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Diaz Deposition in AtPac Case
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Page 1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
ATPAC, INC.,
Plaintiffs,
vs. No. 2:10-CV-00294- WBS-KJM APTITUDE SOLUTIONS, INC., et al., Pages 1 - 359
Defendants. ____________________________/
VIDEOTAPED DEPOSITION OF
GREGORY J. DIAZ
VOLUME I
FRIDAY, MAY 27, 2011
NOTICING ATTORNEY: MICHAEL THOMAS
REPORTED BY: JOANIE MURAKAMI, CSR NO. 5199
Page 2
1 APPEARANCES2
3 For the Plaintiffs:4 DOWNEY BRAND LLP
BY: MICHAEL J. THOMAS, ATTORNEY AT LAW5 MICHAEL A. SCHAPS, ATTORNEY AT LAW
(a.m. session only)6 621 Capitol Mall, 18th Floor
Sacramento, California 95814-47317 (916) 444-10008
9 For the Defendant:10 Pillsbury, Winthrop, Shaw, Pittman LLP
BY: JOHN S. POULOS, ATTORNEY AT LAW11 2600 Capitol Avenue, Suite 300
Sacramento, California 95816-593012 916.329.470013
14 Also Present:15 MICHAEL SWEET, VIDEOGRAPHER
SACRAMENTO LEGAL VIDEO16
DAVE KRUGLE17
18
--oOo--19
20
21
22
23
24
25
Page 3
1 INDEX OF EXAMINATION
2 Page No.
3 Examination by Mr. Thomas 7
4 Afternoon Session 174
5 Reporter's Certificate 359
6
7 --oOo--
8
9 INDEX OF EXHIBITS
10
11 NUMBER DESCRIPTION PAGE
12 EXHIBIT 370 Article from campaign website 48
13 EXHIBIT 371 e-mail string, 2 pages 121
14 EXHIBIT 372 e-mail string, 2 pages 128
15 EXHIBIT 373 e-mail string, 3 pages 135
16 EXHIBIT 374 e-mail dated 6/13/2008 from Tom McGrath 140
17
EXHIBIT 375 Information Systems Steering18 Board Meeting Agenda,
June 19, 2008, 5 pages 14419
EXHIBIT 376 e-mail sent April 1, 2008 to20 Diaz from Weir with attachment,
5 pages 15621
EXHIBIT 377 e-mail string with attachment,22 10 pages 160
23 EXHIBIT 378 e-mail sent July 29, 2008 from Balzer, with attachments,
24 18 pages 164
25
Page 4
1 INDEX OF EXHIBITS
2
3 NUMBER DESCRIPTION PAGE
4 EXHIBIT 379 e-mail sent 9/8/2008 from McCluskey with attachment,
5 5 pages 167
6 EXHIBIT 380 e-mail string 174
7 EXHIBIT 381 Resolution No. 08-564, 48 pages 187
8 EXHIBIT 382 e-mail string, 3 pages 196
9 EXHIBIT 383 e-mail sent November 19, 2008 from McCluskey 203
10
EXHIBIT 384 e-mail string, 2 pages 20511
EXHIBIT 385 e-mail string, 2 pages 21812
EXHIBIT 386 e-mail string, 2 pages 21913
EXHIBIT 387 e-mail string, 3 pages 23014
EXHIBIT 388 e-mail string, 4 pages 23815
EXHIBIT 389 e-mail string, 3 pages 24316
EXHIBIT 390 e-mail sent November 2, 200817 to Diaz from Sandever 245
18 EXHIBIT 391 Resolution No. 05-44, 21 pages 254
19 EXHIBIT 392 e-mail string, 3 pages 278
20 EXHIBIT 393 e-mail sent February 13, 2009 from Sandever 284
21
EXHIBIT 394 e-mail string, 3 pages 28922
EXHIBIT 395 e-mail sent January 7, 200923 from Shulman 302
24 EXHIBIT 396 e-mail string 303
25 EXHIBIT 397 e-mail string, 2 pages 304
Page 5
1 INDEX OF EXHIBITS
2
3 MARKED DESCRIPTION PAGE
4 EXHIBIT 398 e-mail sent January 7, 2008 from Shulman to Diaz, with attachment,
5 2 pages 304
6 EXHIBIT 399 e-mail string, 2 pages 308
7 EXHIBIT 400 Letter dated January 8, 2009 to Long and Weir from Diaz 317
8
EXHIBIT 401 e-mail string, 2 pages 3319
EXHIBIT 402 e-mail string, 2 pages 33110
EXHIBIT 403 Handwritten document, 7 pages 34811
EXHIBIT 404 e-mail string, 2 pages 34812
EXHIBIT 405 e-mail string, 2 pages 35213
EXHIBIT 406 e-mail sent June 18, 200914 to Diaz from Jamison 354
15
16 --oOo--
17
18 UNANSWERED QUESTIONS
19 Page 140, Line 7
20 Page 306, Line 22
21 Page 319, Line 3
22 Page 319, Line 9
23 Page 342, Line 13
24 Page 349, Line 16
25
Page 6
1 BE IT REMEMBERED that on FRIDAY, MAY 27, 2011
2 at the hour of 9:28 a.m., of said day, at the Law
3 Offices of Downey Brand, LLP, 621 Capitol Mall,
4 18th Floor, Sacramento, California, 95814-4731, before
5 me, JOANIE Y. MURAKAMI, a Certified Shorthand Reporter,
6 personally appeared
7 GREGORY J. DIAZ,
8 called as a witness, after having been first duly sworn
9 by the Certified Shorthand Reporter to tell the truth,
10 the whole truth and nothing but the truth, testified as
11 follows:
12 THE VIDEOGRAPHER: My name is Michael Sweet. I
13 will be videotaping this proceeding on behalf of
14 Sacramento Legal Video Center, Inc. at 3028 U Street in
15 Sacramento, California.
16 The date is May 27th, 2011. The time on the
17 video monitor is 9:28 a.m. Our location is 621 Capitol
18 Mall, 18th floor, Sacramento, California. We are here
19 in the matter of AtPac versus Aptitude.
20 This is the deposition of Gregory Diaz. The
21 noticing attorney is Michael Thomas. The court reporter
22 is Joanie Murakami of Marcus Deposition Reporter. This
23 is a single-track recording. Overlapping voices cannot
24 be separated. Private discussions on the record will
25 also be recorded.
Page 7
1 Would counsel please identify yourselves, your
2 firms, and those you represent?
3 MR. THOMAS: I'm Mike Thomas from the Downey
4 Brand Law Firm. I represent AtPac, Inc. I'm here with
5 my colleague, Mike Schaps, and client representative,
6 Dave Krugle.
7 MR. POULOS: John Poulos, Pillsbury firm, for
8 the defendants and the witness Gregory Diaz.
9 THE VIDEOGRAPHER: Would you please swear in
10 the witness?
11 (The witness was then sworn in by the Court
12 Reporter.)
13 EXAMINATION BY MR. THOMAS
14 Q Good morning, sir. Please state your full name
15 and spell it for the record.
16 A Gregory Joseph Diaz, G-R-E-G-O-R-Y, Gregory,
17 Joseph, J-O-S-E-P-H, Diaz, D-I-A-Z.
18 Q And what's your current residence address, sir?
19 A 18656 Mustang Valley Place, Grass Valley,
20 California, 95949.
21 Q And how long have you been at that address,
22 approximately?
23 A Nine years.
24 Q As I think you may know, we have a trial date
25 set in December of 2011 in this case.
Page 8
1 Do you plan to be at that address through the
2 end of 2011, at least?
3 A Right now, yes.
4 Q You have no plans to move at the moment?
5 A Not at the moment.
6 Q What's your current work address?
7 A 950 Maidu Avenue, Maidu, M-A-I-D-U, Nevada
8 City, California, 95959.
9 Q And what's at that location?
10 A The Eric Rood Administrative Center. It's the
11 Administrative Center for the County of Nevada.
12 Q And where are you currently employed or where
13 do you work?
14 A I work at 950 Maidu Avenue, Nevada City,
15 California, 95959.
16 Q And you're the elected Clerk-Recorder for
17 Nevada County; is that right?
18 A That's correct.
19 Q And when were you first employed as the
20 Clerk-Recorder for Nevada County?
21 A June 26th, 2007. I'm pretty sure it's 26th.
22 Q And at that point in time, had you been elected
23 or were you appointed?
24 A Appointed.
25 Q Okay. And the Board of Supervisors appointed
Page 9
1 you?
2 A That's correct.
3 Q And who did you replace, if you know?
4 A Kathleen Smith.
5 Q And then at some point after 2007, you were
6 confirmed at an election as the Clerk-Recorder; yes?
7 A At some point. The election was June 8th,
8 2010, and I was sworn in January 2011. I think it was
9 January 3rd, 2011 --
10 Q Okay.
11 A -- to begin the term.
12 Q Before beginning work for Nevada County, in
13 September of 2007, where did you work?
14 A Where?
15 Q Yeah.
16 A Unemployed.
17 Q Unemployed. At what business or occupation did
18 you work --
19 A Before that?
20 Q -- before 2007?
21 A Exigent, Inc.
22 Q And what is Exigent?
23 A It's a company that has recorder software,
24 competitor of AtPac.
25 Q This is a software company, Exigent?
Page 10
1 A Yes.
2 Q Okay. And what was your location of employment
3 for Exigent?
4 A I have no idea. It was in Danville, the
5 office, California. I think it was Danville.
6 Q And when did you last work for Exigent?
7 A That was September 2006.
8 Q So between September 2006 and September 2007,
9 you were unemployed?
10 A No. I got sworn in and appointed on June 26th,
11 2007.
12 Q Okay.
13 A So from September 2006 until June 2007,
14 unemployed.
15 Q Okay. And when did you first start working for
16 Exigent?
17 A I was there about a year-and-a-half, so it was
18 2005 -- I think it was October 2004, and that's just a
19 guess. Don't have my records in front of me.
20 Q Right. Okay. Let me go --
21 A So if I'm not accurate, it's not because I'm
22 trying to deceive, or whatever. It's just my best
23 guess.
24 Q Fair enough. And what was your position at
25 Exigent when you first started in approximately
Page 11
1 October 2004?
2 A Vice president, regional manager, sales.
3 Q You listed three things: Vice president,
4 regional manager and sales?
5 A Uh-huh. Well --
6 Q Were those three different responsibilities you
7 had?
8 A No, it was all the same. You know these
9 companies, it really boils down to sales.
10 Q And sales of what?
11 A Of the recorder software for county recorders.
12 Q And what regions in the country did Exigent --
13 A It was --
14 Q If I may finish?
15 A Uh-huh.
16 Q In what regions of the country did Exigent
17 market its software products?
18 A Nationally.
19 Q And did you have a particular region that you
20 were responsible for?
