Case 2:04-cv-08425 Trial Day 7 Vol 2

Case 2:04-cv-08425 Trial Day 7 Vol 2
1545
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
EASTERN DIVISION
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HONORABLE VIRGINIA A. PHILLIPS, JUDGE PRESIDING
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LOG CABIN REPUBLICANS,

a nonprofit corporation,
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Plaintiff,
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vs.
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UNITED STATES OF AMERICA and
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ROBERT M. GATES, SECRETARY OF
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DEFENSE, in his official capacity, )
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Defendants. )
___________________________________)
No. CV 04-8425-VAP(Ex)
Trial Day 7
Volume II
Pages 1545-1591
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REPORTER'S TRANSCRIPT OF TRIAL PROCEEDINGS
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Riverside, California
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Thursday, July 22, 2010
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1:42 P.M.
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THERESA A. LANZA, RPR, CSR

Federal Official Court Reporter
3470 12th Street, Rm. 134
Riverside, California 92501
(951) 274-0844
WWW.THERESALANZA.COM
Trial Day 7, Volume II
1546
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APPEARANCES:
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On Behalf of Plaintiff:
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WHITE & CASE

BY: Dan Woods
BY: Earle Miller
BY: Aaron A. Kahn
633 West Fifth Street,
Suite 1900
Los Angeles, California
213-620-7772
90071-2007
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On Behalf of Defendants:
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UNITED STATES DEPARTMENT OF JUSTICE

Civil Division, Federal Programs Branch
BY: Paul G. Freeborne
BY: Joshua E. Gardner
BY: Ryan Bradley Parker
BY: W. Scott Simpson
20 Massachusetts Avenue, NW
Room 6108
Washington, DC 20001
202-353-0543
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-AND-
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UNITED STATES ARMY

Litigation Division
BY: Major Patrick Grant
Litigation Attorney
901 N. Stuart, Suite 400
Arlington, Virginia 22203
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I N D E X
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Page
Exhibit Conference.............................
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EXHIBITS
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230
231
247
254
266
267
308
322
324
337
338
RECEIVED
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1560
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1569
1572
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Riverside, California; Thursday, July 22, 2010; 1:42 P.M.
-oOo-
THE COURT:
All right.
First of all, the one exhibit
that we talked about yesterday that I hadn't ruled on was --
it's the Zogby report.
01:42
MR. WOODS:
It's Exhibit 11, Your Honor.
THE COURT:
Thank you.
Yes, it is.
And just to make the record clear, as to the
Exhibit 11.
10
authorities that we discussed again yesterday that were cited
11
originally to the Court and argued a bit yesterday from the
12
motion in limine, one was a district court case, Green v. Baca,
13
which was a district court case decided by Judge Morrow from
14
this district, and the other was the Ninth Circuit authority
15
that government counsel referred to, Opuku-Boateng v. State of
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California.
17
dealing with polling evidence; it was dealing with articles
18
published in the Los Angeles Times.
19
on this issue.
20
The Green case really has no bearing.
01:42
01:43
It wasn't
It really has no bearing
The Opuku-Boateng case, it isn't -- I don't mean to
21
say it's not helpful, but it doesn't support, really, the
22
argument that's being made here, except in the most general
23
way.
24
evidence that was at issue, is readily distinguishable from the
25
evidence that Exhibit 11 consists of.
01:44
But the facts of that case, with respect to the kind of
That case, the poll
01:44
1549
evidence, or the evidence that was called polling evidence,
consisted of something very informal, where the employer -- it
was an employment termination case, and the allegation by the
plaintiff in that case was that there hadn't been a sufficient
accommodation of his religious practices.
on which the employer was defending was to say that the
employer had polled the workers about whether they worked these
undesirable shifts that the plaintiff claimed he was unable to
work because of his religious practices.
10
And one of the basis
But it wasn't a poll in the sense that the Zogby poll
11
is a poll.
12
workers.
13
persons who were questioned, there was a wide disparity about
14
who did the questioning and when it took place and so forth.
15
So in reversing the trial court for allowing the evidence to
16
come in, the circuit pointed to the various problems that were
17
clear on the face of the record about the reliability of the
18
polling, in the most informal sense of the word "polling."
19
So the language, in particular, that the defense
20
relied on here in Footnote 18 about "polls generally raise
21
complicated hearsay problems" and so forth, as a general matter
22
that may be the case.
23
really discussing in that case has almost no similarity at all
24
to the poll that was conducted in our case.
25
01:45
01:45
It was a sort of informal oral questioning by

And when the evidence came in during the trial, the
01:46
But the type of polling that they are
But in that footnote, the court, first of all, noted
01:46
01:47
1550
that the court in the Opuku-Boateng case noted that a hearsay
poll may be admitted as an exception to the hearsay rule if it
is material and more probative on the issue than other evidence
and it has guarantees of trustworthiness, citing two cases, one
of which is a Tenth Circuit case, Brunswick.
Brunswick case, Brunswick Corporation v. Spinit Reel Company,
which is found at 832 F.2d 513, is a trademark infringement
case involving closed-face spincast fishing reels.
And the
01:47
Even though the subject matter, like that in the
10
Opuku-Boateng case, isn't very close to the subject matter
11
here, it deals with survey evidence.
12
court did not abuse its discretion in admitting the survey,
13
repeating that general rule under 803; that is, that such
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evidence may be admitted as an exception to the hearsay rule
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under certain circumstances.
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It held that the trial
01:48
In particular, in another footnote in the Brunswick
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case, the court pointed out that in that case, it was sort of a
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mixed bag, that the survey -- they called it a survey; it's
19
very similar to the evidence that is called a poll in our
20
case -- that is, certain of the information contained in the
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exhibit in that case were not offered for the truth of the
22
matter, but to show the state of mind of the person answering
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it, in that case whether or not they were confused.
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trademark infringement case, as I said.
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01:48
It's a
But some of them were offered, so there was sort of a
01:49
01:49
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mixed bag, which, actually, I think, is sort of similar to the
situation here.
But looking at the circumstances under which the
Zogby poll was created and the purposes for which it was
created, it's admissible under the exception.
looked at the authorities cited in the motion in limine, I'm
going to order Exhibit 11 admitted.
(Exhibit 11 is received.)
THE COURT:
So having again
Let's go on to the other exhibits that
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the plaintiff wishes to admit.
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MR. WOODS:
12
First of all, Your Honor, yesterday we introduced
13
Exhibit 134, and the copy that you had was not particularly
14
legible, so we have substituted a better copy this afternoon.
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Your clerk has that, and opposing counsel has that too.
01:50
Yes, Your Honor.
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THE COURT:
All right.
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MR. WOODS:
And before I talk about the additional
exhibits, Your Honor, we have your ruling this morning on the
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30(b)(6) deposition testimony; and I believe, Your Honor, there
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were two typographical errors in that that I would like to --
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THE COURT:
There is at least one.
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MR. WOODS:
The first one that I saw, Your Honor, was
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01:50
Thank you.
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01:50
01:51
in connection with the -THE COURT:
And I've already fired the person who did
it, which is me.
01:51
1552
MR. WOODS:
In the discussion of the exhibits offered
in connection with the Brady deposition, your list of exhibits
has that an Exhibit 88 would be admitted.
intended, Your Honor, to be "87," since we had offered an 87
and not an 88.
lunch break, too.
I think "88" was
I mentioned that to opposing counsel over the
THE COURT:
That's not the one I caught; maybe there's three.
Actually, the one that Ms. Dillard caught for me --
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MR. WOODS:
All right.
Let me look at my notes.
Anyway, Your Honor, I don't think the
01:52
government disagrees with me.
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THE COURT:
I think that's right on "88," so we'll
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issue an amended order fixing that, just so the record is
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clear.
15
And what's the other one?
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MR. WOODS:
01:52
In the section about the deposition of
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Mr. Gade, the second place where you sustained an objection,
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you said in your order at "Page 114, Lines 1 through 18."
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Actually, the government, Your Honor, only had objected to
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Lines 1 through 8; so I think it's "1 through 8," not
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"1 through 18."
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01:51
THE COURT:
All right.
Then there is a third one,
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where it says "two" and it has an extra "l."
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where I say, "Two of these have already been admitted," and I
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spelled "two," t-w-o-l.
01:52
I think it's
01:52
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MR. WOODS:
Oh, I see that now.
THE COURT:
It was a little bit late at night when I
was doing this, so...
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All right.
We'll make all of those changes, and
there will be a clean one that will be called "amended."
There was one other thing.
You probably haven't had
a chance to look at it to this degree, but there were a few
discrepancies still between what the parties gave me in terms
of designations and objections and what were objections on the
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hard copy.
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hard copy some objections that weren't listed on that sheet.
In other words, you've marked on the margins of the
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Do you see what I mean?
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So, for example, on the copy of the deposition, you
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know how you designated and marked, there were times when on
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the margins, there was a notation of "irrelevant" or
16
"speculative," but that wasn't reflected on the hard copy, the
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sheet that I got.
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01:53
01:53
01:53
So there was one or two places, I think maybe just
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one or two, where you'll see that I actually sustained an
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objection that wasn't listed on the sheet, but it was noted on
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the side.
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MR. WOODS:
Okay.
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THE COURT:
So if you're wondering why there's an
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objection that was sustained but it wasn't listed on the sheet,
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that's why, because it was on the hard copy of the deposition.
01:54
01:54
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MR. WOODS:
Okay.
Going back to the exhibits, Your Honor, the next
exhibit that we would intend to offer is in Volume VII of the
exhibit binders, and it is Exhibit Number 230.
Exhibit 230, Your Honor, is many pages of discharge
statistics.
and other pages, you'll see dates.
will see the initials DMDC, I think it is, the Defense
Department initials that we had mentioned before.
In the upper left-hand corner of the first page,

And on the right side, you
And these
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sheets just differentiate the discharges by year, branch,
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gender, and such.
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01:56
I know you have some other exhibits already received
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that address these things.
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where Colonel Brady said that there were no reliable
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statistics.
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statistics that we ultimately were able to find in discovery
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that show that there were Defense Department numbers available
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for some of the years where Colonel Brady said no reliable
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statistics existed.
These documents include periods
And, yet, here we have Defense Department
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THE COURT:
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Were these produced in discovery?
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MR. WOODS:
Yes, Your Honor.
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THE COURT:
By the defense.
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What I think Colonel Brady said was -- he didn't say
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01:55
Let me ask a couple of questions.
they didn't exist; he said they weren't reliable because they
01:56
01:56
01:56
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hadn't been reconciled.
explanation, at least -- I mean, if somebody wants to point it
out to me, I may have missed it -- but I didn't really
understand that there was anything in his deposition, or any
other evidence that's been presented to me, that said what he
meant by "reconciled."
said, We have the figures for those years, but they're not
reliable because they haven't been reconciled.
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MR. WOODS:
But there really wasn't an
So I don't know what he meant when he
You're right about what was or was not in
his deposition, Your Honor.
01:57
What I do have is a different discovery response from
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the government in response to requests for admissions asking
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about year-by-year discharge statistics.
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this group of requests for admissions -- which is in
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Exhibit 85, although this part of 85 has not yet been
16
admitted -- the response is:
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Department of Defense prior to fiscal year 1997 does not permit
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defendants to determine with precision the number of
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servicemembers discharged under "Don't Ask, Don't Tell."
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01:57
And the response to
"The data maintained by the
So I gather that the problem is that the Defense
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Department simply does not know how many exactly.
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you know, I have Exhibit 230, which appears, at least, to be
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statistical information about the number of discharges broken
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down, very specifically, in terms of year-by-year, service
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branch, gender, and so on.
01:58
01:58
And, yet,
01:58
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THE COURT:
Well, the first page of the exhibit
breaks it down by -- the columns say "total" -- this is
separations -- so the first column says "total," which is
separations; "discharge"; "honorable," "uncharacterized,"
"general," "other than honorable," "bad conduct,"
"dishonorable," and "unknown."
third of the way down, "homosexuality," on the far left, for
"reason."
01:59
And then "reason," about a
MR. WOODS:
Yes.
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THE COURT:
What's the time period that's covered?
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First of all, is it month by month?
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MR. WOODS:
This covers -- I believe, Your Honor, at
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the top page, it says "reporting period," in the center.
14
so the first case has reporting period 93-10 to 94-09, which I
15
believe to be the fiscal year for that year.
16
the fiscal year would go from October 1993 to September 1994.

THE COURT:
And that's Army?
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MR. WOODS:
Well, the first page is Army.
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THE COURT:
Right.
is "Army female."
"Army male."
And then it's combined.
And
In other words,
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02:00
02:00
And then next page

I see.
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MR. WOODS:
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And I'm sorry to, like, say too much in advance of
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tomorrow morning, but one of the reasons for this document's
24
admissibility, Your Honor, is, this is -- you know, these
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documents were prepared after the enactment of "Don't Ask,
02:01
Yes.
02:01
1557
Don't Tell," and the "reason" column has the word
"homosexuality."
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Not "homosexual conduct," "homosexuality."
So you understand the point that we, perhaps, might

want to make from that.
THE COURT:
Mr. Gardner?
MR. GARDNER:
I think the colloquy you just had really illustrates
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All right.
02:02
Thank you, Your Honor.
the government's primary objection, which is foundation.

There is no sponsoring witness that can explain to
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the Court what this document is; how it's used; why, in fact,
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the pre-'97 information was not reliable and had to be
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reconciled.
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Mr. Woods stated that there's a statement in here
15
that says "homosexuality."
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Your Honor, a sponsoring witness would explain what that means.
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This document simply raises questions; no answers; and the
18
relevance of it is questionable, at best, without a sponsoring
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witness to explain what it is.
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And that has some import.
Frankly,
Now, I will tell you, Your Honor, in full candor, I
21
have a personal understanding as to why the pre-'97 data had to
22
be reconciled because it was inaccurate.
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inappropriate for me to testify as to those facts.
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02:02
THE COURT:
02:02
02:03
But I do think it's
What was the discovery request that this
was produced in response to?
02:03
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MR. WOODS:
What transpired, Your Honor, is, we sent
the government a request for production of documents, and the
response was a disk, two disks, actually, that had on them,
together, a total of 65,000 pages of documents.
documents were not produced to us category by category, if you
understand what I mean.
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THE COURT:
So the
They were produced as kept in the regular
course of business?
MR. GARDNER:
Correct, Your Honor.
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MR. WOODS:
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But we certainly had a request and asked for
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Yes.
02:04
statistical information about discharges during these years.
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THE COURT:
Well, can you read me that request.
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MR. WOODS:
Yes.
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The request to produce documents, Your Honor, which
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is marked for identification as Exhibit 103, document request
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number 69, asked for "all documents of communications referring
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or relating to the total number of enlisted members of the
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United States Armed Forces who were discharged from 1994
20
through the present, pursuant to the policy and DOD
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regulations."
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02:04
One moment.
02:04
02:07
Request number 70 was the same question, only

pertaining to officers.
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THE COURT:
Well, I'm going to order 230 admitted.
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The document was produced in response to a request
02:08
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for production of documents.
and in that sense it's an admission of a party.
It's clearly responsive to that,
As to the argument that the entries on it need
explanation or that they may not mean what they appear to mean,
the ones that are relevant for the purposes of this lawsuit, in
particular, would be the entry that was mentioned a moment ago.
There may be more than one, but particularly the one that's
responsive to the request for production of documents, that's
labeled "homosexuality."
So, to the extent that there's a
10
dispute between the parties about the label that's put on that
11
category, that goes to the weight.
12
02:09
But I would say further on this subject, to the
13
extent that the government argues that there should have been a
14
witness to testify, of course there doesn't need to be a
15
witness that testifies, particularly when it's documents
16
produced by the government in response to a request for
17
production of documents.
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it.
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02:08
02:09
And these documents are responsive to
But having read the deposition of Colonel Brady, who,
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I think, would have been such a witness, even if one was
21
required -- the plaintiff subpoenaed, under Rule 30(b)(6), a
22
person most knowledgeable to testify about this subject and
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these kinds of documents.
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think the plaintiff did everything it could do to get a witness
25
who could testify, to have cleared up any discrepancies or
02:09
And having read his deposition, I
02:10
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issues with respect to the statistics that were produced.
the witness that the government produced repeatedly testified
he had no knowledge on the subject that he was being produced
to testify about.
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And
So the objection is overruled as to 230, and it's

ordered admitted.
MR. WOODS:
The next one would be Exhibit 231.
10
THE COURT:
That's the ARI report?
11
MR. WOODS:
Yes, Your Honor.
12
This is a report prepared at the request of the Army

It is dated June 26, 1996.
02:11
13
Research Institute.
14
produced by the defendants, and the Bates stamp number at the
15
bottom, "ARI," and the number indicates it was produced from
16
the Army Research Institute itself as part of the defendants.
17
02:10
It was
02:11
This is one of the documents that we argued about in
18
the motion in limine, and this was one of the documents that we
19
categorized as a contractor document.
20
admissibility as admissible under, in particular,
21
Rule 803(8)(a) and 801(d)(2)(c); and we cited, in support of
22
the admissibility of the so-called contractor documents, the
23
Pacific Gas and Electric case, cited by the Federal Claims
24
Court in 2006.
25
to the government's motion in limine.
We argued its
02:11
That was on Pages 11 and 12 of our opposition
02:12
1561
The report, Your Honor, is relevant, because it
directly explores the social science research about "Don't Ask,
Don't Tell" and a possible change to "Don't Ask, Don't Tell."
Like our experts, it analyzed subjects such as comparisons to
the integration of African Americans in the military,
stereotypes about gay people, and so on.
thorough report prepared at the direction of the government,
and we offer it into evidence.
THE COURT:
It's a pretty
All right.
10
Mr. Gardner.
11
MR. GARDNER:
12
We do have both a hearsay objection and a relevance
13
objection.
14
02:13
02:15
I'll take them in turn.

