American Freedom Defense Initiative et al v. Suburban Mobility Authority For Regional Transportation (SMART) et al

Filing 50

MOTION to Compel Discovery by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1--Declaration of Robert J. Muise, # 3 Exhibit A--Plaintiffs' First Request for Production of Documents, # 4 Exhibit B--Defendants' response to Plaintiffs' First Request for Production of Documents and Certificate of Service, # 5 Exhibit C--Sample of emails produced by Defendants in response to Plaintiffs' First Request for Production of Documents, # 6 Exhibit D--Excerpts of the Deposition of SMART, # 7 Exhibit E--Email correspondence between and among counsel for the parties, # 8 Exhibit F--Privilege log produced by Defendants on June 5, 2013, # 9 Exhibit G--Revised privilege log produced by Defendants on June 11, 2013) (Muise, Robert)

EXHIBIT D

AMERICAN FREEDOM DEFENSE INITIATIVE, ET
AL v. SUBURBAN MOBILITY AUTHORITY FOR
REGIONAL TRANSPORTATION, ET AL
ANTHONY CHUBB

May 21, 2013

Prepared for you by

Bingham Farms/Southfield • Grand Rapids
Ann Arbor • Detroit • Flint • Jackson • Lansing • Mt. Clemens • Saginaw

ANTHONY CHUBB
May 21, 2013
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don't understand, I'm from the Boston area, every now
and then I cut words off at the end, and I tend to
speak quickly, so I apologize ahead of time to our
court reporter. So I want to make sure you fully
understand my question before you answer, sir.
A. Understood.
Q. If you need a break at all this morning, let me know.
We will certainly do that. This is not enhanced
interrogation by any stretch, so if you need a break,
we will certainly do that. What I typically do is
probably after about 50 minutes I tend to take a 10
minute break, that's usually how it works out, but
again, if you need a break, let me know. The only
caveat being that if we are in the middle of a
question and answer, I would ask that you finish your
answer to the question before we take a break, okay?
A. Understood.
Q. Now, is there any reason as you are sitting here today
why it would be difficult for you to fully understand
and answer my questions, meaning are you under any
doctor's care, do you have any personal issues, and I
don't need to know the details, I just want to know if
there is anything that might effect your ability to
fully understand and answer my questions this morning.
A. No.

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Q. But does such a document exist?
A. I don't believe so. Actually, no.
Q. Anything you can recall about any other documents you
may have reviewed that are separate or distinct from
the documents that were provided in the production,
including the document that was produced yesterday?
A. I don't believe so.
Q. Did you discuss your deposition this morning with
anyone other than counsel?
A. No.
Q. I'm handing you what has been marked as Deposition
Exhibit Number 1. Have you seen this document prior
to today?
A. Yes, I have.
Q. And do you understand that this document is the
deposition notice directed to defendant SMART, which
is Suburban Mobility Authority For Regional
Transportation, pursuant to rule 30 (b)(6) of the
Federal Rules of Civil Procedure?
A. Yes, I do.
Q. And pursuant to this deposition notice, you have been
identified by -- and let me just back up.
Is it okay with you, I will be using the
acronym SMART, S-M-A-R-T, to refer to defendants
Suburban Mobility Authority for Regional

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Q. In preparation for this deposition, did you review any
documents that might help you to recall facts related
to the issues in this case?

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A. Yes.

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Q. Do you recall what those documents were that you

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reviewed?
A. I reviewed the document production that SMART has
given to the plaintiffs.
MR. HILDEBRANDT: Including the CBS stuff

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that we gave to you yesterday that came up in his

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review.

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A. And various other internal memorandums and documents
related to the case.

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BY MR. MUISE:

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Q. Do you recall any specifics of what these internal

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memoranda and documents related to the case were?

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A. I really -- no, I couldn't say.

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Q. Were they e-mails amongst individuals that work for

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SMART?

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A. Not beyond those which were produced in the discovery.

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Q. Was there a document that was created regarding the

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application of the SMART policy to the advertisement

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that's at issue in this case?

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A. Any such document would be privileged if there was a
review of it.