21 A Western.
22 Q Which included what? What states?
23 A California, Oregon, Washington, Nevada,
24 Arizona, New Mexico, and I was in Idaho a couple times.
25 Q Do you know how many customers, approximately,
Page 12
1 Exigent had while you worked there?
2 A No. I don't have that handy.
3 Q You don't have an estimate?
4 A Huh-uh.
5 Q Do you have an estimate in terms of a range?
6 A In terms of what?
7 Q A range. For example, somewhere between 50 and
8 150 customers or more than 500 customers, something like
9 that? Do you have that ability to estimate?
10 A I would say between 50 and 100.
11 Q All right. Now, have you ever been deposed
12 before?
13 A No.
14 Q Let me explain the process. You probably
15 talked about it with Mr. Poulos somewhat but I want to
16 make sure, on the record, we're clear.
17 You understand you've been given an oath?
18 A Yes.
19 Q And that oath places you under penalty of
20 perjury as if you're testifying before a judge and jury.
21 Do you understand that?
22 A Yes.
23 Q And you understand that it would be a crime not
24 to tell the truth in this deposition; yes?
25 A Yes.
Page 13
1 Q There's things we can do to make sure we get a
2 clear record of what's said here today. One thing we
3 can do is make sure that we not talk over one another.
4 So -- because the court reporter's taking down what we
5 say, it's sometimes difficult for her to take down what
6 we're saying when we're both talking at the same time,
7 so what I would ask is that, first of all, I will try to
8 be careful not to start talking until you finished an
9 answer. I will do my best to do that today. There may
10 be times when I make a mistake and don't, but I'll try
11 not to, and I would ask that you also allow me to finish
12 the question before you begin providing an answer.
13 Will you do that for me today?
14 A Yes.
15 Q It's also important --
16 A With the same caveat that you have.
17 Q Exactly. We'll do our best.
18 A We'll do our best.
19 Q Thank you.
20 A That's correct.
21 Q And it's also important that the communications
22 we have today be audible because the court reporter
23 can't necessarily take down gestures or nods of the head
24 or hand motions, if that actually is an answer to a
25 question. Like if I ask for a "yes" or a "no" and you
Page 14
1 shake your head, that may not come out clearly on the
2 transcript. So will you do your best to provide audible
3 answers?
4 A Yes.
5 Q Thank you. Is there any reason you can't give
6 your best, most truthful and accurate testimony here
7 this morning and today?
8 A No.
9 Q Okay. There's not any medication or any other
10 substance that would prevent you from understanding my
11 questions clearly?
12 A No.
13 Q Or from answering truthfully and accurately?
14 A No.
15 Q Okay. Do you -- strike that.
16 Did you meet with counsel in preparation for
17 your deposition today?
18 A Yes.
19 Q And who did you meet with?
20 A John Poulos and Meredith Nikkel.
21 Q And when did that meeting take place?
22 A Thursday, May 26th, 2011.
23 Q Which is yesterday?
24 A Yes.
25 Q How long did the meeting last, approximately?
Page 15
1 A Seven hours.
2 Q During the deposition, I may ask you for events
3 that happened in the past. Pretty much everything I'm
4 going to ask you today is about events that happened in
5 the past and I am entitled to your very best
6 recollection of events or conversations that may have
7 happened, and do you understand that if you do have a
8 recollection, even if it's a faint recollection, I'm
9 entitled to whatever your recollection is.
10 Do you understand that?
11 A Uh-huh.
12 Q All right.
13 A Yes. Yes.
14 Q Thank you. And you'll provide that to me
15 during this deposition; yes?
16 A Yes.
17 Q Okay. On the other hand, I don't want you
18 making baseless guesses about things, and so if I ask
19 you for information and you have no ability to provide
20 me an answer, other than just randomly guess, we don't
21 want you to do that, either.
22 So I'd ask that you be careful not to guess or
23 speculate, but on the other hand, provide me with actual
24 recollections, even if they're faint recollections,
25 about events in the past.
Page 16
1 You'll do that?
2 A Yes.
3 Q In addition, I would ask that you -- strike
4 that.
5 It's also a case that I'm entitled to
6 reasonable estimates, even if you don't have precise
7 dates, numbers or times about past events.
8 If you have a reasonable estimate about when
9 something happened or what was said or the time frame
10 something occurred in, I'm entitled to reasonable
11 estimates.
12 Do you understand that?
13 A Yes.
14 Q Okay. Now, during this meeting with counsel
15 yesterday, did you review documents?
16 A Yes.
17 Q Okay. About how many documents did you review?
18 A 50.
19 Q Were they in a binder?
20 A Yes. Most were.
21 Q Did you bring any documents with you to the
22 deposition today?
23 A No.
24 Q Did you bring any documents to the meeting with
25 counsel yesterday?
Page 17
1 A No.
2 Q Other than reviewing the binder of documents
3 with counsel yesterday, did you review any other
4 documents at any other time in preparation for your
5 deposition?
6 A No.
7 Q Did you do anything, other than meet with
8 counsel yesterday, to prepare for your deposition?
9 A I'm sorry. Could you repeat that?
10 Q Sure. Did you do anything to prepare for your
11 deposition other than meet with counsel yesterday?
12 A Oh. No.
13 Q So, for example, you didn't talk to County
14 Counsel at all in preparation --
15 A Yesterday --
16 Q No --
17 A -- in preparation?
18 Q -- at any point in time in preparation for your
19 deposition.
20 A No.
21 Q When was the last time you spoke with Mike
22 Jamison?
23 A May 26th, 2011.
24 Q And what were those discussions?
25 MR. POULOS: Well, I'll object to the extent it
Page 18
1 calls for attorney-client privileged information. Are
2 you just asking about the general substance of it?
3 MR. THOMAS: Yeah, just generally.
4 MR. POULOS: Generalities as opposed to what
5 was said.
6 Do you understand the difference? You can give
7 him a topic but not any specific discussions.
8 THE WITNESS: Let's see. The discussions with
9 Mike were: One of the Pillsbury attorneys is here. If
10 you want to come over and meet her, she's here.
11 Another was: We'd love to have you for lunch.
12 We're bringing lunch in. If you want to come here at
13 12:30, you're welcome.
14 Then later on, in the afternoon, I asked
15 Mike -- Mr. Poulos came, and he wanted to come over to
16 meet Mr. Poulos: Come on over.
17 I think that's it.
18 BY MR. THOMAS:
19 Q Okay. And where was the meeting yesterday with
20 counsel?
21 A In the Eric Rood Administrative Center.
22 Q And that's where you generally work on a
23 day-to-day business --
24 A That's correct.
25 Q -- day-to-day basis?
Page 19
1 A That's correct.
2 Q And that's been the case since you were first
3 employed at Nevada County; is that true?
4 A That's correct.
5 Q And did the documents you looked at with
6 counsel, did they tend to refresh your recollection
7 about past events?
8 A Some.
9 Q Which ones?
10 A I can't recall.
11 Q You have no recollection whatsoever?
12 A Of which documents refresh my --
13 Q Recollection, yes.
14 A No, I really can't specifically recall exactly
15 which documents.
16 There were a couple e-mails but I couldn't tell
17 you who they were from, who sent them, the date of the
18 e-mail, but there were a couple where: Oh, yeah, this
19 happened. I remember this.
20 Q Okay. Were these e-mails then that involved
21 you as either a sender or a recipient?
22 A Most of them, I was cc'd on. As a matter of
23 fact, the bulk of the e-mails, I was cc'd on.
24 Q Bulk of what e-mails?
25 A The e-mails that I viewed yesterday.
Page 20
1 Q And what events did those e-mails refresh your
2 recollection about, specifically?
3 A Don't know.
4 Q You have no recollection?
5 A No recollection. If I saw the e-mail, I could
6 tell you, but I didn't -- I'm not real good at
7 memorizing a lot of e-mails when I see 'em for a
8 deposition prep.
9 Q Well, I'm actually not asking you to tell me
10 about the e-mail. I'm asking you to tell me what events
11 your recollection was refreshed about.
12 A Yeah. And I just -- I'm trying to get across,
13 I can't remember the specific events. There were a lot
14 of e-mails I went through yesterday, and some of those
15 e-mails did stir -- stir the memory.
16 Q Okay. When you say "specific events," how
17 about generally? What general events did these e-mails
18 refresh your recollection on?
19 A General events?
20 Q Yeah.
21 A None.
22 Q Could have been anything?
23 A Pardon?
24 Q Could have been anything in the past?
25 A I'm getting lost and confused now.
Page 21
1 Specifically, I can't tell you specific moments.
2 Generally, the whole case, I have a general
3 understanding of what this case is about, so none of
4 those e-mails added to my knowledge of what this case is
5 about.
6 Q Okay.
7 A I don't know if you can understand that
8 distinction but that's -- that's how I feel about it.
9 Q Now, circling back to your past employment at
10 Exigent, you said you were the VP regional manager and
11 sales were your areas of responsibility; is that true?
12 A Yes.
13 Q All right. And what specifically were your job
14 functions?
15 A Oh, go round up county recorders and see if
16 they're interested in the product.
17 Q What else?
18 A Making presentations to the county recorders.
19 Q Presentations of what?
20 A Of the software product that we're selling,
21 which are recorders systems for county recorders,
22 correspondence with possible customers, attending
23 conferences, trade shows to get the product out there,
24 working on literature, sales literature.
25 Q Did you have any role with respect to actually
Page 22
1 implementing or installing Exigent software in any
2 counties?
3 A No.
4 Q Did Exigent actually implement or install its
5 software in any counties while you were employed there?
6 A Don't know. Don't remember. I want to say
7 yes, but if pressed to the wall, I couldn't give you any
8 details --
9 Q So if I were to ask --
10 A -- because I was not part of the installation
11 team.
12 Q Well --
13 A Never saw 'em.
14 Q Well, was your objective to sell software and
15 bring new customers to the table?
16 A Yes.
17 Q And as you sit here today, you can't recall
18 during the year or more you worked at --
19 A Yeah, because there were no sales.
20 Q Excuse me, sir. If you could let me finish my
21 question.
22 As you sit here today, you can't recall a
23 single sale that you closed as a VP of Exigent while you
24 worked there?
25 A Correct.
Page 23
1 Q Is there a question?
2 MR. POULOS: No. He just asked a question.
3 MR. THOMAS: Sure.
4 Q What were your accomplishments at Exigent, if
5 any?
6 A Accomplishments? Well, we didn't have any
7 sales.
8 Oh, I would like to think I pushed the product
9 to the forefront for a lot of the county recorders to
10 consider.
11 Q Did Exigent -- strike that.
12 To your knowledge, did Exigent make
13 developments and improvement in its product, its
14 software products, while you were the vice president of
15 Exigent?
16 A Yes.
17 Q Okay. What were those changes or improvements?
18 A Not being a real technical person, the platform
19 was changing and they were going to what they call a dot
20 net platform.