As one of the primary attorneys who litigated the
15
Pacific Gas and Electric case before Judge Hewitt, I can tell
16
you that case is entirely different than this one.
17
and Electric involved a contract between the Department of
18
Energy and what's called an MNO, maintenance and operation,
19
contractor.
20
government subagencies.
21
this case.
02:15
Pacific Gas
MNO contractors, in essence, run, in large part,

And that's precisely what happened in
22
There was a subcomponent of the Department of Energy
23
called the Office of Civilian Radioactive Waste Management, or
24
OCRWM.
25
In that case, Judge Hewitt determined that because of the
02:16
OCRWM was being managed or run by an MNO contractor.
02:16
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unique relationship between an MNO contractor and the
government agency, the documents created by that MNO contractor
became statements which were admissible against the defendant
government agency.
And there was testimony, because that trial was, I
believe, about three weeks long, that explained the nature of
the relationship between an MNO contractor and the government
agency at issue.
Here, there is no testimony whatsoever about the
10
relationship between Mr. Heric, Ph.D., and the Department of
11
Defense, or better yet, the Department of the Army.
12
indication that the Department of the Army accepted this,
13
approved it.
14
government produced it because it somehow was in the
15
government's files.
16
02:17
There's no
The only evidence at all in this case is that the
02:17
Now, we haven't objected to the authenticity of this
17
document because we produced it from our files.
18
evidence whatsoever that the Department of the Army, or better
19
yet, the Department of Defense, has in any way adopted,
20
approved, accepted, or endorsed this work product, which is,
21
again, the work of a contractor.
22
an out-of-court statement, offered for the truth of the matter.
23
It is hearsay, not subject to an exception.
24
fundamentally, it's simply irrelevant.
25
02:16
But there's no
It's a third-party statement,
And more
Whatever Mr. Heric may have thought on June 26, 1996,
02:17
02:18
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in no way informs the inquiry as to whether or not the statute
and the implementing regulations are facially unconstitutional.
THE COURT:
Mr. Woods.
MR. WOODS:
Yes, Your Honor.
We saw this morning that you admitted some Army
02:18
Research Institute materials in the deposition of Mr. Gade
taken pursuant to Rule 30(b)(6).
mean, it says on its face it was prepared for the United States
Army Research Institute.
This is much the same.
And I think, as I said before, it
10
falls within the same category of contractor documents that the
11
Pacific Gas case addressed.
12
In that case, regardless of counsel's trial
13
experience, the court found reports of these contractors to
14
qualify his reports from public officers or agencies under
15
Rule 803(8)(a), quote, "notwithstanding that the contractor
16
documents were created by contractors and not Department of
17
Energy employees."
18
THE COURT:
they were created by a contractor, that they be adopted -- I
20
think Mr. Gardner's argument is that there's a requirement that
21
there be a showing that they are adopted or ratified by the
22
agency for whom they were prepared.

MR. WOODS:
02:19
But isn't there a requirement that if
19
23
02:19
02:20
The Pacific Gas case also addressed that
24
point, Your Honor.
It found that contractor documents in that
25
case to be admissible as nonhearsay, because the government,
02:20
1564
quote, "authorized," closed quote, in the case, the reports by
hiring the contractors to perform the work for them.
So that's what the Pacific Gas case said.
And it
said that any inconsistencies between the views of the
Department of Energy and the contractor were probative of the
contractor documents' weight, not their admissibility, again
from the Pacific Gas case, at 440.
8
9
10
02:20
I also remember, Your Honor, that when we were faced

with the motion in limine seeking to exclude the contractor
documents, counsel for the government --
11
THE COURT:
We had the same discussion.
12
MR. WOODS:
And they had not cited the Pacific Gas
02:20
13
case.
14
attention, even though Mr. Gardner had been involved in that
15
case which directly bears on these issues.
16
We were the ones who had to bring it to the Court's
MR. GARDNER:
Your Honor, if I may address that.
02:21
The
17
reason we did not address the Court of Federal Claims decision,
18
Pacific Gas and Electric, is because it's completely
19
inadequate.
20
relationship between an MNO contractor and a government agency;
21
a relationship, I would note, that there's been no evidence
22
exists in this case.
23
Again, that entire decision is predicated upon the

02:21
In fact, Mr. Woods actually put his finger right on
24
it.
The court found these to be public documents, and found
25
them to be public documents because of the unique nature
02:21
1565
between an MNO contractor and the government agency.
no testimony in this case to support an inference that that
type of relationship exists here.
THE COURT:
There's
Well, 803(8) deals with the admissibility
of such reports in both the civil and the criminal context, and
the case law interpreting this exception contains a large
variety of different sorts of circumstances upholding trial
court's decisions to admit all kinds of reports, investigative
reports; and in particular, it says that even if there are
10
subjective opinions, that does not make such reports
11
inadmissible.
12
scrutiny to certain portions.
14
protections under Rule 403, but that's not a particular concern
15
in a bench trial.
There are the additional
02:23
16
There was one other point I wanted to make.
17
But I'm going to order 231 admitted.
18
19
THE COURT:
What is your next one?
20
MR. WOODS:
Exhibit 245, Your Honor, which is in
02:24
Volume VIII.
22
THE COURT:
If I'm not mistaken, there was a witness,
23
I believe -- I think there was a witness who testified about
24
this.
25
02:23
The Court may, in a jury trial, redact or add
13
21
02:22
MR. WOODS:
Certainly testified about the recipient,
02:25
1566
Mr. Rostker.
memorandum dated January 19, 1998.
Navy separations due to homosexual conduct."
one of the documents produced to us by the defendants in
discovery.
But for the record, Your Honor, this is a

The subject is "trends in
It was, again,
02:25
It's relevant, Your Honor, because it does show,
again, the number of discharges in a certain period of time and
the reasons for the discharges.
believe to be a statement that's relevant here, which is that
It also includes what we
10
the number of discharges after the enactment of "Don't Ask,
11
Don't Tell" increases while the Navy experiences forced
12
reductions during that same time period.
13
THE COURT:
14
And what's the basis for the objection to
15
16
All right.
Exhibit 245?
02:25
MR. GARDNER:
Again, relevance.
This is a document
17
that postdates "Don't Ask, Don't Tell" by, what, five years.
18
In addition to that, there's no sponsoring witness.
19
idea who Paul Mayberry is, what the context of this document
20
is, how it was used, for what purpose it was created.
We have no
21
THE COURT:
22
Mr. Woods, was there a witness who testified as to

the relevance of this document?
24
attachments?
MR. WOODS:
02:26
All right.
23
25
02:25
If not the memo, then the
I'm not recalling that, Your Honor.
02:27
1567
There was testimony about Mr. Rostker during
Dr. Korb's examination.
at the time of the RAND study that's in evidence.
4
5
THE COURT:
I believe he was the principal author
Then I would sustain the objection to
Exhibit 245.
02:27
MR. WOODS:
It's 247.
The next one, Your Honor, I hope, will be
easier.
This is a report by the Office of the
Under Secretary of Defense for Personnel and Readiness to the
Secretary of Defense, dated April 1998.
10
THE COURT:
Mr. Gardner.
11
MR. GARDNER:
12
I hadn't heard from plaintiff's counsel why joint
02:28
13
Exhibit 247 is relevant.
14
The document reviewed the effectiveness of the application and
15
enforcement.
16
trends in enforcement or how it's been applied, again that's a
17
classic as-applied type of issue, Your Honor, and a facial
18
constitutional challenge.
19
I heard him identify the document.
To the extent he believes it is relevant to show
This type of data is irrelevant.
To the extent there's a different reason why
20
Mr. Woods believes it's relevant, obviously we would hear him
21
out.
22
THE COURT:
23
Do you have any other objection?
24
MR. GARDNER:
25
02:29
02:29
So your objection is relevance?
Well, again, there's no sponsoring
witness, foundation, to explain why this document was created,
02:29
1568
the purposes for which it was used, who it was sent to.
THE COURT:
As to relevance, Mr. Woods?
MR. WOODS:
why this document is relevant.
All right.
Well, Your Honor, there's several reasons

02:29
This has the discharge statistics for the years that
Colonel Brady was unable to locate them or that they supposedly
were not verified or accurate.
that the number of discharges after "Don't Ask, Don't Tell"
This document is an admission
10
increases.
11
some concern in the document itself."
12
It also indicates that that is, quote, "cause for
02:30
And there's several other things for which it can be
13
used, Your Honor.
I mean, it is a thorough study.
It talks
14
about, you know, percentage of women discharges and says the
15
reasons for the gender disparity and homosexual conduct
16
discharges are unknown.
17
it's because there are more lesbians in the armed forces than
18
gay men in the armed forces.
19
that claim.
02:30
You've heard counsel try to argue that
This is not able to substantiate
20
It's a very thorough report.
21
It also addresses several of the issues that we've
22
discussed.
23
members of the armed forces are unable to speak to health care
24
providers or chaplains about their orientation without fear
25
that health care providers or the chaplain will be forced to
02:31
It also includes evidence about how homosexual
02:31
1569
reveal the information, which would lead to the person's
discharge.
Your Honor.
4
5
It's chock-full of relevant information,
THE COURT:
The objections to 247 are overruled, and
it's ordered admitted.
02:31
THE COURT:
All right.
MR. WOODS:
Sorry to go back, but on 245, Your Honor,
Next.
while we were discussing the other exhibit, we did find
10
testimony from Dr. Korb that Mr. Rostker, who is the recipient
11
of 245, left RAND and became the assistant secretary for
12
defense for personnel and readiness.
13
position he held at the time he received Exhibit 245, in the
14
event that was a reason why the Court might not have received
15
245.
So that's presumably the
02:32
16
THE COURT:
That would not change my ruling.
17
MR. WOODS:
Okay.
18
THE COURT:
Thank you.
19
MR. WOODS:
Next would be Exhibit 254, Your Honor,
20
21
02:31
still in Volume VIII.
02:32
Exhibit 254, Your Honor, is a copy of a news release
22
from the office of the assistant secretary for defense, dated
23
January 22, 1999.
24
Secretary of Defense for Personnel and Readiness, Rudy DeLeon."
25
This also has information about the number of discharges during
The title of it is "Statement by Under
02:33
1570
the period of time when Colonel Brady thought it was not
available or could not be verified.
government issuing these statistics publicly.
THE COURT:
MR. GARDNER:
But here we see the
Mr. Gardner.
First of all, let me clarify or correct
in the record.
deposition was that the Department of Defense could not verify
the accuracy of the numbers of discharges pre-1997.
the statistics weren't available.
10
What Colonel Brady said, to be clear, in his
Not that
And since we're testifying here, the reason they were
11
not verifiable is because each of the branches had a different
12
means of how they calculated and tabulated that information.
13
And because each branch had different means of doing so, it was
14
impossible to reconcile those into a consistent format.
15
changed in 1998 or 1999, when the DOD did come up with a
16
consistent method.
17
somehow the information didn't exist.
18
reliable format.
19
That
02:35
It didn't exist in a
That's what Colonel Brady testified to.
With respect to joint Exhibit 254, I fail to see how

it's relevant to any issue in this case.
21
substantial information of the pre-1998 data.
22
it this afternoon.
23
Exhibit 254 is relevant.
25
02:34
So I wanted to disabuse the notion that
20
24
02:34
We already have
02:35
You've admitted
It's unclear why this particular joint
THE COURT:
Well, as to the last point, which I take
to be an objection on the basis that the evidence is
02:36
1571
cumulative, it's not cumulative for at least two reasons.
First, there really isn't -- there may be one other document,
but there may not be any with the years starting as early as
1980, which this document has on the second page.
MR. GARDNER:
254?
THE COURT:
My copy has...
MR. GARDNER:
10
There is no second page, Your Honor.
Yes.
Oh, you know what, Your Honor?
My copy
only has one page.
02:36
11
(Document provided.)
12
THE COURT:
It starts at 1980, and I don't think
13
there's any other set of these statistics, that I've seen, that
14
goes back as far as 1980.
15
16
02:36
MR. GARDNER:
Your Honor, I had not seen these other
02:37
two pages.
17
THE COURT:
All right.
18
MR. GARDNER:
Then I guess the additional objection
19
is, discharge statistics that predate "Don't Ask, Don't Tell"
20
are plainly irrelevant in determining -- discharge statistics
21
from a previous policy that predates the only statute that's
22
being challenged here are irrelevant, particularly in the
23
context of the facial constitutional challenge.
24
THE COURT:
But you're also arguing that the
25
statistics from afterwards are.
So, really, you're arguing
02:37
1572
1
2
that all of the statistics are.

MR. GARDNER:
In a facial constitutional challenge,
that's absolutely correct, Your Honor.
application of the statute; it's about --
5
6
THE COURT:
I understand that.
But the objections
MR. WOODS:
Exhibit 266, as you can see from the
second page, is a report dated March 16, 2000, prepared by the
10
inspector general of the Department of Defense for the
11
secretary of defense.
12
02:38
The subject of the report is -- it's titled, "A
13
Report on the Military Environment With Respect to the
14
Homosexual Conduct Policy."
15
The subject more specifically of the report is the
16
extent to which harassment of servicemembers, based on
17
perceived or alleged homosexuality, may occur.
18
testimony about that.
19
and concludes that 37 percent of servicemembers who responded
20
to this reported witnessing harassment of homosexuals.
21
other facts in this document, 57 percent of the respondents had
22
no training on "Don't Ask, Don't Tell."
23
24
25
02:38
are overruled, and 254 is ordered admitted.
It's not about the
02:39
And we've had
And this report analyzes that subject
Among
02:39
And, I'm sorry, I forgot to inform you, this is in

Volume IX of your binder.
THE COURT:
There it is.
02:40
1573
Go ahead.
Continue.
MR. WOODS:
It is obviously a report internally prepared by the
I think I was finished, Your Honor.
Department of Defense for the Department of Defense, so they
don't have the contractor document issue.
authentic as we can get.
us during discovery.
about the frequency or occurrences of events considered to be
harassment of homosexuals and related information.
It's complete.
It's
And, once again, it was provided to
And it has the statistical information
10
THE COURT:
11
MR. GARDNER:
12
It says very clearly on Bates Page 335 that on
So you have your relevance objection.
December 13, 1999, you task the office of the inspector
14
general, DOD, to assess the environment with respect to the
15
application of the homosexual conduct policy represented
16
installations.
18
19
facial constitutional challenge.

