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1 1 R E P O R T E R ' S R E C O R D 2 Trial Court Case No. 2010-11963 3 4 LLOYD E. KELLEY, X IN THE DISTRICT COURT X 5 Plaintiff, X X 6 VS. X HARRIS COUNTY, TEXAS X 7 FRANK J. WILSON, PAULINE HIGGINS, X L. ERIK OISTAD, DAVID W. COUCH, X 8 METROPOLITAN TRANSIT AUTHORITY X OF HARRIS COUNTY, TEXAS AND X 9 JANE DOE, X X 10 Defendants. X 61ST JUDICIAL DISTRICT 11 ____________________________________________________________ ____________________________________________________________ 12 13 HEARING ON TEMPORARY INJUNCTION ORDER 14 March 10, 2010 15 ____________________________________________________________ ____________________________________________________________ 16 17 The above entitled and numbered cause came on to be 18 heard in the said Court, The Honorable Al Bennett, Judge 19 Presiding, Houston, Harris County, Texas, and the following

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1

1 R E P O R T E R ' S R E C O R D

2 Trial Court Case No. 2010-11963 3

4 LLOYD E. KELLEY, X IN THE DISTRICT COURT X 5 Plaintiff, X X 6 VS. X HARRIS COUNTY, TEXAS X 7 FRANK J. WILSON, PAULINE HIGGINS, X L. ERIK OISTAD, DAVID W. COUCH, X 8 METROPOLITAN TRANSIT AUTHORITY X OF HARRIS COUNTY, TEXAS AND X 9 JANE DOE, X X 10 Defendants. X 61ST JUDICIAL DISTRICT

11 ____________________________________________________________ ____________________________________________________________ 12

13 HEARING ON TEMPORARY INJUNCTION ORDER

14 March 10, 2010

15 ____________________________________________________________ ____________________________________________________________ 16

17 The above entitled and numbered cause came on to be

18 heard in the said Court, The Honorable Al Bennett, Judge

19 Presiding, Houston, Harris County, Texas, and the following

20 proceedings were held, to wit:

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2

1 A P P E A R A N C E S:

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3 ATTORNEYS FOR PLAINTIFF:

4 Mr. Michael D. West SBN: 00785220 5 Mr. David West SBN: 21209500 6 West & West 1301 McKinney 7 Suite 3010 Houston, Texas 77010 8 713-222-9378 713-222-9397 Fax 9

10 ATTORNEYS FOR DEFENDANT, FRANK J. WILSON, L. ERIK OISTAD, 11 DAVID W. COUCH AND METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY, TEXAS: 12 Mr. John B. Beckworth 13 SBN: 02021500 Watt Beckworth Thompson & Henneman 14 1800 Penzoil Place, South Tower 711 Louisiana Street 15 Houston, Texas 77002 713-650-8100 16 713-650-8141 Fax

17 Mr. Gene L. Locke 18 SBN: 12461900 Ms. Georgia L. Lucier 19 SBN: 24043523 Andrews Kurth 20 600 Travis, suite 4200 Suite 4200 21 Houston, Texas 77002 713-220-4200 22 713-220-4285 Fax

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1 ATTORNEYS FOR DEFENDANT, FRANK J. WILSON: 2 Mr. Robin C. Gibbs 3 SBN: 07853000

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Mr. Grant J. Harvey 4 SBN: 09177700 Gibbs & Bruns 5 1100 Louisiana Suite 5300 6 Houston, Texas 77002 713-650-8805 7 713-750-0903 Fax

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9

10

11 ALSO PRESENT: 12

13 ATTORNEY FOR HARRIS COUNTY DISTRICT ATTORNEY:

14 Ms. Terese B. Buess SBN: 03316875 15 Assistant District Attorney 1201 Franklin 16 Suite 600 Houston, Texas 77002 17 713-755-5546

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4

1

2

3 (Convened at 9:08 a.m.)

4 THE COURT: Cause No. 2010-11963. Lloyd E.

5 Kelley vs. Frank J. Wilson.

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6 Counsel, please, announce your appearances

7 for the record.

