ML20066B563
| ML20066B563 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 10/27/1989 |
| From: | Garde B ROBINSON, ROBINSON, PETERSON, BERK, RUDOLPH, CROSS |
| To: | |
| Shared Package | |
| ML20066B530 | List: |
| References | |
| FOIA-90-316 NUDOCS 9101080127 | |
| Download: ML20066B563 (94) | |
Text
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1 I i 1 BEFORE THE 4 U. S. NUCLEAR REGULATORY COMMISSION Interview of BILLIE PIRNER GARDE conducted on Friday, Octobir 27, 1989, in the 8th Floor conference i Room, 611 Ryan Plaza, Arlington,-Texas, commencing at j 3:00 p.m. APPEARANCES: , pn behalf _of the U.S. Nuclear Reculator.y commission: VIRGINIA VAN CLEAVE l 611 Ryan Plaza ] Arlington, Texas on behal f o.L the Wi tness t BIIME PIRNER G ARDE;, (Mr. Johnson appearing telephonically) s. VERNON JOHNSON, Attorney Jackson and campbell , Washington, D, c. e EXHIBri Ib PAGE / OF_9PPAGE(h) UpE NO. 4-89-008 ' ( 2 A po $n,
2-1 !NDEX 2 EXAMINATION OF: PAGE 3 BILLIE PIRNER GARDE 4 By Hz. Van-Cleave 4 5 6 7 8 EXHIBITS 9 NUMBER Pact 10 1 [ Waiver of Attorney / Client Privilege) 4 11 2 (2-page document) 20 12 3 [ Retainer agreement) 46 (, 13 4 (Correspondence) 54 14 5 (Checks) 61 15 6 [ Correspondence) 64 I 16 7 (Handwritten note) 87 17 18 19 20 21 22 23 ' 24-25 i EXHlBC CA$[ N( 4-89-0 08 PAGE_ k OEC 7- pAGE(S)
3 i PROCEEDINGS 2 MS. VAN CLEAVE: For the record, this is an 3 interview of Billie Pirner Garde, who is employed by 4 Robinson, Peterson & Garde.
.1 5 The location of this interview is the Nuclear 6 Regulatory Commission, Region IV offices.
]
7 The date is october 27, 1989, and the time is 3:00' 8 p.m. 9 Present at this interview are Ms. Garde and ,
.0 myself, Investigator Virginia Van Cleave. This interview is 1
11 being transcribed by court reporter, Betty Morgan. We have 12 on the speaker phone an attorney representing Ms. Garde, t 13 Vernon Johnson. 14 MR. JOHNSON: I'd like to state a couple of things 15 for the record, too, if I might. 16 HS. VAN CLEAVE: Just a minute, please. 17 Let me put Ms. Garde under oath, and then you can 18 go ahead and proceed. 19 HR. JOHNSON: Okay. . 20 MS. VAN CLEAVE: Ms. Garde, stould you please stand l 21 and raise your right hand, i 22 Whereupon, 23 BILLIE PIRNER GARDE 24 was duly sworn and examined as follows: 25 MS. VAN CLEAVE: Okay, Mr. Johnson, if you wanted i EXHIB[Ih pgog-- $ OFTPAGE(S) USL NO. 4-89-0 08 1 j
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i 4 1 to make some prefacing remarks, go ahead.
- 2 MR. JOHNSON
- Okay. I'd just like to introduce 3 myself. My name is Vernon Johnson. I'm with Jackson and 4 campbell, the law firm that represents Billie Garde.
5 ror the record, we'd like to just point out that 6 Hs, carde is testifying today pursuant to a waiver of the 7 attorney /ellent privilege, which has been executed by Joseph 8 Hacktal, her former ellent. 9 We'd like to have -- and I understand it has 10 already been done. We'd like to have the waiver marked as 11 Exhibit i and introduced into the record at this time. 12 (Exhibit No.-1 was marked for ( 13 identification.) 14 HR JOHNSON: We'd like to make the understanding 15 that at any time during this-interview, Ms. Garde should 16 want to consult with me about any of the questions that are 17 being asked, that she should be allowed to do so. We'll 18 take me off the speaker phone, and I can consult with her in-19 private. 4 20 If that's all right, we can proceed. 21 MS. VAN CLEAVE: All right. That's fine. , 22 EXAMINATION l 23 BY HS. VAN CLEAVE: 24 Q. Ms. Garde, I'd like to start with some background 25 information concerning your relationship with Mr. Joseph i EXHIBtT. Cp E 4-89-008 pAoE _ k _0E QPAGE(S) s
1 4
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l 5 I i Maektal. , 2 A. Yes. 3 0 You represented Mr. Macktal, and I would like to j 4 know when the relationship with Mr. Hacktal began, whether ] 5 or not Mr. Macktal contacted you. How did you come to j 6 represent Mr. Macktal? 7 A. Mr. Hacktal contacted Juanita Ellis soon after his B leaving employnent at Comanche peak. I can't give you an i 4 9 exact date. There may be something in the documents I just 10 opened that would refresh me in terms of the date. But it it would have been around the middle of January of 1986. It 12 was a couple of days after he was terminated. A. 13 Mrs. Ellis is the representative of the Intervenor 14 group, the Citizens Association for Sound Energy, which at 15 that time was actively intervening in the licensing 16 hearings. 17 He contacted her, she then contacted the 18 Government Accountability project and me personally. I 19 don't remember if she contacted me at Trial Lawyers for-20 public Justice or at gap. 21 But in any event, she called me and I remember the 22 conversation, because he was sitting at her kitchen table. 23 I had a brief conversation with him at that time, and the 24 representation agreement then formed up over a period of the 25 next couple of weeks af ter some investigation int- 41s i EXHlBIT_ 7 CLSE NO. 4489-008 PAGE 6 OF 9$F'PAGE(S)
l l 6 i claim. 2 Q. Who conducted that investigation? 3 A. Well, GAP had a practice when someone contacted 4 GAP for representation through the Whistleblower Clinic that 5 we would take a pretty detailed summary statement, either in 6 person or on the telephone, whatever arrangements could be 7 worked out with the person who was alleging they were 8 terminated or harassed in violation of 42 USC-5851, and then 9 would attempt to validate or verify the information that 10 that person had provided in some manner. 11 That could be talking to other co-workers over the 12 phone in an interview or reviewing documents or some 13 combination of those things. ( 14 Q. And if GAP believed the case had merit, then GAP 15 would accept the -- 16 A. Well, at that tine, January '86, whistleblower 17 cases were being taken through a joint project of the 18 Government Accountability Project andLTrial Lawyers-for 19 Public Justice. 20 So the case would be screened by GAP, and if it 21 was deemed to be meritorious, then the case would be 22 accepted. GAP handled,-if you will, the first half of the 23 case; that is, filing the claim, conducting the 24 investigation or the preliminary investigation into'the i 25 claim, doing discovery, doing the Freedom of Information Act I . PAGE b 0F_ D PAGE(S) CA R NO. 4-89-008 I
4 7 i requests, pulling all the documents together. 2 By the time it got to the stage of litigation, l 3 then Trial Lawyers for public Justice through thalt 4 attorneys would take over and litigate the case. ! 5 That was in theory how it worked, and this was 6 f airly early into the whistleblower project. so that was 7 kind of the track that it was on. 8 Did that answer your question? I 9 Q. Yes. 10 so was an attorney from the Trial Lawyers also 11 assigned to this case? 12 A. After the case was accepted, the supervising 13 attorney at gap on the +ase would have been steven Kohn, 14 because he was the head of the clinic, the. citizens clinic. 15 That's K-o-h-n. 16 There was a Trial Lawyer cer.sulting attorney (if 17 you will) pretty immediately put on the pleadings and on the 18 representation agreement. Her name was Jane saginaw. She 19 i was with a firm -- it's right in front of se -- with 20 Frederick Baron & Associates in Dallas. 21
'Ms. saginaw did very little with the case right in 22 the beginning. I think we sent her copies of the complaint, 23 and she reviewed that.
24 But by the time we got to trial, she was heavily 25 involved in another' case, so she really didn't have-much EXHlBlTM. F
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8 i involvenient with the case. 2 Dut there was a Trial Lawyer lawyer in Dallas 3 ansigned to the case. 4 Q. What input or work did Mr. Kohn do on this case? 5 A. Well, in the beginning he probably did'very little 6 actual work on the case. He would have had to have been 7 involved in the review and acceptance of tha case because of 4 8 his role in GAP on the executive committee and with the 9 bcstd. 10 He was also.the clinical director. So the work 11 done in the case would have had to have been done somewhat 12 under his direct supervision, t 13 Now, I was the lead attorney or, the case, although 14 at that time I wasn't an attorney. I was in my third year 15 of law school. 16 But I was clearly the lead person on the case 17 pretty early on. 18 Tom Carpenter from gap also did some work on the 19 case pretty early on. He's now -- He's still at GAP and 20 is now the head of the Citizens Clinic for Accountable 21 Government. 22 Q. What role did Tony Rolsman play in this case? 3 23 A. Tony Rolsman's involvement in the case, other than 24 general knowledge about it -- because I worked with him on a 25 pretty daily basis and my office was right next to his EXHlBN_ I)~1 pggg] _OFKpAGE@) C'dE 8p. 4-89-008
8 1 involvement with the case. 2 But there was a Trial Lawyer lawyer in Dallas 3 assigned to the case. 4 Q. What input or work did Mr. Kohn do on this case? A.
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5 Well, in the beginning he probably did very little 6 actual work on the case. He would have had to have been
? involved in the review and acceptance of the case because of B his role in gap on the executive committee and with the 9 board.
10 He was also the clinical director, so the work 11 done in the case would have had to have been done somewhat 12 under his direct supervision. 13 Now, I was the lead attorney on the case, although 14 at that time I wasn't an attorney. I was in my third year 15 of law school. 16 But I was clearly the lead p erson on the case 17 pretty early on. 18 Tom Carpenter from GAP also did some work on the 19 case pretty early on. He's now -- He's still at gap and 20 is now the head of the citizens clinic for Accountable 21 Government. 22 Q. What role did Tony Roisman play in this case? 23 A. Tony Roisman's involvement in the case, other than 24 general knowledge about it -- because I worked with him on a 25 pretty daily basis and ty office was right next to his v h - PAGE__3of"Bl" PAGE@I (ME !Q. 4- 89-008
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9 1 office at Trial Lawyers. He really didn't ge , sd 2 until almost right before the hearing. 3 Like within maybe the last ten days before the 4 hearing, Tony agreed to come down and try the case with me 5 in November of '86. 6 So he had almost no-involvement in the case. 7 I think he may have talked to Mr. Macktal on one 8 occasion when Hacktal came to Washington to be-interviewed 9 by the NRC. He came over to my office, and I think he 10 talked to Tony at that point. 11 But other than that, I don't remember him really 12 having much involvement in it. 13 Q. After you accepted the case then, what was the ' 14 next step? You filed a case, I suppose -- a-complaint with 15 the Department of Labor; is that correct? 16 A. Well, one of the first things that happened was il that Mr. Macktal was interviewed at length by Juanita Ellis, 18 who took a statement on tape recording. And as I remember, 19 we had that statement transcribed. Then-that kind of'became 20 the working document for his concerns and his -- the summary 21 of his experience.
.22 That was prepared.- Documents that he had in his 23 possession were mailed to us, collected. The safety issues
-24 kind of were identified, broken down; and the harassment and i 25 intimidation aspects of his complaint were analyzed. -
1 I l EXHIBIT __D CAyNO. 4-89-008 1
1 l l 10 l 1 Then the complaint was drafted and filed. All 2 that had to be done by 30 days after his termination. So l 3 things moved quite quickly. 4 I remember there being some Federal Express 5 packages back and forth be' ween Texas and Washington as we 6 were getting that ready. But I can't tell you speelfically-7 what happened on what date. B Q. And at some point Mr. Macktal-did meet with the 9 HRC representatives;-is that correct? 10 A. Well, there were two meetings that I remember 11 between Mr. Hacktal and-the NRC. Initial'.y after he 12 contacted gap, there was some attempt to get Mr. Hacktal ( 13 interviewed by non-Region IV personnel in-Washington. 14 There was some resistance-to that by the Executive 15 Director, who at that time was-Mr. stello. 16 And there was a variety of correspondence between i 17 Tom Carpenter and the NRC. I don't remember what the dates 18 of this were, but pretty early on -- and there may.be some 19 documentation in front of me that I could look through to 20 find it. 21 But very early-on, Mr. Hacktal was interviewed 22 somewhat anonymously; that is, we didn't give the NRC his 23 name, and informally Interviewed by Vince Nunan,-who was the 24 head of the NRC's technical revle, team in_ Washington. 25 That interview war . .aucted at the Phillips \ EXHIBIT _ l 7-CASE M . 4-89-008
1 1 11 i Building in Bethesda, Maryl and. 2 Mr. Macktal came to Washington for that purpose. 3 There was then a period of negotiations regarding 4 who was going to investigate his claims. He had a second 5 interview here at Region IV by the allegations coordinator. 6 I think Mark Emerson took it. I was present at that 7 interview. I 8 There were some wrongdoing issues that were 9 ref erred to the Of fice of Investigations, and I don't 10 remember if he was ever separately interviewed by OI. I 11 don't remember if OI ever opened- an investigation. I don't 12 think they did. But there were some wrongdoing issues that ( 13 I know Region IV wasn't going to pursue. 14 I don't have a recollection of whether he was ever 15 interviewed by OI in connection with his termination. 16 Q. Do you recall if he was interviewed in Washington? 17 I believe he was -- 18 A. I think he was interviewed-In Washington by John 19 Sinclair. 20 Q. Right. That's correct. 21 A. That 's my recollection, that when he was in 22 Washington that the harassment and intimidation aspects of 23 his case were raised to 01, _ and John .Sinclair- did a 24 handwritten interview, but not a transcribed interview. 25 Now, there may have been a transcript. I just EXHlBIT D
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12 1 don't remember one. 2 Q. Our records indicate that he was interviewed by 3 John Sinclair regarding harassment and intimidation. 4 Following the interviews here and the interviews 5 with Mr. Sinclair, to your knowledge was there any 6 additional information that Mr. Macktal had to impart to the , 7 NRC, any information concerning wrongdoing or harassment and 8 intimidation which he had not related to the NRC as of at: 9 that point? 10 A. Can you try to clarify your question? I mean, if 11 you're asking what was in Mr. Macktal's mind, and did Mr. 12 Macktal tell the NRC everything, I can't answer that 13 question because I'm not Mr. Macktal. 14 If you're asking me if I believed that he had 15 communicated everything he had to one of those people in the 16 NRC that he talked to, the answer to that is yes. 17 Q. Well, as you know, Mr. Hacktal has claimed 18 publicly that he had additional concerns, and they were not 19 all related to the NRC in these meetings, and he was 20 subsequently prohibited from discussing those due to a ?1 settlement agreement, which we'll get into later. 22 I would like to know whether at that point, after 23 the meetings here and with Mr. Sinclair in Washington, did 24 you have any knowledge -- were you aware in any way that Mr. 25 Macktal had not -- had allegedly not revealed all his safety EXHlBIT_ E 4- By -0 08 PAGE- h0F PAGE(S) (Ast M.