THE COURT:
The objection is relevance.
I understand the objection that has been
raised, that based on that sort of prefatory language that the
21
document could not be relevant to a facial as opposed to an
22
as-applied challenge, but it does appear to contain information
23
that does go to this as-applied challenge.
25
02:41
Again, issues of application have no relevance in the
20
24
02:41
That's right, Your Honor.
13
17
02:40
02:44
The objection is overruled as to 266, and it's

ordered admitted.
02:44
1574
THE COURT:
In other words, it's not to say that
everything in it is relevant to a facial challenge, but it
appears it does contain information which is, so it's ordered
admitted.
02:44
All right.
Your next document.
MR. WOODS:
The next one is 267.
267 is a memorandum prepared by
the chief of the general law division of the Department of the
10
Air Force, and it's dated in 2000.
11
is whether statements of homosexuality made during
12
psychotherapy by servicemembers must be reported under "Don't
13
Ask, Don't Tell."
14
that such statements must be reported even during
15
psychotherapy.
16
17
The subject matter of this
And the conclusion of this memorandum is
02:45
So this, among other things, goes to our overbreadth

claim on our First Amendment issue.
18
THE COURT:
19
Mr. Gardner.
20
MR. GARDNER:
All right.
The Court has previously admitted into
21
evidence joint Exhibit 343.
22
regulations, the only regulations the plaintiff has standing or
23
the ability to challenge in this case.
24
25
02:45
02:45
That is the current operating
I would draw the Court's attention to Page 25, which

specifically says "information considered privileged pursuant
02:46
1575
to Rule 502, lawyer-client privilege; Rule 503, communication
to clergy; and Rule 513, psychotherapist-patient privilege of
the Military Rules of Evidence."
basis for discharge under "Don't Ask, Don't Tell."
And it says that is not a
To the extent that joint Exhibit 267 may have
reflected an earlier and different view, that view is
irrelevant.
regulations, the only regulations that are before this Court.
That's not an actionable issue under the current
THE COURT:
Mr. Woods.
10
MR. WOODS:
Two points, Your Honor.
11
First of all, now, when it suits their purposes, the
12
13
But, more importantly, Your Honor, these regulations

that were only recently adopted can be changed at any time.
15
There's no indication that they are going to survive.
17
02:47
government wants to introduce evidence after 1993.
14
16
02:46
02:47
The point here is the constitutionality of the

statute and this document is an admission that --
18
THE COURT:
The objections are overruled.
19
In addition to the points that you've made in
20
response, the Court is looking at, as government counsel has
21
repeatedly urged it to do, the face, and as it does in a facial
22
attack, the policy as it was enacted -- I mean, I've just begun
23
to look at it or analyze it -- and this document or any of the
24
documents shed light on or consists of an admission about what
25
the policy is, then that goes to whether or not it is facially
02:47
02:48
1576
unconstitutional.
So Exhibit 267 is ordered admitted.
MR. GARDNER:
to relitigate this.
Your Honor, if I may.
I'm not seeking
I just want to be clear.
02:48
The plaintiff has challenged not just the statute but
the regulations as well.
stipulates to the admissibility of the regulations.
squarely within the purview of the challenge in this case.
10
That's exactly why the government

They are
So we're not relying upon post hoc evidence.
That's
11
what's being challenged here, the current regulations that are
12
in place.
13
I just wanted to be clear about that for the record.
14
THE COURT:
15
Next document.
16
MR. WOODS:
All right.
02:49
Next, Your Honor, is Exhibit 308.
17
Exhibit 308 is a Congressional Research Service study, dated
18
November 30, 2009.
19
retention issues in the armed forces during their fiscal years
20
2008 and 2009, Your Honor.
21
This report analyzes personnel and
02:49
The Court will recall testimony by several witnesses
22
about personnel shortages in the military, whether they
23
resulted from "Don't Ask, Don't Tell" or whether they pertained
24
to particular occupations.
25
02:48
Among other statements in this Congressional Research
02:49
1577
Service report is a statement that supports one of our points,
which is on Page 1, the statement about concerns about
recruiting and retention rates jeopardizing the vitality of
today's all-volunteer military.
most notable in fiscal year 2005 to fiscal year 2007, when the
Army had difficulty meeting its quantity goals and accepted
lower-quality recruits."
8
9
It says, "These concerns are
This goes right to the point we've made before,

Your Honor, about moral waivers and personnel shortages that
10
resulted, at least in large part, from "Don't Ask, Don't Tell,"
11
and how those personnel shortages weakened the military, and,
12
therefore, did not achieve the factors set out in Witt.
13
THE COURT:
14
Mr. Gardner.
15
MR. GARDNER:
16
First, there's been no testimony that moral waivers
02:51
were driven in large part by "Don't Ask, Don't Tell."
18
admitted that .32 percent of all discharges were related to
19
homosexual conduct; so I want to correct the record on that
20
score.
Second, this is hearsay.
This is a document created
by the Congressional Research Service.
23
contains hearsay within hearsay.
25
Dr. Korb
02:51
22
24
02:50
All right.
17
21
02:50
It also, I believe,
There is no sponsoring witness to explain the

purposes this document was made for, how it was used, how it
02:51
1578
was compiled, anything of that nature.
And then, finally, we do object to the relevance of
this.
2008 or 2009, or even prior to those years, has simply, again,
no relevance in a facial constitutional challenge.
Whatever recruiting shortfalls there may have been in
THE COURT:
02:51
Well, as to whether or not it's a party
admission, one of the parties in this lawsuit is the United
States; so without belaboring it, one of the three branches of
the United States government is Congress; the Congressional
10
Research Service --
02:52
11
MR. GARDNER:
12
THE COURT:
13
Your Honor --
-- is a congressional agency.
So I don't
think that objection is well taken.
14
MR. GARDNER:
And just so the Court is aware, the
15
magistrate in this case did take a different view, that the
16
United States, while a nominal party, the real party in
17
interest here was the Department of Defense, and ruled
18
accordingly with respect to the 30(b)(6) deposition topics and
19
the other discovery-related issues.
20
THE COURT:
Judge Eick's ruling would have been with
21
respect to the specific discovery requests that were in front
22
of him.
23
24
25
MR. GARDNER:
02:52
02:52
The discovery requests, as well as the
30(b)(6) depositions.
And plaintiffs, again, never appealed those
02:53
1579
determinations by Judge Eick -- or Magistrate Eick.
THE COURT:
It's Judge Eick.
MR. GARDNER:
THE COURT:
The title was changed about 25 years ago.
MR. WOODS:
I'm sorry, Your Honor.
Counsel has not accurately stated the content of
Judge Eick.
Judge Eick's order.
that were limited to the Defense Department.
were not.
02:53
There were parts of the discovery order

Other parts of it
So I just wanted that to be clear too.
10
THE COURT:
All right.
11
Apart from the hearsay objection, I think the more
02:53
12
important issue is whether the information in this exhibit is
13
relevant to the issue of the burden imposed in Witt; that is, I
14
think the way the plaintiff's counsel framed it, if or how the
15
personnel shortages weakened the military, and, therefore, the
16
policy that was adopted -- that there can't be a necessary
17
showing under Witt of both necessity and the third part of the
18
Witt test.
19
There may also be something -- of course, I haven't
20
read it yet -- in this exhibit, in addition to the personnel
21
shortages, that goes to the plaintiff's argument that there's a
22
connection between that and the discharges under the "Don't
23
Ask, Don't Tell" policy.
24
know, because I haven't read it yet.
25
02:55
There may or may not.
But I don't
But that's enough to satisfy the relevance test.
02:56
02:56
1580
Definitely, it talks about retention.
And part of the
plaintiff's argument in this case -- and I'm not opining
whether or not they're going to be able to prove this -- is
that there is a connection between the policy and the
difficulties in retention and recruiting.
So the objection to 308 is overruled.
The objections, I should say, are overruled.
02:56
It's
ordered admitted.
10
MR. WOODS:
The next one, Your Honor, is Exhibit 322.
11
This is a two-page memorandum prepared for the vice chief of
12
naval operations by Rear Admiral John Hutson, Judge Advocate
13
General.
14
It was produced to us by the Navy.

It is described as an information memorandum about
15
the homosexual conduct policy.
16
this, from our perspective, Your Honor, is on the second page.
17
18
19
THE COURT:
The most interesting part about
I'm sorry.
02:57
Is there a date on the first
page, or anywhere?
MR. WOODS:
I don't see a date on the memorandum,
20
Your Honor.
21
to have received it, 8-27 and 8-28.
But they do not appear to
22
have placed a year on the document.
But it is quite clearly
23
after the enactment of "Don't Ask, Don't Tell," because it
24
describes the statute in the text of the discussion.
25
02:57
I just see initials and dates that people appeared
It talks on Page 2 about various cases in fiscal
02:58
02:58
1581
year '97 and fiscal year '98 in which members were separated by
reason of commission of homosexual acts.
The most relevant part of this, Your Honor, is the
notion on the second page in which there were, apparently, nine
cases in fiscal year 1997, and seven cases where -- I'm sorry.
What I'm talking about here, Your Honor, is the phrase at the
bottom that says, "Statistics regarding success of members in
demonstrating the existence of the listed factors are
unavailable.
However, it is reasonable to conclude that the
10
number of cases is not statistically significant," meaning that
11
this tends to show that there's a statistically insignificant
12
number of servicemembers who are successfully able to challenge
13
their discharges under "Don't Ask, Don't Tell."
14
THE COURT:
To rebut the presumption?
15
MR. WOODS:
Yes.
16
THE COURT:
All right.
17
Mr. Gardner.
18
MR. GARDNER:
02:59
02:59
We do object on both foundation and
19
relevance grounds.
20
particularly, you don't have, I assume, Lieutenant Commander
21
Barry J. Goaler to explain what anything means in this document
22
that he said, why he produced it, what happened with it, how
23
this information was used.
24
whatsoever.
25
02:58
There's simply no witness to explain --
There's simply no context
Plaintiff wants to pick out a particular statement in
03:00
03:01
1582
here.
We have no idea why Lieutenant Commander Goaler thinks
it's reasonable to conclude that the number of cases is not
statistically significant, what that even means.
without a sponsoring witness, there is no basis upon which to
determine that this information is otherwise reliable or
relevant.
as-applied information is wholly irrelevant in the context of a
9
10
Accordingly,
03:01
And then, more generally, of course, this type of
THE COURT:
The objections are overruled, and 322 is
ordered admitted.
03:01
11
12
MR. WOODS:
13
The next one is Exhibit 324.
Just two more.
This is another
14
internal Defense Department document prepared by Defense
15
Department employees.
16
not dated, but it certainly, from the content, analyzes
17
statistics of separation from fiscal year 1991 through fiscal
18
year 1995.
19
It's called "Information Paper."
It is
And it has some information about that.

One of the most interesting features of this
20
document, Your Honor, is on Page 2, where the author at the
21
Defense Department indicates that the number of successful
22
rebuttals, that is, the number of cases from fiscal year 1991
23
through 1995, where servicemembers were able to successfully
24
rebut the presumption was a grand total of nine.
25
03:02
And I should add, that's nine, Your Honor, out of a
03:02
03:03
1583
total number of discharges that, when you add up these
statistics, adds up to over 3,000.
THE COURT:
All right.
Mr. Gardner.
MR. GARDNER:
foundation and relevance grounds.
explain anything within this document.
number of successful rebuttals being nine, that number is
completely irrelevant unless you know how many people actually
Your Honor, we do object on both

Again, there's no witness to
For example, under the
10
tried to rebut their potential discharge under "Don't Ask,
11
Don't Tell."
12
03:03
Without that information, the information contained
13
in this document is utterly useless.
14
this is, again, going to issues of implementation, issues that
15
are irrelevant in a facial constitutional challenge.
16
03:03
THE COURT:
And, more fundamentally,
03:03
Well, as to your first point, among other
17
things -- I mean, I don't want to take up much time with this,
18
but it really goes to weight.
19
admission of a party.
It's admissible.
20
The objections are overruled.
21
THE COURT:
And this is 324; correct?
22
MR. WOODS:
Yes, Your Honor.
23
THE COURT:
It is ordered admitted.
24
25
MR. WOODS:
And I have two more.
It's an
03:04
When I said two
03:04
1584
before, I was mistaken.
Your Honor.
But the next one is Exhibit 337,
This is a letter from the general counsel of the
Department of Defense at the time, Judith Miller.
dated July 1995.
recall yesterday that we admitted Exhibit 221, which was the
letter from the senators to Ms. Miller.
response.
This is
This is a letter to three senators.
You will
This is Ms. Miller's
One of the more interesting features of this is her
10
answer to the question the senators asked.
11
on Page 1, Question 1(d), whether a promise to remain celibate
12
in the future provides a sufficient basis to rebut the
13
presumption that separation is warranted when a person states
14
that he or she is a homosexual.
15
general counsel to the Department of Defense is, quote, "a
16
simple promise to refrain from homosexual acts in the future
17
cannot provide a sufficient basis to rebut the presumption,"
18
end quote.
19
20
The senators asked,
03:04
And the answer provided by

03:05
In other words, celibacy is not enough to rebut the

presumption.
03:05
21
THE COURT:
22
Mr. Gardner.
23
MR. GARDNER:
24
25
03:04
THE COURT:
All right.
Again, this is utterly irrelevant to a

Relevance.
03:05
1585
ordered admitted.
MR. WOODS:
And the last one in this group,
Your Honor, is Exhibit 338.
Exhibit 338, Your Honor, is a
document that is titled "OSD, Military Working Group, Library
Resources, 23 July 1993."
OSD is Office of Secretary of Defense.
So, Your Honor, what this is is a list of the
03:06
materials that were available to the military working group as
10
it was doing its study during the process that led to the
11
enactment of "Don't Ask, Don't Tell."
12
paragraph, "This bibliography is a list of resources that were
13
available to the OSD military working group."
14
03:06
And it says in the first
It goes on to say, "However, each item may not have
15
been read, used, or actually seen by every member of the
16
group."
03:06
And there are 512 titles listed.
17
Again, this is a document that was requested by us
18
from the government and produced to us by the government in
19
discovery.
20
We think it's relevant, Your Honor, particularly
21
because of the content of the documents that the military
22
working group did look at and the documents that it did not
23
look at.
24
THE COURT:
25
MR. GARDNER:
03:07
Any objection?
Court's indulgence, Your Honor.
One
03:07
1586
1
2
second.
Yes, Your Honor.
We do object on foundation grounds.
We don't have an understanding, other than Mr. Woods'
testifying about the document, whether this document was, in
fact, the final version of what the military working group had
as its bibliography.
irrelevant what the military working group had before it.
What matters in this case is whether or not the
And, more fundamentally, it's entirely
statute in implementing regulations was facially
10
constitutional.
11
more or less likely; therefore, it is irrelevant.
12
13
Joint Exhibit 338 does not make that issue any
THE COURT:
ordered admitted.
15
THE COURT:
17
03:08
14
16
03:07
All right.
Was that really and truly
03:08
your last one?

MR. WOODS:
The last piece of evidence, Your Honor,
18
that I wanted to introduce before we rest is the declaration of
19
Lieutenant Colonel Doe.
20
it having been submitted some time ago.
21
Exhibit Number 38.
22
it into evidence or take judicial notice of it and its contents
23
as it had been previously filed.
It's already on file with the Court,

It is also marked as
03:08
I just didn't know if you wanted to receive
24
I know you've read it before.
25
THE COURT:
Right.
03:09
1587
I'm not sure.
Let me think.
I don't have to take judicial notice of it, I don't
think, because it's part of the files in this case.
think that it's necessary to take judicial notice of it, just
like I don't have to take judicial notice of the complaint.
I don't
I don't think it has to be offered as an exhibit
either, but I suppose if you want to offer it as an exhibit, it
can be.
Do you have an objection?
10
MR. GARDNER:
We do, Your Honor.
It's not a court
11
statement offered for the truth of the matter.
12
It's potentially problematic hearsay, because the government
13
has no ability to vet any statement within joint Exhibit 38,
14
which is Doe's, again, out-of-court statement.
15
inadmissible hearsay.
16
17
03:10
THE COURT:
03:10
It's hearsay.
So it's
03:10
Well, it's not an admission of a party,
because, of course, it's being offered by the party.
18
MR. GARDNER:
19
MR. WOODS:
Correct.
There was never any request to take
20
Colonel Doe's deposition, Your Honor.
That was never
21
requested.
22
anonymity, but no one ever asked for his deposition.
23
obviously cannot be here in person, because if he was, he would
24
be discharged.
25
deposition by telephone or some other means which might have
03:10
There may have been ways to do it and preserve his

He
But the government never asked to take his
03:11
1588
been possible to preserve his anonymity.
THE COURT:
Well, there's no prejudice that it's
being offered now, because that witness was not called to
testify at trial; so it's not as though the government didn't
get to cross-examine him when he was on the witness stand.
But the parties can present some authority to me
tomorrow as to whether or not the Court can or has to or
shouldn't take judicial notice of a declaration that's on file.
It's not necessary to take judicial notice of a pleading.
10
11
On this one, I'd have to give it a little further
MR. GARDNER:
THE COURT:
15
MR. GARDNER:
Exactly.
It's evidence that plaintiff wishes to
THE COURT:
I'm aware of that.
That's the
difference.
19
MR. GARDNER:
20
And just so the government is clear about this, you
Correct.
21
know, the plaintiff tendered declarations from a number of
22
witnesses, many of whom testified on that stand last week and
23
this week.
24
25
03:12
introduce.
17
18
Your Honor, while you're thinking about
it, just to be clear, this isn't a pleading.
14
16
03:12
thought.
12
13
03:11
03:12
We had the ability to vet those witnesses.

THE COURT:
I think this is the only declaration
that's being offered.
03:12
1589
1
2
Are there any other declarations that are in

evidence?
Not that I'm aware of.

