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

Filing 68

MOTION for Leave to File Supplemental Brief by American Freedom Defense Initiative, Pamela Geller, Robert Spencer. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4) (Yerushalmi, David)

EXHIBIT 3

David Yerushalmi
From:
Sent:
To:
Cc:
Subject:

David Yerushalmi [[e-mail]]
Wednesday, November 27, 2013 5:55 PM
'Christian E. Hildebrandt'
'Gordon, Avery'; '[e-mail]'; '[e-mail]'
RE: Meet and Confer

Chris, I don't find you to be uncooperative. Assuming you turn your attention to this matter first thing Monday, it should
not take more than a few minutes to understand this issue now that we have provided you with the most relevant portion
of the transcripts. And, of course, the important point here is that we do not want the court laboring under a misstatement
of fact at the hearing while laboring over the decision. We all have an obligation to move with prudent alacrity.
And, permit me to take this opportunity to wish you a happy and meaningful Thanksgiving (I'm assuming you do not
celebrate Chanuka, which of course was a victory by the Jewish People led by the Maccabees over government oppression
in the form of censorship of free speech and religion).
Sent from my BlackBerry® wireless handheld 
David Yerushalmi*

American Freedom Law Center℠
Washington, D.C., Michigan, New York, California & Arizona
*Licensed in D.C., N.Y., Cal., Ariz.
T: 855.835.2352 (toll free)
T: 646.262.0500 (direct)
F: 801.760.3901
E: [e-mail]
W: www.americanfreedomlawcenter.org
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From: Christian E. Hildebrandt [mailto:[e-mail]]
Sent: Wednesday, November 27, 2013 5:42 PM
To: <[e-mail]>
Cc: Gordon, Avery; [e-mail]; [e-mail]
Subject: Re: Meet and Confer

I'm willing to look at this when I return to my file and the office on Monday. Set whatever deadline you want. However, 
it would be wrong to say I was uncooperative. I am on holiday. So is SMART. I'll look at it when I get to my office on 
Monday afternoon. I will talk to SMART then too.  

Happy Hanukkah and happy Thanksgiving to all.  

Chris 

On Nov 27, 2013, at 4:42 PM, "David Yerushalmi" <[e-mail]> wrote: 
Chris: I appreciate your struggle here but you should slow down and actually read my first email and the
portions of the hearing testimony and Gibbons' deposition testimony I have already provided to you. The
court asked you a very pointed question after you insisted twice that Gibbons was never a decision maker
at any time relevant to the ad. The court followed up by asking you pointedly whether Gibbons was a
decision maker at the time she testified at the preliminary hearing. Your answer was an unequivocal no.  
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But your statements at the hearing as to whether Gibbons was a decision maker either at the time the ad
was submitted or at the time she testified at the preliminary hearing were false (if we believe Gibbons'
deposition testimony) and they were false even as to whether Gibbons was a decision maker at the time
the ad was submitted. Read her testimony at her deposition that I've provided to you. At the time the ad
was submitted and well before the preliminary hearing Gibbons was a decision maker within the chain of
command at SMART. So, unless you are saying that your witness misspoke at her deposition and you
failed to correct it on direct examination or through an errata, your statements at the hearing and in your
email below are wrong: Gibbon was a decision maker at the time the ad was submitted and at the
preliminary hearing and at her deposition. She might have been given a kind of promotion once Dryden
left, but that doesn't diminish the authority she had at the preliminary hearing or at the time the ad was
submitted. Moreover, the court did not ask you whether she was THE decision maker only that she was
A decision maker. Because as a decision maker, even her testimony at the preliminary hearing outside of
her role as a 30(b)(6) witness (i.e., her personal testimony) is an admission against a party's--SMART's-interest. That was the point of the court's questioning based upon our argument in the brief and at the oral
argument.  

Your statement in response to the court flatly contradicts Gibbons' deposition testimony. What about this
testimony of Gibbons do you not understand?  

Beth Gibbons (Pages 15:19 to 16:15): 
Q And I'll represent to you that this is the latest 
deposition notice, which identified this location 
for the deposition. 
In the defendants' initial 
disclosures to plaintiffs, they indicated, they 
identified you as a potential witness with personal 
knowledge, and they indicated that you have personal 
knowledge of SMART's policies and the application 
thereof; is that a correct statement? 
A Yes. 
Q And the policy that will be at issue in this case is 
the advertising guidelines; you understand that? 
A Yes. 
Q And do you have personal knowledge of SMART's 
application of the advertising guidelines? 
A Yes. 
Q In fact, in your position as marketing program 
manager, you were required at times to apply those 
guidelines to various advertising; is that correct? 
A Yes. 
Q And do you still have that responsibility today in 
the position that you're holding now? 
A Yes. 

