean, I see it.
recall the strategy session to do that but that was -again, where we were at that moment, press conferences by, you know, people, and web sites popping up, we were pushing for the finish line and I'm sure that was part of what that was. Q. Is there anything that you see in Exhibit No. 6
there, which is the article by Nick Phillips, who authored the original article on October 20 -- is there anything in that article that indicates that you were misquoted as it relates to Jeanne Bergfeld? A. Is there anything in this -- this isn't an It's a blog post. It was
article, right? Q. published. A.
Yeah, blog post, article, whatever. It was published publicly. Right, but it's not in the paper.
mean, I don't see anything in this but I haven't been familiar with -- this is the first time I'm seeing it so I can't say I studied it but -Q. Take your time. Is there anything in there
that suggests that you were misquoted when you talked to Nicholas Phillips about Jeanne Bergfeld? A. Q. I don't see anything, no. And is there anything in the e-mail that your
press secretary at the time, Theresa Petry, when she responded to Mr. Phillips -- is there anything in her e-mail that suggests that you were misquoted about Jeanne Bergfeld when you did the original interview with Nicholas Phillips? A. Q. A. There's nothing in that e-mail. Why not? Well, I don't know if -- I don't know why. I
don't recall that.
I think one of the things that struck
me at the time -- and again, I hadn't been able to sort of slow down with the noise that was happening, as odd as the press conference was to announce it. My impression
was that if there had been something done incorrectly, that based on what sort of we had done in that agreement, that there would have been some contact or something saying hey, that's -- you know, that was too far or that was wrong or that was a violation. So the press
conference without us having received -- I don't think I'd seen a copy of the filing. I don't recall that.
Just the press conference part of it struck us as -- in the moment of that point in the campaign as being a part of that noise. that came up. So that was probably where the context of But I don't know. I just don't recall the
specifics of what else would have been going on. Q. When was the first time -- you admitted here
this morning that if the quote is accurate by Nicholas Phillips, that that is contrary to the confidentiality and non-disparagement provisions of the settlement agreement. that? A. I don't recall the timeline right now but I When was the first time that you realized
think that the -- either the -- might have been Frank Bergin or somebody knew that there had been a lawsuit or we were told there was a press conference coming about a lawsuit, and I think somehow we got a copy of it. So
that's when I first saw what was in here and, you know -Q. A. In where? In the -- saw what was in your complaint. And
what I hadn't, I don't think, read or seen closely was the article in the Riverfront Times. Again, the
Riverfront Times is not the first periodical I read and at that point in the campaign, I wasn't -Q. Well, hopefully, Ms. Petry or somebody read the
article before saying that this was purely a political play by a Carnahan supporter. Surely somebody read the
Riverfront Times article before putting out that e-mail to Nicholas Phillips? A. I don't recall that but I think that's right.
But I think you're also forgetting -- you did a public press conference. Part of this reaction is to Chet
Pleban putting himself out front to say I'm the guy holding a press conference in the midst of a campaign. So I don't know if that --I agree with you. One or more
of us must have gone and found the thing to read it but until that time, I just don't remember. Q. Well, Ms. Petry put out the e-mail indicating Did somebody
that somehow I was a Carnahan supporter.
look at the settlement document that you signed back in November of 2007? A. Q. I think so. I would expect.
You would certainly hope that would be the
case, wouldn't you? A. Q. Well, again, if you read this again -Well, you certainly would hope that would be
the case, wouldn't you, that somebody would at least -before you put out an e-mail like this, you would at least go and get the settlement document and look at it? MR. GOOD: bit. I'm going to object a little
He didn't put it out; Theresa did. MR. PLEBAN: No, no, I didn't say he. I
said somebody. Q. Hopefully somebody would pull a copy of the
settlement agreement and look at it before you put out an e-mail like Ms. Petry did? A. Yeah.