MR. WOODS:
No, Your Honor.
And this is only being
offered because of the unique situation presented here, because
of the government's refusal to stipulate that his participation
in the case would not lead to his investigation and discharge.
MR. GARDNER:
And we can't stipulate to the
suspension of a lawfully enacted statute, Your Honor.
with Mr. Woods on that point.
I agree
But that doesn't obviate the
10
hearsay problem.
11
to the government in being unable to vet statements contained
12
within the Doe declaration.
13
And it doesn't obviate the massive prejudice
03:13
Now, plaintiff is entitled to rely upon that for
14
purposes of summary judgment.
15
now we're at trial, and the standard for the admissibility of
16
evidence is, they need a hearsay exception for this.
17
He did so.
They did so.
But
03:13
He resides in Los Angeles, so he can't be unavailable
18
under that respect.
19
the matter asserted and he's not a party opponent from
20
Log Cabin, it's inadmissible.
21
MR. WOODS:
If they're offering it for the truth of
03:13
There's no evidence that he lives in
22
Los Angeles.
23
That's not evidence that he resides in Los Angeles, Your Honor.
24
25
03:12
He was in Los Angeles to sign a declaration.
MR. GARDNER:
His declaration says, "I reside in Los
Angeles."
03:14
1590
MR. WOODS:
He did at the time he signed the
declaration, perhaps.
for the government, for the United States of America, to
complain that it will suffer massive prejudice if this document
is introduced, when you compare that to the prejudice that
Lieutenant Colonel Doe is suffering by being unable to sit in
that witness chair himself, as he would very much like to do.
8
9
But, Your Honor, it's a little bit much
We're happy to present the Court with some additional

authorities to address this unique situation tomorrow morning.
10
THE COURT:
11
But I'm not going to admit it at this time.
12
With that, the plaintiff rests?
13
MR. WOODS:
Yes, Your Honor.
14
THE COURT:
And, Mr. Freeborne, you want to state
15
Tomorrow morning or even post-trial.
your motion to be able to argue tomorrow?

MR. FREEBORNE:
17
We would move for a directed verdict.
Yes, Your Honor.

And just to
18
state the grounds, Your Honor:
19
as we continue to believe that plaintiff fails to set forth a
20
cognizable legal claim on both the due process and the First
21
Amendment claim that they have presented.
22
yesterday, we will present our argument in closing argument.
23
25
03:14
03:14
16
24
03:14
For lack of standing, as well
03:15
But as we agreed
Your Honor, if I could make a request about tomorrow

morning.
Could we start at 8:30?
03:15
1591
THE COURT:
MR. FREEBORNE:
THE COURT:
I could have let you argue it for a while, but in the
We can.
Yes.
We can?
I already planned to.
interest of time, I had planned to start at 8:30.
MR. FREEBORNE:
THE COURT:
Anything else?
MR. WOODS:
10
Thank you very much.
You're welcome.
No, Your Honor.
MR. FREEBORNE:
And, Your Honor, as we made clear at
11
the outset of this litigation, we will not be presenting any
12
witnesses.
13
And we rest upon that.
We rely upon the statute and legislative history.
14
THE COURT:
15
(Proceedings concluded.)
All right.
Thank you.
16
17
CERTIFICATE
18
19
20
21
I hereby certify that pursuant to section 753, title 28, United

States Code, the foregoing is a true and correct transcript of
the stenographically recorded proceedings held in the aboveentitled matter and that the transcript page format is in
conformance with the regulations of the Judicial Conference of
the United States.
22
23
24
03:15
_/S/ Theresa A. Lanza

CSR, RPR
Federal Official Court Reporter
_________________
Date
25
03:15
'
'97 [1] - 1581:1
'98 [1] - 1581:1
1
1 [6] - 1552:18,
1552:20, 1552:21,
1577:2, 1584:11
1(d [1] - 1584:11
103 [1] - 1558:16
11 [7] - 1547:7,
1548:6, 1548:8,
1548:25, 1551:7,
1551:8, 1560:24
114 [1] - 1552:18
12 [1] - 1560:24
13 [1] - 1573:13
134 [1] - 1551:13
1548 [1] - 1547:3
1551 [1] - 1547:7
1560 [1] - 1547:7
1565 [1] - 1547:8
1569 [1] - 1547:8
1572 [1] - 1547:9
1574 [1] - 1547:9
1576 [1] - 1547:10
1580 [1] - 1547:10
1582 [1] - 1547:11
1583 [1] - 1547:11
1585 [1] - 1547:12
1586 [1] - 1547:12
16 [1] - 1572:9
18 [3] - 1549:20,
1552:18, 1552:21
19 [1] - 1566:2
1900 [1] - 1546:7
1980 [3] - 1571:4,
1571:12, 1571:14
1991 [2] - 1582:17,
1582:22
1993 [3] - 1556:16,
1575:12, 1585:6
1994 [2] - 1556:16,
1558:19
1995 [3] - 1582:18,
1582:23, 1584:5
1996 [2] - 1560:13,
1562:25
1997 [2] - 1555:17,
1581:5
1998 [3] - 1566:2,
1567:9, 1570:15
1999 [3] - 1569:23,
1570:15, 1573:13
1:42 [1] - 1548:1
2
2 [2] - 1580:25,
1582:20
20 [1] - 1546:14
2000 [2] - 1572:9,
1574:10
20001 [1] - 1546:15
2005 [1] - 1577:5
2006 [1] - 1560:24
2007 [1] - 1577:5
2008 [2] - 1576:20,
1578:4
2009 [3] - 1576:18,
1576:20, 1578:4
2010 [1] - 1548:1
202-353-0543 [1] 1546:16
213-620-7772 [1] 1546:8
22 [2] - 1548:1,
1569:23
221 [1] - 1584:6
22203 [1] - 1546:20
23 [1] - 1585:6
230 [7] - 1547:7,
1554:4, 1554:5,
1555:22, 1558:24,
1560:5, 1560:7
231 [4] - 1547:8,
1560:9, 1565:17,
1565:18
245 [7] - 1565:20,
1566:15, 1567:5,
1569:8, 1569:11,
1569:13, 1569:15
247 [5] - 1547:8,
1567:7, 1567:13,
1569:4, 1569:6
25 [2] - 1574:24,
1579:4
254 [8] - 1547:9,
1569:19, 1569:21,
1570:19, 1570:23,
1571:6, 1572:6,
1572:7
26 [2] - 1560:13,
1562:25
266 [4] - 1547:9,
1572:8, 1573:24,
1574:1
267 [6] - 1547:10,
1574:8, 1575:5,
1576:2, 1576:3
3
3,000 [1] - 1583:2
30 [1] - 1576:18
30(b)(6 [4] - 1551:19,
1559:21, 1578:18,
1578:24
30(b)(6) [1] - 1563:7
308 [5] - 1547:10,
1576:16, 1576:17,
1580:6, 1580:9
32 [1] - 1577:18
322 [4] - 1547:11,
1580:10, 1582:9,
1582:11
324 [4] - 1547:11,
1582:13, 1583:21,
1583:24
335 [1] - 1573:12
337 [4] - 1547:12,
1584:1, 1584:25,
1585:2
338 [6] - 1547:12,
1585:4, 1586:10,
1586:12, 1586:14
343 [1] - 1574:21
37 [1] - 1572:19
38 [2] - 1586:21,
1587:13
4
400 [1] - 1546:20
403 [1] - 1565:14
440 [1] - 1564:7
5
502 [1] - 1575:1
503 [1] - 1575:1
512 [1] - 1585:16
513 [2] - 1550:7,
1575:2
57 [1] - 1572:21
6
6108 [1] - 1546:15
633 [1] - 1546:6
65,000 [1] - 1558:4
69 [1] - 1558:17
7
70 [1] - 1558:22
8
8 [2] - 1552:20
Case Name/number
8-27 [1] - 1580:21

8-28 [1] - 1580:21
801(d)(2)(c [1] 1560:21
803 [1] - 1550:13
803(8 [1] - 1565:4
803(8)(a [2] 1560:21, 1563:15
832 [1] - 1550:7
85 [2] - 1555:15
87 [2] - 1552:4
88 [4] - 1552:3,
1552:5, 1552:12
8:30 [1] - 1590:25
9
90071-2007 [1] 1546:7
901 [1] - 1546:20
93-10 [1] - 1556:14
94-09 [1] - 1556:14
A
Aaron [1] - 1546:6
ability [3] - 1574:23,
1587:13, 1588:23
able [6] - 1554:16,
1568:18, 1580:3,
1581:12, 1582:23,
1590:15
absolutely [1] 1572:3
abuse [1] - 1550:12
accepted [3] 1562:12, 1562:20,
1577:6
accommodation [1]
- 1549:5
accordingly [2] 1578:18, 1582:3
accuracy [1] 1570:8
accurate [1] - 1568:8
accurately [1] 1579:6
achieve [1] - 1577:12
actionable [1] 1575:7
acts [2] - 1581:2,
1584:16
add [3] - 1565:12,
1582:25, 1583:1
addition [3] 1566:18, 1575:19,
1579:20
additional [4] -
date
1551:17, 1565:13,
1571:18, 1590:8
address [4] 1554:13, 1564:16,
1564:17, 1590:9
addressed [2] 1563:11, 1563:23
addresses [1] 1568:21
adds [1] - 1583:2
Admiral [1] - 1580:12
admissibility [7] 1556:24, 1560:20,
1560:22, 1564:6,
1565:4, 1576:8,
1589:15
admissible [5] 1551:5, 1560:20,
1562:3, 1563:25,
1583:18
admission [7] 1559:2, 1568:8,
1575:17, 1575:24,
1578:7, 1583:19,
1587:16
admissions [2] 1555:12, 1555:14
admit [3] - 1551:10,
1565:8, 1590:11
admitted [24] 1550:2, 1550:14,
1551:7, 1552:3,
1552:24, 1555:16,
1558:24, 1560:6,
1563:5, 1565:17,
1569:5, 1570:21,
1572:6, 1573:25,
1574:5, 1574:20,
1576:2, 1577:18,
1580:8, 1582:10,
1583:23, 1584:6,
1585:1, 1586:13
admitting [1] 1550:12
adopted [5] 1562:19, 1563:19,
1563:21, 1575:14,
1579:16
advance [1] 1556:22
Advocate [1] 1580:12
African [1] - 1561:5
afternoon [2] 1551:14, 1570:22
afterwards [1] 1571:25
agencies [1] 1563:14
agency [7] - 1562:2,
1562:4, 1562:8,
1563:22, 1564:20,
1565:1, 1578:12
ago [3] - 1559:6,
1579:4, 1586:20
agree [1] - 1589:8
agreed [1] - 1590:21
ahead [1] - 1573:1
Air [1] - 1574:10
all-volunteer [1] 1577:4
allegation [1] 1549:3
alleged [1] - 1572:17
allowing [1] 1549:15
almost [1] - 1549:23
amended [2] 1552:13, 1553:5
Amendment [2] 1574:17, 1590:21
America [1] - 1590:3
Americans [1] 1561:5
analyze [1] - 1575:23
analyzed [1] - 1561:4
analyzes [3] 1572:18, 1576:18,
1582:16
AND [1] - 1546:17
Angeles [7] - 1546:7,
1548:18, 1589:17,
1589:22, 1589:23,
1589:25
anonymity [2] 1587:22, 1588:1
answer [2] 1584:10, 1584:14
answering [1] 1550:22
answers [1] 1557:17
anyway [1] - 1552:10
apart [1] - 1579:11
appealed [1] 1578:25
appear [3] - 1559:4,
1573:22, 1580:21
APPEARANCES [1] 1546:1
appeared [1] 1580:20
application [4] 1567:14, 1572:4,
1573:15, 1573:17
applied [5] 1567:16, 1567:17,
1573:22, 1573:23,
1582:7
approved [2] -
1562:13, 1562:20
April [1] - 1567:9
argue [2] - 1568:16,
1590:15
argued [3] - 1548:11,
1560:17, 1560:19
argues [1] - 1559:13
arguing [2] 1571:24, 1571:25
argument [7] 1548:22, 1559:3,
1563:20, 1579:21,
1580:2, 1590:22
ARI [2] - 1560:10,
1560:15
Arlington [1] 1546:20
armed [4] - 1568:17,
1568:18, 1568:23,
1576:19
Armed [1] - 1558:19
ARMY [1] - 1546:18
Army [12] - 1556:17,
1556:18, 1556:19,
1556:20, 1560:12,
1560:16, 1562:11,
1562:12, 1562:18,
1563:5, 1563:9,
1577:6
articles [1] - 1548:17
as-applied [4] 1567:17, 1573:22,
1573:23, 1582:7
asserted [1] 1589:19
assess [1] - 1573:14
assistant [2] 1569:11, 1569:22
assume [1] 1581:20
attachments [1] 1566:24
attack [1] - 1575:22
attention [2] 1564:14, 1574:24
Attorney [1] 1546:19
attorneys [1] 1561:14
authentic [1] 1573:6
authenticity [1] 1562:16
author [2] - 1567:2,
1582:20
authorities [3] 1548:10, 1551:6,
1590:9
authority [2] 1548:14, 1588:6
authorized [1] 1564:1

available [5] 1554:17, 1570:2,
1570:9, 1585:9,
1585:13
Avenue [1] - 1546:14
aware [3] - 1578:14,
1588:17, 1589:2
B
Baca [1] - 1548:12
bad [1] - 1556:5
bag [2] - 1550:18,
1551:1
Barry [1] - 1581:21
based [2] - 1572:16,
1573:20
basis [7] - 1549:5,
1566:14, 1570:25,
1575:4, 1582:4,
1584:12, 1584:17
Bates [2] - 1560:14,
1573:12
bearing [2] 1548:16, 1548:18
bears [1] - 1564:15
became [2] - 1562:3,
1569:11
begun [1] - 1575:22
Behalf [2] - 1546:3,
1546:10
belaboring [1] 1578:8
believes [2] 1567:15, 1567:20
bench [1] - 1565:15
best [1] - 1557:18
better [3] - 1551:14,
1562:11, 1562:18
between [11] 1553:8, 1559:10,
1561:17, 1562:1,
1562:7, 1562:10,
1564:4, 1564:20,
1565:1, 1579:22,
1580:4
bibliography [2] 1585:12, 1586:6
binder [1] - 1572:24
binders [1] - 1554:4
bit [3] - 1548:11,
1553:2, 1590:2
Boateng [4] 1548:15, 1548:20,
1550:1, 1550:10
bottom [2] - 1560:15,
1581:7
Case Name/number
Bradley [1] - 1546:13

Brady [9] - 1552:2,
1554:14, 1554:18,
1554:24, 1559:19,
1568:7, 1570:1,
1570:6, 1570:18
Branch [1] - 1546:12
branch [3] - 1554:10,
1555:25, 1570:13
branches [2] 1570:11, 1578:8
break [1] - 1552:6
breaks [1] - 1556:2
bring [1] - 1564:13
broken [1] - 1555:23
Brunswick [4] 1550:5, 1550:6,
1550:16
burden [1] - 1579:13
business [1] 1558:8
BY [8] - 1546:5,
1546:5, 1546:6,
1546:12, 1546:13,
1546:13, 1546:14,
1546:19
C
Cabin [1] - 1589:20
calculated [1] 1570:12
California [3] 1546:7, 1548:1,
1548:16
candor [1] - 1557:20
cannot [2] - 1584:17,
1587:23
care [2] - 1568:23,
1568:25
case [49] - 1548:12,
1548:13, 1548:16,
1548:20, 1548:23,
1548:25, 1549:3,
1549:4, 1549:22,
1549:23, 1549:24,
1550:1, 1550:5,
1550:6, 1550:8,
1550:10, 1550:17,
1550:20, 1550:21,
1550:23, 1550:24,
1556:14, 1560:23,
1561:15, 1561:16,
1561:21, 1561:25,
1562:13, 1563:11,
1563:12, 1563:23,
1563:25, 1564:1,
1564:3, 1564:7,
1564:13, 1564:15,
date
1564:22, 1565:2,
1565:6, 1570:20,
1574:23, 1576:9,
1578:15, 1580:2,
1586:8, 1587:3,
1589:6
CASE [1] - 1546:4
cases [7] - 1550:4,
1580:25, 1581:5,
1581:10, 1582:2,
1582:22
categorized [1] 1560:19
category [4] 1558:5, 1559:11,
1563:10
caught [2] - 1552:8,
1552:9
celibacy [1] 1584:19
celibate [1] 1584:11
center [1] - 1556:13
certain [4] - 1550:15,
1550:20, 1565:13,
1566:7
certainly [3] 1558:11, 1565:25,
1582:16
chair [1] - 1590:7
challenge [14] 1567:18, 1571:23,
1572:2, 1573:18,
1573:22, 1573:23,
1574:3, 1574:23,
1576:9, 1578:5,
1581:12, 1582:8,
1583:15, 1584:24
challenged [3] 1571:22, 1576:6,
1576:11
chance [1] - 1553:7
change [2] - 1561:3,
1569:16
changed [3] 1570:15, 1575:14,
1579:4
changes [1] - 1553:4
chaplain [1] 1568:25
chaplains [1] 1568:24
chief [2] - 1574:9,
1580:11
chock [1] - 1569:2
chock-full [1] 1569:2
circuit [1] - 1549:16
Circuit [2] - 1548:14,
1550:5
circumstances [3] 1550:15, 1551:3,