8 MR. M. WEST: Your Honor, Michael West and

9 David West for Lloyd Kelley.

10 MR. LOCKE: Gene Locke, your Honor, for Metro

11 and for David Couch and for Eric Oistad, in their individual

12 capacities.

13 THE COURT: Good morning, sir.

14 MR. LOCKE: Good morning.

15 MR. BECKWORTH: John Beckworth with

16 Mr. Locke, your Honor.

17 MR. GIBBS: Charley Gibbs and Grant Harvey,

18 your Honor, here for Frank Wilson, individually.

19 THE COURT: Good morning, gentlemen. My

20 understanding, from our last visit -- please have a seat --

21 from our last visit was that counsel was going to attempt to

22 work out the terms and the conditions of a temporary

23 injunction.

24 I've since been informed that no agreement

25 was reached. And, so, I want to visit with you first about

5

1 where the breakdown occurred, and what we can do to get past

2 this, work over this impasse.

3 So, what seems to be the sticking point?

4 MR. M. WEST: Your Honor, as I understood it,

5 when we were in here on Friday -- and I was ready to move

6 forward with our request for a temporary injunction -- the

7 defendants said they would agree to the injunction.

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8 And I gave them my proposed order, which they

9 said they had a few problems with.

10 And as I heard this court enter a general

11 order to "Hold still. Don't destroy any documents. You all

12 go work it out. Come back on -- submit your order back on

13 Tuesday. If there's any issues, we can resolve them then."

14 But what has been submitted to me by

15 defendant's counsel is, in fact, simply this court's

16 pronouncement of a global general "Hold still/stand still."

17 And they presented it to me in the form of a TRO. That's

18 first.

19 With regard to agreeing to the injunction, or

20 any terms of the injunction, I've been informed that the

21 only thing that they're agreeable to is your general

22 pronouncement of a general "stand still."

23 And, so, that's where we fell down. It's a

24 very -- polar opposites almost of the scale.

25 THE COURT: All right. Mr. Locke?

6

1 MR. LOCKE: Your Honor, I think that what we

2 tried to do was to take both the words of the court and the

3 literal spirit of the last hearing and enter an order that

4 would be all-inclusive, that would prohibit Metro from

5 destroying, secreting, getting rid of, or otherwise

6 disposing of any documents in any form.

7 If you take that global approach, that will

8 include all of the documents that may or may not be the

9 subject of Mr. Kelley's inquiry. So, we're actually holding

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10 ourselves to a very high standard.

11 The court, also, in the hearing -- I mean, in

12 the appearance last week -- told us that we could not adopt

13 any policy on retention or destruction of documents without

14 visiting with the court first. We would include that

15 provision in the order.

16 The court also mentioned to us that: As we

17 gather documents -- both electronically and print -- and

18 provide them to the District Attorney, fairness suggests

19 that we should give a copy -- or at least give notice to the

20 other side. Our order includes a provision there.

21 The other side raised the issue of back-up

22 tapes, wanting to make sure that electronically Metro did

23 not destroy, either incidentally or otherwise, any back-up

24 tapes that we have. Our order provides for exactly that.

25 So, we tried to walk through in the order.

7

1 The problem that we have with what the draft

2 that the plaintiffs have given to us is: It starts with

3 significant findings of fault that border on criminal

4 matters that we just can't agree to.

5 THE COURT: Which Mr. Beckworth raised the

6 last time as one of the issues that he had. And that's one

7 of the reasons I gave you all the opportunity to visit.

8 MR. LOCKE: We are agreeable to prohibiting

9 the destruction of documents in any form. We think that

10 language is superfluous and should not be there.

11 But there are two other provisions that's

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12 included in their order that I think we would find

13 objectionable.

14 First, there is a discussion of a requirement

15 to have us turn all of our -- over our computer system,

16 basically, to a third-party expert. We disagree with that

17 on two fronts.

18 One, it's improper, because the District

19 Attorney is already into Metro's computer system. They are

20 the appropriate body to be conducting this criminal

21 investigation.