Q. A. Q.
Is that yes? Well, what's the question? Well, listen to my question, okay? I'll give
you a chance to answer whatever it is that you want. Just somewhere in here, give an answer to my question, okay? You would hope that somebody in your campaign --
you or Ms. Petry or somebody else, before you put out an e-mail to Nicholas Phillips on October 21, 2010 suggesting that the lawsuit was purely a political play by a Carnahan supporter, that somebody would pull the settlement document that you signed back in November of '07 and at least read it? A. But look, Chet, your question is completely --
doesn't comport -- the question is inaccurate. Q. Don't worry about whether it's accurate or Can you answer it?
inaccurate. A. Q. A.
I can't answer it because it's inaccurate. What's inaccurate? Well, you just said read this quote again.
What we don't know at this point is -- I don't know if this answer was about Chet Pleban and his press conference and how what was happening was happening, or if it was about the underlying legal action. know that. I know it says -- Nick says that. I don't But what I
know at that moment is we had left wing groups from
across the country attacking our campaign, and we had Chet Pleban, a well-known, well sought-after guy who likes to go in front of the cameras holding a press conference. And so our response was, whoa, this is
landing on us at the same time in what felt like a lot. And so the noise around it was substantial so I don't -you know, I don't recall how this came out and, again, I know what we were -- you know, we were trying to address what was a lot of noise and I just don't see -- I don't see -Q. So you address a lot of noise about a lawsuit
that's filed -- instead of looking at the settlement document that's referenced in the lawsuit, an e-mail like this is sent out? A. Q. Is that how this worked?
I don't understand the question. Well, instead of -- my original question was
you would hope that somebody in your campaign before engaging in ready, shoot, aim conduct would pull a copy of the settlement agreement -- or maybe you had it already because apparently Mr. Bergin got you a copy of the lawsuit -- to read the settlement document before you made any response? Wouldn't that be reasonable? I'm going to object a little
bit there because I'll remind you that when the lawsuit was filed, that the settlement agreement was not filed
with it. Q. Let me back up. Did you have a copy -- on
October 21, did you have a copy of the lawsuit? A. I don't think -- I don't know when I got a copy
of the lawsuit. Q. Did you know that the lawsuit referenced the
settlement document? A. I don't recall the timeline. I think you were
having a press conference before I had the -Q. Well, you indicated that Mr. Bergin told you
about that -- about the press conference? A. No, I don't recall who told me what. I said
somebody was trying to get a copy of the lawsuit -- of the complaint, and I don't know who got it eventually. But we sort of knew that there was a press conference and we weren't sure what it was about. And I think Bergin
told me that it was about Ms. Bergfeld, and that was the context, but I don't know the timeline. Q. After -- eventually, I guess, you got a copy of
the settlement document? A. Q. A. Q. A. The settlement document, yes. How did you get that? I think I have a copy of that. At home? Not at home but at my office.
Q. A. 2009. Q.
When did you read that? November 7,
What do you mean; the first time?
When was the next time you read it?
it before or after you talked to Nick Phillips? A. Probably -- I don't know when I read it again. I know that after -- I don't know the
I don't know.
timeline on all this so -Q. Well, let me help you with the timeline. In
relation to Exhibit 6, which is the Nick Phillips article on October 21, 2010, when did you read the settlement document as it relates to October 21, 2010? A. I don't recall when I would have read it but I
don't -- right now I don't know the timeline of what we had -- when was the press conference that you had? Q. the -A. Q. I don't recall. -- settlement document as it relates to the Well, all I'm interested in is when you read
October 21, 2010 article by Nicholas Phillips. A. Q. I don't recall when I read it. Okay. What conversation did you have with
Theresa Petry before she sent her e-mail to Mr. Phillips? A. Q. I don't recall. Did you have any conversation with her?
I'm sure -- I mean, again, that was the day --
I think that was the day where we were being bombarded by the anti-Catholic web sites so we had a lot of things going but I suspect we tried to say as best we could, so I'm sure I just don't recall the specifics. Q. It's clear that, obviously, you and/or Ms.