1565:7
cited [5] - 1548:10,
1551:6, 1560:21,
1560:23, 1564:12
citing [1] - 1550:4
civil [1] - 1565:5
Civil [1] - 1546:12
Civilian [1] - 1561:23
claim [4] - 1568:19,
1574:17, 1590:20,
1590:21
claimed [1] - 1549:8
Claims [2] - 1560:23,
1564:17
clarify [1] - 1570:5
classic [1] - 1567:17
clean [1] - 1553:5
clear [9] - 1548:9,
1549:17, 1552:14,
1570:6, 1576:5,
1576:13, 1579:9,
1588:13, 1588:20
cleared [1] - 1559:25
clearly [3] - 1559:1,
1573:12, 1580:22
clergy [1] - 1575:2
clerk [1] - 1551:15
client [1] - 1575:1
close [1] - 1550:10
closed [2] - 1550:8,
1564:1
closed-face [1] 1550:8
closing [1] - 1590:22
cognizable [1] 1590:20
colloquy [1] - 1557:8
Colonel [11] 1554:14, 1554:18,
1554:24, 1559:19,
1568:7, 1570:1,
1570:6, 1570:18,
1586:19, 1587:20,
1590:6
column [2] - 1556:3,
1557:1
columns [1] - 1556:2
combined [1] 1556:20
Commander [2] 1581:20, 1582:1
commission [1] 1581:2
communication [1] 1575:1
communications [1]
- 1558:17
Company [1] -
1550:6
compare [1] - 1590:5
comparisons [1] 1561:4
compiled [1] 1578:1
complain [1] 1590:4
complaint [1] 1587:5
complete [1] 1573:5
completely [2] 1564:18, 1583:9
complicated [1] 1549:21
concern [2] 1565:14, 1568:11
concerns [2] 1577:2, 1577:4
conclude [2] 1581:9, 1582:2
concludes [1] 1572:19
conclusion [1] 1574:13
conduct [7] - 1556:5,
1557:2, 1566:3,
1568:15, 1573:15,
1577:19, 1580:15
Conduct [1] 1572:14
conducted [1] 1549:24
Conference.............
............... [1] - 1547:3
confused [1] 1550:23
Congress [1] 1578:9
Congressional [4] 1576:17, 1576:25,
1577:22, 1578:9
congressional [1] 1578:12
connection [4] 1551:23, 1552:2,
1579:22, 1580:4
considered [2] 1573:8, 1574:25
consisted [1] 1549:2
consistent [2] 1570:14, 1570:16
consists [2] 1548:25, 1575:24
constitutional [9] 1567:18, 1571:23,
1572:2, 1573:18,
1578:5, 1582:8,
1583:15, 1584:24,
1586:10
constitutionality [1]
- 1575:16
contain [2] 1573:22, 1574:4
contained [3] 1550:20, 1583:12,
1589:11
contains [2] 1565:6, 1577:23
content [3] - 1579:6,
1582:16, 1585:21
contents [1] 1586:22
context [5] - 1565:5,
1566:19, 1571:23,
1581:23, 1582:7
continue [2] 1573:1, 1590:19
contract [1] 1561:17
contractor [18] 1560:19, 1560:22,
1561:19, 1561:24,
1562:1, 1562:2,
1562:7, 1562:21,
1563:10, 1563:15,
1563:19, 1563:24,
1564:5, 1564:6,
1564:9, 1564:20,
1565:1, 1573:5
contractors [4] 1561:19, 1563:13,
1563:16, 1564:2
copy [10] - 1551:13,
1551:14, 1553:10,
1553:11, 1553:13,
1553:16, 1553:25,
1569:21, 1571:8,
1571:9
corner [1] - 1554:6
Corporation [1] 1550:6
correct [7] - 1558:9,
1570:5, 1572:3,
1577:19, 1583:21,
1587:18, 1588:19
counsel [11] 1548:15, 1551:15,
1552:5, 1564:10,
1567:12, 1568:16,
1575:20, 1579:6,
1579:14, 1584:3,
1584:15
counsel's [1] 1563:12
couple [1] - 1554:20
course [5] - 1558:8,
1559:14, 1579:19,
Case Name/number
1582:6, 1587:17
COURT [83] - 1548:3,
1548:7, 1551:9,
1551:16, 1551:21,
1551:24, 1552:7,
1552:12, 1552:22,
1553:2, 1553:23,
1554:20, 1554:23,
1556:1, 1556:10,
1556:17, 1556:19,
1557:5, 1557:24,
1558:7, 1558:13,
1558:24, 1560:10,
1561:9, 1563:3,
1563:18, 1564:11,
1565:4, 1565:19,
1565:22, 1566:13,
1566:21, 1567:4,
1567:10, 1567:22,
1568:2, 1569:4,
1569:7, 1569:16,
1569:18, 1570:4,
1570:24, 1571:7,
1571:12, 1571:17,
1571:24, 1572:5,
1572:25, 1573:10,
1573:19, 1574:2,
1574:18, 1575:9,
1575:18, 1576:14,
1577:13, 1578:6,
1578:12, 1578:20,
1579:2, 1579:4,
1579:10, 1580:17,
1581:14, 1581:16,
1582:9, 1583:3,
1583:16, 1583:21,
1583:23, 1584:21,
1584:25, 1585:24,
1586:12, 1586:15,
1586:25, 1587:16,
1588:2, 1588:14,
1588:17, 1588:24,
1590:10, 1590:14
court [12] - 1548:12,
1548:13, 1549:15,
1549:25, 1550:1,
1550:12, 1550:17,
1562:22, 1563:13,
1564:24, 1587:10,
1587:14
Court [14] - 1548:11,
1557:11, 1560:24,
1564:17, 1565:12,
1569:14, 1574:20,
1575:8, 1575:20,
1576:21, 1578:14,
1586:19, 1588:7,
1590:8
Court's [3] 1564:13, 1574:24,
1585:25
date
court's [1] - 1565:8

covered [1] 1556:10
covers [1] - 1556:12
created [8] - 1551:4,
1551:5, 1562:2,
1563:16, 1563:19,
1566:20, 1567:25,
1577:21
criminal [1] - 1565:5
cross [1] - 1588:5
cross-examine [1] 1588:5
cumulative [2] 1571:1
current [3] 1574:21, 1575:7,
1576:11
D
Dan [1] - 1546:5
data [4] - 1555:16,
1557:21, 1567:18,
1570:21
date [2] - 1580:17,
1580:19
dated [9] - 1560:13,
1566:2, 1567:9,
1569:22, 1572:9,
1574:10, 1576:17,
1582:16, 1584:5
dates [2] - 1554:7,
1580:20
DC [1] - 1546:15
dealing [2] - 1548:17
deals [2] - 1550:11,
1565:4
December [1] 1573:13
decided [1] 1548:13
decision [2] 1564:17, 1564:19
decisions [1] 1565:8
declaration [7] 1586:18, 1588:8,
1588:24, 1589:12,
1589:22, 1589:24,
1590:2
declarations [2] 1588:21, 1589:1
defendant [1] 1562:3
Defendants [1] 1546:10
defendants [4] 1555:18, 1560:14,
1560:16, 1566:4
defending [1] 1549:6
defense [5] 1549:19, 1554:23,
1569:12, 1569:22,
1572:11
Defense [22] 1554:8, 1554:15,
1554:17, 1555:17,
1555:20, 1562:11,
1562:19, 1567:8,
1567:9, 1569:24,
1570:7, 1572:10,
1573:4, 1578:17,
1579:8, 1582:14,
1582:21, 1584:4,
1584:15, 1585:7
definitely [1] 1580:1
degree [1] - 1553:7
DeLeon [1] - 1569:24
demonstrating [1] 1581:8
Department [26] 1554:9, 1554:15,
1554:17, 1555:17,
1555:21, 1561:17,
1561:22, 1562:10,
1562:11, 1562:12,
1562:18, 1562:19,
1563:16, 1564:5,
1570:7, 1572:10,
1573:4, 1574:9,
1578:17, 1579:8,
1582:14, 1582:15,
1582:21, 1584:4,
1584:15
DEPARTMENT [1] 1546:11
deposition [15] 1551:19, 1552:2,
1552:16, 1553:13,
1553:25, 1555:4,
1555:10, 1559:19,
1559:23, 1563:6,
1570:7, 1578:18,
1587:20, 1587:22,
1587:25
depositions [1] 1578:24
described [1] 1580:14
describes [1] 1580:24
designated [1] 1553:14
designations [1] 1553:9
determinations [1] -
1579:1
determine [2] 1555:18, 1582:5
determined [1] 1561:25
determining [1] 1571:20
difference [1] 1588:18
different [8] 1555:11, 1561:16,
1565:7, 1567:19,
1570:11, 1570:13,
1575:6, 1578:15
differentiate [1] 1554:10
difficulties [1] 1580:5
difficulty [1] - 1577:6
Dillard [1] - 1552:9
directed [1] 1590:17
direction [1] - 1561:7
directly [2] - 1561:2,
1564:15
disabuse [1] 1570:16
disagrees [1] 1552:11
discharge [10] 1554:5, 1555:13,
1556:4, 1568:6,
1569:2, 1571:19,
1571:20, 1575:4,
1583:10, 1589:6
discharged [3] 1555:19, 1558:19,
1587:24
discharges [15] 1554:10, 1555:23,
1558:12, 1566:7,
1566:8, 1566:10,
1568:9, 1568:14,
1568:16, 1569:25,
1570:8, 1577:18,
1579:22, 1581:13,
1583:1
discovery [11] 1554:16, 1554:21,
1555:11, 1557:24,
1566:5, 1573:7,
1578:19, 1578:21,
1578:23, 1579:7,
1585:19
discovery-related
[1] - 1578:19
discrepancies [2] 1553:8, 1559:25
discretion [1] 1550:12
discussed [2] 1548:10, 1568:22

discussing [2] 1549:23, 1569:9
discussion [3] 1552:1, 1564:11,
1580:24
dishonorable [1] 1556:6
disk [1] - 1558:3
disks [1] - 1558:3
disparity [2] 1549:13, 1568:15
dispute [1] - 1559:10
distinguishable [1] 1548:24
district [3] - 1548:12,
1548:13, 1548:14
Division [2] 1546:12, 1546:18
division [1] - 1574:9
DMDC [1] - 1554:8
document [38] 1557:11, 1557:17,
1558:16, 1558:25,
1560:19, 1562:17,
1566:16, 1566:19,
1566:23, 1567:13,
1567:14, 1567:25,
1568:5, 1568:8,
1568:11, 1571:2,
1571:4, 1571:11,
1572:21, 1573:5,
1573:21, 1574:6,
1575:17, 1575:23,
1576:15, 1577:21,
1577:25, 1580:22,
1581:21, 1582:14,
1582:20, 1583:7,
1583:13, 1585:5,
1585:17, 1586:4,
1590:4
document's [1] 1556:23
documents [27] 1554:13, 1556:25,
1558:2, 1558:4,
1558:5, 1558:15,
1558:17, 1559:1,
1559:8, 1559:15,
1559:17, 1559:23,
1560:17, 1560:18,
1560:22, 1562:2,
1563:10, 1563:16,
1563:24, 1564:10,
1564:24, 1564:25,
1566:4, 1575:24,
1585:21, 1585:22
documents' [1] 1564:6
Case Name/number
DOD [3] - 1558:20,

1570:15, 1573:14
Doe [3] - 1586:19,
1589:12, 1590:6
Doe's [2] - 1587:14,
1587:20
down [3] - 1555:24,
1556:2, 1556:7
Dr [3] - 1567:2,
1569:10, 1577:17
draw [1] - 1574:24
driven [1] - 1577:17
due [2] - 1566:3,
1590:20
during [10] 1549:12, 1558:12,
1566:12, 1567:1,
1569:25, 1573:7,
1574:11, 1574:14,
1576:19, 1585:10
E
Earle [1] - 1546:5
early [1] - 1571:3
easier [1] - 1567:7
effectiveness [1] 1567:14
Eick [4] - 1579:1,
1579:2, 1579:3
Eick's [2] - 1578:20,
1579:7
either [1] - 1587:7
Electric [4] 1560:23, 1561:15,
1561:17, 1564:18
employees [2] 1563:17, 1582:15
employer [3] 1549:2, 1549:6,
1549:7
employment [1] 1549:3
enacted [2] 1575:22, 1589:8
enactment [4] 1556:25, 1566:10,
1580:23, 1585:11
end [1] - 1584:18
endorsed [1] 1562:20
Energy [4] - 1561:18,
1561:22, 1563:17,
1564:5
enforcement [2] 1567:15, 1567:16
enlisted [1] 1558:18
entire [1] - 1564:19
date
entirely [2] 1561:16, 1586:6

entitled [1] - 1589:13
entries [1] - 1559:3
entry [1] - 1559:6
Environment [1] 1572:13
environment [1] 1573:14
errors [1] - 1551:20
essence [1] 1561:19
event [1] - 1569:14
events [1] - 1573:8
Evidence [1] 1575:3
evidence [30] 1548:17, 1548:24,
1548:25, 1549:1,
1549:12, 1549:15,
1550:3, 1550:11,
1550:14, 1550:19,
1555:5, 1561:8,
1562:13, 1562:18,
1564:21, 1567:3,
1568:22, 1570:25,
1574:21, 1575:12,
1576:10, 1586:17,
1586:22, 1588:15,
1589:2, 1589:16,
1589:21, 1589:23
exactly [3] - 1555:21,
1576:7, 1588:14
examination [1] 1567:2
examine [1] - 1588:5
example [2] 1553:13, 1583:7
except [1] - 1548:22
exception [6] 1550:2, 1550:14,
1551:5, 1562:23,
1565:6, 1589:16
exclude [1] - 1564:9
Exhibit [49] - 1547:3,
1548:6, 1548:8,
1548:25, 1551:7,
1551:8, 1551:13,
1552:3, 1554:4,
1554:5, 1555:15,
1555:22, 1558:16,
1560:7, 1560:9,
1565:18, 1565:20,
1566:15, 1567:5,
1567:13, 1569:6,
1569:13, 1569:19,
1569:21, 1570:19,
1570:23, 1572:7,
1572:8, 1574:1,
1574:21, 1575:5,
1576:2, 1576:3,
1576:16, 1576:17,
1580:9, 1580:10,
1582:11, 1582:13,
1583:24, 1584:1,
1584:6, 1585:2,
1585:4, 1586:10,
1586:14, 1586:21,
1587:13
exhibit [10] - 1548:3,
1550:21, 1554:3,
1554:4, 1556:1,
1569:9, 1579:12,
1579:20, 1587:6,
1587:7
exhibits [6] - 1551:9,
1551:18, 1552:1,
1552:2, 1554:2,
1554:12
EXHIBITS [1] 1547:6
exist [3] - 1554:25,
1570:17
existed [1] - 1554:19
existence [1] 1581:8
exists [2] - 1564:22,
1565:3
experience [1] 1563:13
experiences [1] 1566:11
experts [1] - 1561:4
explain [8] 1557:10, 1557:16,
1557:19, 1567:25,
1577:24, 1581:19,
1581:21, 1583:7
explained [1] 1562:6
explanation [2] 1555:2, 1559:4
explores [1] - 1561:2
extent [6] - 1559:9,
1559:13, 1567:15,
1567:19, 1572:16,
1575:5
extra [1] - 1552:23
F
F.2d [1] - 1550:7
face [4] - 1549:17,
1550:8, 1563:8,
1575:21
faced [1] - 1564:8
facial [11] - 1567:17,
1571:23, 1572:2,
1573:18, 1573:21,
1574:3, 1575:21,
1578:5, 1582:8,
1583:15, 1584:24
facially [3] - 1563:2,
1575:25, 1586:9
fact [3] - 1557:11,
1564:23, 1586:5
factors [2] - 1577:12,
1581:8
facts [3] - 1548:23,
1557:23, 1572:21
fail [1] - 1570:19
fails [1] - 1590:19
falls [1] - 1563:10
far [2] - 1556:7,
1571:14
fear [1] - 1568:24
features [2] 1582:19, 1584:9
Federal [3] 1546:12, 1560:23,
1564:17
female [1] - 1556:20
few [1] - 1553:7
Fifth [1] - 1546:6
figures [1] - 1555:7
file [2] - 1586:19,
1588:8
filed [1] - 1586:23
files [3] - 1562:15,
1562:17, 1587:3
final [1] - 1586:5
finally [1] - 1578:2
finger [1] - 1564:23
finished [1] - 1573:2
fired [1] - 1551:24
first [17] - 1548:3,
1549:25, 1551:12,
1551:22, 1554:6,
1556:1, 1556:3,
1556:11, 1556:14,
1556:18, 1570:5,
1571:2, 1575:11,
1577:16, 1580:17,
1583:16, 1585:11
First [2] - 1574:17,
1590:20
fiscal [12] - 1555:17,
1556:15, 1556:16,
1576:19, 1577:5,
1580:25, 1581:1,
1581:5, 1582:17,
1582:22
fishing [1] - 1550:8
five [1] - 1566:17
fixing [1] - 1552:13
Footnote [1] 1549:20
footnote [2] 1549:25, 1550:16
Force [1] - 1574:10