22 But, more importantly, as your Honor would be

23 aware, Metro's computer system contains everything, some of

24 which is administrative, some limited things may or may not

25 be responsive to their request, some of it is privileged,

8

1 some of it is just not appropriate for --

2 THE COURT: Well, let me stop you there

3 because --

4 And, Mr. West, in regards to Mr. Kelley's

5 original request, I assume that that's your interest in this

6 matter; is that correct?

7 MR. M. WEST: Well, that is correct, your

8 Honor.

9 THE COURT: Okay. And, so, to the extent

10 that all documents and all e-mail, in whatever form we may

11 find them, are preserved in Mr. Kelley's original request,

12 is responded to -- or is responded to, that would satisfy

13 Mr. Kelley's interest in this; would it not?

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14 MR. M. WEST: Well, he has two requests, just

15 for clarity, Judge.

16 But the issue is: Although, yes, those are

17 the documents and information that has been requested, and

18 that is at issue -- the problem is -- and the reason that

19 I've asked this court to freeze that data is because I don't

20 think we can trust Metro to do what is right -- to be able

21 to trust them to say: "Yes, these are all the documents."

22 So --

23 THE COURT: Well, what authority can you cite

24 me to under the Public Information Act that gives a

25 requestor the right to go into a public agency and conduct

9

1 the search itself?

2 MR. M. WEST: Well, Judge, what I'm asking is

3 that this third-party expert actually do it on the court's

4 behalf, and submit that data, let this Honorable Court

5 maintain, or hold that data in camera and for inspection.

6 THE COURT: Why would I want to do that?

7 MR. M. WEST: Well, Judge, we need to have --

8 I mean, if you -- I don't know that it's proper to give me

9 all of their data, because it's not --

10 THE COURT: It's not.

11 MR. M. WEST: And, so, that's not what I'm

12 asking.

13 I'm asking that all the data be held, so we

14 can then properly go through it, and determine what is or is

15 not responsive.

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16 THE COURT: And what authority under the

17 Public Information Act can you cite me to for that

18 proposition?

19 I understand that you have -- or Mr. Kelley,

20 more correctly, has the right to request this information.

21 And the Metro or any public agency, then, has the obligation

22 to respond to that request.

23 But you're citing a provision where you get

24 to conduct the search yourself, or you're asking me, as the

25 court, to intervene and to conduct this search for

10

1 Mr. Kelley's request at Metro. And what authority do you

2 have for that?

3 MR. M. WEST: Okay. Your Honor, under

4 Section 552.321 of the Texas Government Code, a requestor --

5 in this case, Lloyd Kelley -- has the right to file a suit

6 for writ of mandamus compelling the governmental body to

7 make the information available for public inspection, if the

8 governmental body refuses to either request the Attorney

9 General's decision or provide that information as requested.

10 And, so, the court -- Mr. Kelley's got the

11 right to ask this court to issue an order compelling Metro

12 to produce that.

13 Now, simply compelling Metro to do it and

14 then relying upon them to comply with this court's order is

15 the area in which I have concern.

16 And, so, in order to ensure that, in fact,

17 they are carrying out this court's order, given the history

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18 of trustworthiness on Metro -- that's the issue -- I think

19 this court has full authority to maintain the integrity of

20 those records.

21 THE COURT: What you suggest is that every

22 time a Public Information Act request is made, and the

23 requestor believes that he's not, or she's not getting all

24 the information, they should go file a lawsuit, and have the

25 court come in and intervene, with no other finding that, in

11

1 fact, the information was not provided?

2 MR. M. WEST: No, Judge. I think that's one

3 of the things that we need to do to have a hearing, to put

4 witnesses on, so that the court can hear that testimony, to

5 make that determination, not just -- I don't believe you

6 should just take it on my word.

7 I think you're right. It is -- it is a big

8 relief that we're asking this court for. But that's why we

9 need witnesses to testify.

10 THE COURT: You have witnesses that are going

11 to come forward and say that the information requested by

12 Mr. Kelley has not been provided and/or was destroyed?

13 MR. M. WEST: I expect to have witnesses to

14 say that documents that Metro has maintained -- that were or

15 might be responsive to Mr. Kelley's request -- were

16 destroyed.

17 THE COURT: You have a witness -- again, my

18 question was very specific.