Petry were publicly responding to the lawsuit at least insofar as this e-mail is concerned in Exhibit 6, correct? You said something about the lawsuit or she
said something about the lawsuit? A. Q. A. timeline. Q. Yeah, to Nick. To Nick Phillips? Yeah, I think that's right. Would that be the same day? October 21, 2010. I don't know when she sent I don't know the
her e-mail but obviously it was on or before October 21, 2010 -- probably on October 21, 2010, but I don't know that. But as long as you were publicly commenting on Ms.
Bergfeld's lawsuit, why did you not sometime after October 21, 2010 do another e-mail to Nick Phillips telling him that he quoted you incorrectly? MR. GOOD: I'm going to object because
there's an assumption in there that he was publicly commenting and I don't think it was established that he had made a public comment on the lawsuit.
MR. PLEBAN: Q.
Let me phrase it another way.
Why did you not after October 21, 2010 send or
have somebody in your campaign group send another e-mail to Nick Phillips telling him that the comments that he attributed to you in his October 20 article were inaccurate? A. Q. A. I don't recall that. I don't recall that.
Is that because they were accurate comments? I don't recall what -- your question was why I don't recall that.
didn't we send an e-mail. Q.
My question was why did you not send an e-mail
to Nick Phillips after October 21 indicating that the comments that he attributed to you about Jeanne Bergfeld in his October 20 article were inaccurate? A. I don't know why we didn't send another e-mail.
I don't know. Q. Is that because you were accurately quoted in
his October 20 article as it relates to Jeanne Bergfeld? A. I think the reason was that you had already
filed a lawsuit and had a public, you know, festival, so we were already worried about interacting with a lawyer. So -- but I don't recall that. ten days of the campaign. Q. Again, it was the last
I don't --
So you didn't think about mitigating any damage
to Jeanne Bergfeld that resulted from the comments that
were attributed to you and Nick Phillips' October 20 article? A. Q. A. Q. A. I don't recall thinking that, no. Do you know Kevin Horrigan? I do know Kevin Horrigan. How do you know Kevin Horrigan? I served on the readers' advisory panel for the
Post Dispatch and Kevin was on the editorial board at that time. Q. A. Q. A. Do you consider Kevin a friend? Not so much; an acquaintance professionally. How long have you known him? He's a well-known personality. I think I've
met him over the years a number of times but I don't know how many years. Q. Kevin Horrigan is quoted as saying "He,"
referring to you, "is capable of saying things and making them sound like fact when, in fact, they do not withstand any parsing at all." A. Q. Do you agree with that?
Could you read it again? Sure. I'm going to quote. "He", referring to
you, Ed Martin, "is capable of saying things and making them sound like fact when, in fact, they do not withstand any parsing at all," end quote. statement? Do you agree with that
Can I go -- I need to ask you a question first. MR. GOOD: Off the record.
(At which time there was a short recess.) Q. A. Q. You want me to repeat the question? Yes, please. Sure. Kevin Horrigan, the deputy editorial
page editor for the Post Dispatch, is quoted as saying, "He," referring to you, "is capable of saying things and making them sound like fact when, in fact, they do not withstand any parsing at all." And my question is do you
agree or disagree with that comment? A. Q. A. I guess disagree with Kevin Horrigan. Why do you disagree with him? I just think I'm a man of my word and I
disagree with his characterization of what he said. Q. Well, let me ask it this way then. If you
contend that you're a man of your word and you signed a confidentiality and non-disparagement agreement as it relates to Jeanne Bergfeld, if those comments that are attributed to you in Nicholas Phillips' article in the Riverfront Times are accurate, how does that comport with you being a man of your word? A. Q. How does what? The article and the comments that are
attributed to you about Jeanne Bergfeld in Nick Phillips'
article -- how does that comport with being a man of your word? A. Like we've been through, I don't recall the
conversations with Nick Phillips to know -Q. But if they are accurate, how would that
comport with you being a man of your word? A. are -Q. A. Q. mistake? A. Well, it's sort of conjecture. But if they're If they are. Then I probably made a mistake so -You probably made a mistake or you made a If they are true, which I'm not sure they
true, it sure seems like a mistake so -Q. A. A mistake in what sense? Well, the agreement was to keep them
confidential and to honor the agreement so -Q. And so where's the mistake, that you didn't
honor the agreement if they're accurate? A. If they are, in fact, accurate, yeah, I mean, I
think that -- we've said this about four different ways, but, yes. Q. A. Yes what? If they are accurate, then those statements are
not -- they were not in line with that agreement.