forced [2] - 1566:11,
1568:25
forces [4] - 1568:17,
1568:18, 1568:23,
1576:19
Forces [1] - 1558:19
forgot [1] - 1572:23
format [2] - 1570:14,
1570:18
forth [3] - 1549:14,
1549:21, 1590:19
foundation [5] 1557:9, 1567:25,
1581:18, 1583:6,
1586:2
framed [1] - 1579:14
frankly [1] - 1557:15
Freeborne [2] 1546:12, 1590:14
FREEBORNE [1] 1590:16
frequency [1] 1573:8
front [1] - 1578:21
full [2] - 1557:20,
1569:2
fundamentally [3] 1562:24, 1583:13,
1586:6
future [2] - 1584:12,
1584:16
G
Gade [2] - 1552:17,
1563:6
GARDNER [32] 1557:7, 1558:9,
1561:11, 1564:16,
1566:16, 1567:11,
1567:24, 1570:5,
1571:5, 1571:9,
1571:15, 1571:18,
1572:2, 1573:11,
1574:20, 1576:4,
1577:15, 1578:11,
1578:14, 1578:23,
1579:3, 1581:18,
1583:5, 1584:23,
1585:25, 1587:10,
1587:18, 1588:12,
1588:15, 1588:19,
1589:7, 1589:24
Gardner [11] 1546:13, 1557:6,
1561:10, 1564:14,
1567:10, 1570:4,
1574:19, 1577:14,
Case Name/number
1581:17, 1583:4,
1584:22
Gardner's [1] 1563:20
Gas [9] - 1560:23,
1561:15, 1561:16,
1563:11, 1563:23,
1564:3, 1564:7,
1564:12, 1564:18
gather [1] - 1555:20
gay [2] - 1561:6,
1568:18
gender [3] - 1554:11,
1555:25, 1568:15
general [9] 1548:22, 1549:21,
1550:13, 1556:5,
1572:10, 1573:14,
1574:9, 1584:3,
1584:15
General [1] 1580:13
generally [2] 1549:20, 1582:6
Goaler [2] - 1581:21,
1582:1
goals [1] - 1577:6
government [31] 1548:15, 1552:11,
1552:19, 1555:12,
1558:2, 1559:13,
1559:16, 1560:2,
1561:7, 1561:20,
1562:2, 1562:4,
1562:7, 1562:14,
1563:25, 1564:10,
1564:20, 1565:1,
1570:3, 1575:12,
1575:20, 1576:7,
1578:9, 1585:18,
1587:12, 1587:24,
1588:4, 1588:20,
1589:11, 1590:3
government's [4] 1557:9, 1560:25,
1562:15, 1589:5
grand [1] - 1582:24
Grant [1] - 1546:19
Green [2] - 1548:12,
1548:16
grounds [4] 1581:19, 1583:6,
1586:2, 1590:18
group [8] - 1555:14,
1585:3, 1585:9,
1585:13, 1585:16,
1585:22, 1586:5,
1586:7
Group [1] - 1585:5
guarantees [1] -
date
1550:4
guess [1] - 1571:18
H
hand [1] - 1554:6
happy [1] - 1590:8
harassment [3] 1572:16, 1572:20,
1573:9
hard [4] - 1553:10,
1553:11, 1553:16,
1553:25
has.. [1] - 1571:8
health [2] - 1568:23,
1568:25
hear [1] - 1567:20
heard [3] - 1567:12,
1567:13, 1568:16
hearsay [15] 1549:21, 1550:1,
1550:2, 1550:14,
1561:12, 1562:23,
1577:21, 1577:23,
1579:11, 1587:11,
1587:12, 1587:15,
1589:10, 1589:16
held [2] - 1550:11,
1569:13
helpful [1] - 1548:21
Heric [2] - 1562:10,
1562:25
Hewitt [2] - 1561:15,
1561:25
himself [1] - 1590:7
hiring [1] - 1564:2
hoc [1] - 1576:10
Homosexual [1] 1572:14
homosexual [10] 1557:2, 1566:3,
1568:15, 1568:22,
1573:15, 1577:19,
1580:15, 1581:2,
1584:14, 1584:16
homosexuality [7] 1556:7, 1557:2,
1557:15, 1559:9,
1572:17, 1574:11
homosexuals [2] 1572:20, 1573:9
Honor [87] - 1548:6,
1551:11, 1551:12,
1551:18, 1551:19,
1551:22, 1552:4,
1552:10, 1552:19,
1554:2, 1554:5,
1554:22, 1555:10,
1556:12, 1556:24,
1557:7, 1557:16,
1557:20, 1558:1,
1558:9, 1558:15,
1560:8, 1560:11,
1561:1, 1561:11,
1563:4, 1563:24,
1564:8, 1564:16,
1565:20, 1566:1,
1566:6, 1566:25,
1567:6, 1567:11,
1567:17, 1568:4,
1568:13, 1569:3,
1569:8, 1569:19,
1569:21, 1571:5,
1571:9, 1571:15,
1572:3, 1573:2,
1573:11, 1574:7,
1575:10, 1575:13,
1576:4, 1576:16,
1576:20, 1577:9,
1577:15, 1578:11,
1579:5, 1580:10,
1580:16, 1580:20,
1581:3, 1581:6,
1582:12, 1582:20,
1582:25, 1583:5,
1583:22, 1584:2,
1585:4, 1585:8,
1585:20, 1585:25,
1586:2, 1586:17,
1587:10, 1587:20,
1588:12, 1589:3,
1589:8, 1589:23,
1590:2, 1590:13,
1590:16, 1590:18,
1590:23
honorable [2] 1556:4, 1556:5
hope [1] - 1567:6
Hutson [1] - 1580:12
I
idea [2] - 1566:19,
1582:1
identification [1] 1558:16
identify [1] - 1567:13
illustrates [1] 1557:8
implementation [1] 1583:14
implementing [2] 1563:2, 1586:9
import [1] - 1557:15
important [1] 1579:12
importantly [1] 1575:13
imposed [1] -
1579:13
impossible [1] 1570:14
inaccurate [1] 1557:22
inadequate [1] 1564:19
inadmissible [3] 1565:11, 1587:15,
1589:20
inappropriate [1] 1557:23
include [1] - 1554:13
includes [2] 1566:8, 1568:22
inconsistencies [1] 1564:4
increases [2] 1566:11, 1568:10
indicates [3] 1560:15, 1568:10,
1582:21
indication [2] 1562:12, 1575:15
indulgence [1] 1585:25
inference [1] 1565:2
inform [1] - 1572:23
informal [3] - 1549:2,
1549:11, 1549:18
information [23] 1550:20, 1555:23,
1557:12, 1558:12,
1569:1, 1569:2,
1569:25, 1570:12,
1570:17, 1570:21,
1573:7, 1573:9,
1573:22, 1574:4,
1574:25, 1579:12,
1580:14, 1581:23,
1582:5, 1582:7,
1582:18, 1583:12
Information [1] 1582:15
informs [1] - 1563:1
infringement [2] 1550:7, 1550:24
initials [3] - 1554:8,
1554:9, 1580:20
inquiry [1] - 1563:1
insignificant [1] 1581:11
inspector [2] 1572:10, 1573:13
installations [1] 1573:16
Institute [4] 1560:13, 1560:16,
1563:6, 1563:9
integration [1] 1561:5

intend [1] - 1554:3
intended [1] - 1552:4
interest [1] - 1578:17
interesting [3] 1580:15, 1582:19,
1584:9
internal [1] - 1582:14
internally [1] 1573:3
interpreting [1] 1565:6
introduce [3] 1575:12, 1586:18,
1588:16
introduced [2] 1551:12, 1590:5
investigation [1] 1589:6
investigative [1] 1565:8
involved [2] 1561:17, 1564:14
involving [1] 1550:8
irrelevant [12] 1553:15, 1562:24,
1567:18, 1571:20,
1571:22, 1575:7,
1582:7, 1583:9,
1583:15, 1584:23,
1586:7, 1586:11
issue [13] - 1548:19,
1548:24, 1550:3,
1552:13, 1562:8,
1567:17, 1570:20,
1573:5, 1574:17,
1575:7, 1579:12,
1579:13, 1586:10
issues [8] - 1560:1,
1564:15, 1568:21,
1573:17, 1576:19,
1578:19, 1583:14
issuing [1] - 1570:3
item [1] - 1585:14
itself [2] - 1560:16,
1568:11
IX [1] - 1572:24
J
January [2] - 1566:2,
1569:23
jeopardizing [1] 1577:3
John [1] - 1580:12
joint [7] - 1567:12,
1570:19, 1570:22,
Case Name/number
1574:21, 1575:5,
1586:10, 1587:13
Joshua [1] - 1546:13
Judge [9] - 1548:13,
1561:15, 1561:25,
1578:20, 1579:1,
1579:2, 1579:3,
1579:7, 1580:12
judgment [1] 1589:14
judicial [6] 1586:22, 1587:2,
1587:4, 1587:5,
1588:8, 1588:9
Judith [1] - 1584:4
July [3] - 1548:1,
1584:5, 1585:6
June [2] - 1560:13,
1562:25
jury [1] - 1565:12
JUSTICE [1] 1546:11
K
Kahn [1] - 1546:6
kept [1] - 1558:7
kind [1] - 1548:23
kinds [2] - 1559:23,
1565:8
knowledge [1] 1560:3
knowledgeable [1] 1559:22
Korb [2] - 1569:10,
1577:17
Korb's [1] - 1567:2
L
label [1] - 1559:10
labeled [1] - 1559:9
lack [1] - 1590:18
language [2] 1549:19, 1573:20
large [4] - 1561:19,
1565:6, 1577:10,
1577:17
last [5] - 1570:24,
1585:3, 1586:16,
1586:17, 1588:22
late [1] - 1553:2
law [2] - 1565:6,
1574:9
lawfully [1] - 1589:8
lawsuit [2] - 1559:5,
1578:7
lawyer [1] - 1575:1
date
lawyer-client [1] 1575:1

lead [2] - 1569:1,
1589:6
least [5] - 1551:21,
1555:2, 1555:22,
1571:1, 1577:10
led [1] - 1585:10
left [3] - 1554:6,
1556:7, 1569:11
left-hand [1] - 1554:6
legal [1] - 1590:20
legible [1] - 1551:14
lesbians [1] 1568:17
less [1] - 1586:11
letter [3] - 1584:3,
1584:5, 1584:7
Library [1] - 1585:5
Lieutenant [4] 1581:20, 1582:1,
1586:19, 1590:6
light [1] - 1575:24
likely [1] - 1586:11
limine [5] - 1548:12,
1551:6, 1560:18,
1560:25, 1564:9
limited [1] - 1579:8
Lines [2] - 1552:18,
1552:20
list [3] - 1552:2,
1585:8, 1585:12
listed [5] - 1553:11,
1553:20, 1553:24,
1581:8, 1585:16
litigated [1] 1561:14
Litigation [2] 1546:18, 1546:19
lives [1] - 1589:21
locate [1] - 1568:7
Log [1] - 1589:20
look [5] - 1552:7,
1553:7, 1575:23,
1585:22, 1585:23
looked [1] - 1551:6
looking [2] - 1551:3,
1575:20
Los [7] - 1546:7,
1548:18, 1589:17,
1589:22, 1589:23,
1589:24
lower [1] - 1577:7
lower-quality [1] 1577:7
lunch [1] - 1552:6
M
Magistrate [1] 1579:1
magistrate [1] 1578:15
maintained [1] 1555:16
maintenance [1] 1561:18
Major [1] - 1546:19
male [1] - 1556:19
managed [1] 1561:24
Management [1] 1561:23
March [1] - 1572:9
margins [2] 1553:10, 1553:15
marked [4] 1553:10, 1553:14,
1558:16, 1586:20
Massachusetts [1] 1546:14
massive [2] 1589:10, 1590:4
material [1] - 1550:3
materials [2] 1563:6, 1585:9
matter [8] - 1549:21,
1550:9, 1550:10,
1550:22, 1562:22,
1574:10, 1587:11,
1589:19
matters [1] - 1586:8
Mayberry [1] 1566:19
mean [10] - 1548:20,
1553:12, 1555:2,
1558:6, 1559:4,
1563:8, 1568:13,
1575:22, 1583:17
meaning [1] 1581:10
means [6] - 1557:16,
1570:12, 1570:13,
1581:21, 1582:3,
1587:25
meant [2] - 1555:6
meeting [1] - 1577:6
member [1] 1585:15
members [4] 1558:18, 1568:23,
1581:1, 1581:7
memo [1] - 1566:23
memorandum [6] 1566:2, 1574:8,
1574:13, 1580:11,
1580:14, 1580:19
men [1] - 1568:18
mentioned [3] 1552:5, 1554:9,
1559:6
method [1] - 1570:16
might [3] - 1557:3,
1569:14, 1587:25
Military [3] 1572:13, 1575:3,
1585:5
military [10] - 1561:5,
1576:22, 1577:4,
1577:11, 1579:15,
1585:9, 1585:13,
1585:21, 1586:5,
1586:7
Miller [3] - 1546:5,
1584:4, 1584:7
Miller's [1] - 1584:7
mind [1] - 1550:22
missed [1] - 1555:3
mistaken [2] 1565:22, 1584:1
mixed [2] - 1550:18,
1551:1
MNO [8] - 1561:18,
1561:19, 1561:24,
1562:1, 1562:2,
1562:7, 1564:20,
1565:1
moment [2] 1558:14, 1559:6
month [2] - 1556:11
moral [2] - 1577:9,
1577:16
morning [6] 1551:18, 1556:23,
1563:5, 1590:9,
1590:10, 1590:24
Morrow [1] - 1548:13
most [7] - 1548:22,
1549:18, 1559:22,
1577:5, 1580:15,
1581:3, 1582:19
motion [6] - 1548:12,
1551:6, 1560:18,
1560:25, 1564:9,
1590:15
move [1] - 1590:17
MR [84] - 1548:6,
1551:11, 1551:17,
1551:22, 1552:1,
1552:10, 1552:16,
1553:1, 1553:22,
1554:1, 1554:22,
1555:9, 1556:9,
1556:12, 1556:18,
1556:21, 1557:7,
1558:1, 1558:9,
1558:10, 1558:14,
1560:8, 1560:11,
1561:11, 1563:4,
1563:23, 1564:12,
1564:16, 1565:20,
1565:25, 1566:16,
1566:25, 1567:6,
1567:11, 1567:24,
1568:4, 1569:8,
1569:17, 1569:19,
1570:5, 1571:5,
1571:9, 1571:15,
1571:18, 1572:2,
1572:8, 1573:2,
1573:11, 1574:7,
1574:20, 1575:10,
1576:4, 1576:16,
1577:15, 1578:11,
1578:14, 1578:23,
1579:3, 1579:5,
1580:10, 1580:19,
1581:15, 1581:18,
1582:12, 1583:5,
1583:22, 1583:25,
1584:23, 1585:3,
1585:25, 1586:17,
1587:10, 1587:18,
1587:19, 1588:12,
1588:15, 1588:19,
1589:3, 1589:7,
1589:21, 1589:24,
1590:1, 1590:13,
1590:16
must [2] - 1574:12,
1574:14
N
nature [3] - 1562:6,
1564:25, 1578:1
naval [1] - 1580:12
Navy [3] - 1566:3,
1566:11, 1580:13
necessary [3] 1579:16, 1587:4,
1588:9
necessity [1] 1579:17
need [3] - 1559:3,
1559:14, 1589:16
never [4] - 1578:25,
1587:19, 1587:20,
1587:24
news [1] - 1569:21
next [14] - 1554:2,
1556:19, 1560:9,
1565:19, 1567:6,
1569:7, 1569:19,
1574:6, 1574:8,
1576:15, 1576:16,
Case Name/number
1580:10, 1582:13,
1584:1
night [1] - 1553:2
nine [4] - 1581:4,
1582:24, 1582:25,
1583:8
Ninth [1] - 1548:14
nominal [1] 1578:16
nonhearsay [1] 1563:25
notable [1] - 1577:5
notation [1] 1553:15
note [1] - 1564:21
noted [3] - 1549:25,
1550:1, 1553:20
notes [1] - 1552:7
notice [6] - 1586:22,
1587:2, 1587:4,
1587:5, 1588:8,
1588:9
notion [2] - 1570:16,
1581:4
notwithstanding [1]
- 1563:15
November [1] 1576:18
Number [2] - 1554:4,
1586:21
number [20] 1555:18, 1555:23,
1558:17, 1558:18,
1558:22, 1560:14,
1560:15, 1566:7,
1566:10, 1568:9,
1569:25, 1581:10,
1581:12, 1582:2,
1582:21, 1582:22,
1583:1, 1583:8,
1588:21
numbers [2] 1554:17, 1570:8
NW [1] - 1546:14
O
object [4] - 1578:2,
1581:18, 1583:5,
1586:2
objected [2] 1552:19, 1562:16
objection [22] 1552:17, 1553:20,
1553:24, 1557:9,
1560:5, 1561:12,
1561:13, 1566:14,
1567:4, 1567:22,
1567:23, 1570:25,
date
1571:18, 1573:10,
1573:18, 1573:19,
1573:24, 1578:13,
1579:11, 1580:6,
1585:24, 1587:9
objections [11] 1553:9, 1553:11,
1569:4, 1572:5,
1575:18, 1580:7,
1582:9, 1583:20,
1584:25, 1586:12
obviate [2] - 1589:9,
1589:10
obviously [3] 1567:20, 1573:3,
1587:23
occupations [1] 1576:24
occur [1] - 1572:17
occurrences [1] 1573:8
OCRWM [2] 1561:24
October [1] 1556:16
OF [1] - 1546:11
offer [3] - 1554:3,
1561:8, 1587:7
offered [11] 1550:21, 1550:25,
1552:1, 1552:4,
1562:22, 1587:6,
1587:11, 1587:17,
1588:3, 1588:25,
1589:4
offering [1] 1589:18
Office [3] - 1561:23,
1567:7, 1585:7
office [2] - 1569:22,
1573:13
officers [2] 1558:23, 1563:14
once [1] - 1573:6
one [44] - 1548:3,
1548:12, 1549:5,
1550:4, 1551:21,
1551:22, 1552:8,
1552:9, 1552:15,
1552:22, 1553:5,
1553:6, 1553:18,
1553:19, 1556:23,
1558:14, 1559:7,
1559:20, 1560:9,
1560:17, 1560:18,
1561:14, 1561:16,
1565:16, 1565:19,
1566:4, 1567:6,
1571:2, 1571:10,
1574:8, 1577:1,
1578:7, 1578:8,
1580:10, 1582:13,
1582:19, 1584:1,
1584:9, 1585:3,
1585:25, 1586:16,
1587:22, 1588:10
ones [2] - 1559:5,
1564:13
oOo [1] - 1548:2
operating [1] 1574:21
operation [1] 1561:18
operations [1] 1580:12
opining [1] - 1580:2
opinions [1] 1565:10
opponent [1] 1589:19
opposed [1] 1573:21
opposing [2] 1551:15, 1552:5
opposition [1] 1560:24
Opuku [4] - 1548:15,
1548:20, 1550:1,
1550:10
Opuku-Boateng [4] 1548:15, 1548:20,
1550:1, 1550:10
oral [1] - 1549:11
order [7] - 1551:7,
1552:13, 1552:18,
1558:24, 1565:17,
1579:7
ordered [11] 1560:6, 1569:5,
1572:6, 1573:25,
1574:4, 1576:2,
1580:8, 1582:10,
1583:23, 1585:1,
1586:13
orientation [1] 1568:24
originally [1] 1548:11
OSD [3] - 1585:5,
1585:7, 1585:13
otherwise [1] 1582:5
out-of-court [2] 1562:22, 1587:14
overbreadth [1] 1574:16
overruled [11] 1560:5, 1569:4,
1572:6, 1573:24,
1575:18, 1580:6,
1580:7, 1582:9,
1583:20, 1584:25,
1586:12
P
P.M [1] - 1548:1
Pacific [9] - 1560:23,
1561:15, 1561:16,
1563:11, 1563:23,
1564:3, 1564:7,
1564:12, 1564:18
Page [8] - 1547:2,
1552:18, 1573:12,
1574:24, 1577:2,
1580:25, 1582:20,
1584:11
page [13] - 1554:6,
1556:1, 1556:13,
1556:18, 1556:19,
1571:4, 1571:5,
1571:10, 1572:9,
1580:11, 1580:16,
1580:18, 1581:4
Pages [1] - 1560:24
pages [4] - 1554:5,
1554:7, 1558:4,
1571:16
Paper [1] - 1582:15
paragraph [1] 1585:12
Parker [1] - 1546:13
part [10] - 1555:15,
1560:16, 1561:19,
1577:10, 1577:17,
1579:17, 1580:1,
1580:15, 1581:3,
1587:3
participation [1] 1589:5
particular [9] 1549:19, 1550:16,
1559:6, 1560:20,
1565:9, 1565:14,
1570:22, 1576:24,
1581:25
particularly [6] 1551:13, 1559:7,
1559:15, 1571:22,
1581:20, 1585:20
parties [4] - 1553:8,
1559:10, 1578:7,
1588:6
parts [2] - 1579:7,
1579:8
party [9] - 1559:2,
1562:21, 1578:6,
1578:16, 1583:19,
1587:16, 1587:17,
1589:19
patient [1] - 1575:2