19 You have a witness that's going to come

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20 forward and testify that information that was applicable to

21 Mr. Kelley's request was either withheld or destroyed? Is

22 that true or not true?

23 MR. M. WEST: No, Judge, I cannot -- I do not

24 have a witness to come in here and say that a particular

25 document that is responsive or a class of documents that are

12

1 specifically responsive were destroyed.

2 What I will -- what I expect to have is a

3 witness to say that --

4 THE COURT: Documents were destroyed, which

5 Metro has already said.

6 MR. M. WEST: Well, basically.

7 THE COURT: Okay. Well, then, why do we need

8 that witness if Metro has already told me those documents

9 have been destroyed, or certain documents have been

10 destroyed? What would be the purpose of the witness?

11 MR. M. WEST: Well, Judge, what the -- the --

12 what I need to get to, and I think what needs to be further

13 developed is with regard to this data that has supposedly

14 been destroyed -- as they have said has been destroyed.

15 My understanding is that this information is

16 also in back-up -- what they call in a "cloud." It's some

17 place off-site, remote. And, so, maintaining the integrity

18 of that data is -- is -- is ultimately, I think, where this

19 data may be hidden.

20 THE COURT: I think I've taken care of that

21 with my order -- or temporary order that I've instructed

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22 Metro not to destroy not one additional piece of paper, or

23 one additional piece of electronic data. So, that has been

24 taken care of.

25 So, to the extent that there is data that is

13

1 applicable to Mr. Kelley's request, what I see my authority

2 as, and my focus or mission in this is to make sure that

3 Mr. Kelley's Public Information Act is fully and completely

4 responded to, with the information that's available at Metro

5 to do that.

6 Now, if you have a witness that is going to

7 come forward and tell me that Metro is intentionally

8 withholding documents applicable to Mr. Kelley's request, or

9 that Metro has destroyed documents that's applicable to

10 Mr. Kelley's request, then the relief that you seek -- where

11 I can go in and take control of some of this information at

12 Metro -- may be right for consideration.

13 But until you do that, my thinking on this

14 is: First of all, freeze the information, which I've done.

15 And, then, at that point, give Metro the opportunity to

16 respond to the request, or come forward and say they have --

17 or cannot respond to the request.

18 MR. M. WEST: Well, the -- I don't have a

19 witness, as I've already told you, to come and say that a

20 specific document was destroyed.

21 We know Metro said that information was

22 destroyed. But the further information that I believe I'd

23 be able to put forth to the court would be -- would be

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24 testimony to show facts that I believe would lead this court

25 to believe as to the motivation as to why information

14

1 responsive to these requests would have been destroyed.

2 Now, no, I don't have -- I haven't had full

3 access to all --

4 THE COURT: Stop. You just said that "a

5 motivation to destroy documents that were applicable to

6 these requests"?

7 MR. M. WEST: Yes, your Honor.

8 THE COURT: Okay. Mr. Locke?

9 MR. LOCKE: Judge, I don't think he has the

10 right to come to the courthouse and ask the court to give

11 him relief on his request for these documents. But there's

12 a legislative scheme that's in place. It's been in place

13 for years and years and years.

14 There is a process that every citizen can

15 exercise and that every governmental body has to respect.

16 If this court issues an order saying, "Metro,

17 don't destroy any documents; Metro, keep back-up tapes;

18 Metro, retain a policy of retention that I have approved;

19 and, Metro, share data with the DA," this plaintiff's

20 request for documents is fully and completely protected.

21 Therefore, there is no issue that would be before this court

22 on this matter on this day.

23 THE COURT: And that's kind of my thinking.

24 And the order that I issued on Friday was to make sure that

25 no data or documents would be destroyed, so that Metro would

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15

1 have the ability the meet Mr. Kelley's request. That was my

2 intention.

3 As Mr. Locke correctly points out, the Public

4 Information Act is the bible as to how this works. And, as

5 a matter of fact, the reason that Mr. Kelley is able to

6 stand here with his lawyer today is because the Public

7 Information Act provides for this very mechanism.

8 As you read to me, that you can file a

9 lawsuit if you believe a request has not been met, or

10 documents applicable to that request are not being turned

11 over, correct?