You of course recall Gibbons' description of her title as program manager at the time the ad was
submitted and that she was the one responsible for the ad submission: 

Beth Gibbons (Pages 11:11 to 13:6) 
Q Now, ma'am, how are you currently employed? 
A I am the manager of marketing communications at 
SMART. 
Q How long have you held that position? 
A Five years, I believe. 
Q Was that the position you held when my clients' 
advertisement was presented to SMART for display? 
2

A
Q
A
Q

No, I had a different title. 
And what was your title at that time? 
I think it was a marketing program manager. 
Is the position you hold now, is it an elevated 
position from the one you held previously as the 
marketing program manager? 
MR. HILDEBRANDT: Object; vague. 
A Not sure what you mean by "elevated." 
BY MR. MUISE: 
Q Certainly. Who held the position of manager of 
marketing and what was the full title you have? 
A Marketing communications. That title didn't exist 
at that time. 
Q Well, the title you hold now, was that a promotion 
from the position you held previously? 
A Probably. 
Q Is there somebody who is the marketing program 
manager today? 
A No. 
Q How long have you worked with SMART? 
A 20 years. 
Q Are your job duties different from when you were 
their marketing program manager to your position now 
as the manager of marketing and communications? 
A Yes. 
Q What has changed between the two? 
A I'm now responsible for all of the marketing and 
communication that go out to the, externally and 
internally. 
Q And what were your duty and responsibilities as the 
marketing program manager? 
A I was responsible for smaller pieces of programs 
that we ran. 
Q Was one of those programs advertising on SMART buses 
and bus shelters? 
A Yes. 
Q Do you still have responsibility over that 
advertising in your present position? 
A Yes. 

And, Chris, so we are absolutely clear, the Monday COB deadline stands.  

Sent from my BlackBerry® wireless handheld 

David Yerushalmi* 
American Freedom Law Center℠ 
Washington, D.C., Michigan, New York, California & Arizona 
*Licensed in D.C., N.Y., Cal., Ariz. 
T: 855.835.2352 (toll free) 
T: 646.262.0500 (direct) 
F: 801.760.3901 
E: [e-mail] 
W: www.americanfreedomlawcenter.org  

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distribution or copy of this communication is strictly prohibited. If you have received this communication in error, please erase all copies of the
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From: Christian E. Hildebrandt [mailto:[e-mail]]
Sent: Wednesday, November 27, 2013 3:50 PM
To: David Yerushalmi
Cc: Gordon, Avery; [e-mail]; [e-mail]
Subject: Re: Meet and Confer 

What I'm unclear about in your email and the transcript is what "at that time" you are referring to. I 
agree that at the time of her deposition, she was a decision maker. At the time the ad was submitted, 
she was not. When that changed in between I can't say today. I'm just trying to figure out what you're 
referring to as "at that time". 

What do you think was conveyed that you want corrected? Just tell me what you think I said and I can 
look at it in that context. I'm not being adversarial at all.  I'm just trying to understand what you think 
was misrepresented.  

If I believe that the totality of my statements created a misunderstanding, I am of course willing and 
happy to correct it. I just don't have all of the context to say yet.  

Chris 

On Nov 27, 2013, at 3:43 PM, "David Yerushalmi" <[e-mail]> 
wrote: 
Chris: my email and the transcripts are crystal clear. She was "a decision maker at the 
time" versus your statement she was not. We've offered you the opportunity to rectify 
your misstatement in a non‐adversarial fashion. Your choice, my friend. 

David Yerushalmi, Esq.* 
American Freedom Law Center 
Washington, D.C., Michigan, New York, California & Arizona 
*Licensed in D.C., N.Y., Cal., Ariz. 
T: 646.262.0500 (direct) 
T: 800.714.9650 (toll free) 
F: 801.760.3901 
E: [e-mail]  
W: www.aflc.us or www.americanfreedomlawcenter.org 

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Sent from my BlackBerry 10 smartphone. 
From: Christian E. Hildebrandt 
Sent: Wednesday, November 27, 2013 3:38 PM 
To: <[e-mail]> 
Cc: Gordon, Avery; [e-mail]; [e-mail] 
Subject: Re: Meet and Confer 

Just to be clear, are you trying to say that at the time the ad was submitted that Beth 
Gibbons was an independent decision maker? If not, what are you trying to correct? 

Chris 

On Nov 27, 2013, at 1:08 PM, "David Yerushalmi" 
<[e-mail]> wrote: 
Chris: Rob and I will need a meet and confer by no later than Monday
COB on the following issue. 

During the hearing on the X-MSJs, you made a false representation to
the court that we assume was simply an innocent error committed in a
moment of over-zealous exuberance. We would like you to join with us
in filing a correction. Specifically, beginning at page 19 of the transcript
of the hearing, we find the following question and answer colloquy
between you and the court--paying special attention to the highlighted
portions: 

Page 19: 