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Transportation, is that okay with you?
A. Understood.
Q. And I'm sure our court reporter will appreciate that
as well.
So pursuant to this notice you have been
designated as the witness to testify on behalf of
defendant SMART; is that your understanding?
A. Yes.
Q. And if you look at page 2 and 3, there are subject
matter that have been identified in this deposition
notice, again the numbers are 1 through 6 paragraphs,
do you see those, sir?
A. Yes.
Q. And are you prepared to testify on behalf of those
matters on behalf of SMART this morning?
A. Yes.
Q. And so I just want to be clear, so for purposes of
your answers in this deposition, those answers are the
answers of SMART, do you understand that?
MR. HILDEBRANDT: I'm going to object to
the question. It assumes that all of your questions
are going to be properly asked and properly
configured. To the extent that you ask him about his
personal opinions, you may receive personal opinions.
To the extent that your questions are directed to

Pages 9 to 12

ANTHONY CHUBB
May 21, 2013
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advertiser. CBS then will, if it believes that there

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is a potential violation of section 5.07, it will give

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determination, is there -- is it set forth in any

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a copy of the advertising to Beth Gibbons or the

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rules, guidelines or regulations as to what the

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person in that role obviously, and Beth then will seek

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procedure will be employed if Beth Gibbons has to go

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advice internally as necessary to make any final

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determination as to violations of section 5.07.

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A. No. It's fairly consistent, though.
Q. So you have the office of the general counsel, the

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Q. Okay. If there is a determination that it violates

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section 5.07, is there a process or procedure that

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SMART employs to notify the advertiser?

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A. Generally, although there could be exceptions, Beth

Q. Is the procedure for reviewing beyond Beth Gibbons'

beyond her own determination?

general manager and perhaps other individuals?
A. Well, first the marketing department or the external

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affairs and communications department, which is Beth

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Gibbons will then go back to CBS to tell them to

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Gibbons, the office of the general counsel, and the

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notify the advertiser that their advertisement has

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general manager is the standard process.

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been rejected.

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Q. So marketing department, and who is it after that?

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A. The office of the general counsel, and the general

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Q. Is it the policy or practice of SMART to give a reason
as to why the advertisement was rejected?

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A. Yes.

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Q. Would they specifically cite to section 5.07 if it was

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a content based issue?

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A. They would -- no, not necessarily. They would say --

manager's office.
Q. Does it have to go to all of those or can at any point
somebody make a determination that it's either good or
it fails?

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A. At any point someone could make a determination if

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I mean in a vague sense, yes. They wouldn't

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they thought that it was clear-cut and didn't need to

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necessarily say section 5.07, but they would say it's

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be escalated further, they could make a determination

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against SMART's content policy.

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Q. Is it the practice to explain what part of the content
policy the particular advertisement violated?

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A. No.

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and the decision would be made.
Q. And that's a decision whether to run it or to reject
it?
A. Correct.

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Q. And I believe you testified previously that in the

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sequence that you have described, Beth Gibbons, if she

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based on her determination concluded that it violated

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the content restriction, she could then tell Mr.

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Hawkins that the advertisement has been rejected

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without any further, seeking any further advice; is

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that right?

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A. That's correct.

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Q. And in some cases she may seek further advice; is that

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right?

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A. Correct.

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Q. Who are the other officers or persons to whom she

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would seek advice?

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A. Generally the office of the general counsel, the

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general manager, and other individuals within

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administration potentially if the ad is of a certain

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nature that it would impact -- that they would have

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some technical expertise in it.

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Q. For example, what would be an example of that?

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A. It would be hard to come up with one. I was thinking

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SMART has a drug and alcohol compliance person that

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may have specialized knowledge in that area if it was

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something related to drugs or alcohol potentially, or

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our deputy general manager of administration has also

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been sought generally if more opinions are needed.