1-i 13-1 concerns or harassment and' intimidation concerns to the NRC? 2 Did he tell you that? 3 A. No. 4 Q. -Did you have any indication of that? 5 A. No, Mr. Macktal_and I ha'd spent a gr_ eat deal of I 6 time, when he came -- When he came to. Washington, he-7 stayed at my home. That was not unusual. When people came 8 from cut of town, they usually stayed at the-homo'of one of 9 the GAP attorneys. 10 But one -- The major project that he. worked on 11 before he ever went up to the NRC at all'was going through 12 the transcript of that tape where he was disclosing all of~ ( 13 the iniormation to Mrs. El1is on harassment and intimidatlon 14 and on safety issues and then organizing thatLinformation so. 15 that we could make sure all o' the information was-presented 16 to the right place in the NRC. 17 We had about a three-page outline of what all the - 18 issues were, and he talked from that outline in his 19 interview.- He may have-even attached it to his interview 20 transcript _', I-don't know.. 21 But I know that-Me had an outline of all'of the 22 issues and that that was what.I used to make sure that he 23 got all cf the informttion on the record. - 24 So if :he had additional concerns at that time 25 which he did not raise, I was not aware of that.- t EXHIB0 W-PAGE -OFY PAGE(S) USt N0, 4-89-008 L I
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1 14-1 Can I add something here? 2 Q. Sure. 3 A. You made reference to-some claim that'he has-made 4 publicly that-he had additional information. I have 5 certainly not read all of the-pleadings that havetbeenLfiled 6 in which he has made'various charges. 7 But I did-see oneEpleading in which heLalleged 8 that I had directed him not to tell the'NRC:everything - I 9 think the page of the transcript that he attached to that 10- pleading came f rom the interview with Emerson at-which1I-informed Emerson and Hacktal that that interview withERegion 11 12 IV personnel was going to be on saf ety -issues and that the < [ 13 harassment and intimidation-issues had already been raised 14 to OI, and that Emerson wasn't going to go-into that1again. 15 That's the only recollection that:I-have in' terms 16 of the documents that I've read of what-he said.- I don't 17 know why the rest of thatftranscriptDian't attached to that 'l 18 pleading. 19 Q. Okay. I've read that transcript'.- What is your- p 20 explanation for that?. Is your. explanation..thatLyou either 21 had' -- I can't remember the dates -- had already spoken -- 22- Mr. Macktal had already spoken with Mr. sinclair regarding 23 harassment and-intimidation or planned-to do so, and you 24 considered them-to be separate issues? 25 A. Well, I don't have the dates in front of me. But,. : i EXHIBlll- )"'- L <- opj99' PAGE(S) CAS L N1 PAGE_ 4 - 8 9 -0 O EL
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l 15- ) i i clearly, Mr. Macktal came to Washington.and talked'to the I 1 people in Washington-before he talkedito Region IV 2 j 3 personnel. I think'there was a number 1of months in between-4 that. ' 5 I.think that he came to Washington in the-l 6 February / March time frame and then was-Interviewed in May,-I 7 think, here i n Arlington. I don't remember the dates. F 8 But why did I tell himLnot to tell Emerson:the OI= 9 issues? Because Sinclair had already interviewed him on_the i 10 OI issue. I 11 Q. So you were separating'the two? 12 A. Yes. I s 13 Q. The safety concerns andithe harassment and - 14 intimidation issue? 15 A. Yes, separating them along the-lines the-NRC 16 i nvestigation was separated on. 17 c. Mr. Macktal met with the president-of Brown & 18 Root, Lewis Austin, on several occasions . The initial 19 conversation, I believe, took-place in approximately- - 20 February'1986. 21 Were you aware =that these meetings or 22 conversations with Mr.-Austin were taking place as they were 23 transpiring? - 24 A. No, I was not. I did not learn about-the meetings-25 with Lewis Austin'until the end~of one of the last
-EXHIBITy PAGE jl- / . Of Cf}' _PAGE(S cut e. 4-89-008 ~
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1 I 16 1 depositions in discovery prior-to the case going to_ trial, 2 which would have been the end'of. October or=early November. 3 At the end of.a deposition that I was taking in-4 Boston, the attorney for Brown & Root, who was McNeal 5 Watkins, made a comment as he1was leaving the room, 6 something to the effect that "you bettEr have your client 7 ready to testify about the Lewis Austin meetings." 8 I didn't know what-he was talking'about. I_didn't 9 know anything about.a meeting with Lewis Austin. 10 Q. Why would the attorney-make a reference like that? 11 I don't understand. 12 A. Well, I-mean, I can't= answer for McNeal Watkins. s 13 I'm not him, and I don't know why he made-that-comment. 14 I took the comment essentially ,as a veiled threat, 15 you know, _ that I. had better have him ready because he was. 16 going to get -- you know, pretty _much ripped apart on the 17 stand in regards to those meetings.
-18 Q. Do you know:Mr. Austin?.
19 A. I have met Mr. Austin on one or two occasions -- i 20 HR. JOHNSON: Hello. 21 THE WITNESS: Yes. . 22 HR. JOHNSON: Okay. I thought I-got cut off for a , 23 second. l 24 THE WITNESS: No, you're here. I'll stop talking 25 if you get cut off. EXHIBIT / V l PAGE 'lt OF 99' PAGE(S) CASE E 4-89-008
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Why don't you sneeze every once in a while so I 2 know you're still there. 3 BY MS VAN CLEAVE: 4 Q. All right. You were saying that you had met Mr. l I 5 Austin on one or two occasions? ' 6 A. At public meetings. 7 Q. Did you have any personal or business dealings l 8 with Mr. Austin regarding Mr. Macktal's case? . J 9 A. Never. And I would not have because Brown & Root 10 was represented by an attorney. All my dealings regarding 11 Mr. Macktal's case were with lawyers from the law firm.of -- , 12 at that time, Bishop, Leiberman, Cook, purcell & Reynolds, 13 Q. t And you did not have any personal dealings then 14 with -- or direct dealings (I should say) with Mr. Austin 15 regarding Mr. Macktal's case? 16 A. No, I did not. 17 Q. When that reference was made to you, and you said 18 you were somewhat surprised,cyou didn't know what he was 19 talking about, what did you do? 20 A. Well, to Mr. Watkins I bluffed. I said, "I'll 21 have him ready to testify on everything." 22 And then when he left the room, I immediately 23 called Joe and asked him in, I'm sure, you know, very loud 24 and direct tones, what the hell McNeal Watkins was talking 25 about, because I didn't know of any meetings, was not aware EXHlBIT__ l b PAGE }l 0F_ Y PAGE(S) ast s. 4- 89-008
18 i of any meetings, had never_been_ advised of any meetings, j l 2 consulted about any meetings. 3 And at this point I had been involved in this case 4 since' January. I've got a case ready to go to trial in 5 about three weeks. you know, that was something less than a 6 month, and had no idea what he was. talking about, and saw 7 that it was an obvious mine field in terms of credibility ' 8 issues, motivation issues. I didn't know what he was 9 talking about. 10 I asked him for an explanation. He provided me an-11 explanation, and then I -- Do you want me to go on into 12 that? 13 Q. (Nods head.) v 14 A. Well, okay. obviously, this is hearsay and 15 summarizing what he told me, but he told me that he had ! 16 contacted Mr. Austin, who is the preJident of Brown & Root, 17 directly'and he had met with him on a number of occasiens in 18 an attempt to try to settle the case and that they had 19 offeredhimh15,00hfcashtosettlethecase'ifhefired-gap 20 publicly. 21 That was -- He-said, "I refused to do that -- 22 fire GAP publicly." And he said that he'd take care of the 23 lawyers if he -- 24 Q. Excuse me. When you say *he," do you mean Mr. 25 Austin or Brown & Root or -- EXHIBIT lb PAGE d 0F WPAGE(S) ust n 4-89-00s g, yg 7,gf6 4
l l l 19 I 1 A. He, Mr. Austin, would take care of the lawyers, 2 and that Joe should just take the money, and that it wasn't - l 3 enough money, and so ultimately the settlement-fell apart. 4 His explanation of why he didn't tell'me that was 5 that he didn't think that I needed to know that. It was 6 between him and Lewis Austin, man to man. 7 Q. Did he-tell you why he went to Mr. Austin in-the 8 first place since he was-represented by you? 9 A.- Well, I don't remember, you know, exactly what his 10 answer was. I.was so furious-at the time that I'm not sure 11 if I have a real clear recollection of the call. 12 I know that I asked him if he went to him because 13 he did not have confidence in me or gap representing-him, (_ 14 and he didn't think that we were going to be able to' handle 15 the case because I needed to know that'in order to decide 16 whether he really needed new lawyers. 17 I ren. ember that'he said that-he had some concerns 18 and confidence questions in the beginning, but'they had all 19 gone away;-and that's.why he never told me about it. 20 But at that point I don't remember what his exact 21 explanation was. 22 Q. Did he provide you with anything in writing 23 regarding his meetings or conversations with Mr. Austin? 24 A. yes, he did. At the end of the conversation, I 25 told Mr. Hacktal what Mr. Watkins had said. I-told him that
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EXHIBIT @ l CASE NO. 4-89-008 PAGE 13 0FW PAGE(S) I - - -.
j b 20-i he had better assume for the purposes of preparing for trial 2 that Mr. Austin had been wired during those meetings, and 3 that everything that had transpired in those conversations 4 that he'd had had been taped -- tape recorded, and that when 5 we got to trial, that Mr. Austin was going to get up and 6 testify that the sole motivation for Mr. Macktal was to try 7 to get more money and he was willing to go behind his own 8 lawyer's back to get more money and cut-his own deal, and 9 that if he wanted to be prepared for that, if -- In order 10 for me to be prepared for how to defend him on the staad,- 11 that I had to have a recollection of everything_that 12 happened at those meetings as clearly as he could remember , ( 13 it. 14 I instructed him to write that up immediately and 15 to provide it to me in writing immediately, and he did . 16 prepare a letter or -- it's a memo or a letter'to me that 17 gives a very brief summary of his contacts with Lewis 18 Austin, 19 He makes reference to having some notes made after 20 each meeting,_ which were in storage in Stephenville, Texas. 21 He never gave me any notes, but I do have-a two-page typed 22 document. l 23 Q. All right. Why don't we enter that as Exhibit 2. 24 [ Exhibit No. 2 was marked for 25 identification.) i EXHIBIT lP 0ASjfl0. $ , e 9 -0 Q8' PAGE N .__OF W F M
I l 1 is . 1 1 A. The court reporter has handed me Exhibit 2, which I 2 I'll identify as a poor copy -- but it is the best copy.that j 3 I've got -- of a two-page memo to me or a'page-and-a-half 4 memo to me starting with " Dear Billie." 5 Although there's no_ signature on the second page, 6 this is the document that I received from Mr. Macktal 7 shortly after my conversation with him from the telephone ~in 8 Boston. 9 Q. Is there a date? 10 A. No, there isn't a date on that document. 11 0 There's no date on it. All right. 12 This was sometime in November 1986, would that be 13 -- s 14 A. That would be, yeah, the time: frame. 15 Q. Did Mr. Macktal mention to you whether or not he 16 had any tape recordings or any other_ documents to 17 substantiate the substance of these meetings or 18 conversations with Mr. Austin? 19 A. I remember asking him if he had tape recordings, 20 which he denied. And_so although I asked him-to get se the 21 notes that he makes reference to in the letter -- in Exhibit 22 2, he never provided ma eny of the notes. That's all I had 23 going into trial was the two-page document. 24 Q. Did Mr. Macktal tell you whether or not any 25 additional offers were made by Mr. Austin? EXHIBIT lI C/,2 NO. 4-89-008 E__ M E O
i 22 1 A. No, the only things he told me about are what is 2 recorded in the Exhibit 2. 3 Q. Did he mention anything to you about not -- his l 4 not testifying before the ASLB or talking any further to the 5 NRC or anything like that being a condition to his accepting 6 the offer? 7 A. Can I see the memo? 8 Q. Uh-huh. 9 A. No, there's nothing in this memo that talks about 10 money in exchange for not testifying or money in exchange 11 for not pursuing these issues with the NRC. 12 I don't have any recollection of him telling me 13 ( that that was a condition of the settlement offer by Lewis 14 Austin. 15 Q. So your recollection is that Mr ' Austin made one 16 offer of I5,00htoMr. Hacktal, contingent upon his 17 dropping his case and firing GAP publiclyt is that accurate? 1B A. Well, remember that the only thing-that I know 19 about these Lewis Austin meetings-isn't even told to me till 20 some -- you know, six, seven months af ter, apparently, -the 21 last meeting had occurred. 22 So what Mr. Macktal was telling me was a summary 23 version on something that he knew that I was very distressed-24 with him about and was very distressed that I had found it 25 out right before trial. And what he told me is pretty i siXHIBIL_I PAGE N OF 9P PAGE(S) CASE M. 4- 891008 (n.7C pn L
23 1 consistent with what's in that memo. 2 I mean, that's the story that he told me in the 3 beginning when I asked him about it, and that's what he 4 stuck to. 5 I don't recall him giving me any other additional-6 details, in terms of information that I would'have at my 7 disposal to use in the trial to protect him. B Q. At that point that you-found out!about these 9 meetings with Mr. Austin, were you currently in negotiation 10 with Brown & Root attorneys to try to settle Hr. Hacktal's 11 DOL case? 12 A. There had been ongoing discussions to settle the 13 case throughout the entire case. I don't know if there was 14 live settlement discussions at the time that we were in 15 Boston. They kind of went on again and off again. 16 Q. Did Brown & Root's attorneys make any offers to 17 you to settle Hr. Macktal's case prior to-this time? 18 A. There were a-number of offers. I mean,-initially 19 -- prior to the initial investigation stage, Brown & Root 20 offered to hire Hacktal back at1 bis old job, not a foreman 21 job, but a regular journeyman helper job, and at thatLlevel 22 of salary, but no back pay. 23 That was in the very beginninw. . And then there 24 had-on-occasion been a number of offers. I just_can't 25 remember what they were. They were all pretty low.