21 Q What's that?
22 A Don't know. Couldn't tell you.
23 Q You never asked?
24 A Yeah, I asked.
25 Q And did anyone tell you?
Page 24
1 A Yeah, they told me.
2 Q Who?
3 A Who told me?
4 Q Yeah.
5 A I think there's a guy named Curt there who was
6 head of the development team.
7 Q Curt what? What's his name?
8 A When I remember the last name, I'll tell you.
9 Q All right. You don't recall right now?
10 A No. Curt -- yeah, Ehlers, E-H-L-E-R-S.
11 Q And as a vice president of sales for Exigent,
12 it wasn't important for you to understand and be able to
13 explain to customers the change to the dot net platform?
14 MR. POULOS: Objection. Lacks foundation.
15 THE WITNESS: Do I have to answer it?
16 MR. POULOS: Yeah. Actually, he didn't explain
17 this to you but he asks questions.
18 THE WITNESS: Uh-huh.
19 MR. POULOS: From time to time, I might
20 interpose objections.
21 THE WITNESS: Uh-huh.
22 MR. POULOS: Unless I instruct you not to
23 answer --
24 THE WITNESS: Oh. Okay.
25 MR. POULOS: -- you have to answer the
Page 25
1 question, if you can.
2 THE WITNESS: Okay.
3 MR. POULOS: But let me just finish one other
4 thing.
5 THE WITNESS: Yeah.
6 MR. POULOS: And that is that if you do answer
7 his question, he's going to assume that you understood
8 his question, so if you don't understand it --
9 THE WITNESS: Right. Right.
10 MR. POULOS: -- you can ask a clarifying
11 question.
12 THE WITNESS: No, not particularly, was not a
13 need for me to explain technology.
14 BY MR. THOMAS:
15 Q And you're the one who demonstrated software
16 technology to potential customers, correct?
17 A You know, the answer would be yes. Now, in the
18 particular room with our demonstrations, am I talking?
19 Am I up there with a pointer showing prospective
20 customers how it works? No.
21 Am I the guy who's able to go into counties,
22 who knows the county recorders, who's able to set up
23 appointments, who's able to coordinate, bringing the
24 product to the County? Yes.
25 Q So you were just a scheduler of appointments,
Page 26
1 essentially, as the vice president?
2 A Yeah, if you want to call that, you could say
3 that, sure.
4 Q And you were the vice president to perform that
5 function at Exigent; yes?
6 A Yeah. Yeah. I think that's probably accurate.
7 Q Did you have a secretary to help you with that?
8 A No. Huh-uh.
9 Q And who did you report to at Exigent?
10 A Alex Maxwell.
11 Q And did you say you started at Exigent in
12 October '04?
13 A Yes.
14 Q Is that about right?
15 A Yeah, about right.
16 Q And you finished up in about September of '06?
17 A Uh-huh.
18 Q True?
19 A Uh-huh.
20 Q Okay. And so nearly two years, you worked at
21 Exigent?
22 A Uh-huh.
23 Q All right. And during the entire time, did you
24 report to Alex Maxwell?
25 A Yes.
Page 27
1 Q And what position did he hold in the company,
2 to your knowledge?
3 A He was president. And again, I believe, I'm
4 not sure if it was president or CEO.
5 Q Okay. And why did you leave Exigent?
6 A Got laid off.
7 Q Laid off by who?
8 A Alex Maxwell.
9 Q And at the point in time when you were laid off
10 by Exigent, were any other employees laid off at the
11 same time?
12 A Three others.
13 Q Who?
14 A I don't know.
15 Q Well, how do you know others were laid off?
16 A Because I was told that.
17 Q By who?
18 A By Alex Maxwell.
19 Q And what exactly was the term he used when he
20 let you know you were being let go?
21 A He says: We're terminating your employment.
22 We're having a sale. The company is going to be sold in
23 ten days and you, along with three other individuals,
24 are being let go for purposes of the sale, and then the
25 company was sold a couple weeks later to ACS.
Page 28
1 Q What is ACS?
2 A I believe it stands for Affiliated Computer
3 Services.
4 Q Do you know what that company does?
5 A Not entirely. I understand it's a large
6 company.
7 Q Do you know --
8 A I imagine it's computer services.
9 Q Did you ever seek employment with that company?
10 A No.
11 Q And so when you said you were laid off,
12 Mr. Maxwell, he never told you you were being laid off,
13 did he?
14 A He didn't use those words, no.
15 Q And why did you use those terms with me then?
16 A Because it was dumping salary for the sale as
17 opposed to nonperformance, or whatever other words you
18 want to use.
19 Q How many -- how many employees, at the time you
20 were let go from Exigent, were employed by Exigent, to
21 your knowledge?
22 A 35. I think it was less than 50. Between 35
23 and 50.
24 Q And you would know that because you were the
25 vice president of Exigent; yes?
Page 29
1 A No.
2 Q It wasn't important to know how big the company
3 was when you were vice president?
4 A No, not for me.
5 Q You didn't care?
6 A Well, I wouldn't say I didn't care but it was
7 not in the forefront of what I needed to know and the
8 forefront of what I needed to know was getting into the
9 County offices.
10 Q Well, wasn't part of the information you needed
11 to know was how robust Exigent was for purposes of
12 marketing the product to potential customers? Wasn't
13 that important?
14 A Yeah, I guess it was.
15 Q And didn't that include the size of Exigent, or
16 no, it didn't matter?
17 A I think it mattered but, you know, it was not
18 one of my big selling points.
19 Q In fact, it's something that you didn't -- you
20 didn't concern yourself with; yes?
21 A The size of Exigent?
22 Q Right.
23 A Yeah, I didn't concern myself with that.
24 Q Did you tell any of the potential customers of
25 Exigent that you thought the size of Exigent was a
Page 30
1 negative aspect of the company that should deter them
2 from buying the software?
3 A Did I say that to prospective customers?
4 Q Yes.
5 A That's your question?
6 Q Yeah.
7 A No.
8 Q Why not?
9 A That's a pretty negative statement, if you're
10 looking for customers.
11 Q Well, you were always truthful with customers,
12 right?
13 A Sure.
14 Q Are you a truthful person?
15 A Yes.
16 Q Is it ever your practice to misrepresent
17 things?
18 A No.
19 Q Do you think it's okay to make
20 misrepresentations?
21 A Sometimes.
22 Q Sometimes, it's okay?
23 A Sure.
24 Q When I say "misrepresentations," I mean lie.
25 It's okay to lie sometimes?
Page 31
1 A Sure.
2 Q Okay. When is it okay?
3 A Suppose my family's in danger, and there's a
4 situation where if I tell the truth, perhaps an intruder
5 can find where the key is and go in and do harm. If I
6 lie, perhaps I could buy me a few minutes so we can go
7 about rectifying the situation or diffusing the
8 situation.
9 I think there are some situations, albeit
10 extreme, where, if I had to save a loved one, if I had
11 to save many people, if I was in a quandary and a lie
12 seemed to be a good strategy for the time, then I would
13 do it.
14 Q Do you consider this lawsuit to be a quandary?
15 A A quandary?
16 Q Yeah. You used --
17 A What is "quandary"?
18 Q Oh. Let me ask you. You used the word
19 "quandary" about --
20 A Oh. Okay.
21 Q -- 30 seconds -- let me finish.
22 A Oh. Uh-huh.
23 Q You used the word "quandary" about 30 seconds
24 ago.
25 What does that mean?
Page 32
1 A You're in quicksand, if you will, sort of in a
2 tough situation.
3 Q Okay. Is this lawsuit a quandary for you?
4 A No. Or -- or, you know, let me take that back.
5 Perhaps. It depends on, you know, there are many
6 definitions of "quandary" but it's unfortunate.
7 Q And when you're in a quandary, your testimony
8 is that it's -- it may be okay for you to lie?
9 MR. POULOS: Objection. Misstates the
10 witness's testimony.
11 THE WITNESS: Oh. Come on. No. No.
12 BY MR. THOMAS:
13 Q I actually thought that's what you said.
14 A This is not an extreme situation.
15 Q Okay.
16 A I thought I was trying to be clear about
17 extreme situations. This is not extreme.
18 Q Okay.
19 A It's a pain in the ass but it's not extreme.
20 Q All right. Understood. I misunderstood you,
21 obviously.
22 A Yeah. Yeah. Yeah.
23 Q But I understand you now.
24 All right. That's helpful. So before you
25 worked at Exigent, where did you work before then?
Page 33
1 A AMCAD. A company called AMCAD, A-M-C-A-D, Inc.
2 Q And when did you -- strike that.
3 When did you last work for AMCAD?
4 A I think it was '04, that October '04. I went
5 straight from AMCAD to Exigent.
6 Q Okay. So just so we have kind of a clear
7 timeline, approximately October of 2004 is when you
8 would have --
9 A Approximately.
10 Q -- last worked for AMCAD?
11 Excuse me. Yeah, AMCAD.
12 All right. And when did you first start
13 working for AMCAD?
14 A I think it was February 2002. And again, this
15 is approximate dates.
16 Q Fair enough.
17 A Best of my recollection.
18 Q I appreciate that. So you worked for AMCAD --
19 A No. No. I'm sorry.
20 Q Fair enough.
21 A I take it back.
22 Q Yeah.
23 A It was September 2002.
24 Q Okay. I appreciate that. And so you worked
25 for AMCAD for approximately two years.
Page 34
1 A Yes.
2 Q Fair enough?
3 A Yes.
4 Q All right. And when you first started at
5 AMCAD, what was your position?
6 A Vice president. Almost the same title. Vice
7 president, regional manager for the western states, I
8 believe, was my title.
9 Q Vice president, regional manager. And --
10 A For the western states. They were clear about
11 that. That was my area.
12 Q And who did you report to?
13 A Ronald Corneilson.
14 Q Can you spell his last name, please, if you
15 know?
16 A C-O-R-N-E-I-L-S-O-N.
17 Q All right. Now, did you report to him the
18 entire time you worked at AMCAD?
19 A Yes.
20 Q Okay. And what was his position with the
21 company?
22 A He was CEO.
23 Q Okay. And why did you leave AMCAD?
24 A Travel. Too much travel.
25 Q What does that mean? You didn't like the
Page 35
1 travel involved in the work? Too much of it?
2 A Yeah. I was gone from my home approximately
3 three weeks out of four during the month. My wife is
4 retired. I didn't want to leave her there three weeks
5 out of four, not being at home.
6 Q Yeah. That sounds tough.
7 A Their headquarters were Washington, DC.
8 Q Okay. Did you have a regional sales office you
9 worked out of?
10 A I had a little space in my garage that I worked
11 out of --
12 Q Okay. Fair enough.
13 A -- which was considered the regional office.
14 Q That was the regional office of AMCAD.
15 So at AMCAD, you were making sales calls
16 similar to the ones you discussed about Exigent?