Patrick [1] - 1546:19
Paul [1] - 1566:19
paul [1] - 1546:12
people [3] - 1561:6,
1580:20, 1583:9
perceived [1] 1572:17
percent [3] 1572:19, 1572:21,
1577:18
percentage [1] 1568:14
perform [1] - 1564:2
perhaps [2] - 1557:3,
1590:2
period [6] - 1556:10,
1556:13, 1556:14,
1566:7, 1566:12,
1570:1
periods [1] - 1554:13
permit [1] - 1555:17
person [5] - 1550:22,
1551:24, 1559:22,
1584:13, 1587:23
person's [1] - 1569:1
personal [1] 1557:21
Personnel [2] 1567:8, 1569:24
personnel [7] 1569:12, 1576:18,
1576:22, 1577:9,
1577:11, 1579:15,
1579:20
persons [1] 1549:13
perspective [1] 1580:16
pertained [1] 1576:23
pertaining [1] 1558:23
Ph.D [1] - 1562:10
phrase [1] - 1581:6
pick [1] - 1581:25
piece [1] - 1586:17
place [3] - 1549:14,
1552:17, 1576:12
placed [1] - 1580:22
places [1] - 1553:18
plainly [1] - 1571:20
Plaintiff [1] - 1546:3
plaintiff [13] 1549:4, 1549:8,
1551:10, 1559:21,
1559:24, 1574:22,
1576:6, 1581:25,
1588:15, 1588:21,
1589:13, 1590:12,
Case Name/number
1590:19
plaintiff's [4] 1567:12, 1579:14,
1579:21, 1580:2
plaintiffs [1] 1578:25
pleading [2] 1588:9, 1588:13
point [9] - 1555:2,
1557:3, 1563:24,
1565:16, 1570:24,
1575:16, 1577:8,
1583:16, 1589:9
pointed [2] 1549:16, 1550:17
points [3] - 1575:10,
1575:19, 1577:1
policy [9] - 1558:20,
1571:21, 1573:15,
1575:22, 1575:25,
1579:16, 1579:23,
1580:4, 1580:15
Policy [1] - 1572:14
poll [8] - 1548:25,
1549:10, 1549:11,
1549:24, 1550:2,
1550:19, 1551:4
polled [1] - 1549:7
polling [5] - 1548:17,
1549:1, 1549:18,
1549:22
polls [1] - 1549:20
portions [1] 1565:13
position [1] 1569:13
possible [2] 1561:3, 1588:1
post [2] - 1576:10,
1590:10
post-trial [1] 1590:10
postdates [1] 1566:17
potential [1] 1583:10
potentially [1] 1587:12
practices [2] 1549:5, 1549:9
pre-'97 [2] - 1557:12,
1557:21
pre-1997 [1] - 1570:8
pre-1998 [1] 1570:21
precisely [1] 1561:20
precision [1] 1555:18
predate [1] - 1571:19
date
predates [1] 1571:21

predicated [1] 1564:19
prefatory [1] 1573:20
prejudice [4] 1588:2, 1589:10,
1590:4, 1590:5
prepared [10] 1556:25, 1560:12,
1561:7, 1563:8,
1563:22, 1572:9,
1573:3, 1574:8,
1580:11, 1582:14
present [4] 1558:20, 1588:6,
1590:8, 1590:22
presented [3] 1555:5, 1589:4,
1590:21
preserve [2] 1587:21, 1588:1
presumably [1] 1569:12
presumption [5] 1581:14, 1582:24,
1584:13, 1584:17,
1584:20
pretty [1] - 1561:6
previous [1] 1571:21
previously [2] 1574:20, 1586:23
primary [2] - 1557:9,
1561:14
principal [1] - 1567:2
privilege [2] 1575:1, 1575:2
privileged [1] 1574:25
probative [2] 1550:3, 1564:5
problem [2] 1555:20, 1589:10
problematic [1] 1587:12
problems [2] 1549:16, 1549:21
process [2] 1585:10, 1590:20
produce [1] 1558:15
produced [17] 1554:21, 1557:25,
1558:5, 1558:7,
1558:25, 1559:16,
1560:1, 1560:2,
1560:3, 1560:14,
1560:15, 1562:14,
1562:17, 1566:4,
1580:13, 1581:22,
1585:18
product [1] 1562:20
production [4] 1558:2, 1559:1,
1559:8, 1559:17
Programs [1] 1546:12
promise [2] 1584:11, 1584:16
protections [1] 1565:14
prove [1] - 1580:3
provide [1] - 1584:17
provided [3] 1571:11, 1573:6,
1584:14
providers [2] 1568:24, 1568:25
provides [1] 1584:12
psychotherapist [1]
- 1575:2
psychotherapistpatient [1] - 1575:2
psychotherapy [2] 1574:12, 1574:15
public [3] - 1563:14,
1564:24, 1564:25
publicly [1] - 1570:3
published [1] 1548:18
purpose [1] 1566:20
purposes [6] 1551:4, 1559:5,
1568:1, 1575:11,
1577:25, 1589:14
pursuant [3] 1558:20, 1563:7,
1574:25
purview [1] - 1576:9
put [2] - 1559:10,
1564:23
Q
qualify [1] - 1563:14
quality [1] - 1577:7
quantity [1] - 1577:6
questionable [1] 1557:18
questioned [1] 1549:13
questioning [2] 1549:11, 1549:14
questions [2] -
1554:20, 1557:17
quite [1] - 1580:22
quote [6] - 1563:15,
1564:1, 1568:10,
1584:15, 1584:18
R
Radioactive [1] 1561:23
raise [1] - 1549:20
raised [1] - 1573:20
raises [1] - 1557:17
RAND [2] - 1567:3,
1569:11
rates [1] - 1577:3
ratified [1] - 1563:21
read [7] - 1558:13,
1559:19, 1559:23,
1579:20, 1579:24,
1585:15, 1586:24
readily [1] - 1548:24
readiness [1] 1569:12
Readiness [2] 1567:8, 1569:24
real [1] - 1578:16
really [11] - 1548:16,
1548:18, 1548:21,
1549:23, 1555:1,
1555:3, 1557:8,
1571:2, 1571:25,
1583:18, 1586:15
Rear [1] - 1580:12
reason [8] - 1556:6,
1556:8, 1557:1,
1564:17, 1567:19,
1569:14, 1570:10,
1581:2
reasonable [2] 1581:9, 1582:2
reasons [5] 1556:23, 1566:8,
1568:4, 1568:15,
1571:1
rebut [6] - 1581:14,
1582:24, 1583:10,
1584:12, 1584:17,
1584:19
rebuttals [2] 1582:22, 1583:8
recalling [1] 1566:25
receive [1] - 1586:21
received [16] 1551:8, 1554:12,
1560:7, 1565:18,
1569:6, 1569:13,
1569:14, 1572:7,
1574:1, 1576:3,
1580:9, 1580:21,
1582:11, 1583:24,
1585:2, 1586:14
RECEIVED [1] 1547:6
recently [1] 1575:14
recipient [2] 1565:25, 1569:10
reconcile [1] 1570:14
reconciled [5] 1555:1, 1555:6,
1555:8, 1557:13,
1557:22
record [7] - 1548:9,
1549:17, 1552:13,
1566:1, 1570:6,
1576:13, 1577:19
recruiting [3] 1577:3, 1578:3,
1580:5
recruits [1] - 1577:7
redact [1] - 1565:12
reductions [1] 1566:12
Reel [1] - 1550:6
reels [1] - 1550:8
referred [1] 1548:15
referring [1] 1558:17
reflected [2] 1553:16, 1575:6
refrain [1] - 1584:16
refusal [1] - 1589:5
regarding [1] 1581:7
regardless [1] 1563:12
regular [1] - 1558:7
regulations [11] 1558:21, 1563:2,
1574:22, 1575:8,
1575:13, 1576:7,
1576:8, 1576:11,
1586:9
related [3] - 1573:9,
1577:18, 1578:19
relating [1] - 1558:18
relationship [6] 1562:1, 1562:7,
1562:10, 1564:20,
1564:21, 1565:3
release [1] - 1569:21
relevance [15] 1557:18, 1561:12,
1566:16, 1566:23,
1567:22, 1568:3,
Case Name/number
1573:10, 1573:17,
1573:18, 1578:2,
1578:5, 1579:25,
1581:19, 1583:6,
1584:24
relevant [17] 1559:5, 1561:1,
1566:6, 1566:9,
1567:13, 1567:15,
1567:20, 1568:5,
1569:2, 1570:20,
1570:23, 1573:21,
1574:3, 1579:13,
1581:3, 1582:6,
1585:20
reliability [1] 1549:17
reliable [7] 1554:14, 1554:18,
1554:25, 1555:8,
1557:12, 1570:18,
1582:5
relied [1] - 1549:20
religious [2] 1549:5, 1549:9
relitigate [1] - 1576:5
rely [1] - 1589:13
relying [1] - 1576:10
remain [1] - 1584:11
remember [1] 1564:8
repeatedly [2] 1560:2, 1575:21
repeating [1] 1550:13
report [14] - 1548:5,
1560:10, 1560:12,
1561:1, 1561:7,
1567:7, 1568:20,
1572:9, 1572:12,
1572:15, 1572:18,
1573:3, 1576:18,
1577:1
Report [1] - 1572:13
reported [3] 1572:20, 1574:12,
1574:14
reporting [2] 1556:13, 1556:14
reports [7] 1563:13, 1563:14,
1564:1, 1565:5,
1565:8, 1565:9,
1565:10
represented [1] 1573:15
request [13] 1557:24, 1558:2,
1558:11, 1558:13,
1558:15, 1558:16,
date
1558:22, 1558:25,
1559:8, 1559:16,
1560:12, 1587:19,
1590:23
requested [2] 1585:17, 1587:21
requests [4] 1555:12, 1555:14,
1578:21, 1578:23
required [1] 1559:21
requirement [2] 1563:18, 1563:20
Research [8] 1560:13, 1560:16,
1563:6, 1563:9,
1576:17, 1576:25,
1577:22, 1578:10
research [1] - 1561:2
reside [1] - 1589:24
resides [2] 1589:17, 1589:23
Resources [1] 1585:6
resources [1] 1585:12
respect [7] 1548:23, 1560:1,
1570:19, 1573:14,
1578:18, 1578:21,
1589:18
Respect [1] 1572:13
responded [1] 1572:19
respondents [1] 1572:21
response [10] 1555:11, 1555:12,
1555:13, 1555:16,
1557:25, 1558:3,
1558:25, 1559:16,
1575:20, 1584:8
responsive [3] 1559:1, 1559:8,
1559:17
rest [1] - 1586:18
rests [1] - 1590:12
resulted [2] 1576:23, 1577:10
retention [4] 1576:19, 1577:3,
1580:1, 1580:5
reveal [1] - 1569:1
reversing [1] 1549:15
reviewed [1] 1567:14
Riverside [1] 1548:1
10
room [1] - 1546:15