- c. men Y AGE A10F Y PAGE(S)
CASEN0. 4- 89-0.08 1
24-1 Q. Would that initial offer you're referring to-be 2 this letter dated Harch 13, 1986, to you, or to Mr. Hacktal-3 through you? They make some reference there to not offering 4 him back pay. 5 A. Yeah, this is what I was just talking about.- 4 6 Because he was regarded as a competent electrician, you-7 know, if he drops his claim, they'll hire him back, but no 8 back pay; they'll just put him back to work. 9 Q. What was your response to this letter? 10 A. Mr. Hacktal. rejected that offer. 11 Q. And he rejected that of fer through you? Did you 12 tell him about this offer? ( 13 A. Oh, yes, yeah. He rejected the offer. 14 Q. What did he tell you he wanted at that time,-do 15 you recall? 16 A. Well, I know that he wanted money. I can't-17 remember the amount of money that we had on the table as a 18 counter offer. But I also remember that the major-issue 19 that he was offended by in the offer was that they weren't 20 going to hire him back as a foreman, which was one of the big issues that he had, that they were only going to hire 1 21 22 him back as a journeyman electrician. He didn't want to go 23 back to work unless it was as a foreman and have his pay 24 figured at foreman pay, because he felt that he had been 25 demoted in retaliation for having raised safety concerns and { i l t . EXHBIT I I PAGE M OF W PAGPS cAstND. 4-89-008 l l . .. . - _ - . .-. _. , - , . ._ ., . - ..
25 , 1 i that he had been illegitimately demoted'from foreman back to 2 electrician, 3 Q. You don't recall what other type of offers were 4 made, in terms of figures, amounts of money? 5 A. Well, let me offer this explanation. At the time 6- that -- From the time that he rejected the offer on the 7 letter that you just showed me to the- time that we got very 8 close to hearing, I don't-remember any settlement 9 discussions of any substance involving me. i 10 When we got into'the time period right before the !l 11 hearing, I was getting ready for trial and so there were 12 settlement discussions going on between two other lawyers ( 13 ~that essentially were not involved with trial preparation. 14 That was Louie Clark from GAP and Richard Walker from-Bishop 15 Leiberman. 16 They had a series of discussions during those last ' 17 couple of weeks before trial, but I was very -- only 18 tangentially involved in those discussions, mainly because 19 at that time I was-getting ready for trial. 20 Q. This case was settled without going to trial. It 21 was settled, as I understand,'for $35,00 . Mr. Macktal was 22- to receive 5,00 the same amount that r.- Austin had l
) $
23 offered him; and his attorneys were to receive 20,000 I is
)
24 that correct? Y 25 A. It was settled on the day trial was scheduled to EXHIBIT W PAGE A6 0F WAGE (S) ct.3t p. 4-89-008 ,, . r~_
-fr7, cy ja t o co-
26 1 start. I mean, we were;in the -- It was not a settlement 2 on the telephone prior to trial. We were all there; the 3 witnesses were 1..ere; we were ready'to start trial. The 4 case was settled the day of trial, the day trial was 5 started. 6 It was settled for 35,00 .' of the 000 your 7 figures are correct. He got fifteen The attorney -- or 8 that is, Trial Lawyers for Public Justice and Government 9- Accountability project got enty 10 Q. Who made the decision to settle for that amount? 11 A. Well, it was offered -- the amount was -- There 12 was a number of figures put on the table during the day. It 13 was a long day.
~
V N 14 2 75,00C was ultimately the most money that-we were ( ./ 4 15 able to negotiate and that Rick Walker on behalf of Brown & 16 Root was authorized to offer. 17 When that was the final offer, we took that to Mr. 18 Macktal and he accepted that offer. 19 Q. Do you know who was authorizing the figure to Mr. 20 Walker? Do you know who that was? 21 A. I assume it was Bill Bedman,. who was an in-house 22 attorney for Brown & Root, and is usually the person -- the 23 attorney that he has to deal with on those amounts of money. 24 I don't know that, and I don't have a specifle 25 recollection of that. l ExhlBR }b PAdf N OF_ hPAGE(S) un 4 89-008 4 4 % w-a ~ f --w
27 i But, as you know, I've done quite a few cases 2 against Brown & Root and with this law firm. So my 3 assumption is that he was talking to Bill Bedman. 4 tiow, who Bill Bedman was talking to, even if he 5 was talking to Bedman, I don't know. 6 Q. Do you have any recollection that Mr. Austin was 7 personally involved in this settlement agreement? 8 A. I have no recollection of Mr. Austin's name coming 9 up that day. 10 Q. Do you recall ever hearing anyone on the 11 telephone, any of Brown & Root's attorneys on the telephone, 12 mentioning Mr. Austin's name? 13 A. Mr. Walker made his teleph'one calls out of earshot 14 of where we were, so I didn't overhear anything. 15 Q. So you have no knowledge that Mr. Austin was or 16 was not involved in this agreement? 17 A. Right. 18 Q. As you know, Mr. Macktal claims that he was h 19 coerced into accepting this 5,000 ettlement, 15,000 going 20 to him. 21 Why did you make a recommendation to him to accept 22 that $35,000 j 23 A. Because Mr. Roisman and I believed that it was a 24 good settlement offer, that it was more than he was going to 25 get if he went forward, that he was going to lose if he went EXHIBil Ib PAGE I - OF_ WPAGE(S) BSENO. 4- 89-0 08
l 28-1 forward with the trial, and that even if he lost and we 2 appealed the case,: that the case on both the facts and the ! l 3 law were so weak that he was ultimately never going to i 4 prevail. 5 Now, if you_want me to explain more of both the 6 basis of my legal -- you know, opinion, I'll be glad to do 7 that. But that's why the recommendation was to take the 8 settlement offer. 9 Q. Well, I would like some further explanation 10 because I have been told from Mr. Hacktal that he thought 11 his case was worth a lot of money. That's probably kind of sk 12 common. He was very upset with the 535,00 offer. w
,, 13 And, of course, he has certainly made no secret to 14 anyone that he felt like he was forced into accepting a low 15 ball effer.
10 So if you could explain to me briefly your 17 reasoning for recommending to him-that he accept that offer, 18 I'd appreciate it. 19 A. Sure. I 20 First,.let me go into the-lasues of law.
, There's l
21 a case in the Fifth Circuit that you'may be' familiar with l 22 called Atchison versus Brown & Root. It eventually became 23 Brown & Root versus Donovan. 24 It's a case that argues successfully on behalf of 25 Brown & Root from another Comanche peak whistleblower that i ciXhlBIT - CA51;h0. 4-89-008 PAGE_ d 0F W PAGE(S) 4 g j g, j
i 29 1 internal activity -- dissent -- is not protected under 42 2 USC 5851; that is, that the only-type of activity which 3 earns you protection of the Whistleblower protection Act 4 and, therefore, any entitlement'to any damages under that. 5 act is if you contact a competent organ of government prior 6 to being fired. 7 Mr. Macktal had not contacted a competent-organ of 8 government prior to being' fired. He had not contacted the 9 NRC before he went there. He had not contacted the 10 Department of Labor before leaving his employment with Brown 11 & Root. 12 So he had no automatic claim on the face of the (' 13 facts, and those f acts were not in dispute. 14 How, I had.two legal arguments that I was going to 15 present facts to support in.the-trial, and I was prepared to 16 put them on, one of which.was to argue that the SAFETEAM, 17 who he had contacted at Comanche peak -- that's s-A-r-E-T-E-18 A-M -- was a quasi-government body (if you will),-that it 19 had taken on the' mantle of the Nuclear Regulatory Commission , 20 by asking workers to come in and'tell their allegations and 21 tell their complaints and then they would investigate them. 22 I was going to raise that as an argument as a 23 matter of law, so that it could go back up to the~ Department 24 of Labor, the Gecretary of Labor, and maybe.back up to the 25 Fifth Circuit and try to get them to expand the doctrine set
\
EXHIBIT I PAGE M OF @ PAGE(9' CEE N0. 4- 89-0 08
l l l l 30 1 by Brown & Root v. Donovan. 2 The second theory I was going to put evidence on 3 was that you could-have implied from Hacktal's conduct-that 4 he would have gone to the NRC, since he was pretty much 5 going up a chain of command with his complaints, that he' had 6 gone to the supervisors and then he had gone to the 7 SAFETEAH, and- the logical next step was for him to go to the 8 Nuclear Regulatory Commission. 9 I was going to present both of those theories and 10 put the facts on. 11 Well, we had a prehearing conference at the 12 beginning of the day. We went on the record. The judge,
' 13 Judge Vivian Hurray, called the case, immediately took us 14 into chambers and wanted to deal with pleadings that had 15 been filed by Brown & Root -- outstanding pleadings that she .
16 hadn't ruled on yet, pretrial briefs and motions. 17 l One of those was the issue of whether or not there had been internal versus external protected activity such i 18 19 that the case should be dismissed outright. 1 20 She made it very clear to all of the e.ttorneys at 21 the table -- and there were two attorneys from Brown & Root 22 and then myself and Mr. Roisman -- that she was not going to 23 allow me to try to change the Fif th circuit ruling of Brown
- i. 24 & Root v. Donovan in her court.
25 She said that there may be some theories, but I EXHIBIT _ N PAGE $0 0F_ W PAGE(S) CASENO. 4-89-008
l l 31 1 1 wasn't going to put them on in her court, that she was going 2 to ask -- that I would put my client on-the stand and-she 3 was going to make a determination as a matter of fact l 4 whether or not he had ever contacted the Nuclear Regulatory-5 Commission or any other competent organ of government. Ii 6 the answer was no, she was going to dismiss the_ case. 7 I then argued that she had to let me put on those 8 issues, all my facts as a matter of proof so that I--could-9 make my record to take up on-appeal. 10 She made it very clear, no, she was not going to 11 let me put those facts on, even.to establish a matter of 12 proof, that I could brief it, that it was a question of . 4 13 and not a question of fact. ( 14 Q. Is there a transcription of this? 15 A. There was no transcription of that.- 16 So when she got-done telling us that,.she 17 looked -- you know, she-looked at both_of us and she-looked 1 18 at the attorneys for Brown &' Root and said,1" Ladies and 19 gentlemen, I assume you are now going to want to reconsider 20 settling this case, and I will leave and let you continue 21 with your settlement discussions." 22 She had just basically taken the guts out of my ; 23 legal case because he had not contacted the NRC.. I mean, if 24 it was just a fact, the answer was no; and if that was the 25 way she was going to rule the case, then what we were i EXHIBIT 7 - PAGE _3 OFN PAGE(S: ast m. 4-89-0 08
, i i i j i 32 1 looking at was a long serleo of~ appeals, opinions and 2- Secretary of Labor and time ,'n'the Fifth Circuit and 3 possibly the United States-Supreme Court, but we weren't 4 going to get anything .out of _ her, period, - l
.l 5 As a matter of fact, his case bad pretty _much
)
, 6 fallen apart factually in-the'last couple of weeks as all 7 the discovery was completed and kind of pulled together. 8 You need to remember that although he argued and. 9 complained of constructive discharge, that he resigned; and 10 he resigned with Brown & Root-having compiled'an incredibly 11 detailed record of attendance. violations, impropriety, 12 inability to be a good foreman-(if you will). s, -13 They had : a very: strong f actual _ case. And although ; 14 he had told me-when we took the case'and_as we developed it, 15 that there wasn't anything. bad-that would raise the issue of - 16 his credibility.to th'e height that that:was a problem, _,
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( t3 ' 14 A. Yes. And one of the things about dealing with the 15 law firm of Bishop Leiberman that I learned very early on -- 16 and I started litigating and working on cases against that I i il firm in '84 -- !s that one of their -- one of their first l 18 things that the/ do is hire a private investigative firm 19 that does a complete, you k.nox, wearch on a person's 20 background, criminal record, tax record, everything. 21 They've got the book on your client by the time 22 they walk into that deposition. 23 And so ! regularly did, and still do, advise any I 24 clients of firms that -- of companies or utilities that are , 25 represented by those lawyers, that if they've got any 1 i - EXHlBil M \ PAGE % OF WPAGE($l cut NO, 4-89-008 L 7 c (w,b,,m \ J
l^,' ; I i l ! ' 31 i i skeletons in their closet, if they have got anything they're 2
' ashamed of, any arrests, anything at all that they have got 3
that would bear on their credibility, no matter how ashamed 4 of it they are, they have to assume that Brown & Root's 5 lawyers are going to find it, they're going to know about it i 6 j and they're going to use it to the best advantage, and that j 7 i the only way I can protect them is to know it first so ! can 8 figure out how to deal with it. i 9 And by that time I had done a number of cases with 10 4 them, certainly Macktal the same thing and, you know, was 11 repeatedly told that the resume that I had to work on was i
- 12 legitimate and accurate and complete.