12 THE COURT: Do you think that at the
time of 
13 the testimony at the preliminary
injunction hearing that 
14 SMART had the definition of
"political" that apparently 
15 they have at this time? 
16 MR. HILDEBRANDT: Your Honor, there
was no 
17 written definition of "political" in
place at the time 
18 of the preliminary motion, the
preliminary injunction 
19 motion such that is the same as was
disclosed in the 
20 testimony in this case. 
21 THE COURT: So I want to just
understand this, 
22 and maybe it doesn't really have
anything to do with 
23 your motion, but it is important to
me to understand it. 
24 MR. HILDEBRANDT: I understand. 
25 THE COURT: For my own benefit. 
Page 20 
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1 At the time of the preliminary
injunction, 
2 there wasn't any written definition of
"political"; is 
3 that right? 
4 MR. HILDEBRANDT: Your Honor, at the
time of 
5 the preliminary injunction, there was
no separate 
6 written definition of "political". 
7 THE COURT: You put "separate" before
it. 
8 Was there any written definition of
"political" at that 
9 time? 
10 MR. HILDEBRANDT: Well, in the
guidelines, 
11 "political" is expressed there, but
there is no separate 
12 definition beyond the use of that
word "political" -- 
13 THE COURT: And you would agree that
the 
14 witness that appeared did not give
any particular -- 
15 point to any particular thing that
informed her about 
16 what was political? 
17 MR. HILDEBRANDT: I would agree that
the 
18 witness that was provided as the
30(b) witness did not, 
19 but she was not part of the decisionmaking process at 
20 the time. She was not an individual
who was a 
21 decision-maker at the time. She had a
direct supervisor 
22 in the Marketing Department who was
unavailable at the 
23 time. And that person was the
decision-maker in the 
24 Marketing Department, in the General
Counsel's 
25 Department and in the General
Manager's office. 
Page 21 

1 There were decisions, there were
different 
2 decision-makers, but Beth Gibbons has
never been a 
3 decision-maker at any time relevant to
this ad. 
4 She was presented as the 30(b)(6)
witness 
5 and provided testimony -- 
6 THE COURT: When she gave her
deposition, 
6

7 would she have been considered a
decision-maker at that 
8 time? 
9 MR. HILDEBRANDT: When she gave her 
10 deposition post-Sixth Circuit
decision in the discovery 
11 of this case? 
12 THE COURT: Well, that is when she
gave it. 
13 MR. HILDEBRANDT: All right, that's
fine. 
14 Yes, at that time she was -- 
15 THE COURT: Excuse me, Counsel, I want
to be 
16 really clear so I understand this. 
17 She testified as a 30(b)(6) witness,
but she 
18 was not a decision-maker at that
time; that is your 
19 position, right? 
20 MR. HILDEBRANDT: Well, that is
correct, yes. 

Chris, the Chubb and Gibbons testimony as a whole makes clear that
Beth Gibbons was in fact a decision-maker as part of the decisionmaking chain of command. Indeed, you know very well that she had the
authority to simply accept an ad that she determined did not violate any
of SMART's policies. Or, if she had some concerns or questions, she sent
it along the decision chain, including Dryden and legal. But, Gibbons
was very clear that she participated as a decision maker during the
relevant time period. Thus, 

Beth Gibbons (Pages 15:19 to 16:15): 
Q And I'll represent to you that this is the latest 
deposition notice, which identified this location 
for the deposition. 
In the defendants' initial 
disclosures to plaintiffs, they indicated, they 
identified you as a potential witness with personal 
knowledge, and they indicated that you have personal 
knowledge of SMART's policies and the application 
thereof; is that a correct statement? 
A Yes. 
Q And the policy that will be at issue in this case is 
the advertising guidelines; you understand that? 
A Yes. 
Q And do you have personal knowledge of SMART's 
application of the advertising guidelines? 
A Yes. 
Q In fact, in your position as marketing program 
manager, you were required at times to apply those 
guidelines to various advertising; is that correct? 
A Yes. 
Q And do you still have that responsibility today in 
the position that you're holding now? 

7

Moreover, Gibbons testified that she was part of what Chubb described
as the collaborative decision-making process: 

Beth Gibbons (Pages 52:14 to 54:2): 
Q Anthony Chubb, on behalf of SMART, testified that at 
times there is collaboration between marketing, 
legal, and the general manager to make a final 
determination as to whether an advertisement is 
accepted or rejected; is that your understanding of 
how the process works at times? 
A Yes. 
Q And was there a collaboration on the leaving Islam 
advertisement? 
A Yes. 
Q Did you participate in that collaboration? 
A Yes. 

Chris, while this issue is not in our view an ultimate dispositive issue, it
is materially important and it was clearly important to the court. Thus,
your representation to the court was and remains a material
misrepresentation. Again, we accept presumptively that your
misstatement was unintentional and without scienter. But, this error
must be brought to the court's attention. We will do so Monday after
COB, either in a joint statement with you or unilaterally.  

We look forward to hearing from you very soon. 

David Yerushalmi* 
American Freedom Law Center℠ 
Washington, D.C., Michigan, New York, California & Arizona 
*Licensed in D.C., N.Y., Cal., Ariz. 
T: 855.835.2352 (toll free) 
T: 646.262.0500 (direct) 
F: 801.760.3901 
E: [e-mail] 
W: www.americanfreedomlawcenter.org  
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This electronic message transmission may contain ATTORNEY PRIVILEGED AND
CONFIDENTIAL information intended only for the use of the individual or entity named above. If
the reader of this message is not the intended recipient, you are hereby notified that any
dissemination, distribution or copy of this communication is strictly prohibited. If you have received
this communication in error, please erase all copies of the message and its attachments and notify
sender immediately. Thank You. 
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