17 A Yes.
18 Q All right. What were your responsibilities as
19 the vice president of AMCAD?
20 A Contacting counties, contacting county
21 recorders. I was very involved with electronic
22 recording at that time. It was an area that was
23 expanding, so I was one of the quote-unquote experts in
24 electronic recording.
25 AMCAD also asked me to participate in a couple
Page 36
1 installs, so I did participate in a couple installs.
2 Q And what counties were those installs?
3 A No idea.
4 Q Were they in California?
5 A No. One was in North Carolina and one was in
6 Colorado.
7 Q And what was your role in those installs for
8 AMCAD?
9 A Trainee --
10 Q You were --
11 A -- might be the best word.
12 Q You were just a trainee?
13 A Absolutely correct. Go down to Carolina for
14 three weeks with the install team and learn what you
15 can.
16 Q Okay.
17 A So I don't know if that's a trainee or
18 apprentice, we can say.
19 Q So other than being trained by others on two
20 installs, was it -- is it your testimony that your work
21 for AMCAD was essentially just scheduling meetings
22 and --
23 A Trying to make sales.
24 Q -- trying to make sales?
25 A And the first part of making sales is getting
Page 37
1 through the door.
2 Q And once you get through the door, though, your
3 job was to arrange for presentations of product,
4 correct?
5 A Correct.
6 Q And participate in those meetings?
7 A Correct.
8 Q Demonstrating product?
9 A Correct.
10 Q And did you -- were you the lead in any of
11 those meetings --
12 A No.
13 Q -- as the vice president of AMCAD?
14 A No.
15 Q Who was?
16 A It was a fellow named Ryan Schoenfeld.
17 Q And what's his position?
18 A And this guy named Jim Brown. Don't know
19 exactly. I think Ryan might have been director of
20 sales.
21 Q Okay. And --
22 A Could I --
23 Q If you want to clarify something, please do.
24 A I've been a county recorder for 12 years. I
25 was hired as a county recorder, the idea being I'm on a
Page 38
1 level playing field with the other recorders. So it's
2 almost I'm the ex-county recorder endorsing a product,
3 and when I talk to recorders, it was mostly about
4 recording business, work flow in the office, indexing
5 rules.
6 I talked about the nuts and bolts of
7 functionality that a county recorder needs and I had
8 credibility from being a county recorder for 12 years.
9 When the demo of the product came, the
10 technical demos of the product, that was not really my
11 role at that time. So I just want to clarify that.
12 Q So for example, you had no role when it comes
13 to like actually customizing software for a particular
14 customer?
15 A No. But -- well, if a customer said, in the
16 State of Missouri, "This is how we handle marriage
17 licenses," I'm going to understand that.
18 I'm going to go back to the team and say, "This
19 is how Missouri handles it. I want to know our
20 functionality and whether our functionality can handle
21 this or if we have to go out and you guys are going to
22 have to write some more code to handle the functionality
23 that Missouri requires."
24 Was I writing code? Was I with the techs? Did
25 I even understand how to write code? No, but I do
Page 39
1 understand the functionality and what the state statutes
2 require.
3 Q When you say "code," what is that?
4 A Code?
5 Q Yeah. You used the word "code."
6 A I don't know. That's what all the techies say,
7 "code," so I guess I say it.
8 Q What --
9 A It's programming. I think it's something that
10 makes software programs go. I don't know.
11 Q You're not sure?
12 A Not sure. To this date, if you ask me what a
13 source code is, I probably couldn't give you a good
14 answer.
15 Q So when you said "code," you meant computer
16 program code?
17 A Yes. Uh-huh. Uh-huh.
18 Q And it wasn't important for you to understand
19 what "computer program code" is --
20 A Huh-uh.
21 Q -- as the vice president of a company that
22 sells computer programs?
23 A Huh-uh. No. I was never asked to sit down and
24 start learning code, and if so, I wouldn't have taken
25 the job.
Page 40
1 Q Now, you said -- have you now identified for me
2 all of the responsibilities you had as a vice president
3 of AMCAD?
4 A Yes.
5 Q During the sales pitches you would make to
6 various counties as a vice president of AMCAD, was it
7 your practice to explain the benefits of AMCAD software?
8 A Yes.
9 Q And so you had to understand what AMCAD
10 software did to explain those benefits; yes?
11 A I had to understand the functionality, yes.
12 Q How the software worked generally; yes?
13 A The functionality as opposed to how that
14 functionality was achieved.
15 Q Well, did you ever have to use the software to
16 show it to a client?
17 A No.
18 Q So you've never used AMCAD software, true?
19 Never once.
20 A No, I think I have, when I was first hired, I
21 think I sat down and played around with it.
22 Q Other than that?
23 A In front of a client? No, huh-uh.
24 Q You've never demonstrated any functionality to
25 a client on a computer terminal --
Page 41
1 A Huh-uh.
2 Q -- for AMCAD?
3 A No.
4 Q You never did that for Exigent?
5 A No.
6 Q How many times were you present when others
7 demonstrated functionality of AMCAD software?
8 A Don't know. I can't tell you how many demos I
9 was involved with.
10 Q Was AMCAD -- this is clerk-recorder software
11 for AMCAD as well; yes?
12 A That's correct.
13 Q Okay. And do you know how many customers AMCAD
14 had, approximately, when you were a vice president of
15 AMCAD?
16 A 50, 55 counties.
17 Q Spread out through the --
18 A Maybe 60.
19 Q Spread out through the country?
20 A Mostly east of the Mississippi.
21 Q Were any in California?
22 A At the time I started with AMCAD, no. When I
23 left AMCAD, we did get Ventura County.
24 Q When you say when you left AMCAD, do you mean
25 before or after you left?
Page 42
1 A Before I left AMCAD, we had Ventura County.
2 Q What is e-recording?
3 A E-recording is a acronym for electronic
4 recording.
5 Q What is that?
6 A Electronic recording is the act of delivering a
7 document in a digital or digitized state to the county
8 recorder for recordation.
9 Q And do you know if all counties in California
10 currently do electronic recording?
11 A Do I know if all counties?
12 Q Yeah.
13 A All counties do not --
14 Q Okay.
15 A -- do electronic recording.
16 Q Do you have an understanding of which counties
17 do currently, in California, do electronic recording?
18 A I used to.
19 Q If you know.
20 A I used to because there were two. Orange
21 County and San Bernardino County began actually in the
22 late '90s. There's a couple companies now that have
23 been certified by the state and I believe one of those
24 companies is called Certain. I don't know how many
25 counties Certain has but I believe one or two of their
Page 43
1 counties have begun to record electronically.
2 Q Do you know of any -- you said one or two
3 companies --
4 A I know Orange and San Bernardino, they're doing
5 it. Got that, two, but then what I'm saying is I'm not
6 quite sure how many more. I do know -- I think Kern is,
7 Kern County. They're a Certain customer, and I'm not
8 sure if any other Certain customers have begun
9 electronic recording.
10 Q Does Nevada County do electronic recording?
11 A No.
12 Q Why not?
13 A Why not?
14 Q Yeah.
15 A It's something that I have decided not to
16 implement at this time.
17 Q Why was that? Why did you make that decision?
18 A There were other priorities.
19 Q What were those?
20 A Other parts of my job.
21 Q Specifically, what were they?
22 A Elections.
23 Q All right.
24 A And transforming the recorder's office into a
25 much more efficient operation.
Page 44
1 Q And when did you make that decision to forego
2 or not to do electronic recording in Nevada County?
3 A When?
4 Q Yes.
5 A This is sort of a dynamic state, from the time
6 I got appointed until now, that decision is we're going
7 to be doing other things first and we're going to be
8 preparing our house for electronic recording.
9 Electronic recording, the statutes does involve
10 an additional fee. If you're an elected official, you
11 need to be careful when you're asking for additional
12 fees from the constituents.
13 Q And how is it you're aware what other counties
14 are doing in terms of e-recording? Do you communicate
15 with other clerk-recorders?
16 A Yes.
17 Q Generally, it's a group of people, you
18 generally talk to one another; yeah?
19 A You know, what got me to be aware, and on the
20 frontline, was my association with AtPac and Dave and
21 Jim. We did a lot of good things in the '90s. You're
22 probably aware they were a client of mine for many,
23 many, many years, and I was on the forefront with
24 electronic recording. I was on the forefront of quite a
25 few things, very active in the County Recorders
Page 45
1 Association to the point of being elected president,
2 went through the chairs, going through the chairs again,
3 been head of their legislative committee, work with our
4 lobbyist for the County Recorders Association and it
5 helps me do my job better.
6 Q And in addition to the things you just
7 identified --
8 A Uh-huh.
9 Q -- for approximately four years --
10 A Uh-huh.
11 Q -- you worked as the vice president of two --
12 A Two companies.
13 Q -- two software companies --
14 A Uh-huh.
15 Q -- correct?
16 A Yes.
17 Q That sold software to clerk-recorders, correct?
18 A Yes. Yes.
19 Q Now, have you heard that Fresno County does
20 electronic recording?
21 A No.
22 Q You mentioned there were a couple of companies
23 that were certified by the state to do e-recording.
24 A Uh-huh.
25 Q Do you remember that testimony?
Page 46
1 A Yeah.
2 Q And you mentioned Certain is one of them. What
3 was the other?
4 A Yes. The other is called Secure.
5 Q Secure?
6 A Uh-huh.
7 Q And do you know what Secure is? It's another
8 software company?
9 A Not quite sure the composition of Secure. It's
10 a little complicated because I believe it was developed
11 by a private company and Orange County bought the rights
12 to the program, so I'm not quite sure how you would
13 describe Secure.
14 Q Okay.
15 A But again, it's a certified portal for
16 electronic recording in the State of California.
17 Q And who's the current clerk-recorder software
18 vendor for Nevada County?
19 A Aptitude Solutions.
20 Q Okay. Do you know if Aptitude is certified by
21 the state to do e-recording?
22 A They are not.
23 Q Do you know why that is?
24 A I have no idea.
25 Q Have you ever talked to them about that?
Page 47
1 A Not recently.
2 Q When -- strike that.
3 A When did I last talk to them about this?
4 Q Yes. Yes.
5 A After they installed in 2009. Around
6 July 2009.
7 Q What is Certain?
8 A What is it?
9 Q Yeah.
10 A I believe it's a software company. I'm going
11 to have to describe it as a software company. They
12 built a portal for the delivery of electronic documents.
13 Q Did you know that AtPac was the first Certain
14 customer to do e-recording in California?
15 A No. That's great news.
16 Q Why is that great?
17 A Why is it great?
18 Q Why do you think that's great?
19 A I don't know. The first customer of anything
20 seems to be pretty successful.