k l ( 13 It just -- The closer we got to trial, everything 14 started falling apart on iti 15 16 None ofLit was hanging together. 1 i i 2 ,
\
21 i 22 23 ,l e t-24 l had pulled a whole folder together - -which I'm sure now is 25 ( in-the possession of the Kohns because they got my trial gmati 7-PAGE_ [ Op CitPAGE(SF (AstNo. 4-89-008
.-.- -.- _.. -.- ..._ __ _ _ - - - - - . - _ -~
l 1 l 38 , l i preparation materials - l l i 1 4 5 But I don't have any of that material. I know 6 that that was a major problem that we were going to have to 7 deal with. 8 Q. Was that something that you were aware of when Mr. 9 Maektal -- 10 A. No. 1 11 Q. -- first approached -- 1 12 A. No. When Mr. Hacktal first approached me, he told 13 he was clean as a whistle and that everything that had been 14 done to him was not legitimate and in retallation for having 15 blown the whistle. 16 ror example, when he called up -- when he went to 17 see Juanita Ellis and then they called us up, and as you 18 pulled -- you know, the initial information together, he 19 repeatedly puts down there that his supervisor -- or says 20 that his supervisor wrote on the bottom of his termination 21 slip that he had been harassed and intimidated and forced to 22 resign by his supervisor, or some corment like that. I 23 assume you either have or can get a copy of his termination 24 pink slip. 25 It was very clear to us that in his mind his ( l l EXHlBIT_ _ k- - l PAGE N OFWPAGE(S) 0" 4-89-008 6,7C pad %
39 i supervisor wrote that. That's what he was telling us, that 2 his supervisor had written that on there. 3 There is a signature of his supervisor on there. 4 It isn't until -- I believe his deposition -- that Watkins 5 finally gets out of him that he wrote it on there. He wrote 6 the statement on there. He was harassed -- or "I was 7 harassed and intimidated and forced to resign by my 8 supervisor," and that that wasn't what his supervisor put 9 down. That's what Hacktal himself put down. 10 Little things like that, where the story that he 11 had told us and the supporting information he had 12 demonst rated to us just was f alling apart. ( 13 Because of that, by the time we got to trial -- I 14 rean, during the last ten days before trial, I was taking my 15 best f aith ef fort to pull the case together. 16 I had an answer to put on in trial for everything. 17 But I knew that it was highly unlikely that any of those 18 facts, as he had initially presented them, were going to l 19 survive cross-examination. - I ( 20 Q. So you changed your belief in the legitlaacy of 21 Mr. Macktal's case -- would that be accurate -- from the 22 1 time that this letter was written in March of 1986 where l 23 they offered him his job back? Did you sake any 24 i recommendations to Mr. Macktal at that time as to whether or 25 not he should take this offer, or it looked reasonable to i l \ E)(HIBIT l PAGE % PAGE@ 05E n0. 4-89-008 ,
)
40 1 you, anything like that? 2 A. I don't have a real clear recollection of having ! 3 an opinion on that job offer. l I know that there was no } 4 money with it, and he wasn't a foreman, and that he was 5 adamant about it. 6 I don't -- I would be very surprised if I would 7 have supported that offer without any money in March, but I B just don't remember real clearly. ! 9 I mean, I just don't have a real clear 10 recollection. I'm sure that I either -- I probably 11 responded to it in writing somewhere, but I don't know. 12 where. 13 0.- I don't have it either, so .... 14-Did you change your opinion of Mr. Macktal's 15 facts -- 16 A. Absolutely. 17 Q. -- story or credibility? 18 A. By the time -- I guess the'best way to describe 19 it is that for me the final straw, because I-had already 20 been working on trying to figure out how I was going to deal 21 with all these other factual problems in that October time 22 frame, when I found out about the Lewis Austin meetings, 23 that that was the last straw for me. 24 At that point I became convinced -- and I don't 25 know how else to say this -- that I was representing someone EXHIBIT /h Cs- j (W. PAGE 40 0F 9 9'~ PAGE(S) 4-89-008
i i ! 41 i
- 1 who had an illegitimate claim, and that if -- that we i 2 couldn't win the case because of the problems, but that
! 3 beyond that, that he had misled me on a number of occasions l i 4 on specific l~nformation and that when we got to the stand, 5 that essentially Watkins had it all set up. 6 7 ( l E i 1 9 l 10
> 11 12
( 13 And being that I was a new lawyer -- ! had just ; 14 been admitted in September of that year -- I was very, very ! 15 uncomfortable with the situation I found myself in and went i 16 back to GAP from Boston to essentially present this problem j j 17 to the GAP executive committee or executive board and asked 18 for help. I 19 I actually went -- I actually asked to get off 20 the case. I did not want to try-his case. 21 And I did not want to -- I did not believe at 22 that time that I could have tried his case without coming up against a problem that I just did not have the experience to 23 24 handle. l 25 So there was a real need for me to get some EXHIBIT ~/D l I gg 4.g9.008 (,, 'j g PAGE- kl OFNPAGE(S)
; l ,
i 42 l 1 guidance and direction when I went back from Boston to GAP 11 2 to figure out what to do in the next, you know, two weeks , 3 before the trial. l 4 0. And what did they offer you? Is that when Mr. 5 Roisman became more involved in the case? 6 A. Well -- 7 H!'. JOHNSON: I'm going to have to object to any
- 8 line of questioning that asks Ms. Garde about a o 9 communica'.icn between her and any member of the GAP 1
10 executi'le committee in the context that she's talking about. 11 for the reason that in the kind of litigation that we're 12 involved with with Mr. Hacktal, we would not want it to'be ( 13 construed that any statement that Ms. Garde is making today 14 is some kind of walver of her attorney / client privilege with 15 respect to her dealings with the other members of GAP and 16 the other attorneys that she was consulting in order to 17 obtain legal advice about representing Hacktal. 18 BY NS. VAN CLEAVE: 19 Q. Are these individuals you were consulting at GAP 20 attorneys -- 21 MR. JOHNSON: So I think if we could stay away_ 22 from the substance of what went on at that meeting, that 23 would be best. 24 THE WITNESS: Okay. 25 BY MS. VAN CLEAVE: i-
-l L EXHIBIT lI PAGE NIL OF }~ PAGE(S L cant tio.
4-89-008
i 43 , i Q. Okay. Did you receive any additional assistance? 2 Was anyone else assigned -- 3 MR. JOHNSON: Are we still here? 4 THE' WITNESS: Yeah. She's asking me if I did 5 receivs any additional assistance after my meeting with GAP. 6 MS. VAN CLEAVE: Wasn't-another attorney assigned 7 to assist in the case with Ms.-Garde? B THE WITNESS: Can I answer that? 9 MR. JOHNSON: Yeah, the t's fine. The only thing 10 that I want to stay away from is the substance of any j it communications that you might have had with anyone else with 12 regard to obtaining advice about how to represent Macktal. ( 13 So to the extent that they did appoint another 14 attorney to the case, that's fine, you can' answer questions 15 about that. 1 16 THE WITNESS: It was agreed that I should ask Tony 17 Roisman if he would try the case with me.. And if he did not 18 try the case with me, then they were going to find somebody 19 else to try it with me. But Tony agreed to go down there 20 with me. 21 BY MS.-VAN CLEAVE: 22 Q. Was Mr. Roisman then present during the
- 23 negotiations and --
24- A. Yes. 25 Q. -- during the -- I've forgotten the judge's eoi2R JY-OF PAGE(S) ~ PAGE c4E No. 4-g9-008 l
44 1 name. 2 A. It was V!vian Murray. 3 Q. -- when she made the statement to you that 4 indicated perhaps you were going to lose -- 5 A. Law. 6 Q. -- the two legal arguments? 7 A. Yes. 8 Q. He was present? 9 A. Yes. In fact, I asked him -- After I gave it my 10 best shot, I asked him to reargue it; and he didn't win 11 either, 12 Q. Okay. How did you present the settlement offer-to (, 13 Mr. Hacktal? Was he present during the -- I guess he was
- 14 if it was the day that'the trial was supposed to start.
15 A. Well, he was certainly present. He was not 16 present in the prehearing conference (if you will) or the 17 meeting in chambers between the judge and the lawyers. 18 He wanted to come in at one point in the middle of 19 the morning, and I went back and asked-the judge if he could 20 come in, and she said no. 21 So it was -- we would be in there talking, and 22 then we'd come out on these breaks and kind of advise him . 23 where we were at or what was being discussed and tell him 24 what her rulings were or what the offers were, what the 25 amounts were, and then we'd go back in there. so throughout ( EXHlBlT /7 PAGE M OF DPAGE(S) CAR H0. 4- 89-0 08
45 1 the day we were consulting with him. 2 And certainly by the time we got down to the final 3 amounts of money and terms and conditions, we were -- both 4 Tony and I were consulting with him, sometimes together and 5 sometimes separately. 6 Q. Who told Mr. Macktal that the final offer was 7 going to be 5,000 o him and
> < D,00b)oGAP7 8 A. Well, he knew going in there that he already owed 9 GAP expenses of about 3,50 that GAP had expended on case 10 expenses: depositions, travel, court costs, copies of 11 depositions, that kind of thing.
12 So he knew that that had '.o be covered up front. ( 13 That came off the top of whatever the figure was. 14 Q. What type of retainer agreement'did you have with 15 h i r.? 16 THE WITNESS: vernen, can I give her a copy of the 17 retainer agreement? 10 HR. JOHNSON: Yes. He has waived his 19 attorney / client privilege with respect to any of the 20 elements of the representation. 21 so it's fine to give her a copy of the retainer 22 agreement. 23 THE WITNESS: Okay. i Im going to hand you what 24 let's mark as Er.hibit 3, which is the answer to your 25 question, which is a copy of the retainer agreement. i EXHIB!T k ' 1 l PAGE U OF W PAGE(S) CUEh;. 4- 89-008
'h-%
l . l 46
- i (Exhibit No. 3 was marked for 2 identification.)
3 By MS. VAN CLEAVE: 4 Q. okay. I've reviewed this agreement. What if Mr. 5 Hacktal's case was dropped, who would reimburse your firm 6 for expenses? 7 This says, "I agree to" -- Well. let's see. 8 "In the event that no attorney's fees are provided 9 through settlement or by court order, I agree to reimburse 4 10 your firm for the expenses incurred in pursuing this claim." 11 What if it was just dropped and there was no 12 settlement at all and no court order? { 13 14 HR. JOHNSON: retainer agreement speaks for itself. I think the answer to that is the I don't know if maybe 15 Hs. carde can clarify, but -- 16 HS. VAN CLEAVE: I would like some clarification. 17 I'm not sure I ur.derstand that sentence. 18 THE WITNESS: That was a fairly standard agreement 19 that was modeled after other ones that Trial Lawyers for 20 Publie Justice has used. 21 I guess that the answer to that' question is not 22 clear. I mean, it's just not clear to se right now. 23 .I always operated on the assumption that Mr. 24 Macktal was responsible for his expenses, win, lose or draw. 25 The letter certainly doesn't make that clear. But i EXHIBIT [- PAGE N-OF% PAGE(S) cast 2 4-89-008
47 1 that point -- I think it was a moot point because he was 2 clearly going to pursue that case. 3 I mean, there wasn't any discussion about just 4 dropping his case. 5 By HS. VAN CLEAVE: 6 Q. Well, one of Mr. Macktal's complaints (if'you 7 will) is that he was told that he would have.to come up with 8 the helve or thirteen thousand dollars o expenses if he 9 did not accept the settlement agreements, so -- 10 A. Well, that's different than just dropping his 11 case. 12 0 Well, perhaps it is different, yes. But if you ( 13 appealed, and, of course, there would be no -- if you were 14 accurate in your assessment and the case was not foolproof, 15 to say the least, and he did not win, then he'd have more 16 expenses. 17 And his belief seems to have been, or so he 18 claims, that that could occur and he would be piling 19 attorneys' expenses on top of attorneys' expenses. 20 I think that's really why I was seeking some 21 clarification of this sentence in this agreement. 22 A. Well.-- 23 MR. JOHNSON: Is there a question that you have in 24 mind? 25 THE WITNESS: Yes. Give me the specific question
\
6XH$lI_ . PAGE ROF%PAGE(S) cAstso. .4-89-0 08 WE
_ _- . __ __ . . . = _ _ 48 1 because I've seen Mr. Macktal make a variety of statements 2 regarding the issue of his debt to gap (if you will) for his 3 expenses. 4 So I'd feel more comfortable if you'd ask me a 5 specific question because I know he has made a variety of 6 different statements about what he thought or what was 7 motivating him to settle. B By MS. VAN CLEAVE: 9 Q. Did you or Mr. Roleman, to your knowledge, eve.' 10 tell Mr. Macktal that if he wanted to press forward he would 11 have to come up with the b ,00 or so that had been 12 expended so far in pursuing his claim? ( 13 A. In order to go forward? 14 Q. Yes. 15 A. No. I mean, I was there ready to try the case 16 that day. Witness subpoenas were cut; witnesses were there. 17 Everything was ready. Copien -- Everything was ready to 18 try the case that day, the day we settled. 19 I mean, if I had needed the 13,000 that day to go s 20 forward, that wouldn't have made any sense. 21 I'm sure that I would have always told Mr. Macktal 22 in any discussion that centered on that that he was ! 23 responsible for the $13,00 . 24 But in terms of payment when -- that is, paying it 25 now or paying it today in order to go forward, no, I would l I EXHIBIT fI PAGE k _OFTPAGE(S) CUE M. 4-89-008 ./ h . V/ / R '
i i I l 1 49 fl 1 never have done that, never did do that. 2 Q. How about telling him that if you lost on your l 3 initial trial that was supposed to occur that day, and he 4 wanted to pursue it further, that he would first have to 1 5 come up with 2,000 Do you recall ever telling him , 6 anything like that? i 1 7 A. I don't recall ever telling him anything like 8 that. However, I would like to add a clarifier, that by 9 that time -- by the time of the trial, I had lost so much 10 confidence in him that I was not going to proceed as his 11 attorney beyond that trial, that gap would have had to make 12 a separate decision to continue and assign him another ( 13 attorney. 14 I may have said something to him to the effect 15 that if this case is going to go forward -- if gap is going 16 to continue to handle the appeal, they're going to have to il relook at these issues. 18 But in terms of-saying. "Give us 12,000 ," or "Give h% w 19 us 13,000 r we're not going to go forward," no,jthat's not 20 the way G P operated. 21 We spent all kinds of money on lots.of clients who 22 never paid us back and have never, you know, held anybody 23 hostage (if you will) for their money, in order to go 24 forward with the case. 25 Q. Do you recall hearing Mr. Roisman make any kind of . (
' EXHIBli_
/_ PAGE_[C' 0FN PAGE(
c4! N0, 4- 89--0 08 f77Cfn(< a v
50 1 statenent to that ef fect ? 2 A. No, and he probably wouldn't have anyway because 3 GAP was out the money, not Trial Lawyers. 4 Q. When a settlement agreement came down to the 5 5,000, 1which ! believe that you said you thought was the J 6 final figure -- 1 A. Right. 8 Q. -- and you talked to Mr. Macktal, what was his 9 initial reaction to that figure? 10 A. Well, I mean, he didn't think that it was enough. ii
! nean, no clients ever think a settlemant figure is enough.