12 MR. M. WEST: Correct.

13 THE COURT: Okay.

14 MR. M. WEST: And, Judge, I did want to also

15 point out that part of the lawsuit is: This court has the

16 authority to order the actual documents at issue to be

17 produced to the court. Regardless of what they may claim is

18 privileged and is subject to some attorney --

19 THE COURT: Have they refused to turn over

20 any document to Mr. Kelley on a claim of privilege?

21 MR. M. WEST: Yes, your Honor.

22 THE COURT: Okay. Have they produced a

23 privilege log to you in that regard?

24 MR. M. WEST: I do not have a privilege log.

25 THE COURT: What did they claim was

16

1 privileged that they would not turn over?

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2 MR. BECKWORTH: Judge, I'm prepared to

3 address that, when you ask.

4 THE COURT: Okay.

5 MR. M. WEST: And, your Honor, I can mark

6 these as exhibits for the Court's -- so that we, at least,

7 have a reference point, if I may.

8 THE COURT: Yes, sir.

9 MR. M. WEST: Your Honor, I would like to

10 give you Plaintiff's Exhibit No. 1, which is a

11 February 17th, 2010 letter from Metro to the Attorney

12 General's Office, specifically addressing items that they

13 claim they have a privilege or some other objection to

14 producing.

15 In addition, I'd like to hand you Plaintiff's

16 Exhibit No. 2, which is a March 5th letter with attachments

17 from Metro to Lloyd Kelley, stating what information they're

18 not disclosing.

19 (Plaintiff's Exhibits 1 and 2 offered.)

20 THE COURT: Okay. Mr. West has handed me

21 Plaintiff's Exhibit 1 and Plaintiff's Exhibit 2.

22 And, Mr. West, correct me if I'm wrong, but

23 what has occurred in Plaintiff's Exhibit 1 -- which you

24 refer to, a February 17th letter to the Attorney General's

25 Office from Metro, specifically from Paula Alexander,

17

1 Vice-President Corporate Development, and Jacqueline Hojem

2 from -- Public Information Officer -- is: They're

3 requesting a opinion from the Attorney General as to whether

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4 or not they can claim a privilege. And they're requesting

5 whether or not they can withhold information. Is that

6 correct?

7 MR. M. WEST: That's correct, your Honor.

8 They're -- and, so, they have not produced those documents.

9 THE COURT: So, they've not yet told you they

10 would not produce them. They're waiting on a opinion, or

11 response from the Texas Attorney General before doing so,

12 correct?

13 MR. M. WEST: That's my understanding.

14 But --

15 THE COURT: And that process is provided for

16 in the Public Information Act; is it not?

17 MR. M. WEST: It is, your Honor, but --

18 THE COURT: So, to the extent that Metro is

19 also using the Public Information Act to get that

20 information, are they not standing on their rights under the

21 same statute in which you're seeking information?

22 MR. M. WEST: Yes, your Honor. I believe

23 they are.

24 THE COURT: So, what's the problem there?

25 MR. M. WEST: Well, the problem is that that

18

1 information -- this court still has the authority and the

2 right to maintain and hold onto that information --

3 THE COURT: I've already done that.

4 MR. M. WEST: Well, except for the fact that

5 it's not physically here, your Honor.

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6 THE COURT: I don't need it physically here

7 yet. Until the Texas Attorney General rules one way or the

8 other -- if the Attorney General says it's privileged, then

9 that's a issue that I'll take up then.

10 If the Attorney General says that it's not

11 privileged, and they refuse to turn it over at that point,

12 then, I'll take it up at that point.

13 MR. M. WEST: Well, okay. And, your Honor, I

14 want to point out: You have got the authority to say it's a

15 proper objection or not a proper objection.

16 For instance, one of the objections that was

17 raised as to the producing of e-mails is a Roe v. Wade

18 objection, which deals with abortion. I don't understand

19 what that objection has to do with anything at issue.

20 Now, is the Attorney General the proper and

21 only entity that's able to make a determination on an

22 objection? Again, no.