21 Q It's important to be --
22 A I just -- I think this whole line of
23 questioning is not important, not relevant, and if you
24 continue, those are the kind of answers you're going to
25 get.
Page 48
1 Q What kind of answers?
2 A Truthful answers.
3 Q So if I continue, you'll continue to be
4 truthful?
5 A Yeah.
6 Q And you'll do that because you know you're
7 under oath, right?
8 A Well, you did the whole song and dance about
9 being truthful, and I told you I'm a truthful person.
10 Q Right. I just didn't understand your last
11 comment when you said if you keep down this line of
12 questioning, those are the kind of answers you're going
13 to get.
14 A Yeah. Well, I'm answering these things
15 truthfully. I'm not trying to deceive anyone and you're
16 questioning a lot of my answers and I don't get it.
17 They're pretty clear answers. Pretty clear answers.
18 MR. THOMAS: Now, can I have the large
19 document? Let's mark this next in order. It's kind of
20 big but let's just be complete. Go ahead and mark it.
21 (Exhibit No. 370 was marked for
22 identification.)
23 BY MR. THOMAS:
24 Q Okay. For the record, I've just marked as
25 Exhibit 370 a document I've placed in front of the
Page 49
1 witness.
2 Mr. Poulos and I agreed that we would leave a
3 gap between the last exhibit marked in the last
4 deposition so as to ensure, number one, there's no
5 duplication, and number two, to allow some space to add
6 one more exhibit to the last deposition. Fair enough?
7 MR. POULOS: Yep.
8 BY MR. THOMAS:
9 Q Okay. Mr. Diaz, do you have Exhibit 370 in
10 front of you?
11 A Yes.
12 Q What is this?
13 A So a little story about Greg Diaz which was on
14 my campaign website.
15 Q Okay. And have you reviewed this before?
16 A Yes.
17 Q Okay. And did you write it?
18 A Most of it, yes.
19 Q Okay. Who else wrote parts of it?
20 A Another person on my campaign team and we just
21 wrote this together.
22 Q Okay. And you reviewed it and made sure it was
23 truthful and accurate; yes?
24 A Yes.
25 Q You were careful to do that?
Page 50
1 A Yes.
2 Q In the fifth paragraph, it says: It took us --
3 do you see that word, "It took us"?
4 A Yes, uh-huh.
5 Q Please read that paragraph.
6 A "It took us about eight years to build our
7 house. That's when we started looking at whether we
8 could live here full-time. I took a job with Placer
9 County, and with it, a big pay cut. I later worked for
10 AMCAD, LLC, a nationwide imaging and document management
11 solutions provider, as vice president and general
12 manager for their western regional operations
13 customizing, testing, training and implementing land
14 information systems and voting systems for 30 counties
15 nationwide. Then in 2007, I became clerk-recorder for
16 Nevada County."
17 Q And you used the word "land information
18 systems."
19 What is that?
20 A Land information systems? Oh. Land
21 information systems.
22 Q Yes. What does that mean?
23 A County recorder systems.
24 Q When you say "systems," you mean computer
25 software; yes?
Page 51
1 A Yes.
2 Q And did you write that portion?
3 A Yes.
4 Q Okay. Now, you mentioned that you worked for
5 Placer County.
6 A Yes.
7 Q And -- well, actually, let me ask you a better
8 question.
9 Where did you work before you worked at AMCAD?
10 A Placer County.
11 Q Okay. And when did you last work for Placer
12 County?
13 A September 2002, I believe, the same time I
14 joined AMCAD.
15 Q Okay. And when did you start working for
16 Placer County?
17 A February 2002.
18 Q All right. And what was your position in
19 Placer County when you first started there?
20 A Recording manager.
21 Q And did you keep that position the entire time
22 you were there?
23 A Yes.
24 Q And what was the recording manager position?
25 What did you do?
Page 52
1 A I oversaw the recorder operations.
2 Q And what were those operations?
3 A Recording documents, indexing documents,
4 archiving documents, supplying copies, transfer tax
5 administration. Things we do in a county recorder's
6 office.
7 Q Okay. And did the -- in your oversight of
8 recording operations, were there any software products
9 used by Placer County at that time to perform recording
10 operations?
11 A Sure. AtPac.
12 Q So when you were the manager of recording in
13 Placer County, overseeing recording operations, that was
14 done using AtPac software, correct?
15 A Correct.
16 Q And who did you report to?
17 A Jim McCauley was the County Clerk-Recorder for
18 Placer County.
19 Q Do you know if he still is?
20 A Yes, he is.
21 Q And why did you leave Placer County?
22 A I had wanted to explore an opportunity in the
23 private sector with AMCAD.
24 Q What was your relationship with Mr. McCauley?
25 Was it a good one?
Page 53
1 A Yeah.
2 Q Did Mr. McCauley ever express any performance
3 issues with your performance as the --
4 A With me?
5 Q As the --
6 A No.
7 Q -- manager of recording?
8 A Well, yes. Yes.
9 Q As the manager of recording in Placer County?
10 A Yeah.
11 Q What were those?
12 A Great job. The best.
13 Q He was happy with your work?
14 A Absolutely.
15 Q Okay. At all times?
16 A At all times.
17 Q Have you ever heard anything to the contrary
18 from anyone else?
19 A No. Now, when I left, he didn't like that.
20 Q Oh, really?
21 A But during the time I was employed, which I
22 believe was your question --
23 Q Yeah. What did he say about your departure?
24 You said he didn't like that.
25 A I believe he said -- he said: Good luck. I
Page 54
1 understand. If you ever change your mind, you're
2 welcome back, all the -- the --
3 Q The niceties of a person departing?
4 A A lot of the things that you hear, yeah.
5 Q I understand. Okay. Was your work in Placer
6 County the first time you had managed recording using
7 AtPac software?
8 A No.
9 Q Okay. And when was the first time you did
10 that?
11 A 1989 in San Francisco County --
12 Q And what was your position?
13 A -- before Mr. Krugle came.
14 Q What was your position in San Francisco when
15 you started in 1989 working with AtPac software?
16 A You know, no, it was 1990, when I formally
17 became the assistant recorder at that time.
18 Q In San Francisco?
19 A In San Francisco.
20 Q And at that time, San Francisco was using AtPac
21 software?
22 A Yes.
23 Q For clerk-recorder functionality?
24 A No, for recorder functionality. I would assist
25 the assistant recorder. The consolidation of the county
Page 55
1 clerk with the county recorder occurred in '92.
2 Q And you talked about your work in Placer County
3 starting in September of 2002. Where did you work
4 before that?
5 A City and County of San Francisco.
6 Q Okay. And when did you last work for City and
7 County of San Francisco?
8 A February 2002, or maybe it was January, you
9 know.
10 Q Judy shortly before you started at Placer?
11 A Two -- you know, give two weeks notice to the
12 City and started working with Placer. I believe that
13 was toward the end of January and I actually started in
14 Placer in February of 2002.
15 Q Okay. And you started working for San
16 Francisco City and County when?
17 A In 1985, in the City Attorney's Office.
18 Q And you became the assistant clerk-recorder in
19 1990, approximately?
20 A No. No. I became the assistant recorder --
21 Q Understood.
22 A -- in 1990. The clerk and the recorder were
23 not consolidated in '90. The consolidation took place
24 in '92.
25 Q Did you like working -- excuse me.
Page 56
1 Did you like working at Placer County?
2 A Sure.
3 Q Was it a pleasant work experience for you or a
4 good one?
5 A Yeah, it was fine.
6 Q It sounds like you have good memories of
7 working in Placer County; yes?
8 A Yeah, I have good memories of all my time in
9 the public sector.
10 Q Okay.
11 A Horrible memories of the private.
12 Q So let me ask you this, sir. You mentioned
13 being unemployed for a period of time. When was that?
14 A Uh-huh. That was from Exigent. I believe it
15 was September 2006 until my appointment in June 2007.
16 Q And did you look for work at all during that
17 point in time?
18 A Yep.
19 Q Okay.
20 A You're required to if you're collecting
21 Unemployment.
22 Q I understand. So you were receiving -- you
23 weren't unemployed because you wanted to be unemployed.
24 You were interested in working hard for someone; yes?
25 A Yes.
Page 57
1 Q Okay. Why didn't you go back to Placer County?
2 A I didn't think I had a good shot to get
3 employment in Placer County at the time.
4 Q Why did you think that?
5 A McCauley stopped speaking to me after I left.
6 Q Oh. Really.
7 A Uh-huh.
8 Q Tell me: How do you know?
9 A Because he didn't speak to me. What do you
10 mean how do I know?
11 Q You tried to talk to him and he wouldn't talk
12 to you?
13 A Absolutely.
14 Q Oh. Well, do you have any understanding of why
15 that was?
16 A I think when I left, he acted like I shot his
17 dog. He was very disappointed. Very, very
18 disappointed.
19 Q So -- but he also said you're welcome back any
20 time, right?
21 A Those were his words when I -- my last day.
22 Q So did you -- when you became unemployed from
23 Exigent, tell me about what you did to try to get a job
24 with Placer.
25 A Afterward?
Page 58
1 Q After you lost your job from Exigent.
2 A I did not try to do anything to get a job at
3 Placer.
4 Q Why not?
5 A Because the guy wasn't speaking to me.
6 Q So you learned that he wasn't speaking to you
7 when?
8 A When I was with AMCAD.
9 Q Okay. And how did you learn that?
10 A We attended recorder conferences.
11 Q Okay.
12 A And Mr. McCauley was a recorder who also
13 attended the conferences.
14 Q And your testimony is, sir, that he was so
15 thrilled with your work for him --
16 A Uh-huh.
17 Q -- that when you left --
18 A Uh-huh.
19 Q -- he flipped and actually began to have an
20 extreme dislike for you and refused to talk to you --
21 A That's what I felt, uh-huh.
22 Q -- from that point forward?
23 A Yes.
24 MR. POULOS: You got to let him finish --
25 THE WITNESS: Okay. Sorry.
Page 59
1 MR. POULOS: -- before you answer.
2 MR. THOMAS: It is important. We both need to
3 be careful, okay?
4 MR. POULOS: So --
5 BY MR. THOMAS:
6 Q So it's your testimony -- let me just ask a
7 clean question.
8 It's your testimony that Mr. McCauley was
9 thrilled with you when you were employed there; thought
10 you were great, and then when you decided to leave --
11 according to you, you say you decided to leave -- he
12 then flipped and developed an extreme dislike for you
13 and refused to talk to you from that point forward.
14 MR. POULOS: I'm going to object to the extent
15 it misstates the witness's testimony but go ahead.
16 THE WITNESS: Yeah.
17 BY MR. THOMAS:
18 Q Why did you leave Placer County to go -- you
19 went from Placer to AMCAD, yes?