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Q. Is this the general direction it goes, marketing
department, office of general counsel, and then
general manager's office?
A. Yes.
Q. And using a, I guess a trite phrase, the buck could
stop at one of those departments; is that right?
A. That's correct.
Q. You know what I mean by that -A. Yes.
Q. -- a final decision could be made in any one of those
departments?
A. Yes.
Q. Are there any guidelines that, for example, Beth
Gibbons in the marketing department would review to
make a determination whether it then needed to be
bumped up to the office of general counsel?
MR. HILDEBRANDT: Objection, vague. You
mean in addition to 5.07?
MR. MUISE: Exactly.
A. Common sense.
BY MR. MUISE:
Q. Anything other than common sense?
A. No.
Q. Do you know if there was anyone other than Beth
Gibbons who in the marketing department reviewed my

Pages 25 to 28

ANTHONY CHUBB
May 21, 2013
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client's advertisement at issue in this case?

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MR. HILDEBRANDT: Objection, vague. What

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do you mean by reviewed?

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Q. And was the decision to deny, reject my client's
advertisement was made then by the general manager's
office; is that right?

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BY MR. MUISE:

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A. In consultation with the other departments, yes.

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Q. Do you understand what I mean by reviewed?

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Q. So the final decision then went through all three of

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A. Yes, I believe so. I believe that at the time we had

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a direct -- there was a SMART director of marketing

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A. That's correct.

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and external affairs, Beth Dryden, and I believe she

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Q. Who was the general manager at the time?

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has reviewed the advertisement.

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A. John Hertel.

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Q. Okay. Other than Beth Gibbons and Beth Dryden,

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those levels up to the general manager's office?

Q. Did the marketing department make a recommendation to

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anybody else in the marketing department that you are

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the office of general counsel as to whether my

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aware of that reviewed my client's advertisement to

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client's ad should be accepted or rejected?

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determine whether it satisfied the content based

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requirements?

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That's privileged information. The advice that they
sought from the attorney from SMART is privileged.

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A. No.

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Q. Do you know if the decision to reject my client's

MR. HILDEBRANDT: I'm going to object.

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advertisement was made by the marketing department?

MR. MUISE: I'm not asking for the

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advice --

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A. It was not.

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BY MR. MUISE:

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Q. So there was something about my client's advertisement

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Q. Is Beth Gibbons an attorney?

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that then caused either Ms. Gibbons or Ms. Dryden to

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A. She is not.

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push the decision up to the office of the general

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Q. Is Beth Dryden an attorney?

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counsel; is that correct?

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A. She is not.

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A. Presumably, yes.

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Q. Do either of them hold a role as an attorney?

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Q. Well, do you know?

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A. Not that I'm aware of, no.

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A. I can't speculate as to their -- what they were

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Q. So they are not engaging in the lawful practice of law

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at SMART; is that fair to say?

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thinking, but they did push it beyond the marketing

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department, and so based on our policy, yes, there was

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A. Correct.

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something that caused them uncertainty and they needed

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Q. Do you know what recommendations either Beth Dryden or

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further review.

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Beth Gibbons made as to whether this advisement should

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be accepted or rejected?

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Q. Okay. So they didn't -- even though she had the

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authority to either approve or reject the

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advertisement, it's your understanding that Beth

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Gibbons or Beth -- was it Beth Dryden too?

MR. HILDEBRANDT: I'm objecting, that's

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A. Correct.

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attorney client privileged.
MR. MUISE: Are you directing the witness
not to answer the question?
MR. HILDEBRANDT: I am directing the

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Q. So two Beths, I'm sorry. So Beth Gibbons and Beth

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Dryden in the marketing department did not make a

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witness not to answer the question because the fact

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decision one way or the other and they pushed it up to

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that she sought legal counsel and the discussions that

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the office of general counsel, correct?

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she had with legal counsel are absolutely privileged.

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A. Correct.

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Q. Do you know if the decision to reject my client's ad

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was made from the office of the general counsel?

MR. MUISE: Are you instructing the client

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not to answer the question?

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BY MR. MUISE:

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A. Can you restate that question?

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Q. Are you going to answer the question?

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Q. Sure. Do you know if the decision then to reject my

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A. Are you directing me?

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MR. GORDON: Can I hear the question again,

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client's ad was made at the office of the general

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counsel?

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A. It was not.

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(The following record was read by the

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Q. So then the office of the general counsel decided it

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reporter at 10:21 a.m.

please?