23 THE COURT: Again, let's turn back to the

24 Public Information Act.

25 To the extent that Metro desires a opinion as

19

1 to whether or not they're required to turn over information,

2 who does the Public Information Act direct them to?

3 MR. M. WEST: It directs them to the Attorney

4 General.

5 THE COURT: Okay.

6 MR. M. WEST: But it does not relieve this

7 court, or take away this court's jurisdiction and authority,

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8 to also look at that document's information, and determine

9 if, in fact, it is responsive to their request.

10 THE COURT: Okay. What's the time

11 constraint, or the necessity of immediate action on

12 Mr. Kelley's part to get this information, so that we would

13 jump in front of the Texas Attorney General on this?

14 MR. M. WEST: It's simply maintaining the

15 information, your Honor.

16 THE COURT: Which I've already done.

17 MR. M. WEST: I understand. The only thing I

18 want to add, Judge, with regard to this electronic data that

19 we talked about: My understanding is that information --

20 even though the court has an order, and even though they may

21 not further delete any information, anything that has been

22 deleted, just simple daily use of the computer, can do away

23 with and destroy that information.

24 And, so, to the extent that these computers

25 are being used daily, anything that's already been deleted

20

1 is, and can be lost on a daily basis, just because they're

2 being used, so --

3 THE COURT: Well, they have back-up tapes,

4 which we've already ordered frozen; isn't that correct?

5 MR. M. WEST: Well, Judge, I don't know what

6 their back-up scheme is. If -- it's not a full forensic

7 shot of that information that's been deleted. And, so,

8 that's --

9 THE COURT: So, you're suggesting that Metro

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10 turn off their computers until such time as Mr. Kelley's

11 request is met?

12 MR. M. WEST: No, I'm not, your Honor. I

13 don't think that's a practical thing to ask for.

14 That's why I'm asking for that forensic

15 snapshot, in order to secure that data, so that whatever

16 might have been deleted --

17 THE COURT: Isn't that a back-up tape --

18 isn't that what a back-up tape does?

19 MR. M. WEST: It's not my understanding,

20 Judge, that once the information has been deleted, that's

21 not what is being backed up.

22 THE COURT: But the back-up tape would have

23 backed it up prior to it being deleted; would it not?

24 MR. M. WEST: Well, correct. However, again,

25 I don't know the full extent of what their back-up rotation

21

1 schedule has been, because it's my understanding that these

2 deletion of e-mails has been ongoing for a number of months.

3 THE COURT: And, again, the deletion of, or

4 the destruction of documents that they've already admitted

5 to -- you have no information, or no witness which is going

6 to tell me if any of that was applicable to Mr. Kelley's

7 request?

8 MR. M. WEST: I cannot point to a specific

9 item, specific e-mail, a document that has been destroyed,

10 other than in general, no, your Honor, I cannot.

11 THE COURT: All right. I think I saw the

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12 District Attorney -- Assistant District Attorney.

13 Ma'am?

14 MS. BUESS: Yes, sir.

15 THE COURT: Would you come up? Good morning,

16 Counsel.

17 MS. BUESS: Good morning.

18 THE COURT: The last time we were here, I

19 mentioned that I wanted to make sure that I would not get in

20 the way of any criminal probe, or whatever the District

21 Attorney was doing. And you sat here and you listened. And

22 I wanted to make sure that whatever order I fashion is not

23 going to do that.

24 So, to the extent that you can, what is it

25 that you would like to see from this court, so as not to

22

1 interrupt what you're doing?

2 MS. BUESS: The court's order that's in place

3 right now is good. That's not interfering with anything

4 that we need to do.

5 The -- there are two paragraphs that are in

6 the plaintiff's agreed order that they provided me yesterday

7 that I take issue with.

8 And I don't know what the court at this point

9 intends to further order. I think the process is in place

10 right now that the Attorney General's Office -- we're still

11 waiting on a response back.

12 I don't know that anything further needs to

13 be ordered by this court at this point. And should that

Page 21: Metro Hearing Transcript

14 happen, then, I'm free to continue doing what we need to do

15 at this point.

16 THE COURT: Okay. I just want to make sure

17 that we're not putting a hurdle in your way that would

18 prevent you from doing what you need to do.