Rostker [3] - 1566:1,
1567:1, 1569:10
Rudy [1] - 1569:24
rule [3] - 1550:2,
1550:13, 1550:14
Rule [8] - 1559:21,
1560:21, 1563:7,
1563:15, 1565:14,
1575:1, 1575:2
ruled [2] - 1548:4,
1578:17
Rules [1] - 1575:3
ruling [3] - 1551:18,
1569:16, 1578:20
run [2] - 1561:19,
1561:24
Ryan [1] - 1546:13
S
satisfy [1] - 1579:25
saw [2] - 1551:22,
1563:5
science [1] - 1561:2
score [1] - 1577:20
Scott [1] - 1546:14
scrutiny [1] 1565:13
second [8] 1552:17, 1571:4,
1571:5, 1572:9,
1577:21, 1580:16,
1581:4, 1586:1
secretary [3] 1569:11, 1569:22,
1572:11
Secretary [4] 1567:8, 1567:9,
1569:24, 1585:7
section [1] - 1552:16
see [11] - 1553:1,
1553:12, 1553:19,
1554:7, 1554:8,
1556:20, 1570:2,
1570:19, 1572:8,
1580:19, 1580:20
seeking [2] - 1564:9,
1576:4
senators [4] 1584:5, 1584:7,
1584:10
sense [3] - 1549:10,
1549:18, 1559:2
sent [2] - 1558:1,
1568:1
separated [1] 1581:1
separation [2] -
1582:17, 1584:13
separations [3] 1556:3, 1556:4,
1566:3
September [1] 1556:16
Service [4] 1576:17, 1577:1,
1577:22, 1578:10
service [1] - 1555:24
servicemembers [6]
- 1555:19, 1572:16,
1572:19, 1574:12,
1581:12, 1582:23
set [3] - 1571:13,
1577:12, 1590:19
seven [1] - 1581:5
several [4] - 1568:4,
1568:12, 1568:21,
1576:21
shed [1] - 1575:24
sheet [4] - 1553:11,
1553:17, 1553:20,
1553:24
sheets [1] - 1554:10
shifts [1] - 1549:8
shortages [5] 1576:22, 1577:9,
1577:11, 1579:15,
1579:21
shortfalls [1] 1578:3
show [5] - 1550:22,
1554:17, 1566:6,
1567:15, 1581:11
showing [2] 1563:21, 1579:17
side [2] - 1553:21,
1554:7
sign [1] - 1589:22
signed [1] - 1590:1
significant [2] 1581:10, 1582:3
similar [2] - 1550:19,
1551:1
similarity [1] 1549:23
simple [1] - 1584:16
simply [6] - 1555:21,
1557:17, 1562:24,
1578:4, 1581:19,
1581:23
Simpson [1] 1546:14
sit [1] - 1590:6
situation [3] 1551:2, 1589:4,
1590:9
so-called [1] 1560:22
so.. [1] - 1553:3

social [1] - 1561:2
sorry [6] - 1556:22,
1569:8, 1572:23,
1579:5, 1580:17,
1581:5
sort [5] - 1549:11,
1550:17, 1550:25,
1551:1, 1573:20
sorts [1] - 1565:7
specific [1] 1578:21
specifically [3] 1555:24, 1572:15,
1574:25
speculative [1] 1553:16
spelled [1] - 1552:25
spincast [1] - 1550:8
Spinit [1] - 1550:6
sponsoring [7] 1557:10, 1557:16,
1557:18, 1566:18,
1567:24, 1577:24,
1582:4
squarely [1] - 1576:9
stamp [1] - 1560:14
stand [2] - 1588:5,
1588:22
standard [1] 1589:15
standing [2] 1574:22, 1590:18
start [1] - 1590:25
starting [1] - 1571:3
starts [1] - 1571:12
State [1] - 1548:15
state [3] - 1550:22,
1590:14, 1590:18
statement [10] 1557:14, 1562:21,
1562:22, 1566:9,
1577:1, 1577:2,
1581:25, 1587:11,
1587:13, 1587:14
Statement [1] 1569:23
statements [5] 1562:3, 1574:11,
1574:14, 1576:25,
1589:11
STATES [2] 1546:11, 1546:18
states [1] - 1584:13
States [6] - 1558:19,
1563:8, 1578:8,
1578:9, 1578:16,
1590:3
statistical [3] 1555:23, 1558:12,
Case Name/number
1573:7
statistically [3] 1581:10, 1581:11,
1582:3
statistics [16] 1554:6, 1554:15,
1554:16, 1554:19,
1555:13, 1560:1,
1568:6, 1570:3,
1570:9, 1571:13,
1571:19, 1571:20,
1571:25, 1572:1,
1582:17, 1583:2
Statistics [1] 1581:7
statute [8] - 1563:1,
1571:21, 1572:4,
1575:17, 1576:6,
1580:24, 1586:9,
1589:8
stereotypes [1] 1561:6
still [2] - 1553:8,
1569:20
stipulate [2] 1589:5, 1589:7
stipulates [1] 1576:8
Street [1] - 1546:6
Stuart [1] - 1546:20
study [4] - 1567:3,
1568:13, 1576:17,
1585:10
subagencies [1] 1561:20
subcomponent [1] 1561:22
subject [11] - 1550:9,
1550:10, 1559:12,
1559:22, 1560:3,
1562:23, 1566:2,
1572:12, 1572:15,
1572:18, 1574:10
subjective [1] 1565:10
subjects [1] - 1561:4
submitted [1] 1586:20
subpoenaed [1] 1559:21
substantial [1] 1570:21
substantiate [1] 1568:18
substituted [1] 1551:14
success [1] - 1581:7
successful [2] 1582:21, 1583:8
successfully [2] -
date
1581:12, 1582:23
suffer [1] - 1590:4
suffering [1] 1590:6
sufficient [3] 1549:4, 1584:12,
1584:17
Suite [2] - 1546:7,
1546:20
suits [1] - 1575:11
summary [1] 1589:14
support [3] 1548:21, 1560:21,
1565:2
supports [1] 1577:1
suppose [1] - 1587:7
supposedly [1] 1568:7
survey [4] - 1550:11,
1550:12, 1550:18
survive [1] - 1575:15
suspension [1] 1589:8
sustain [1] - 1567:4
sustained [3] 1552:17, 1553:19,
1553:24
T
t-w-o-l [1] - 1552:25
tabulated [1] 1570:12
talks [3] - 1568:13,
1580:1, 1580:25
task [1] - 1573:13
telephone [1] 1587:25
tendered [1] 1588:21
tends [1] - 1581:11
Tenth [1] - 1550:5
termination [1] 1549:3
terms [2] - 1553:8,
1555:24
test [2] - 1579:18,
1579:25
testified [6] - 1560:2,
1565:23, 1565:25,
1566:22, 1570:18,
1588:22
testifies [1] 1559:15
testify [6] - 1557:23,
1559:14, 1559:22,
1559:25, 1560:4,
11
1588:4
testifying [2] 1570:10, 1586:4
testimony [9] 1551:19, 1562:5,
1562:9, 1565:2,
1567:1, 1569:10,
1572:18, 1576:21,
1577:16
text [1] - 1580:24
THE [83] - 1548:3,
1548:7, 1551:9,
1551:16, 1551:21,
1551:24, 1552:7,
1552:12, 1552:22,
1553:2, 1553:23,
1554:20, 1554:23,
1556:1, 1556:10,
1556:17, 1556:19,
1557:5, 1557:24,
1558:7, 1558:13,
1558:24, 1560:10,
1561:9, 1563:3,
1563:18, 1564:11,
1565:4, 1565:19,
1565:22, 1566:13,
1566:21, 1567:4,
1567:10, 1567:22,
1568:2, 1569:4,
1569:7, 1569:16,
1569:18, 1570:4,
1570:24, 1571:7,
1571:12, 1571:17,
1571:24, 1572:5,
1572:25, 1573:10,
1573:19, 1574:2,
1574:18, 1575:9,
1575:18, 1576:14,
1577:13, 1578:6,
1578:12, 1578:20,
1579:2, 1579:4,
1579:10, 1580:17,
1581:14, 1581:16,
1582:9, 1583:3,
1583:16, 1583:21,
1583:23, 1584:21,
1584:25, 1585:24,
1586:12, 1586:15,
1586:25, 1587:16,
1588:2, 1588:14,
1588:17, 1588:24,
1590:10, 1590:14
therefore [3] 1577:12, 1579:15,
1586:11
thinking [1] 1588:12
thinks [1] - 1582:1
third [4] - 1552:22,
1556:7, 1562:21,
1579:17
third-party [1] 1562:21
thorough [3] 1561:7, 1568:13,
1568:20
three [4] - 1552:8,
1562:6, 1578:8,
1584:5
Thursday [1] 1548:1
title [2] - 1569:23,
1579:4
titled [2] - 1572:12,
1585:5
titles [1] - 1585:16
today's [1] - 1577:4
together [1] - 1558:4
tomorrow [6] 1556:23, 1588:7,
1590:9, 1590:10,
1590:15, 1590:23
took [1] - 1549:14
top [1] - 1556:13
topics [1] - 1578:18
total [6] - 1556:2,
1556:3, 1558:4,
1558:18, 1582:24,
1583:1
trademark [2] 1550:7, 1550:24
training [1] - 1572:22
transpired [1] 1558:1
trends [2] - 1566:2,
1567:16
trial [11] - 1549:12,
1549:15, 1550:11,
1562:5, 1563:12,
1565:7, 1565:12,
1565:15, 1588:4,
1589:15, 1590:10
tried [1] - 1583:10
truly [1] - 1586:15
trustworthiness [1] 1550:4
truth [4] - 1550:21,
1562:22, 1587:11,
1589:18
try [1] - 1568:16
turn [1] - 1561:13
two [14] - 1550:4,
1551:20, 1552:23,
1552:25, 1553:18,
1553:19, 1558:3,
1571:1, 1571:16,
1575:10, 1580:11,
1582:12, 1583:25
Two [1] - 1552:24
two-page [1] -
1580:11
type [5] - 1549:22,
1565:3, 1567:17,
1567:18, 1582:6
typographical [1] 1551:20
U
ultimately [1] 1554:16
unable [5] - 1549:8,
1568:7, 1568:23,
1589:11, 1590:6
unavailable [2] 1581:9, 1589:17
uncharacterized [1]
- 1556:4
unclear [1] - 1570:22
unconstitutional [2]
- 1563:2, 1576:1
Under [2] - 1567:8,
1569:23
under [18] - 1550:13,
1550:15, 1551:3,
1551:5, 1555:19,
1559:21, 1560:20,
1563:14, 1565:14,
1574:12, 1575:4,
1575:7, 1579:17,
1579:22, 1581:13,
1583:7, 1583:10,
1589:18
undesirable [1] 1549:8
unique [4] - 1562:1,
1564:25, 1589:4,
1590:9
United [6] - 1558:19,
1563:8, 1578:7,
1578:9, 1578:16,
1590:3
uNITED [1] - 1546:11
UNITED [1] 1546:18
unknown [2] 1556:6, 1568:16
unless [1] - 1583:9
up [5] - 1559:25,
1570:15, 1583:1,
1583:2, 1583:17
upholding [1] 1565:7
upper [1] - 1554:6
urged [1] - 1575:21
useless [1] - 1583:13
utterly [2] - 1583:13,
1584:23
Case Name/number
V
variety [1] - 1565:7
various [2] 1549:16, 1580:25
verdict [1] - 1590:17
verifiable [1] 1570:11
verified [2] - 1568:8,
1570:2
verify [1] - 1570:7
version [1] - 1586:5
vet [3] - 1587:13,
1588:23, 1589:11
vice [1] - 1580:11
view [3] - 1575:6,
1578:15
views [1] - 1564:4
VII [1] - 1554:3
VIII [2] - 1565:21,
1569:20
Virginia [1] - 1546:20
vitality [1] - 1577:3
Volume [4] - 1554:3,
1565:21, 1569:20,
1572:24
volunteer [1] 1577:4
W
waivers [2] - 1577:9,
1577:16
wants [3] - 1555:2,
1575:12, 1581:25
warranted [1] 1584:13
Washington [1] 1546:15
Waste [1] - 1561:23
ways [1] - 1587:21
weakened [2] 1577:11, 1579:15
week [2] - 1588:22,
1588:23
weeks [1] - 1562:6
weight [3] - 1559:11,
1564:6, 1583:18
West [1] - 1546:6
whatsoever [3] 1562:9, 1562:18,
1581:24
WHITE [1] - 1546:4
wholly [1] - 1582:7
wide [1] - 1549:13
wishes [2] - 1551:10,
1588:15
witness [20] -
date
1557:10, 1557:16,
1557:19, 1559:14,
1559:15, 1559:20,
1559:24, 1560:2,
1565:22, 1565:23,
1566:18, 1566:22,
1567:25, 1577:24,
1581:19, 1582:4,
1583:6, 1588:3,
1588:5, 1590:7
witnesses [3] 1576:21, 1588:22,
1588:23
witnessing [1] 1572:20
Witt [4] - 1577:12,
1579:13, 1579:17,
1579:18
women [1] - 1568:14
wondering [1] 1553:23
Woods [9] - 1546:5,
1557:14, 1563:3,
1564:23, 1566:22,
1567:20, 1568:3,
1575:9, 1589:9
WOODS [50] 1548:6, 1551:11,
1551:17, 1551:22,
1552:1, 1552:10,
1552:16, 1553:22,
1554:1, 1554:22,
1555:9, 1556:9,
1556:12, 1556:18,
1556:21, 1558:1,
1558:10, 1558:14,
1560:8, 1560:11,
1563:4, 1563:23,
1564:12, 1565:20,
1565:25, 1566:25,
1567:6, 1568:4,
1569:8, 1569:17,
1569:19, 1572:8,
1573:2, 1574:7,
1575:10, 1576:16,
1579:5, 1580:10,
1580:19, 1581:15,
1582:12, 1583:22,
1583:25, 1585:3,
1586:17, 1587:19,
1589:3, 1589:21,
1590:1, 1590:13
wOODS [1] - 1553:1
Woods' [1] - 1586:3
word [2] - 1549:18,
1557:1
words [4] - 1553:10,
1556:15, 1574:2,
1584:19
workers [2] - 1549:7,
12
1549:12
Y
year [18] - 1554:10,
1555:13, 1555:17,
1555:24, 1556:15,
1556:16, 1577:5,
1580:22, 1581:1,
1581:5, 1582:17,
1582:18, 1582:22
year-by-year [2] 1555:13, 1555:24
years [9] - 1554:18,
1555:7, 1558:12,
1566:17, 1568:6,
1571:3, 1576:19,
1578:4, 1579:4
yesterday [6] 1548:4, 1548:10,
1548:11, 1551:12,
1584:6, 1590:22
Z
Zogby [3] - 1548:5,
1549:10, 1551:4
Case Name/number
date

Case 2:04-cv-08425 Trial Day 7 Vol 2

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Case 2:04-cv-08425 Trial Day 7 Vol 2

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

HONORABLE VIRGINIA A. PHILLIPS, JUDGE PRESIDING

LOG CABIN REPUBLICANS,

REPORTER'S TRANSCRIPT OF TRIAL PROCEEDINGS

Thursday, July 22, 2010

THERESA A. LANZA, RPR, CSR

Thursday, July 22, 2010

Trial Day 7, Volume II

WHITE & CASE

UNITED STATES DEPARTMENT OF JUSTICE

UNITED STATES ARMY

Thursday, July 22, 2010

Trial Day 7, Volume II

Thursday, July 22, 2010

Trial Day 7, Volume II

Riverside, California; Thursday, July 22, 2010; 1:42 P.M.

First of all, the one exhibit

that we talked about yesterday that I hadn't ruled on was --

it's the Zogby report.

It's Exhibit 11, Your Honor.

And just to make the record clear, as to the

authorities that we discussed again yesterday that were cited

originally to the Court and argued a bit yesterday from the

motion in limine, one was a district court case, Green v. Baca,

which was a district court case decided by Judge Morrow from

that government counsel referred to, Opuku-Boateng v. State of

dealing with polling evidence; it was dealing with articles

published in the Los Angeles Times.

The Green case really has no bearing.

It really has no bearing

The Opuku-Boateng case, it isn't -- I don't mean to

say it's not helpful, but it doesn't support, really, the

argument that's being made here, except in the most general

evidence that was at issue, is readily distinguishable from the

evidence that Exhibit 11 consists of.

But the facts of that case, with respect to the kind of

Thursday, July 22, 2010

That case, the poll

Trial Day 7, Volume II

evidence, or the evidence that was called polling evidence,

consisted of something very informal, where the employer -- it

was an employment termination case, and the allegation by the

plaintiff in that case was that there hadn't been a sufficient

accommodation of his religious practices.

on which the employer was defending was to say that the

undesirable shifts that the plaintiff claimed he was unable to

work because of his religious practices.

And one of the basis

But it wasn't a poll in the sense that the Zogby poll

persons who were questioned, there was a wide disparity about

So in reversing the trial court for allowing the evidence to

clear on the face of the record about the reliability of the

polling, in the most informal sense of the word "polling."

So the language, in particular, that the defense

relied on here in Footnote 18 about "polls generally raise

complicated hearsay problems" and so forth, as a general matter

that may be the case.

really discussing in that case has almost no similarity at all

to the poll that was conducted in our case.

It was a sort of informal oral questioning by

But the type of polling that they are