12 That's just the. business of practicing law, that whatever f 13 you get, they would think that they were entitled to more, t' 14 and that they suffered more. 15 You have to spend a lot of time explaining that a 16 settlement is a compromise of claims, that they don't -- 11 that the defendant doesn't think they owe you anything. 18 And so it's a compromise because it's in the best 19 interests of buying peace and going on with your life. 20 Mr. Nacktal was very concerned about getting'noney 21 las'ediately, and that he wanted the money within 30 days, 22 that he wanted the soney right away as sean as possible. 23 could he get his soney first. . 24 I mean, there was a variety of things that made 25 him -- It was very clear to both me and Tony that if that - EXHIBIT _ k-PAGEj0.0F WPAGE(S) cast O. 4- 89-008 fg
I l 51 Il I was all that he was going to get, okay, he'd take it, but he j
> Wanted it right away. I^
35,00 3 so there was no unilateral rejection of the 5,00$ 4 total or of the ) I mean, he knew that that's how much he was going 5 6 to get of that money. 7 0 Did he ever tell you, 'No, I'm not going to take 8 that. I want to go forward; I want sore *7 I s 9 A. No. 10 0, *7 hat's not sufficient *7 A. No. He knew if we -- Be had to make that 11 i 12 decision on the spot that day because we were going to ptt
' witnesses on and start the trial if he didn't accept the
'( 13 14 settlement.
15 He accepted the settlement, authorized us to , 16 settle. He say have not liked the amount of money, but he 17 was -- you know, at the end of-the day he shook sy-hand; he 18 shook Tony's hand and he thanked us. for everything that we 19 had done. 20 . He felt, I think, dented of having his day in There was nothing 21 court, but was glad to have it over with. 22 in his deseanor or behavior that I recall from the day of 23 the settlesent that indicated to me anything other than be B 24 wished hs would have got more money. 25 0, Did he contact you at- a later date and tell you be hh - PAGE Ok_ DAM L- _ N ~- ..,__ _ D C~8" # _ ._ __ N "'4'W g6--g.,_
52 i i had changed his mind? 2 A. Well, I'm sure, having reviewed the case, you know 3 that the money didn't come in within 30 days, that the 4 settlement papers were not executed within 30 days. 5 As we got closer and closer to the 30-day mark, 6 and I couldn't get any cooperation out of the Bishop 1 Lelberman attorneys, Joe started getting increasingly more 8 anxious and anxiety ridden. 9 He had apparently worked some kind of land deal in 10 connection with a move that he was involved in. He needed 11 the money to -- I want to say close on a house or close on 12 some land, but in any event he had signed some kind of - 5 13 contract in which he had to give thes a certain amount of ('- 14 money by a certain day. He wanted the money for Christmas. 15 I was bounding Bishop Leiberman to get the papers 16 out and to get things rolling and was having -- was just 17 meeting a lot of stone walls. 18 Every day that passed he got more anzlous and was 19 getting more aggravated. . 20 Toward the end of that time frame, you know,'he 21 was basically saying in a variety of ways that if they were 22 just jerking him around and weren't going to pay bla the 23 money, then he wanted to go forward with it. 24 At that point he was almost getting too much for 25 se to handle, -in terms of how angry he was,
, so I. had him EXHET k PAGE_ 0F IPAGE(S)
UpE h1 4-89-008
- . - , - - _ . - . . . - - - . - . - . - - - . -- . - . . =
_.7 53 i start talking to Tony, and I think also Louis Clark of gap 2 as well. 3 I was pushing Bishop Leiberman to get the papers 4 done. Who signed the settlement agreement? Did you sign 5 Q. 6 the settlement agreement on Mr. Macktal's behalf? 7 A. Well, the correspondence and the documents on all 8 of that speak for themselves, and I think I probably have 9 copies of some of that in here. 10 Just from my recollection, I believe I signed the 11 settlement agreerent, he signed the general release. 12 Q. Do you have a copy of the general release? 13 A. Let me look. k( i THE WITNESS: Are you still there? 14 15 HR. JOHNSON: Yes, I'm here. THE WITNESS: Could I have a glass of water? 16 17 MS. VAN CLT. AVE: Let's go off the record and take 18 a short break here. 19 It 's about 4 :12 p.m. 20 . (Recess from 4:12 p.m. to 4:22 p.s.) 21 MS. VAN CLEAVE: Let's go back on the record. 22 THE WITNESS: We're going to identify a stack of 23 documents which I've up lled out of materials that were 24 subpoenaed in-regards to the development and the execution 25 of the settler.ent and general release and the correspondence g (, EXHlBL PAGE R OEWPAGE(S) cut i 0, le - 8 9 -0 0 8
M 54 1 between attorneys, both attorneys for Maektal and attorneys 2 of Maektal and Brown & Root regardir,9 the development and 3 execution of the settlement doeunents, the settlement 4 docunents and the subpje:lon to the judge. 5 Pursuant to the discussion we had off the record, 6 I was going to identify each of those documents, and you 7 were going to mark them all as one stack. Is that correct? 8 NS. VAN CLEAVEt That's correct. 9 THE WITNESS Okay. Can you put a tark on this? 10 [ Exhibit No. 4 was marked for 11 identification.) 12 THE WITNESS! I believe these documents are in 13 chronological order, and I'll just identify who they're to 14 and from and the date and the number of pages and staple 15 them together. 16 There's a Deeetber 10th document from eyself to 17 H:Neal Watkins and Rick Walker saying ! hadn't yet received 18 any of the proposed language and they should send it'to me - ! 19 famediately. . l 20 A copy of an undated letter from myself to Mr. 1 21 Watkins - -this probably came from my correspondence file in 22 sy of flee because it's like a carbon copy - in which 1 23 Indicate that I have prepared propcsed settlesent documents 24 using the Mattle Gregory settlement as a model. 25 of note to you, Virginia, may be that in conveying i [ EXHlBIT I Cht N0, 4 89-008
i 55 1 the documents that I drafted, I did not put in the gag order 2 paragraph that had been agreed to at the settlement 3 discussions. ' 4 I say that -- here's the draft, but I didn't put 5 in that language. 6 The third document is a December 18th page-and-a-1 half letter from Rick Walker to se where he has redrafted 8 thi settlement papers and reflect the satters you and I 9 discussed over the telephone and discussing the terms. 10 There's also a December-19th piece of 11 correspondence from Rick Walker to myself which was revised 12 in accordance with the telephone conversation this 1 13 afternoon. 14 Now, I do not have the attached papers. I don't 15 have the attached drafte of the settlement agreement. I 16 just have the letters. Maybe Mr. Walker has them. 17 Then there's a Decer.ber 29th letter from ryself to 18 Joe Hacktal confirsing that the settlement amount is for 19 5,000 of that amount you will receive' f1f teen hand GAP 20 and TLPJ will receive went and saying that that's his 21 entire ob11gation to GAP and Trial Lawyers in the case. 22 There's a January 6 page-a.nd-a-half letter from 23 Rick Walker to Tony Rolasan, whigh makes reference to an 24 enclosed check in the amount of 5,00 ade to Mr. Macktal 25 and B1111e Garde and also talking about getting the general ( i EXHlBIT. I PAGE #fI 0F9P PAGE(S) L ElE NO. 4 89-006 cp[~
l l 56 1 release signed and conformed so they have that to go with 2 the settlement agreement. 3 There's a January 6th letter from Tony Rolsman to 4 Joe Macktal saying enclosed is a clean release form for you 5 to sign. Please sign and return it immediately. 6 There's a January 6th memo or letter from Barbara, ! 1 7 who was the executive secretary at Trial Lawyers, to me 8 saying here's the check from Rick Walker for Joe Macktal and ; 9 directing me what to do with it. You should send us a check 10 for -- meaning Trial Lawyers -- a check for this amount of 11 money. She'll send an itemized statement letter. 12
' There's a little memo from me to Joe dated January 13 k' 7th, 1987, saying that -- it must have been including the 14 check -- should not be deposited or cashed until you verify 15 with se on whether I have received the 3 ,006 check from 16 Brown & Poet. )
11 There's a Jar."* ry 13th, '87 letter from Tony to 18 Rick Walker, apparently attaching the original general 19 release signed and dated by Joe Macktal. 20 There's a January 15th letter from Tony to Jcse 21 Macktal enclosing for his files a copy of the settlement 22 agreement and the general release in Weir final algned form 23 and resinding him to read paragraphs 7 a.nd 8 concerning 24 disclosure.
- 25 There's a copy of the settlement agressent, which EXHlBIT.
PAGE 6b 0FjP PAGE(S) CEE NO. 4-89-008 / M (ft T QM
l l 57 1 is ten pages long. It has a date on the back of it of 2 January 2nd, 1987. 1 3 Since we were in two dif ferent places, we couldn't 4 have all signed on January 2nd, 1987, because I was in s 5 Wisconsin; and Tony and Rick were-in Washington. 6 But there's the settlement agreement. Mr. Macktal 7 did not sign the settlement agreement. 8 There is a general release -- two-page general 9 release which is signed by Mr. Nacktal and dated the'7th day 10 of January 1987. 11 There's a January 2nd cover letter to -- from 12 myself to Judge Murray saying, " Enclosed please find a copy 13 of the Joint Motion to Dismiss with prejudice and a proposed 14 Order for your signature," asking her to execute it. 15 she executed the order on January 6th, 1987, and 16 also sent the file up by semo to Brock, who was Secretary of 17 Labor at that time. There's a mer.o to that effect. 18 Then there is a January 28th letter from Tony to-19 Joe Macktal including a January 16th letter of reference , 20 from Brown & Root to Nacktal, which was part of the , 21 sett'lement agressent. 22 Those are all the documents that we've marked and 23 are locluded as Exhibit 4. 24 Those are -- Vernon, are you back? 25 MR. JOENSON: Yes,-I'm back. EXHIBf7 lb NGE 67 0F & PAGE(S) fM ND. 4-89-008
58 1 BY HS. VAN CLEAVE: 2 Q. Is it standard for the attorney to sign this type 3 of agreement for his or her ellent ? 4 A. You're asking me based on my experience now or my 5 experience then, or just the general practice? 6 Q. Yeah, the general practice from your knowledge as ! 7 an attorney. I don't know. 8 A. In cases where attorneys and clients are In ' 9 different locations, I know that It's not unusual for 10 attorneys to execute settlement agreements on behalf of 11 their clients. 12 2 probably know now that it's much more -- It's t { 13 not as common as having the client sign. The preference is 14 to have the client al7n. His name was orig'.nally on it to 15 be signed. 16 The reason his name was taken off of it was il because we wanted to get his his check as soon as possible, 18 which was something that we cleared with him, because 19 otherwise we wouldn't be able to send in the notice to the 20 judge to dismiss the case. 21 . Q. Okay. So prior to your signing for him, did you 22 contact bla and tell him you were going to sign for him? 23 A. Yes. I thlnk that the dlscussion was between 24 Macktal and Tony, but I may have been on that call as well, 25 and then also went ahead and talked to him about that I l EXHIBIT }[ , PAGE ISS OE 92' PAG
- ME N0. 4- 89-0 08
I l 59 1 because we wanted to route the documents between Tony, Rick 2 Walker and me, Federal Express overnight. Then I was going 3 to go ahead and send the stuff on to Judge Nurray. 4 1 know that was cleared with him because he wanted 5 that check, and that was the quickest way to get it to him. 6 And so that discussion was held -- There may
? even be some reference to that in the correspondence because 8 they had to be redrafted with his rtme off of it in order to 9 get them, you know, through and get them signed and get them 10 on the way to the judge.