19 MS. BUESS: No, sir.

20 THE COURT: Okay. Good. Thank you.

21 Mr. West, the one thing that you said that

22 caused me some concern was the issue regarding a motivation

23 to destroy the documents which may be applicable to

24 Mr. Kelley's request. Could you speak to that briefly?

25 MR. M. WEST: I believe, your Honor, that

23

1 there is sufficient -- I believe the testimony will show --

2 and I think with -- especially with regard to Frank

3 Wilson -- that, in fact, he is hiding information regarding

4 his spending government money, taking trips, taking his

5 girlfriend to Spain, having a personal relationship with his

6 chief of staff that is inappropriate.

7 And all of that type of information, Judge --

8 about the money that he's been spending on his girlfriend

9 that is government money, and doing personal business with

10 his girlfriend on the government computer system, instead of

11 the people's business. And, so --

12 THE COURT: Let me stop you. The last time

13 we were here, I took issue with Metro bringing up -- which,

14 in my opinion, was an issue that was not germane to these

15 proceedings. And I'm going to caution you on the same

Page 22: Metro Hearing Transcript

16 lines.

17 I have no problem enforcing the Public

18 Information Act to the extent necessary. But I want to make

19 sure that the issues that brought up in this court, on that

20 issue, are germane to this particular matter. Is that

21 understood?

22 MR. M. WEST: I understood it -- I understand

23 that completely, your Honor.

24 THE COURT: Okay.

25 MR. M. WEST: And the reason that we bring

24

1 that up is, as to the motivation of -- and however we can

2 address those, you know, maybe somewhat salacious details

3 that go to the motivation on why he is hiding those records.

4 THE COURT: And you've requested those

5 records, correct?

6 MR. M. WEST: Yes, your Honor.

7 THE COURT: And that goes back to the earlier

8 question: Do you have a witness who is going to come

9 forward and say that a document, e-mail, or any other data

10 that is applicable or responsive to Mr. Kelley's request has

11 been deleted?

12 MR. M. WEST: Other than to say: "E-mails

13 have been deleted, which may be responsive or within the

14 category," that's as close as I can get, Judge.

15 I can't say a specific -- what specific

16 e-mail, other than "all e-mails."

17 And part of my issue, too, Judge, is that,

Page 23: Metro Hearing Transcript

18 you know, not having had an opportunity to question any

19 witnesses, certainly to take any depositions to --

20 THE COURT: Who's preventing you from taking

21 a deposition?

22 MR. M. WEST: Well, other than -- well, at

23 this point, we haven't had -- scheduled depositions. I

24 mean, it's not being prohibited from me, Judge.

25 THE COURT: So, the fact you haven't taken a

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1 deposition is your fault, not mine?

2 MR. M. WEST: No, I'm not -- and I'm not

3 blaming you for anything, Judge. I'm just merely pointing

4 out the fact that I haven't had that opportunity to do that

5 yet, to further develop that testimony.

6 THE COURT: All right. Mr. Locke, anything

7 further?

8 MR. LOCKE: Nothing further, your Honor.

9 THE COURT: All right. Counsel?

10 MR. GIBBS: The only issue, your Honor -- and

11 I think the court brought us here this morning for the

12 narrow point of determining the form of the order that you

13 entered, and which we're abiding by on Friday.

14 The decree -- you've heard Mr. Locke, I

15 think, appropriately describe to the court that the decree

16 portion of our proposed order is precisely what the court

17 has ordered.

18 I think that the remaining dispute over the

19 form of the order is the gratuitous requirements by Mr. West

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20 that there be findings, purported findings, which the court

21 has not made, which in an agreed temporary injunction are

22 not required, because an agreeing party is not going to

23 contest the absence of recitals of facts that were not found

24 in an agreed proceeding.

25 So, I think it's as simple as that. We

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1 have -- you can look at the proposed form of order we've

2 submitted. It doesn't need those.

3 And we're not going to appeal on the ground

4 that you didn't make findings, because we have agreed to the

5 scope of the remedy.

6 THE COURT: Let me see the parties' two

7 proposed orders.

8 MR. D. WEST: Your Honor, may I address one

9 point?