Q. confused. A. Q. A. Q.
I'm a little confused.
Maybe I'm a lot
The article came out in October of 2010? Right. This is now June of 2011? Uh-huh. You come in here this morning, into this
afternoon, and you tell me that you don't know whether or not the statements that are attributed to you that are the subject of this lawsuit are accurate or inaccurate, correct? A. Q. Yes, correct. Why haven't you, particularly as a lawyer,
taken the time between October 20, 2010 and today to find out whether they're accurate or inaccurate? A. Q. I don't understand the question. Why haven't you taken the time between the time
that the article appeared in October of 2010 and today, June 27, 2011, to satisfy yourself as to whether they were accurate or inaccurate? A. Q. I'm not really clear what you're asking. I'm asking you -- why didn't you take steps to You
fine out whether they are accurate or inaccurate? told me all you did to prepare yourself for this
deposition today was read the lawsuit and talk to Mr. Good?
Yeah. Why haven't you taken steps to find out whether
or not the statements attributed to you are accurate or inaccurate? A. I don't -- I've done what I've done in
consultation with my lawyer and that's what -Q. Would there have been something that would have
prevented you, for example, from calling Nicholas Phillips to discuss the accuracy of his article as it relates to Jeanne Bergfeld? A. Maybe I can say it this way. When the lawsuit
-- when your press conference was announced and I became aware of that, one of the earliest things that I did was talk to my counsel, so at some point -- and it's a blur, as I said. There was a lot going on. And since that
time, that's who I've consulted with and who I've, you know, talked to about the questions surrounding this because it's not -- the Riverfront Times article and what was said, and I just don't -- so that's what we've done. Q. Well, notwithstanding the lawsuit, weren't you
at least casually curious as to whether or not you were accurately quoted? personally? A. Q. I guess so, yeah; I suppose. You guess so? Wasn't that significant to you
Well, I mean, again, you're asking a question
and my response is that I've worked with my counsel because we're in the midst of a lawsuit. Q. A. I understand that. It doesn't make much sense to me especially to
talk to you about what my personal thoughts are on it, I mean, in terms of what I felt or -Q. Well, you made some pretty disparaging comments
about Jeanne Bergfeld, at least that are attributed to you in this article. you? A. Q. The article -That she's a dead beat and didn't work. That's You would agree with that, wouldn't
what you said in this article that's attributed to you? A. Q. Right. The article attribute quotes to me.
Right, that she didn't do anything for 12 years That's what's
and she wasn't interested in changing. attributed to you, right? A. Q. Right.