11 O. Could you not have sent the agreement to him to 12 sign it and have his Federal Express it back? 13 A. Uh-buh, we certainly could have. It would have 14 just taken an extra couple of days' delay. 15 Q. Who decided not to do that? 16 A. Well, I know that the deelstone on logistles -- 17 Tony was largely handling logistics because he was in 18 Washington and so was Rick Walker. 19 I would get into the loop because I had to also 20 sign the documents and get thes on to Judge Nurray. I can't 21 tel'1 you speelfically who had the conversation that we < 22 decided to take his name off. 23 I believe that I had the conversation in which 2 24 communicated it to Rick Walker, that t'st was what the 25 deelslon was. EXHIBIT IP PAGE ILOF DAGE(S)
- cm n 4- 89 -0 p
60 1 But I know that that decision was made with Mr. 2 Hacktal's consent. 3 Q. Do you have to have any kind of written document, ; 4 like a power of attorney, or anything Ilke that to sign for 5 him? l 6 A. Well, I usually have a power of attorney. 7 sometimes it's in the retainer agreement. I don't have it 8 in front of me. I don't know if that's the last sentence in 9 there or not. 10 Q. "All complaints, notices, court dismissals and 11 other documents necessary to the proper presentation of this 12 case," would that fall under those categories --
') 13 A. Yes.
14 Q. -- one of those? Okay. 15 And when did Brown & Root pay the $35,0007 Do you 15 recall or do you have -- I know you have some cheeks. 17 A. I have some checks -- 18 THE WITNESS: Did you fax'up,-Vernon, anything? 19 MR. JORNSON: Yes. We're faxing over a copy of 20 the check from Brown & Root made out to Billie Garde and to 21 Nacktal', and also the check that's made out to Nacktal. The 22 two checks are being faxed. 23 THE WITNESS: Okay. Then let me go ahead and mark 24 these other documents, if you will. , 25 We can mark these all as Exhibit 5. I EXH21T 7 pass (f 0 _OFYPAGE(S) ty st a 4-89-008
--,---,-r__a - - a - a -
l 61 ! 1 [ Exhibit No. 5 was marked for 2 identification.) 3 THE WITNESS: There is a copy of a check drawn on 4 Garde Law Office Trust Account. I had a trust ace unt in my 5 name -- my law firm's name, which was opened the end of 6 December, I believe. 7 Sc there was a check drawn on that rust account 8 X totheGovernmentAccountabilityprojectfor$11,500} 9 There's a check on the same account to Trial 10 Lawyers for public Justice to $7,494.03 11 There is a withdrawal allp fro the trust account - 12 -- No. There was a withdrawal from the trust account and a 13 deposition in the general account of the GAP Midwest Office. 14 And the banking was being done through my law office's bank 15 accounts. gap Midwest did not have its own bank account. so this is a deposit allp for the remainingN$1,005J 16 N which 17 thenrcnttotheG1,7Midwestofflee,andweused[hatmoney 18 for f ees and expenses and things that we were doing buying 19 some furniture and machinery. 20 And there's a copy of my trust account -- client 21 trust' account register, which shows the date it was opened, 22 that there was a deposit and-then what happened to all of l 23 the money. ' ! 24 so all of those things are enclosed. To have a 25 complete package of the checks, we'll have to have the EXHIBII Z PAGE h/ 0, -
.fAGE(S)
Em 4-89-008 gh
62 1 documents that he's faxing up. 2 BY MS. VAN CLEAVE: 1 3 Q. The check that Brown & Root wrote was jointly to 4 you and Mr. Macktal? 5 A. I believe so, yeah. 6 Q. And Mr. Macktal did endorse that check? 1 A. Well, I don't have and can't recall or ref resh my 8 recollection from looking at the documents in front of you, i 9 the different correspondence and what was going back and 10 forth between Hacktal and myself and Tony, of sending the it check to Joe for his signature. 12 But I have now looked at the check. The back of ( 13 the check has a signature on it that says Joseph J. Macktal, 14 Jr. 15 1 know that I had a discussion with the-bank about . . 16 what I had to do to have him authorize -- to have the check 17 deposited in the trust account so I cob;d reissue the 18 checks. 19 I don't have a clear recollection of what the bank 20 said I had to do. 21 There was some discussion'of having Mr. Macktal 22 authorize over the telephone the-deposit, and there was some-23 discussion of having him f ax up mose -- or Federal Express 24 up an authorization for a power of attorney. I.already had 25 a power of attorney. EXHIBIT T PAGE lohOFl 9D PAGE(S) cut No. 4-89-008
i 63 In any event, the check -- now that I've gotten a 1 i 2 copy from the bank, I asked them to do a photocopy of the 3 cherk -- has on the back of it a signature of mine and a 4 signatu.e of Mr. Macktal's. l I 5 It looks to me like Mr. Macktal's signature, but I 6 don't have a recollection of the check going to Mr. Macktal 7- and back to the bank. 8 Q. Then is it possible that could be.your -- 9 A. It's not my handwriting. 10 Q. I would guess you would recognize your own 11 handwriting. 12 A. *ienh. It's not my handwriting, but I can't tell (~ 13 you whoss it is. 14 I mean, it looks like it very well easily could be 15 Mr. Maektal's. It's v retty close t his signature, if it 16 isn't his signature. 17 But I don't have the original check,-it's not a 18 great copy. You'll see it when it comes up. 19 Q. By the time it gets here, I'm aure it will be even 20 worse. . 21 A. It will be even worse, correct. 22 Q. Now, back to the settlement agreement. Did the 23 Secretary of Labor ever approve the settlement agreement? I 24 understood that they had not approved the mettlement 25 agreement. EXHIBIT lI PAGE b3 0F Y PAGE(S) t.GE NO. 4- 89-0 08
-na
- . _ . - . ~ . _ . . - .._ --. ..-
f 64-1 A. -No. The documents regarding-the submission of the 2 settlement to the Secretary of Labor-I have pulled together ! 3 in another stack. 4 Do you want me to do the same thing'with that 5 stack? 6 Q. okay. 7 A. What are we going.to mark this stack?. 6. 8 (Exhibit No.-6 was marked for
\
9 identification.)- 10 A. [ continuing) on May 11th the _ Secretary of Labor 11 issued an order to submit the settlem..it agreement, which 12 apparently_was sent to everybody. According to the service f 13 list, it was sent to Mr. Macktal in care of GAP at 1555 14 Connecticut Avenue, care of me at gap; and'was sent to me in 15 the Midwest office. 16 By the time that this Nas ser.t on May 11th, I 17 believe that -- I mean, I know that I had' moved. I no 18 longer either lived or worked at the-address that's on here. 19 So I hadn't got a copy. I didn't get a copy directly to me. 20 The copy that went to GAP for Mr. Macktal, I 21 didn't get that either. 22 So this was issued,_ but I didn't get it. And 23 eventually Rick Walker called me and said w;.at: are you going 24 to do about it. And I told him I didn't know what he was 25 talking about. EXHlBIT @- PAGE b y c(91F PAGE(S) ust M. 4- 89-0 08
__ ~. _ __ . _ . _ _. _. ._. _ ___ _ 65 1 He then sent se -- Rick Walker sent se a copy of l 2 the Secretary's NAy 11th order, and there's a cover letter 3 saying, 'I learned from your of fice today you don't have it. 4 Here's a copy of it," signed by Rick Walker. "I want to 5 talk to you about it." 6 on May 15th Rick Walker also sent a copy to Tony
? Rolsman, apparently by hand delivery, to his new of flee 8 which sends the secretary's order.
9 Then I wrote his a letter back on May 22nd -- I 10 wrote Rick Walker a lettar back on May 22nd ::y!ng that I 11 didn't agree with what Walker wanted se to sign as a joint 12 motion to the Secretary to reconsider his motion. I 13 I don't have, apparently, his letter and draft L 14 brief in front of se. Maybe I do. 15 Anyway, there's a letter from se to Mr. Walker 16 saying I won't sign your thing; I won't oppone it and I 17 won't f!!m it until you get an answer. 18 Q. Could you clarify that for se a little bit? I 19 don't really understand what you're talking about there. 20 A. Okay. The Secretary ordered the parties to subalt 21 the' settlement agrensent for their review. Rick Walker said 22 that he didn't think the Secretary had the legal authority 1 23 to order a sealed agressent between the parties to be made 24 essentially a public document by subeltting it to the 25 Secretary of Labor, and that parties -- private parties had L E0i! BIT Y PAGE N OF W PAGE(S) M M. 4-89-008
66 1 a constitutional right (if you will) to settle- among i 2 themselves without further government interference. 3 He wanted to rains that argument, and he wanted me 4 to agree to sign those papers and make it a joint motion on 5 behalf of Mr. Macktal and on behalf of Brown & Root. 6 I said'no, that I wouldn't do that. But.
- 7 obviously, if I submitted the settlement pcpers to the 8 Secretary, it-would make his argument noot. It wouldn't 9
make any difference what the Secretary ruled because I would 10 have already complied with the order. l 11 so I flied, and agreed that I would file, a motion l 12 which says essentially, "I'm going to wait until you rule on ( 13 their motion to reconsider before I act on your' directive." 14 And so I filed that within the time frame, and he 15 filed his notion. And then we didn't hear anything further. 16 That was in the summer of '87. 17 We didn't hear anything:further-from the. a 18 1 secretary's of flee before the July -1988 settlement between 19 cast and Texas Utilities Electric when Nr. Nacital then 20 reappeared and started filing some other documents. 21 y Let me identify the rest of the documents in this 4, 22 exhibit.- 23 1 There's a June 5th ;meno from poter Dykman, another ! 24 at'torney at Bishop Leiberman, the of fice of Administrative ~I 25 Appeals. EXHET I 4 PAGE N- OF 9PPAGE(S) ckI N]. 4-8'9-0 08
i
)
67 1 1 And then there's- the Motion for Reconsideration 2 and the Memorandum.in support of the Motion for 3 Reconsideration, which was filed by Rick Walker, and a copy i 4 of my response which is dated June 8th. 5 O. The secretary of Labor. then never did -- 6 A. Never did and never has yet ruled. 7 Now, that is not-the only pleadings.- When Nacktal 8 begins representation by the Kohns, it starts a whole other 9 ' set of pleadings. 10 Q. Are they handled separately.from this? 11 A. They're in -the same docket. If: you would go pull 12 the docket at the secretary of Labor, that would be the end r 13 of the pleadings that I was involved with. k' 14 I don't believe you'll find anything else on the 15 record until the Kohns then file a: notice of appearance a 16 year later -- over a year later. 17 Q. In this standard, that-the Secretary of Labor asks 18 to see the settlement agreements? 19 A. At that-tise I think she had only done it -- or it s 20 was he -- had only done it once or twice'before thatLI was 21 famillar with. 22 Now, it's standard. 23 Q. Was there any particular reason why this one was 24 handled that way, or is it just -- to your knowledge? 4
- 25 A. Not to sy knowledge. .
- t t -
EXHE [ Y - PAGE h3 OF W PAGE(S) , CE NO. 4 '89-0 08 l
68 1 Q. And were you aware of any reasons that the 2 attorneys for Brown & Root did not want that settlement 3 agreement to go to the Department of Labor and becose, I 4 guess, a matter of piblic record? 5 A. Well, other than the things thtt Rick Walker told-6 me about -- and his legal arguments are contained in his 7 brief -- that was really the only discussions. 8 I mean, he essentially had a belief that there was 9 a legal right of the parties to settle without the Secretary 10 of Labor's interference. He was going to raise and pursue 11 those issues. That's the only things that he told me. 12 Q. Back to the initial settlement agreement, of 13 course, as you know, the terms of the settlement agreement 14 have caused some consternation in the senate and within the 15 NRC and a lot of places. 16 A. Dh-huh. 17 Q. The main thing that everyone seems to be concerned 18 about is the language that states, more or less, that 19 Hacktal agreed not to testify before the ASLB, and should he 20 be called to provide such testimony he would fight it (more 21 or 'less). 22 Was that language agreed to by you? 23 A. I don't think the exact words as they finally 24 appear on the paper were agreed to on the day of the 23 settlesent. But certainly that term and condition was 1 EXHlBIT IP PAGE bi._.0F @PAGE(S)
@E NO. 4-89-008
69 1 agreed to. 2 Q. Who proposed that condition? 3 A. Rick Walker. 4 Q. Why did you agree to that condition? 5 A. okay. Are you asking about Hacktal? There's two 6 elements to that particular paragraph. 7 one is the element about Ma-ktal not voluntarily 8 testifying and taking -- I don't remember what the exact 9 words are, but whatever the words are -- taking actions to 10 resist -- 11 Q. Resist a subpoena. 12 A. -- a subpoena. 13 Q. Right. 14 A. -- and notify, I think, the lawyers for Brown & 15 woot or something. 16 Q. Right. That's what it says. 11 A. And then the other part is the agreement of Tony 18 and I not to call Hacktal as a witness in the NRC licensing 19 proceedings. 20 So which aspect of that paragraph are you asking 21 me about? 22 Q. The initial one. 23 A. About him? 24 Q. About Mr. Macktal agreeing to not testify before 25 the ASLB and resisting any subpoena or any effort to make i EXHIBIT 7 i PAGE kOF_k PAGE(S) (JE NO. 4-89-008
f i 10 1 him testify before the ASLB. ! 2 A. Okay. And you're asking_ me why I agreed to that? 3 Q. Yeah, I am. You know, you worked for GAP;
- 4 correct? And to me it's sort of unusual that you would- have i 5 agreed to that type of language.