10 THE COURT: Yes, sir.

11 MR. M. WEST: I think I'm in agreement with

12 Mr. Gibbs, with respect to an agreed temporary injunction.

13 There are certain statutory requirements.

14 And I don't want them to run out of here and

15 say this piece of paper that they've submitted -- which I

16 believe not worth the paper it's written on -- simply

17 because you could be challenged on getting a temporary

18 restraining order that's in perpetuity.

19 And it just has no statutory mandated

20 requirements that a TRO -- I mean, that a temporary

21 injunction needs.

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22 THE COURT: Who's going to challenge it? The

23 parties who are agreeing to it?

24 MR. D. WEST: Well, what authority do you

25 have -- it's a TRO in perpetuity.

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1 THE COURT: I'm not going to issue a TRO in

2 perpetuity.

3 MR. D. WEST: Well, I mean, that's what

4 they're suggesting. It says that. That's the first

5 sentence of their proposed order. That's one.

6 If you have -- if you grant a TRO -- I mean,

7 a temporary injunction, it is statutorily required that it

8 have a trial setting in it.

9 And there are certain requirements, none of

10 which were met in their proposed order. It is outside of

11 our traditional --

12 THE COURT: I can fix that.

13 MR. D. WEST: Okay.

14 THE COURT: I can easily give you a trial

15 setting.

16 MR. D. WEST: I just wanted to draw your

17 attention to the fact --

18 THE COURT: I can give you a trial setting.

19 That's not a problem.

20 MR. D. WEST: Okay.

21 THE COURT: When do you expect to hear back

22 from the Attorney General?

23 MR. BECKWORTH: Your Honor, we don't know.

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24 We understand -- we said six weeks.

25 THE COURT: From today or six weeks from the

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1 date of the letter?

2 MR. BECKWORTH: The date of the letter.

3 MS. LUCIER: The date of the letter.

4 THE COURT: See if we can find something late

5 May, first part of June. The order.

6 MR. M. WEST: And I brought mine, just for

7 your information, in Word and WordPerfect format on the

8 stick for you.

9 THE COURT: Mr. Locke, Mr. West, how about we

10 start out with the boilerplate, with these three paragraphs

11 here. We turn to the recitals as to what the order is going

12 to say, from that particular order -- let me see that order

13 again.

14 And, then, we conclude with the requirements

15 of the temporary injunction here setting the trial date.

16 That -- the only findings, if you look back

17 here, is that Mr. Kelley has filed his request. He has

18 outstanding and pending requests for public information.

19 Metro is in possession and control of public documents and

20 information which may be responsive to those requests,

21 followed by those orders.

22 MR. LOCKE: Right.

23 THE COURT: Then, concluding with -- zipping

24 to that, which will lay out the terms and the conditions of

25 the temporary injunction setting the trial date.

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1 MR. LOCKE: That's fine, your Honor.

2 THE COURT: Write it up.

3 MR. LOCKE: Thank you.

4 THE COURT: Anything further?

5 MR. M. WEST: We'll have it to you today.

6 THE COURT: All right. Anything further?

7 MR. LOCKE: That's it, your Honor. Thank

8 you.

9 MR. M. WEST: Thank you.

10 THE COURT: All right. Gentlemen, you're

11 excused. Thank you.

12 (Adjourned at 9:43 a.m.)

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1 STATE OF TEXAS )

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2 COUNTY OF HARRIS )

3 I, Arturo Zapata, Official Court Reporter in and for

4 the 61st District Court of Harris County, State of Texas, do

5 hereby certify that the above and foregoing contains a true

6 and correct transcription of all portions of evidence and

7 other proceedings requested in writing by counsel for the

8 parties to be included in this volume of the Reporter's

9 Record in the above-styled and numbered cause, all of which

10 occurred in open court and were reported by me.

11 Dated this 11th day of March , 2010.

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15 Arturo Zapata, CSR Official Court Reporter 16 61st District Court Harris County, Texas 17 201 Caroline, Room 904 Houston, Texas 77002 18 Telephone: 713/368-6077

19 Certificate No. 4360 Expiration: 12/31/11 20

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