20 A Uh-huh.
21 Q Why did you make that move?
22 MR. POULOS: Objection. Asked and answered.
23 THE WITNESS: I think the biggest reason was a
24 desire to go to the private sector and a salary.
25 BY MR. THOMAS:
Page 60
1 Q It had nothing to do with Mr. McCauley
2 expressing dissatisfaction with your performance at
3 Placer?
4 A At that time? No, no, not at all.
5 Q When you said "at that time," what do you mean?
6 A The time I was working for him, not at all.
7 Q Did you ever hear from Mr. McCauley, after you
8 finished working in Placer, that he was dissatisfied
9 with your performance at Placer?
10 A No.
11 Q Did you ever ask him: Why won't you talk to
12 me?
13 A Yes.
14 Q And what did he say?
15 A Nothing.
16 Q He just turned away and turned his back and
17 walked away?
18 A Yeah. He and Jim Maclam, uh-huh.
19 Q When you say "Jim Maclam," tell me, that's --
20 who's Jim Maclam?
21 A He was the founder and president of AtPac.
22 Q Okay. And when you say he and Jim Maclam
23 turned and walked away --
24 A Uh-huh.
25 Q -- when did that happen?
Page 61
1 A I can't tell you exactly.
2 Q Well, generally. It happened after you left --
3 A Generally --
4 Q -- Placer.
5 A -- I believe, and this is why I'm not sure, but
6 I believe it was at the new law conference in 2002.
7 Q And what exactly happened there that you
8 recall?
9 A I approached them, said: Guys, what's going
10 on? And they walked right by me.
11 Q And when you say: Guys, what's going on, what
12 did you mean by that? What were you --
13 A Why are you giving me the cold shoulder after
14 we've been very good friends socially and professionally
15 for quite a few years.
16 Q And when you said "guys," you were talking to
17 both of them; yes?
18 A Correct.
19 Q And so is it your testimony that Jim Maclam was
20 also giving you the cold shoulder?
21 A Oh, absolutely.
22 Q And did that also happen only after you left
23 Placer County?
24 A Yes, when I became a competitor of his.
25 Q So when did you first reach out to try to
Page 62
1 communicate with Jim Maclam after you left Placer
2 County?
3 A Don't know exactly, but again, I believe it was
4 at the New Law Conference in 2002, December 2002.
5 Q And how many months after your departure from
6 Placer was that?
7 A Let's see. October, November, December. Eight
8 weeks.
9 Q Okay. So shortly after you left?
10 A Yes.
11 Q And the last time before that you had talked to
12 Jim McCauley was when he told you great work and you're
13 welcome back any time?
14 A Correct.
15 Q And the very next time you talked to him was at
16 this conference, right?
17 A I didn't talk to him. Well, yes, I did. I
18 said "Hey, Guy" -- yeah. Yes.
19 Q And you said to him: Guys, what's going on,
20 right?
21 A Right, uh-huh.
22 Q So I don't understand why you would have said
23 that to him if that was the next time you talked to Jim
24 McCauley.
25 A Because I had heard Jim McCauley was very upset
Page 63
1 with me going to the private sector.
2 Q Okay. Who told you that?
3 A I don't know.
4 Q You heard that from someone?
5 A The county recorders is a small group, a very
6 small group.
7 Q Yes.
8 A So it may have been Phil Schmidt from Ventura
9 who I was friends with. It may have been Craig Kramer
10 from Sacramento. It may have been -- there were a
11 couple ladies in the office who would call and e-mail
12 and wanted to keep in touch with me.
13 Q Who was that?
14 A Those ladies?
15 Q Yeah.
16 A I can't -- I don't remember.
17 Q And when you said they would e-mail you, where
18 would they e-mail you? At home or at the office?
19 A Yeah, at home.
20 Q Okay. And did you have --
21 A Or call.
22 Q What's your e-mail address at home?
23 A Right now, it's [email protected].
24 Q And what was it after?
25 A I have no idea -- what was it when? That's
Page 64
1 what it is now, my e-mail now. I don't know what my
2 e-mail was nine years ago.
3 Q When did you first establish the alpaca e-mail
4 you just listed?
5 A I don't know.
6 Q Do you have an estimate?
7 A Three years ago.
8 Q Do you use that to communicate with some
9 clerk-recorder staff?
10 A Sometimes, yeah.
11 Q Even from -- staff from other counties; yes?
12 A Yes. That's what I assume you meant.
13 Q Including Placer County?
14 A Yeah, maybe, one or two times maybe.
15 Q Okay. And let me ask you, sir, what efforts
16 did you make to search that e-mail account, in this
17 case, to provide materials or documents to the lawyers
18 representing you and Nevada County?
19 A No effort.
20 Q No effort whatsoever?
21 A Huh-uh.
22 Q Okay. Did anyone ask you to?
23 A No. Search my personal e-mail account? No.
24 Huh-uh.
25 MR. THOMAS: Okay. I can tell you want to take
Page 65
1 a break.
2 MR. POULOS: If it's okay.
3 MR. THOMAS: Let's take a break. That's fine.
4 MR. POULOS: How long --
5 THE VIDEOGRAPHER: Going off the record at
6 10:37 a.m.
7 (Recess taken from 10:37 a.m. to 10:47 a.m.)
8 THE VIDEOGRAPHER: Back on the record at
9 10:47 a.m.
10 BY MR. THOMAS:
11 Q Mr. Diaz, we take breaks sometimes during the
12 deposition. You understand that even though the court
13 reporter doesn't readminister the oath, the same oath
14 you gave this morning applies all during the day. You
15 understand that?
16 A Yes.
17 Q Okay. Sir, would you have any objection to our
18 review of employment records of yours from Placer County
19 which discuss the circumstances of your departure or
20 performance reviews? Would you have any reason to
21 object to us looking at those?
22 A No.
23 Q You have no -- nothing to hide there,
24 obviously, right?
25 A No.
Page 66
1 Q So you would consent to us looking at your
2 Placer County employment records?
3 A Sure.
4 MR. POULOS: You can send us the form.
5 BY MR. THOMAS:
6 Q Now, at some point, you worked with AtPac
7 software at Placer County, and then you left Placer
8 County, and for a period of roughly four years, you
9 worked as the vice president of two software companies,
10 and then you were unemployed for a period of time and
11 then you were appointed at Nevada County.
12 MR. POULOS: Objection. Compound.
13 BY MR. THOMAS:
14 Q Do I have that right?
15 MR. POULOS: Objection. Compound. But go
16 ahead.
17 BY MR. THOMAS:
18 Q Do I have that right?
19 A Yes.
20 Q Okay. And then your appointment in Nevada
21 County, that reunited you with working with AtPac
22 software again?
23 A Yes.
24 Q The last time you had worked with it was in
25 Placer County?
Page 67
1 A Yes.
2 Q Okay. Now, how long after you joined Nevada
3 County -- you joined as the clerk-recorder, appointed?
4 A Yes.
5 Q Okay. How long after your appointment did you
6 begin communications with Aptitude Solutions about
7 Aptitude -- about Aptitude potentially providing
8 clerk-recorder software to Nevada County?
9 MR. POULOS: Objection, to the extent it lacks
10 foundation, but go ahead.
11 THE WITNESS: How long after I started did I
12 talk to Aptitude about providing software services?
13 BY MR. THOMAS:
14 Q Or potentially providing software services.
15 A Probably -- probably early 2008.
16 Q That's your best estimate as you sit here
17 today?
18 A Yeah. There was a conference where pretty much
19 all the software vendors, I had mentioned to them: Look
20 out for an RFP from my county, and if you want a
21 response, I welcome your response.
22 Q Okay. So --
23 A So I mean I talked to every software vendor for
24 a couple conferences. It took a while to get the RFP
25 out, but I let it known that we were working on an RFP,
Page 68
1 uh-huh.
2 Q And to your knowledge, when did Jim Maclam pass
3 away?
4 A I don't know.
5 Q Was it before or after you were appointed
6 clerk-recorder in Nevada County?
7 A I think he had passed away before.
8 Q Okay.
9 A To my knowledge.
10 Q And you had worked with him for many years
11 before he passed away?
12 A I worked with him for many, many years.
13 Q Did you go to his funeral?
14 A No.
15 Q Why not?
16 A I didn't want to.
17 Q Why didn't you want to?
18 A I don't know. I didn't want to.
19 Q And so after you were appointed clerk-recorder
20 in Nevada County, when did you form a desire to change
21 clerk-recorder software? How long after your
22 appointment?
23 Let me ask a clean question. I'm sorry.
24 That's like three questions.
25 How long after your appointment in Nevada
Page 69
1 County, as clerk-recorder, did you begin considering
2 replacing AtPac as the county's clerk-recorder software
3 provider?
4 A How long after my appointment?
5 Q Yes.
6 A Two minutes.
7 Q Immediately.
8 A Immediately. And it was not -- it was not to
9 replace the existing provider. Right after I got
10 appointed, I wanted to see what was out there, and the
11 best way for me to see what was out there, to meet our
12 needs, was to go through an RFP process. It was not
13 ordained from the beginning that AtPac was going to be
14 replaced.
15 Now, I do know that AtPac's going to tell you,
16 and they told staff, in my office: Oh, he wants to
17 replace us, and that's far from the truth. That was not
18 the intent.
19 The intent was to see if we could do better in
20 terms of having a software provider and providing me
21 efficiencies in the office.
22 I have an understanding of how personnel is
23 used, the productivity that I want, and I wasn't getting
24 it when I first took over and that was pretty clear.
25 Pretty clear.
Page 70
1 Q And what do you mean by that specifically in
2 terms of you weren't getting productivity you wanted?
3 A There were 12 full-time people in the office
4 and two part-time people for an average of maybe 150
5 documents a day.
6 Q All right.
7 A I'm coming from a shop that I was in charge of
8 for 12 years and we were averaging 900 to a thousand
9 documents a day with approximately, on the recorder
10 side, approximately 20 people. So that said to me right
11 away, there's some inefficiencies in Nevada County.
12 Q Okay. So your experience in San Francisco that
13 it was far more efficient there and you were basing --
14 strike that.
15 Based on that experience, you perceive that
16 there might be something that could be done with the
17 software that would assist in facilitating office
18 efficiency?
19 A My guess was --
20 MR. POULOS: Objection. Vague and ambiguous.
21 THE WITNESS: Okay. My guess was it would
22 probably be prudent to go out and see.
23 BY MR. THOMAS:
24 Q What other software vendors might be available
25 in place of AtPac?
Page 71
1 A No. What other software vendors could provide
2 me with the functionality that I think Nevada County
3 needed.
4 Q And give you the efficiencies that you didn't
5 think were there in Nevada County when you arrived?
6 A Correct.
7 Q Okay. Now, you compared -- you mentioned San
8 Francisco.
9 Did you -- was it your perception that was far
10 more efficient than Nevada County when you first arrived
11 at Nevada County given the number of transactions and
12 the number of employees?