Well, did it ever become at any point in time,
irrespective of the lawsuit, a matter of personal integrity to you to find out if that's really what you said, and correct it? A. Q. I don't understand the question. Is it a matter of personal integrity to you as
a lawyer and a politician and, you know, a family man, to -- if you were not sure that you made the comment, irrespective of the lawsuit, to take steps so find out if you made the comment instead of coming in here all those many months later saying, "I don't know if I made the comment"? As a matter of personal integrity, to pick up
the phone and call Nick Phillips, for example, and say, "Did I make these comments or did you misquote me?" didn't you do that? A. Again, when someone files a lawsuit against you Why
on something like that, the thing that I was doing was, you know, taking advice of counsel and I don't know as to questions of public -- my understanding of my integrity -- look, I certainly take that seriously. you know, I work with my counsel. There's a lawsuit, But,
there's a very public press conference and all and, you know, I've gone ahead and acted like we've acted, so I don't know. Q. So you keep going back to there was a press Well, weren't you concerned in setting the
record straight as to what you did or didn't do as it relates to that article particularly in light of the very public press conference? A. Q. I'm not sure I understand the question. You keep talking about a press conference that
Weren't you interested after that press
conference in setting the record straight to say yes, I did make those comments or no, I did make those comments? Weren't you interested at all in that personally? A. The press conference that you held was to
announce the lawsuit and so from that point on, I talked to my lawyer and I focused on that, and I think that's -Q. Frankly, the press conference that we held was
in part to pick up the pieces of Jeanne Bergfeld that you threw under the bus or at least that were attributed to your comments in the Riverfront Times. purpose of the press conference. A. Q. Is that a question? Because according to -- well, I want to set the That was the
record straight as to why there was a press conference. What steps did you take to do something to correct the reputation of Jeanne Bergfeld that was maligned allegedly by you in this article? I told you what we did. What
did you do to set the record straight on that issue? A. Q. A. Q. A. I did what I've just told you. Talked to your lawyer? I told you three different ways. Other than talk to your lawyer? There was a lawsuit alleging certain things
attributed to me very publicly done with television
cameras and all, so I did what I thought was right and I consulted with my attorney. Q. Well, apparently your press lady thought enough
of it to put out that somehow I was a Carnahan supporter and that's what this was all about, correct? A. Q. A. Q. What's the question? Is that correct? Is what correct? That your press lady said that this lawsuit was That's the response
about my being a Carnahan supporter. that you gave. A. Q. A.
My press person said Chet Pleban -Right. That's me.
Again, I think the timeline is that you had a
press conference in the midst of a campaign that was getting national attention. It's a very common thing for
people to do, and there you were, and my response was okay, there's a lawsuit that I hadn't seen. I don't know
when we saw it, but I talked to my lawyer and we were being very careful because you announced the lawsuit, so that was the thing that -Q. A. If the statements that are attributed to you -I mean, you didn't call, Chet, and say, "Hey,
what it looks like you said appears to be a problem." You had a press conference.
When the article that appeared in the
Riverfront Times with those statements that are attributable to you -- if those statements, in fact -- if you did, in fact, make those statements -- and by the way, before I get to that question, let me ask a different one. Do you know whether or not Nick Phillips
recorded his interview with you? A. Q. A. Q. A. Q. No, I don't know. Did you ever take any steps to find out? Did I ever what? Take any steps to find out. No. If the statements that he attributes to you as
it relates to Jeanne Bergfeld -- if indeed you did make those statements, do you agree that in light of Exhibit No. 2, that those statements that are attributed to you in Phillips' article would be false? A. Q. What was the question? The statements attributed to you -- if, in
fact, you did make those statements, if, in fact, we can prove that you made those statements, those statements would be false? A. Q. What statements would be false? What we've been talking about, about Jeanne
Bergfeld, about she didn't do anything for 12 years and
she wasn't willing to change, page six. was a Republican.
"She said she Bergfeld
Nobody ever questioned that.
was a patronage employee who enjoyed, quote, '12 years of not having to do anything,' and who, quote, 'wasn't interested in changing. We did everything we could
appropriately to have her do her job but it wasn't in the cards.'" If you actually made those statements, those
would be false statements, would they not? A. Q. A. What does that mean, false statements? Wrong, incorrect, inaccurate. Again, I think I was talking about the general I don't --
-- everything down there. Q. A. Q. Stay with me now. All right.
If the statements -- if these are actually
quotes from you, all right -A. Q. Uh-huh. -- those statements that I just read would be
false, is that true? A. right. Q. false? A. The statements that I made? I don't know that I don't want you to guess. Are they true or The statements as to -- yes, I guess that's
I made those statements.
Q. A. Q.
Stay with me. Uh-huh. I'm quoting.
Stay with me here, all right?
There are quotation marks around There's If
this stuff, okay? quotation marks.
I'm not making this up.