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needed to be pushed up to the general manager's

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"QUESTION: Do you know what

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office?

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recommendations either Beth Dryden or Beth

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Gibbons made as to whether this advisement

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A. That's correct.

Pages 29 to 32

ANTHONY CHUBB
May 21, 2013
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should be accepted or rejected?")
A. Could you clarify as to -- do you mean prior to the ad
being reviewed by the office of the general counsel?

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BY MR. MUISE:

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Q. Right. I'm trying to understand the process in which

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SMART uses to apply generally the content based

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restrictions and how it was applied in my client's

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case, and my question is based on your testimony the

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decision to accept or reject the advertisement was not

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made at the marketing department level, although it

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could have been made under this policy, correct?

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A. Correct.

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Q. And so the -- that decision was pushed up to the next

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level, and the next level is the office of general

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counsel, and you testified that that decision could

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have been made to accept or reject at that point, but

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it wasn't. In the case of my client's ad, it was

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pushed up again to the third level, which was the

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general manager's office, and it was at the general

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manager's office that the final decision was made to

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reject the advertisement. Is that a correct summary?

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A. That is all correct, but it isn't strictly appellate

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review; it's more of a consensus review, and if there

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isn't absolute consensus, then another and more input

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is sought, but yes.

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MR. HILDEBRANDT: Perfectly.
BY MR. MUISE:
Q. I want to ask you in terms of the application of the
content based restrictions generally and then focus in
on how it was applied in my client's case.
If a determination cannot be made at the
marketing department level, is it typical that the
marketing department will then make a recommendation
to the next level in the sequence that we described in
terms of the application of the policy?
MR. HILDEBRANDT: You are again getting
into what is the conversation between the marketing
department and their attorneys, the general counsel.
You don't get that. It's privileged.
MR. MUISE: There is nothing specific about
it. The fact that -MR. HILDEBRANDT: It doesn't matter if it's
specific.
MR. MUISE: The fact that -- the fact of
making a recommendation is not a privileged
communication.
MR. HILDEBRANDT: Yes, it is.
MR. MUISE: Are you going to instruct him
not to answer the question?
MR. HILDEBRANDT: The fact that they picked

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Q. I understand.

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A. The advertisement did go through people in that order.

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Q. And so my question was did the marketing department

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make a recommendation as to whether it believed that

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the advertisement should have been accepted or

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rejected when it was pursuing further information from

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or further determination from the office of general

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counsel?

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MR. HILDEBRANDT: Objection, that seeks

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attorney client privileged information. Whether the

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client seeks legal advice from their legal department

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is privileged, whether or what or whatever

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conversations they have are absolutely privileged.

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And so to the extent that Beth Gibbons came to the

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legal department and said I want to talk about this,

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what she says after that or even before that with the

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legal department is absolutely privileged. So any

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recommendation made to the legal department, which is

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the basis of your question, is privileged.

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MR. MUISE: You are instructing the witness
not to answer the question?

up the phone to call legal is a privileged issue.
What they seek legal advice about is privileged, how
they seek legal advice is privileged. The legal
advice is privileged.
If you want to ask what the review was at
the general counsel level, that's fine. If you want
to ask what the review was at the marketing level,
that was fine, but if you ask her what she asked her
attorney about or what she normally asks her attorney
about, that is privileged information and he is not
going to be answering. SMART asserts that privilege.
BY MR. MUISE:
Q. So you're not going to answer the question; is that
correct?
A. As directed by my counsel.
Q. Okay. That's a yes?
MR. HILDEBRANDT: SMART's counsel.
A. SMART's counsel, yes.
MR. MUISE: The my pronoun fits SMART as
well in the course of this deposition.
MR. HILDEBRANDT: Fair enough.

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MR. GORDON: Yes, of course.

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MR. HILDEBRANDT: Yes.

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MR. MUISE: Okay. I just want to make sure

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clarification of Mr. Hildebrandt was offering, did the

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marketing department make a determination based on its

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we are perfectly clear on the record of that.

BY MR. MUISE:
Q. So in light of the objection and what I believe was

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