13 A I felt the use of the AtPac software in San
14 Francisco was a lot better than what it was in Nevada
15 County and that's exactly why the intent was not to
16 replace AtPac.
17 I thought AtPac worked well in San Francisco
18 for many years, but in Nevada County, it was not working
19 well, and that happens. That happens if you go and see
20 recorder offices. Offices can have similar software,
21 exactly the same type of software, and you could see
22 efficiencies in one work flow compared to another work
23 flow.
24 Q Okay. So -- and you were the assistant
25 clerk-recorder in San Francisco at the point in time --
Page 72
1 strike that.
2 Were you the assistant recorder in San
3 Francisco when you left San Francisco?
4 A No, I was the County Clerk-Recorder for San
5 Francisco when I left San Francisco.
6 Q Okay. Were you -- was that an elected position
7 or was that --
8 A That was appointed.
9 Q -- when you were appointed.
10 Okay. For how long did you hold that position?
11 A From '95 until 2002.
12 Q Okay. So for seven years.
13 A For seven years.
14 Q And during that entire seven year period, you
15 used -- your office used the AtPac software?
16 A Correct.
17 Q All right. And that office was structured and
18 managed under your direction and control?
19 A Correct.
20 Q Okay. And so when you joined Nevada County --
21 A Uh-huh.
22 Q -- you saw inefficiencies with the way the
23 Nevada County office was structured and used the AtPac
24 software.
25 A Yes.
Page 73
1 Q Right?
2 A Yes.
3 Q And so -- and you remembered the higher
4 efficiency in San Francisco when you were in San
5 Francisco using the AtPac software.
6 A Yes.
7 Q So why didn't you implement whatever protocols
8 and procedures you had in San Francisco using the AtPac
9 software in Nevada County?
10 A Four years is a long time in technology and it
11 was also a long time in terms of legislative
12 requirements for county recorder offices.
13 All of a sudden, there were requirements for
14 redaction. Electronic recording was coming up. There
15 was automatic indexing that was on the horizon,
16 automatic redaction that was on the horizon, so there
17 was functionality, four years later, when I went into
18 the public sector, that enabled me, or I felt at that
19 time -- again, I'm not quite sure where AtPac is,
20 because I hadn't worked with them for four years -- but
21 I do know that 12 people for 150 documents a day is not
22 the type of efficiencies I'm looking for, so let's see
23 what I've missed for four years. Let's get these
24 companies together. Let's talk about the base system.
25 Let's talk about what I'm paying for. Let's talk about
Page 74
1 a third party usage for some of the functionality, et
2 cetera, et cetera, et cetera, and that was my reason.
3 Q You talked about e-recording on the horizon,
4 right?
5 A Well, e-recording began -- it popped up in the
6 mid-'90s. '96, '97, it popped up as a serious topic for
7 California recorders.
8 Q But your testimony is e-recording popping up
9 between the time -- during the time frame you worked for
10 private entities --
11 A Uh-huh.
12 Q -- between 2002 and 2006 --
13 A Yeah, uh-huh.
14 Q -- was the reason you wanted to look at new
15 recording software in Nevada County?
16 A One of the reasons, yes.
17 Q But your testimony's also that e-recording
18 popped up in 1996, right?
19 A Yes, they did, uh-huh.
20 Q So what did you mean when you said that came up
21 in the four-year period before 2007?
22 A I lost you here.
23 Q You said e-recording, the fact that that issue
24 had come up, was one of the reasons you wanted to
25 consider replacing or changing the software used in
Page 75
1 Nevada County.
2 MR. POULOS: Objection. Misstates the
3 witness's testimony.
4 BY MR. THOMAS:
5 Q Isn't that one of the reasons you say you
6 wanted to --
7 A E-recording is something -- yes, uh-huh.
8 Q And did you ask AtPac whether they were
9 certified to do e-recording?
10 A Absolutely.
11 Q And they were, right?
12 A Not that I know of, not at that time.
13 Q Well, your testimony's what? They said: No,
14 we're not?
15 A Yeah, I think they did say "no, we're not,"
16 because they told me, at the RFP evaluation, that that's
17 not part of their scope of operations; that they're a
18 back-end vendor --
19 Q What did that --
20 A -- and they would not be in the business of
21 delivering electronic documents.
22 Q What does that mean, "in the business of
23 delivering electronic documents"?
24 A When electronic recording popped up, in '97,
25 there was a task force assembled by the Attorney
Page 76
1 General, lots of discussions, models from other states.
2 Legislation didn't appear until -- I believe it was
3 2006. It may have been 2005.
4 So for quite a few years, there were a lot of
5 discussions, a lot of models, but legislation didn't pop
6 up until 2005.
7 In the recorder's office, when a document is
8 presented, it will get looked at, it will get cashiered,
9 it will get labeled, it will get indexed, it will get
10 archived. Those are the functions inside the recorder's
11 office.
12 Generally in real life, a submitter is going to
13 be on the other side of the desk submitting a document
14 to the recorder. Once that document has been submitted
15 or delivered, to the recorder, then that document will
16 go through the AtPac software, and AtPac described
17 themselves as being a back-end system. They kick in
18 once the document has been received by the county
19 recorder.
20 They told me they were not in the delivery
21 business, being a person here, delivering the document,
22 to the county recorder. That's the gist of the
23 California legislation that was enabled in 2005. I
24 believe it was called the Electronic Recording Delivery
25 Act.
Page 77
1 Q I see.
2 A Because there has to be software, if a document
3 is in a digitized or digital state, there has to be some
4 software to deliver that image, or template, if you
5 will, to the recorder.
6 Q Uh-huh.
7 A They told me they're not in the business of
8 delivering.
9 Q Okay.
10 A Sorry for the long-winded answer but --
11 Q No. No problem.
12 A -- I wanted to try to be clear.
13 Q Yes. And Aptitude is not in the business of
14 delivering documents, either, right?
15 A That's correct.
16 Q Okay. And neither is AMCAD?
17 A That's correct.
18 Q And neither is Exigent?
19 A That's correct.
20 Q Were any of the counties that -- or strike
21 that.
22 Were any of the software vendors that
23 participated in a Request for Proposal issued by Nevada
24 County, in 2008, were any of them in the business of
25 delivering documents as you've just testified, to your
Page 78
1 knowledge?
2 A To the best of my recollection, I believe
3 Aptitude, in different states, was involved with
4 electronic recording.
5 There's a company called Record Fusion that was
6 involved with electronic recording. I think that's it.
7 Those two.
8 Q Well, I asked you earlier -- go ahead.
9 A Now, the other states' statutes are very, very,
10 very different from California, like night and day, so
11 the hurdles associated with complying with the
12 California statutes were not there in these other
13 states. Almost like night and day.
14 But the question was, if I recollect the
15 question properly, were any other companies involved
16 with electronic recording, and I believe those two were
17 and other states under different statutes, under
18 different conditions, under different logistics.
19 Q So when you -- strike that.
20 So none of the software vendors that Nevada
21 County asked to respond to the Request for Proposal, in
22 2008, none of them, to your knowledge, were doing
23 electronic recording in California.
24 A Correct.
25 Q Why didn't you ask any vendors, who were doing
Page 79
1 electronic recording in California, to respond to the
2 Request for Proposal?
3 A Who were doing electronic recording in
4 California?
5 Q Yes.
6 A Why didn't I ask?
7 Q Or why didn't --
8 A I didn't ask anyone to respond to the RFP.
9 Purchasing handled RFP. I don't handle that.
10 Q Did you ever suggest to purchasing that they
11 should ask, at least some software vendors who were
12 doing e-recording in California, to respond to the RFP?
13 A Yeah, I think so. Yes.
14 Q Who did you tell them to ask?
15 A There's a list, I remember outside of AtPac --
16 because obviously, the incumbent vendor was going to get
17 the RFP -- but there was a list of companies I gave to
18 purchasing because they asked: Who do you think would
19 be interested in responding?
20 Q And your statement that obviously AtPac would
21 get the RFP, what you mean by that is you provided a
22 list to purchasing of potential vendors for the RFP;
23 yes?
24 A Yes. They asked me who, who else would -- do
25 you think will be interested.
Page 80
1 Q Who said who else do you think would be
2 interested?
3 A Mary Ross.
4 Q Okay.
5 A That's my recollection.
6 Q When did she say that to you?
7 A I don't know. On or around the time they were
8 beginning to issue the RFP. I was not in purchasing.
9 Q Well, then, why was she talking to you about
10 potential vendors?
11 A Because it's my department. I think it was
12 more of a courtesy thing.
13 Q What was a courtesy thing?
14 A Do you know of any other vendors. Purchasing,
15 generally, they're not really up on departments, and so
16 they look for departments to assist them a lot of times
17 with information.
18 Q And they asked you for information on potential
19 bidders on the RFP --
20 A Yeah --
21 Q -- process?
22 A -- who do you think -- who do you think might
23 want to bid, yes.
24 MR. POULOS: Objection. Vague and ambiguous.
25 BY MR. THOMAS:
Page 81
1 Q We need to be careful not to talk over one
2 another.
3 A Okay.
4 Q And you provided a list to purchasing?
5 A Yes.
6 Q And the list you provided did not include
7 AtPac, correct?
8 A Right, uh-huh.
9 Q Did you ever talk to AtPac about the RFP
10 before?
11 A AtPac?
12 Q Let me ask a better question.
13 A Uh-huh.
14 Q Did you ever tell AtPac that there was an RFP
15 process before it was issued?
16 A I don't think so.
17 Q Okay. Did you ever talk to Aptitude about the
18 RFP process before the RFP issued?
19 A Yeah. I had mentioned that before. I talked
20 to all the prospective vendors to look out for an RFP
21 coming from our county.
22 Q And the only one you didn't talk to about a
23 potential RFP or prospective RFP --
24 A Uh-huh.
25 Q -- was AtPac?
Page 82
1 A Yeah. Jackie Pollard talked to them for me.
2 That seemed to be how it went when -- my tenure when I
3 was there with AtPac. They always wanted to go through
4 Jackie.
5 Q Well, let me make sure I have a clear answer to
6 my question because --
7 A Okay.
8 Q -- I don't think you answered my question.
9 A Okay.
10 Q Before the RFP was issued by Nevada County --
11 A Uh-huh.
12 Q -- in 2008 --
13 A Uh-huh.
14 Q -- you knew the RFP would be issued, of course,
15 right?
16 A Yes.
17 Q Okay. And before the RFP was issued, you
18 talked personally with a number of software vendors
19 telling them to be on the lookout for the RFP.
20 A Yes.
21 Q And you talked to Aptitude specifically,
22 correct?