It's a public article, all right?
the statements that are attributed -- that Nick Phillips attributes to you -- if you actually said those about Jeanne Bergfeld, what I just read -A. Q. A. Yeah. -- they would be false, would they not? I don't know. I mean, I don't know the
specifics to -- I mean, there was a lot of -Q. A. Q. false? A. The statements -- I mean, they would be -- I You don't know the specifics of what? I mean, I guess -- yes. I don't want you to guess. Are they true or
mean, they would be -- I don't know how to answer that. I don't know how to answer that. Q. You don't know how to answer whether they were
true or false statements that were made? A. I think they would be false the way they were That's
written but I don't think I said them like that. my point. Q. Stay with me here.
I know, stay with you.
If the statements that are attributed to you,
if you actually made those statements -A. Q. A. Q. A. Q. Right. -- those statements would be false, correct? Correct. So why would you say that about her? I don't recall saying it. Can you think of any reason that you would be
making false statements about Jeanne Bergfeld? A. Q. No, no. Are you -- you're not in the habit of making
false statements about people, are you? A. Q. No. And would you agree that these are pretty
demeaning statements, aren't they -- that she's a dead beat for 12 years, didn't do any work, didn't want to change, accepting money for not doing work? I mean,
these are pretty demeaning, wouldn't you agree with that? A. are, yeah. Q. You don't think they're demeaning? Would you They certainly -- I mean, they are what they
like somebody to say that about you?
Would you like
somebody to say, "Hey, Ed Martin's been a lawyer and he hasn't worked and he hasn't done anything and he's
collected a whole bunch of money from everybody and hasn't done anything, and he's not likely to change"? Would you like somebody to say that about you? A. Q. A. Q. A. Q. No. Why not? What do you mean why not? Why wouldn't you? It doesn't sound -- it doesn't sound very nice. In the April 2011 edition of St. Louis
Magazine, Jeanette Cooperman, who was the author of the article about you, says, "The fact is, the man doesn't have much of a filter." that statement? A. Q. A. Q. A. me. I disagree. Why? Why do I disagree? Yes. I think -- I just disagree. She's describing Do you agree or disagree with
I don't think it describes me. Q. Okay. And is that because as a lawyer,
particularly, forgetting the political stuff -- as a lawyer, you're careful about what you say and how you respond to certain questions? A. Q. As to Jeanette's comment? No. Is that -As a
I'm talking now about generally.
lawyer, particularly, you have legal training, correct? A. Q. A. Q. Yes. You're a lawyer, correct? Right. You practice law, you did a bunch of research
for a federal appellate court judge, you've worked with Bryan Cave, a large law firm in the City of St. Louis and elsewhere, you've got your own practice now, right? A. Q. A. Q. Yes. So words become very important, do they not? Yes, sir. And you don't engage in ready, shoot, aim
behavior, do you? A. Q. No, sir. So when somebody asks you a question, you think
about the answer and you give them an appropriate answer, correct? A. Q. A. Q. Yes. So you do have a filtration system? I'm sorry? In other words, you don't say whatever pops
into your head without thinking about it, correct? A. Q. Correct. And I assuming that's what Jeanette meant by
this, that this man doesn't have much of a filter, which
is you kind of just say whatever comes into your head? A. Q. You'll have to ask Jeanette. And we will, okay? But independently of that,
from your perspective, you do have a filter system, right? A. Q. I'm not sure what a filter system is. Well, you think about responses before you make
the responses, correct? A. Q. Correct. And you don't engage in reckless behavior when
it comes to answering questions? A. Q. Yes. And that's because you're a product of legal
training, correct; you've got a juris doctorate degree, right? A. Q. correct? A. Q. Correct. And so it's important for us lawyers to be Correct. And you've practiced law for all those years,
accurate in what we say and do, correct? A. Q. Correct. And you are accurate in what you say and do, is
that correct? A. Correct.