)
6 A. If you-think back to what I just got'done telling 7 you about Mr. Hacktm. and the problems with his credibility, 8 lt was -- How can I describe it? , 9 It was basically that we were not giving up 10 anything. You know that at the same time as I represented 11 Macktal, I also was involved in representing CASE in front 12 of the Atomic safety and Licensing _ Board. 13 Calling Mr. Macktal as a witness-In the lleensing 14 l hearing was something that Tony and I discussed when they 15 put the ters on the table, you know, among ourselves and-16 concluded, and then later talked to Mr. Macktal'about it, 17 that we would not call !'.s as a witness 18 19 i 20 l i 21 I don't know how else I can say it. At that time 22 we had put on the stand somewhere between 30 and'45 23 whistleblowers, all who had been strongly screened and l 24 picked by CASE as whistleblowers that were going to l 25 withstand the kind of scrutiny and testimony and cross- i EXHIBIT __ 7 l PAGE 70.0F WPAGE(S) I I cu No. 't - 8 9 -0 0 8 ' (o.]C-
71 1 examination that Bishop Leiberman was using. 2 We were winning in terms of the issues that we 3 were presenting in front of the licensing hearing. It was 4 our view that Hacktal could do nothing but hurt himself and 5 hurt CASE !! he testified in the licensing hearin 5 . 1 l 7 B that he was better off having the letter of recommendation, 9 a closed settlement, and all_those issues behind him-without 10 having to confront the lies. 11 It was better for Cast that they did not put him i 12 on the stand. But we did not agree on behalf of Juanita 13 Ellis, who was also an independent Intervenor in the case -- 14 had her own status as a licensing lawyer (if you will) -- we 15 did not agree on her behalf to not call bla. 16 We didn't do agree to do anything that would 17 encourage her to call him or to discourage her from calling 18 him. 19 so in the event that Juanita got to someplace on 20 an issue, or we got to moseplace on an issue, and Juanita 21 wanted to call him, she was always free to do that. 22 Tony and I were not f ree to do that. Macktal was 23 not free to voluntarily testify. 24 Now, in the context of the licensing- hearings, as i 25 you understand them, that means not show up and give a ( EXHIBIT W PAGE 9l Op 91H'PAGE(S) cut No. 4-89-0 08 b/ 7 C-
l 72 1 limited appearance statement which comes'into the record but 2 has no evidentiary weight, or not walk up-to some lawyer or 3 judge and say, "I want to be- a witness." l 4 Ne would have had to-have been called as a 5 witness, just like in any other case. 6 But Judge Bloch in the lleensing hearings-7 frequently called witnesses on his own. So.that paragraph 8 went to try to keep _Macktal out 'of' the licensing hearings. 9 There's no question about that. 10 They didn't want bla testifying in 'the 'll' censing-11 hearings. 12 At the time, and in hindsight -- obviously, ( 13 everything looks a little dif ferent -- but in hinds.lght, at 14 the time we considered that we thought that was a plus-15 because it was both'giving Wacktal an' ability-to not have to , 16 pushhisownfredibillt problems that he had -- that he'was l 11 carrying around with him.- It protected him-from that, and
- 18 it protected CASE from having to deal .wlth those problems.
19 ! So it was not: viewed by us as a nega~tive at the . 20 time. . R 21 Do you understand what I'm saying? 22 Q. It sounds to me like your mala rationale then was 23 to keep Mr. Macktal from testifying because he alght have 24 some-negative effect on CASE's -- 25 NR. JOHNSON: I'd object to that statement. -I
- dXHIBIT IV
'AGEMOF WPAGE(S)
- cut No. 4-89-008 4/ %M
1 l t l 13 1 think her testimony speaks for itself., I think she has 2 outilned several reasons why they' did not consider it - 3 important for Macktal to testify. 4 MS. VAN CLEAVE: Okay. 5 BY MS. VAN CLEAVE: Then I had wondered about the' Cast -- potential 6 Q. 7 CASE /TU settlement. Did anyone ever mention to Mr.-Macktal 8 that he might be included in a later settlement agreesent? 9 Did you everfsay anything to that effect to Mr. Macktal, 10 that his case might be included in a later settlement 11 agreement and, in fact,-he alght get more money? 12 A. Well, at the time that Macktal's case was going on ( 13 -- and certainly beginning in '84 -- any discussions about 14 settlement with Texas Otilities had always included three 15 pieces. 16 One of those pieces always was taking care of all 17 the whistleblowers that had filed claims against Texas 18 Otilities. And those settlement discussions never got off 19 the ground. 20 TU would say, "Do you want to settle?" 21 We'd say, 'yes, if you want- to consider paying 22 CASE for all their expenses,= giving-CASELa continuing 23 monitoring role in comanche Peak, you know, opening the 24 gates and letting us in forever, and taking care of all the 25 whistleblowers." ( . EXHIB0f IV PAGE 93 OF WPAGE(S) 0;ME h% 4-89-008
74 i so any time we ever talked about potential 2 settlement, it always'had those three pieces. Those three 3 pieces were on the table (if you will) in front of TU, but 4 never given any serious consideration and never had any 5 discussions, you know, beyond thes saying,~"Is there 6 '.nything you want to settle for,* and we'd answer and say, 7 "Yes, these three pieces." 8 And we would tell people that, that were' involved 9 with the case. We made no secret about that. 10 In fact, as it came down, that's exactly what 11 happened with the settlement. So in terms of did you ever 12 tell him he would be included in the settlement, certainly_ 13 at the time he say have been told, "This is what the CASE (' 14 intent and plan is in the event that any settlement occurs." 15 But there wasn't any live settlement discussions 16 at the time. 17 Q. Why did you go ahead and settle Mr. Wacktal's 1B cane? Why did you not, 2 guess, add his name to the 19 whistleblowers who were going to be part of the CASE /TU 20 settlement? ' 21 A. Well, first of all, Virginia,'you know I just got 22 done telling you there was no live Cast settlement 23 discussions in 1986, at the time this case was tried. 24 There was no live-settlement discussions at all l , 25 with Texas Utilities until May of 1988. There was none, EXHIBIT _ @
. PAGE 9 N OF WPAGE(1)
A!:EE 4- 89-008
r 75 1 period. They did not exist. 2 Q. Oh, okay. I misunderstood'you. I thought you 3 maid that you had been discussing-all'along since 1984. 4 A. No. Since 1984 whenever 70 would say, "Do you 1 5 want to settle," we'd_say, "If you can offer these three 6 things." And they would never call us back. 7 Q. -Oh, all right. I misunderstood you. I thought 8 that you were going through a process of negotiations since 9 '84. 10 A. There was never any negotiations. Those 11 negotiations started with an invitation from 70 to start the 12 negotiations in earnest in, I believe, May of 1988. 13 And there wasn't any discussions. There were a 14 lot of lawsuits. There were whistleblower lawsuits filed in 15 Houston. There were whistleblower 210 cases filed. There 16 were, you know -- There was.a federal case in Houston, the il court, that got sent back to state court by individual-18 whistleblowers, and I was involved in some of those cases. 19 But Macktal's claim, like maybe 15 or 20 people l 20 before him, had come -to the- trial date and had either 21 set ~tled or gone to trial and was -in some stage of: appeal or 22 settlement. 1 23 Nacktal wasn't the only person who-had a settled j 24 claim against Texas Utilities and/or Brown & Root from the 25 workers that worked at Comanche peak who did not ultimately (
)
EXHlBIT_ @ PAGE 7 d OE 9 MAGE (S;
76 1 bring a civil tort lawsuit,-like the Atchison' plaintiffs 2 that was settled for a large amount of money, by the time 3 the Comanche Peak settlement was reached. 4 Q. Lo you know, do you have any idea why Brown & 5 Root's attorneys wished to put that language in the 6 settlement agreement r egarding Macktal's testifying before 7 the ASLB7 8 A. All I can tell you is-what Rick Walker said at 9 that meeting, which was that he had been trying -- that he 10 had lost a lot of credibility with his client.of late i 11 because every case he settled with Tony and I ended up , 12 coming back to haunt him in some other forum, and that when 13 he went to the company and said, "Let's settle this case. I 14 think this is what we should do," that then the company was 15 turning around and saying, "Why did we settle this case 16 because we're now having to relltigate the same case and get 17 egg on our face either in a lleensing hearing or in another 18 lawsult_or in a state lawsuit," and they settled one claim.- 19 And so the language that he-was going to propose 20 was going to absolutely bar Brown & Root from having to deak 21 with'Mr. Macktal and his claims anywhere at any time ever l 22 again, so they thought. ! 23 Q. But wouldn't the release that Nr. Macktal signed l l 24- do that? Didn't it say that be- releases Brown & Root from l l 25 -- EXHIBIT II 1
'c 9 h_OF 93 PAGE(S) l qAS(NO,, , 4- 89 *QGB
\
1
l l
??
i A. But they had signed other releases with clients 2 represented by me or Tony before, and_then those ellents i 3 ended up becoming part of the harassment and intimidation ) 4 contention before the Licensing Board. 1 5 So even though the whistleblowers themselves stood 1 6 i to gain nothing by testifying in the licensing hearing on ! 7 harassment and intimidation lasues, Brown & Root lawyers and 8 Texas Utilities lawyers had a lot to lose by the licensing 9 hearings. 10 Do you follow what I'm saying? 11 Q. No. Maybe you could elaborate a little bit. What 12 is "a lot to lose"? What do you mean by that? 13 A. Well, at the time that Hacktal's case arose, if s 14 you know very much about the licensing hearing of Comanche 15 Peak, Comanche Peak had an ongoing operating license in 16 which there was one contention left for litigation. It was 17 Contention 5. 18 The contentlop was that there had been a breakdown 19 in the quality assurance / quality control program at Comanche 20 Peak historically, such -that there would be no reasonable 21 assurance that the nuclear plant could ever -- was 22 constructed or could ever operate.wlthout endangering public
- 23 health and safety.
l 24 That contention was broken down into two dockets. 25 One docket was the design modification / quality assurance EXHIBri IP PAGE 9 7 0F 9hPAGE(S) eqE H0. 4-89-008
78 1 lasues affecting the design of the plant. The other-docket i 2 was harassment and intimidation of quality control 3 inspectors and others -- but 'others' wasn't litigated at-4 that point -- such that no matter what-the written results 5 on paper were. of the QA/QC program, that- there was rio 6-reasonable assurance that those results could be relled'on-7 because there had been such an atsosphere of fear, 8 harassment and intimidation at -comanche-peak so that none- of 9 the documentation was-~ reliable, that the DC inspectors.had-10 been forced to sign things off or didn't sign things off, or 4 11 that they were so afraid of their_ jobs that they didn't do 12 --their job. r 13 Tony and I were the lawyers on that docket. 14 During the summer of '84 and the-fal1~of '84_and the very 15 early beginning of 1985, Trial Lawyers and cap put on almost 16 a hundred witnesses, both our witnesses and T0 witnesses, to
-17 demonstrate _that such an atmosphere existed-and that there-18 was no assurance of-the quality of the plant.
19 When the Board ~1ssued prellsinary decisions on 20 those matters, It was clear that we had convinced the 21 Lic'ensing Board that we were_probably right. 22 At the same t!se the NRC's technical review team-23 lasued a document called SSR-11 -- BSER-11, which included 24 4 an Appendix p, that there were so_sany problems with the 25 Comanche peak quality assurance / quality control program that EXHIBIT b PAGE 9 _0F WPAGE(S) owt NO. 4-89-008 ,
i 79 , 1 there was no reliability that the plant was safe. 2 Those two things combined forced Texas Utilities 3 to have to go into the Licensing Board at a +tse when they 4 said that their plant was ready to load fuel and operate -- 5 this was in the fall of 1984 -- when the plant cost $3.5 6 billion, that they were ready at that time. 7 When the Board issues its preliminary decisions 8 and orders and concluded that they were not ready, it forced 9 them to have to do a hundred percent reinspection and rework 10 and design modification plan. The cost of the plant today 11 is about $10 billion. ( 12 They've spent 6 billion trying to figure out what That's what (U 13 they did for the first five years out there. 14 they had to lose. 15 If we successfully convinced the judge, which we 16 did, that the plant wasn't constructed and designed in 17 accordance with the regulations, what they had ' to lose was 18 getting approval for licensing the plant. 19 Now, that saybe won't run directly to Brown & 20 ' Root, but the other time that that happened in Region IV, if 21 you know anything about the history of that, is when Brown & 22 Root built the South Texas Nuclear Plant, the NRC came in 23 and said, "You didn't build it right," and Bouston Light & 24 power sued Brown & Root. It ended up in an out-of-court ' settlement for billions and billions of dollars, in terms of 25 f-ExmstLIE PAGE_g c g9MPAGE@ NE 4-89-008
J l 80 1 the work-that was done on the project. 2 Individually, Mr. Macktal had nothing to gain one i ! 3 way or another by being a witness in a Comanche Peak '
. I 4 licensing hearing. There was nothing to gain as;a witness. -
L l But 70 had a lot to lose, and so did Brown & Root. l 6 Q. But if Mr. Macktal had already told about his 7 concerns to the NRC, and according to your own testimony Mr. 8- Macktal in your belief had lost a great deal of credibility, 9 what could he tell the ASLB that could impact negatively on 10 Brown & Root? 11 A. Well, two things to answer your question. First 12 of all, he had told his -safety concernsito the Nuclear 13 Regulatory Commlaston which was investigating those issues, 14 but had not yet lasued its report. 15 My statements about his credibility in this 16 deposltion did not go to whether or not I believed Mr. t 17 Macktal had raised valid concerns.; I think he raised some i
, 18 valid safety lasues. The NRC reports substantiate that.
19 I'm saying his credibility, looking at him as a 20 witness that I had to protect on the stand, could his '
. 21 credibility -
- withstand cross-22 examination. I concluded that it could not.