And so if those statements that are
attributable to you in the Nick Phillips article are accurately attributable to you, how does that comport with you having a filtration system and thinking about things before you say them? A. Q. I'm not sure what the question is. The question is if you have a filtration
system, contrary to what apparently Jeanette Cooperman thinks, and if that filtration system is such that, particularly given your legal training, you think about answers before you give them; you don't recklessly engage in speech -- if the statements attributable to Jeanne Bergfeld in the article -- that are attributed to you about Jeanne Bergfeld -- if those are accurate, how does that comport with you having a filtration system and thinking about things before you speak them? A. I don't -- I'm not -- like I said earlier, if I I made a
said those things, I overstepped the agreement. mistake. that. Q.
But, again, I don't recall saying them like
Not only did you overstep the agreement but you
made false statements about her, didn't you? A. Q. A. I don't -If those are accurately -I don't recall making the statements.
I got that.
I got that.
We've been through But if they are
I heard that 5,000 times today.
accurately quoted -- if you were accurately quoted, not only did you overstep the bounds of the agreement, but you made false statements? A. Yeah. I mean, if what's quoted -- what's I don't know. I don't know
quoted there is what it is. what you're asking me to -Q.
You said the agreement -- you overstepped the But not only that, you made
bounds of the agreement.
false statements about her if you're accurately quoted, correct? A. Q. If I'm accurately quoted, what is it? Not only did you overstep the bounds of the
agreement but the statements that you made were false? A. think so. Didn't we do this a couple times? I mean, I
There's a lot of ifs in there but I don't
think -- I mean, that sounds right. MR. PLEBAN: questions. Okay. I don't have any other
I'm sure Derrick has a lot for you, though.
EXAMINATION BY MR. GOOD: Q. Just follow-up to clarify, do you -- when you
were asked earlier about whether or not you had a copy of the settlement agreement, we've since talked about that.
Do you have a different recollection or a better memory of when you had it? A. Yes. I think the timeline that I recall was
that we found out about the press conference and pending lawsuit and I -- whatever day that was, I don't think I had a copy of the settlement agreement on hand. So in
talking to you, then we went and got it from counsel in the last matter. And at that time, I don't know whether
I had another copy somewhere but that's what we did to resolve that. Q. And to clarify, when you said a hundred times
that you consulted with your attorney -- to clarify what that was, you were under strict instructions not to discuss the lawsuit and Ms. Bergfeld with anybody from that point on, right? MR. PLEBAN: Hold on, Derrick. If you're
going to go down that road and you're going to ask him that, then, in my opinion, he's waived any confidentiality that you have because that's self-serving. If you're going to go down that road, then
I'm going to get into -- and I don't want to get into that but I just want to -MR. GOOD: withdraw. MR. PLEBAN: Anything else? I understand. I'll just
That's all I've got.
FURTHER EXAMINATION BY MR. PLEBAN: Q. In light of this conversation that we've had
here today by, do you have any plans at the moment to, A, find out if the statement was accurate, and, B, correct it if it was inaccurate? A. I've got plans to talk to my counsel, I think,
at this point. MR. PLEBAN: idea. All right. That would probably be a good You
I don't have any other questions.
want to tell him what his rights are? MR. GOOD: MR. PLEBAN: We'll waive. The document, which is 1-B
that we've identified is subject to a Protective Order. MR. GOOD: the document. MR. PLEBAN: We read the paragraphs five, We can just not append it to
six, and seven and I don't have any problem with that, but the rest of it is confidential. MR. GOOD: Okay.
C E R T I F I C A T I O N
I, Laurie A. Prickett, Certified Shorthand Reporter, within and for the States of Missouri and Illinois, DO HEREBY CERTIFY that pursuant to notice/agreement between the parties, the aforementioned witness came before me at the time and place hereinbefore mentioned, and having been duly sworn to tell the whole truth; was examined, and the examination was taken in shorthand and later reduced to printing; that signature by the witness is waived and said deposition is herewith forwarded to the taking attorney for filing with the Court. IN WITNESS WHEREOF, I have hereunto subscribed my name this 1st day of July, 2011.
_________________________________ Laurie A. Prickett, CSR, CCR, RMR
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