, 5 i gxHistl E CASE M.. 4- 89-0.08- PFOE W l (or]C- On % -
B1 1 cared whether or not he had safety concerns, and that's what 2 they wanted to know, and that's what they were pursuing. 3 But it's my belief that the reason that 70 and 4 Brown & Root lawyers were so insistent on putting that 5 clause in about the licensing hearir.; was because Tony and I 6 had managed to do an extremely effective job of ;&Pino 7 selective whistleblowers and making them as examples of what 8 was the atmosphere on the whole plant. 9 And at this point, 1986, we were well into a 54 10 billion reinspection and reconstruction program, and Mr. 11 Nacktal's case didn't go to the past, ' 84, before -- they. 12 already lost on that -- it went to the present. 13 He was-testifylng that at present.that atmosphere 14 still existed. And at that point those issues were not in 15 front of the Licensing Board, and they were very afrald that 16 they were going to be brought up in front of the Licensing 17 Board. 18 , Q. I still don't follow the rationale here. on the 19 one hand you say that you were, as an employee of gap, did . 20 not mind having that language in the settlement agreement; 21 and yet it seems to be on the other side you're saying it's 22 to the advantage of Brown & Root and TO Electric that Mr. 23 Macktal not testify. 24 A. They certainly had something to gain by it. But 25 they didn't know and couldn't know our strategic (if you ( - EXHlBIT
- m. 4 8 9.-o oa
"'f#
4
- y , -,.v. , , - , , . -
( l 82 i will) thinking behind our case. 2 I mean, now you're getting into essentially the i 3 rationale behind the thinking of CASE lawyers, Tony and I in i 4 representAng CASE. I don't have a waiver to share that with 1 5 you, although I'm telling you things that I've already 6 explained to the senate hearing, and I think I'm on firm 7 grounds in doing so in terms of a wavier by CASE orally as 8 to what.1 could talk about. 9 But you're getting into the strategic reasons of 10 why it was acceptable. I don't know if I'm -- if you need i 11 me to keep going or not keep going. .. O. I just -- To me I just can't get that straight s' 13 in ny own mind as to how it is to the advantage of.the 14 Intervenors, I suppose, and to the advantage of TU and Brown 15 & Root, you know, the same thing, this type of language in .. 16 the agreer,ent. ! 17 I mean, I do understand it on the one hand. l' 18 However, if Mr. Hacktal's testimony could possibly cause TU 19 that kind of concern and even have some impact on the 20 licensing hearing, then the fact that you may have believed 21 he lacked credibility seems like it-would be overridden by 22 that.
, 23 ,
A. No, because he wouldn't have survived. He l 24 wouldn't have survived on the stand as a credible witness.
~,.
25 ~ . L[, j ),h ; L - - gxmBit T PAGEW pggg Ph0E tut No. 4-B9-008 [< @ & a h,>. , .
1 i 83 1 l l 2
)
'3 4
5 . 4 a 6-
?
II 8-9 s 10 it 'l i 12 l 13-l 14 15 , 16 17 so there's always-a. rlskihen youL put a witness 18- on. There's a risk that runs'both: directions. 19 ' You'rs asking. me to hypothesize why Brown'& Root 20 would of for him any money, and. that's what .I'm 'doing.
~
I'm 21 byp'othesizing that they had a lot to lose,- hnd they knew it. 22 I mean, that question really la more properly asked to Rick 23 Walker. 24 Q. Icanunderstandwhytheywould'offerblasome. L ,.. 25- noney. I mean, not even getting-lato the mat'ter of whether EXHlBIT_ I PAGE [10F 9EPAGE(S) CA E NO. 4-39-008 bdC /!ANnf
1 or not his claims have merit. I can understand a $35,000 %. 84 l 2 offer. ) 3 A. It's not much money when you talk about the 4 discrimination claim. 5 O. Right. I mean, I can understand that. I suppose 6 that's not really my question. I'm just trying to understand that particular -- l B those two sentences in the settlement agreement that has 9 gotten everyone so upset, how -- you know, it seems to be 10 advantageous for the Intervenors and for 70 and Brown & 11 Root. 12
. I'm trying to reconelle the f acts and how that can 13 be. But maybe I won't be able to do that.
14 WR JOHNSON: Do you have another question or -- 15 MS. VAtt CLEAVE:- No, I'm just hypothesising. 16 THE WITNESS: Do you think I should go into more 17 explanation or try again, Vernon, or.just leave it? 18 MR. JOHNSON: Well, maybe we should go of f the 19 record for a second. . 20 MS, VAN CLEAVE: Okay. Let's go off the record. l 21 [ Discussion off the record from 5:04 p.m.-to 5:10 22 p.m.) 23 MS. VAN CLEAVE: Let's go back on the record. 24 It's 5:10 p.m. 25 BY NS. VAN CLEAVE: .. E)041BtT_ pxasgotWPAGE@ CASEN0. 4' 'B'9 -0 0 8
85 1 Q. I have just a couple of other questions regarding 2 the settlement agreesent. To your knowledge, did Mr.. Austin 3 have any knowledge of the speelfic teras of the setti tment 4 1 4 agreement? l 5 A. I have no iden.- 6 Q. . And again I've asked you this, but to conclude 1 this interview, did you attempt to-coerce Mr. Macktal or 8 coerce Mr. Macktal in any way into signing this settlement 9 agreement? I 10 A. No, I did not. 11 .Q._ And to the best of your- know1 edge, did Mr. Nac.ktal 12 sign this agreement or agree-to the settlement agreement -- 13 I should say, since he did not. sign the-settlement 14 agreement. Did he agree-to that settlesent agreement of his 15 own free will? 16 A. He agreed 'to al1 the terms that -are reflected-'in 17 the settlen.ent agreement on the de.y of the settlement 18- because they were all written outlin little points on a 19 legal pad that Tony and-1 went over.with his,. point by ; 20 point, including the one that he 'now takes exceptlon.to. 21 The only thing 'that we did not h' ave was we did not 22 have the drafted settlement exact language, as'it appears ! 23 now in the settlement agreement.- 24 But the terms and conditions..were all gone over 25 with his. The soney was all gone over with his. All of
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l 86 i that was acceptable to him. 2 He authorized us to sign the settlement on his -- 3 you know, authorized un'to accept the settlement on the day 4 of the trial ~~ that .we were supposed to go to trial. He 5 never wavered in wanting to carry through with the 6 settlement, even at the time that he was really distressed 7 in December because the 30 days had either just -- was just 8 about over and over. 9 All his comments always were, "If I don't get my 10 money like right now, tomorrow, by the end of the week, if I 11 don't get my money, then I want to crucify them in the 12 paper, expose this to the world," do all these things,
' 13
( because he thought he had been had, and be was never going 14 to get his money. 15 But I never coerced him into accepting that 16 settlenent. He may have felt pressured by the situation, by . 17 Tony and I both telling him, "There's no law, and the icets 18 aren't hanging together," but he was never coerced by us. 19 Q. 1 Did he mention at that time regarding that 20 provision that he not testify before the ASLB that he h'ad 21 additional safety concerns? 22 A. Never. The first time I ever heard anything about 23 additional safety concerns was in the time frame af ter 24 Macktal hired the Kohns. 25 One of the documents that -- I don't know if EXHIBIT _ IE l CyE NO. 4-89-008 PAGEJh yWPAGE(SI
'I
_ _ _ _ _ . _ , . _ - - - - - - - - - - - - - - ^ -
l l l 87 1 1 you've pulled out of the senate hearing -- but what I do 1 2 want to give you is a handwritten note from Juanita Ellis l 3 when Joe Hacktal called her on the 3rd of August of 1988. 4 He called her and left a number, and the note-said 5 that he -- and asks for a copy of the settlement of -- the , 6 licensing settlement. 7 Juanita's note reads, "He also said he had read B about the OL settlement in the papers and that it looked 9 like he should have waited to settle his DOL case." 10 This note was attached to Juanita Ellis' prefiled 11 testimony in the Seente hearing. It's a note that she made 12 contemporaneously with a call from Joe Hacktal. 13 You'll notice that=in this note, he also didn't { 14 say anything about safety concerns. 15 (Exhibit No. 7 was marked for 16 identification.) { 17 A. (continuing] Virginia, I know you've been 18 following the newspaper articles, but I would note that 19 Hacktal told the paper -- at least it's reflected in the l 20 paper -- the day he-finally case up here and gave his - 21 st$tement, that he told the NRC everything he had to say in
- l 22 1986.
23 Q. I noticed that in the paper. .. 24 A. Which is consistent with what I've been saying all 25 along, that he told them everything he knew at the time. l . 1 EXHIBIT _ cm no. 4-89-008
~
1 l l 88 1 Q. Yeah, I saw that in the paper. 2 A. Let me respectfully suggest that one-May to check i 3 that is to get fros Kohns-the transcript of the tape - 4 recording of the interview between Macktal and Juanita Ellis 5 at the time frame that he blew the whistle'in January and i 6 February, and compare that to the issues that he raised to 7 the NRC and in his DOL transcripts. ! 8
-I believe you will seelthat they:are=the exact, 9
same sets of concerns because I had an outline sheet and I 10 made sure he didn't forget any of thes, because:I wanted,- 11 for purposes of consistency and for not looking like he's: 12 making up new issues as he goes along, for him to 13 consistently be raising the sase lasues in.every interview 14 and deposition that he had. 15 so I worked up a worksheet. He and I both had , 16 that worksheet and worked off.ofJlt, so we made sure that we 17 raised all of those issues. 18 If he had additional safety issues'in the time 19 frame that I represented thes, I'did not know about them. 20 I want the record to reflect that I would never 21 have instructed any client to withhold safety issues. - 22 I say not like somebody in the NRC who's 23 investigating thes; I say have some concerns about the - 24 competency of Region IV in investigating thes, but I would 25
. never instruct a client to not provide safety information to EXHIBIT b gg 4. g 9 .-Q 0 8 PAGE 8 0F 9PPAGE(S)
89 1 the NRC once those situations have been worked out and an 2 investigator and inspector had been assigned to a case. 3 Q. I don't have any other questions right now; you 4 have a plane to catch. 5 I would like to reserve the opportunity to ask you 6 additional questions should any arise after I review all 7 these documents that you've provided to me. 8 A. Okay. I have no problem with that. 9 THE WITNESS: Vernon, do you have a problem with 10 that? 11 MR. JOHNSON: No, not at all. 12 BY HS. VAN CLEA7E: 13 Q. Okay. Let me go through my standard closing here. k 14 Hs. Garde, have I threatened you'in any manner or 15 offered you any rewards in return for this statement? 16 A. What an appropriate question at the end of this i 17 deposition. I l 18 No, Virginia, you haven't offered me any bribe or 19 threatened me in any way. . l 20 Q. Have you given the statement freely and 21 vol'untarily? - 22 A. Yes. 23 Q. In there anything further you care to add to the 24 record at this time? l 25 A. No. Only that I brought with me in response to EXHIBL b PAGE N OF_9MPAGE(3 iASE K0. 4-89-O08
90 i the subpoena a whole varlety of documents which appear to -- 2 to the extent that they're responsive -- cons from the dol 3 litigation ille of his case regarding discovery and 4 subpoenas and trial preparation, a copy of the NRC 5 allegations that he raised to the NRC. 6 Q. Is that the inspection report? j 1 A. Yes, it's the inspection report. The cover letter 8 to him is dated August 12, 1987. i 9 This is the copy that 2 received. It's Inspection 10 Report 86-15 and 86-12. 11 Q. I have that. 12 A. And I did want to note just for the record, since 13 the issue of what the Licensing Board knew about this, that k" 14 this inspection report which catalogs his concerns was given 15 to the Licensing Board in the course of the regular NRC 16 docketing of inspection reports with the Licensing Board. 17 The Licensing Board did have his concerns by fall 18 of '86. They were in front of thes, just like all other 19 allegations and all other inspection reports. - 20 so the these that case through at the Senate 21 hea' ring that the licensing judges were not aware of 22 allegations raised by Mr. Macktal is completely untrue. 23 They both knew of the filing of the Macktal Department of 24 Labor complaint because we provided thes not,1ce.of that and 25 a copy of the complaint -- that is, CASE. ' EXHIBIT b PAGE 90 OF WPAGE(S ' CASENO. 4 39oggg
91 1 They were aware of the progress of the cace 2 because CASE had to f11e monthly progress reports regarding 3 what was going on in the other areas, including dol cases. 4 And the Licensing Board received a copy of the 5 investigation report into those allegations. Now, it did 6 not identify in the inspection report who was the source of 7 the allegations, but they did have independent knowledge cf 8 both the complaint and Itnowledge of the allegations. { 9 So the Senate's concern that the Licensing Board l 10 1 was acting without information that sight affect public l 11 health and safety was simply not true. 12 Q. All right. Is there anything further that you f 13 wish to add -- 14 A. No. 15 Q. -- or any further documents that you wish to 16 provide? l 17 A. No. We haven't seen the f ax of the checks, so 18 l'11 assume that that's here and you'll put it in your file. 19 Q. That's correct. 20 A. And I'm not golag to leave any of the documents 21 that I haven't identified, but I all! keep them separate if 22 you want to get back with ne about then 23 Q. Okay. Thank you very much. 24 ! MS. VAN CLIMit Off the record. 2 h (Interview concluded at 5:19 p.m.) EXHIBli b PAGE 9/ 0F WPAGE(St tMENO.- 4-89-008
i Rtp0RTER'S CERTIFICATE J This is to certify that the attached proceed-ings before the United states Nuclear Regulatory Commission in the matter of Interview of NAHL OF PROCELDINC: BILLIE PIRNER GARDE DOCKET NUMBER: None PLACE OF PROCEEDINC: Arlington, Texas were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken by se and.thereafter reduced to typewriting by me or under the direction of the court report-ing company, and that-the transcript is a true and accurate record of the foregoing proceedings. o-h0\60/YG
% 0 BETTY MORGAN official Reporter Ann Riley & Associates, Ltd. ,
I l EXHIBIT _ b cm H0. 4- 89-0 08 ,
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