23 A Well, I talked to all of them.
24 Q Well, in part, you talked to at least --
25 A Was Aptitude one of the vendors I spoke to?
Page 83
1 Yes.
2 Q Yes. And when you say you talked to all
3 vendors --
4 A All who were at the conference, who came to the
5 conferences. I don't think I talked to every single
6 vendor in the United States that had recording software
7 but I talked to the vendors who showed up in California
8 at the county recorder conferences.
9 Q But you never talked to AtPac about the RFP
10 before the RFP issued, correct?
11 A Correct.
12 Q And the list you gave to purchasing for people
13 you thought should get a copy of the RFP --
14 A Uh-huh.
15 Q -- did not include AtPac, correct?
16 A Uh-huh. Correct. Yeah.
17 Q Was AtPac at the conference you've referred to?
18 A Yeah. Uh-huh.
19 Q Why didn't you talk to AtPac at that
20 conference?
21 A Because they had lousy customer service. They
22 made it clear that they're going through Jackie Pollard,
23 who was my third in command, who pretty much violated my
24 trust from day one, and everything in my confidential
25 meetings, I found out that Jackie had relayed to AtPac,
Page 84
1 so I was well aware that AtPac knew intimately and more
2 than any other company about the RFP, what we were
3 looking for, timelines, because unbeknownst to me, when
4 I asked my people to be confidential, Jackie Pollard was
5 not, and AtPac got all that information.
6 Q Okay.
7 A So there's no need for me to tell 'em, in my
8 mind. They had more information than anyone else.
9 Q Now, as a Clerk-Recorder for Nevada County,
10 it's your job to make sure the county's being provided
11 with the services it needed by its vendors, yeah?
12 That's one of your responsibilities?
13 A Say that again? I'm sorry.
14 Q Let me ask a better question. Where are the
15 communications between you and AtPac telling AtPac its
16 customer service is lousy?
17 I haven't seen a single piece of correspondence
18 to that effect, sir. Why is there no such
19 communication?
20 MR. POULOS: Objection. Compound.
21 THE WITNESS: Don't know why. I felt I didn't
22 need to write a letter to that effect. We had a couple
23 meetings and I told them.
24 BY MR. THOMAS:
25 Q Who did you meet with?
Page 85
1 A Kirk Weir and Wayne Long.
2 Q What did you tell them?
3 A I told them customer service is terrible and I
4 told them to start going through me with anything
5 instead of going through Jackie Pollard, and if there is
6 something to be said or if you want to do something, you
7 talk to me.
8 Q Now, tell me, sir, what specifically were the
9 customer service concerns you had?
10 A I don't know. I don't remember.
11 Q You don't remember?
12 A I don't remember. Most of it, generally, was
13 they didn't talk to me. They talked to Jackie Pollard.
14 Q And that irritated you?
15 A Absolutely. If Jackie wants to run for
16 clerk-recorder, she can.
17 And the vendor, when they work for me, they
18 need to understand that they deal with me. They don't
19 deal with one of my subordinates, especially after I ask
20 them not to deal with one of my subordinates.
21 Q And the fact that there's no communications
22 from you to AtPac identifying with any precision at
23 all -- strike that.
24 You have no explanation why you never wrote to
25 AtPac to explain that you thought their customer service
Page 86
1 was terrible?
2 A No explanation. I just didn't want to. I
3 didn't feel I had to.
4 Q Now, earlier, you testified that you knew that
5 AtPac had received information about the 2008 Request
6 for Proposal from the clerk-recorder's office.
7 A Uh-huh.
8 Q Who told you that?
9 A Jackie Pollard.
10 Q What did she say to you?
11 A She says: AtPac's well aware of the RFP and
12 AtPac thinks that you're going to replace 'em, and
13 again, the same -- the same song and dance.
14 "Jackie, this is not an RFP to replace AtPac.
15 This is an RFP to see what's out there, and if we can do
16 better, I'm going to do better."
17 Q And so when did Jackie tell you that AtPac was
18 well aware?
19 A I don't know. I don't know.
20 Q Did she tell you -- well, AtPac certainly
21 didn't have the details of the RFP because you hadn't
22 issued it yet, right?
23 A I would think not.
24 Q What evidence do you have, other than your
25 allegation that Jackie Pollard told you AtPac was aware
Page 87
1 of the RFP --
2 A Uh-huh.
3 Q -- what evidence do you have, sir, that AtPac
4 was aware of the RFP?
5 A None, except through hearsay.
6 Q And who is Jackie Pollard?
7 A She was the recording manager in Nevada County.
8 I think that was her title. I'm not quite sure.
9 Q She reported to who?
10 A Me.
11 Q Did you --
12 A But I felt like she reported to AtPac. But
13 anyway, technically, she reported to me.
14 Q Now, you were the recording manager in Placer
15 County, right?
16 A Correct.
17 Q Did you ever have communications with AtPac,
18 when you were the recording manager in Placer County,
19 that used AtPac software?
20 A Yes.
21 Q Why?
22 A Why --
23 Q Yeah.
24 A -- did I have -- because I'm the recording
25 manager.
Page 88
1 Q Okay.
2 A And if there was a glitch, maybe in the
3 indexing module or cashiering module, I would take care
4 of it and that was my job.
5 Q And you could communicate with AtPac about
6 issues --
7 A Sure.
8 Q -- with the software?
9 A Sure.
10 Q And when you say you would take care of it,
11 what did you mean?
12 A Take care of what?
13 Q I don't know. You said if there was a glitch
14 maybe in the index module or cashiering module --
15 A Oh. I would take care of it, what does that
16 mean --
17 Q Yeah.
18 A -- I would take care of it? I would sit down
19 and make the necessary calls to get the correct people
20 to fix the problem.
21 Q Calls to who? AtPac?
22 A AtPac. Calls could have involved the County IT
23 people, the department IT people.
24 Q How often did you talk with AtPac when you were
25 the --
Page 89
1 A Don't know.
2 Q You got to let me finish the question.
3 A I thought you were finished. Sorry. I thought
4 you were finished.
5 Q It's okay. How often did you talk with AtPac
6 when you were the recording manager in Placer County?
7 A Don't know.
8 Q Frequently?
9 A No.
10 Q Did Jim McCauley ever scold you for talking to
11 AtPac when you were the recording manager in Placer
12 County?
13 A He scolded me for something and I wasn't sure
14 if it was AtPac or not.
15 Q What did he scold you for?
16 A I don't remember.
17 Q Now, why do you -- if you talked to AtPac when
18 you were the recording manager in Placer County, why did
19 you think it was improper for AtPac to communicate with
20 Jackie Pollard in Nevada County when she was recording
21 manager in Nevada County?
22 A Jim McCauley had his way of running the office.
23 I have my way of running the office. My way of running
24 the office is: AtPac, you talk to me.
25 This was the beginning of our relationship as
Page 90
1 my role as clerk-recorder and that's how I wanted it
2 done --
3 Q You wanted to be --
4 A -- at that time.
5 Q You wanted to be the point of contact?
6 A Absolutely.
7 Q And was that your desire all the way through
8 the point in time AtPac ceased providing software in
9 Nevada County?
10 A Absolutely. Why do you think I'm cc'd on
11 everything? I do not want to be blindsided by anything.
12 Q Oh. Well, that begs the question I actually
13 have to ask you.
14 A Uh-huh.
15 Q When you say "why do I think I'm cc'd on
16 everything," what do you mean by that?
17 A I'm cc'd because I want to be informed. I
18 don't want to be blindsided by issues.
19 Q No, sir. Your testimony is it was your desire
20 to be the primary point of contact with AtPac at all
21 times; yes?
22 A At all times in Nevada County, yes.
23 Q So if there was any communication with AtPac,
24 it would be directly from or to you, correct?
25 A Uh-huh.
Page 91
1 Q Not cc'd to you?
2 A Yeah.
3 Q Right?
4 A Well, it depends on what the issues are.
5 Q Oh.
6 A Because if I talk to them face-to-face, I'm
7 informed, and if I get cc'd, I'm informed, and the key
8 point here is being informed. There are a lot of ways
9 to be informed.
10 Q So when I asked you about your experience with
11 Jim McCauley and you said he had only praise for you,
12 you forgot about the one instance where he scolded you;
13 is that right?
14 A Well, someone scolds somebody, I don't know
15 what that has to do with praise. I praise my kids all
16 the time, but you know what? Once in a while, I have to
17 scold 'em, so I'm not sure I understand that.
18 Q And just because you had to scold someone
19 doesn't mean they're a bad person, right?
20 A Well, for me.
21 Q Uh-huh. So what was your opinion of Jackie
22 Pollard?
23 MR. POULOS: I'll object. It's irrelevant but
24 go ahead.
25 BY MR. THOMAS:
Page 92
1 Q You disliked her?
2 MR. POULOS: You can answer.
3 (Conference off the record.)
4 MR. POULOS: Yeah. Why don't we go off the
5 record for two seconds.
6 MR. THOMAS: Okay.
7 THE VIDEOGRAPHER: Going off the record at
8 11:19 a.m.
9 (Discussion off the record.)
10 THE VIDEOGRAPHER: Back on the record at
11 11:20 a.m.
12 BY MR. THOMAS:
13 Q Now, you said you were -- you learned that
14 AtPac communicated with Jackie Pollard at certain times
15 when you were clerk-recorder of Nevada County, right?
16 A Quite a bit. Very frequently.
17 Q Okay. And you would acknowledge that AtPac
18 would have a reason to communicate with the recording
19 manager --
20 A Absolutely.
21 Q -- of Nevada County.
22 But something about these communications that
23 irritated you on some level; yes?
24 A Yes.
25 Q And what was it that irritated you?
Page 93
1 A There were quite a few fixes, functionality
2 issues, that I became aware of after the fact. That's
3 what irritated me, not the issues themselves.
4 I'm sure Jackie had been doing things for a
5 long time and a certain way and I'm sure it worked fine
6 for Jackie and AtPac. Maybe she didn't understand what
7 I was saying. Maybe she didn't want to understand.
8 Maybe she just flat out refused to comply, but I wanted
9 a different mode of communication because I want to be
10 informed before the fact, not after the fact.
11 Q So your primary irritation with communication
12 between Ms. Pollard and AtPac was your assertion that
13 you weren't copied on certain communications?
14 A My primary irritation was I was not informed
15 and I believe things were misrepresented to me.
16 Q And who made -- what was misrepresented to you?
17 A I don't have the fact now -- the facts now.
18 Quite a few things, actually.
19 Q Quite a few things were misrepresented to you?
20 A Uh-huh. Uh-huh.
21 Q By who?
22 A Jackie Pollard.
23 Q And you have no recollection of what those
24 things are?
25 A Specifically, no.
Page 94
1 Q Or generally.
2 A Generally?
3 Q Yeah.
4 A Yeah. What AtPac was doing.
5 Q In terms of providing clerk-recorder
6 functionality?
7 A Correct, or fixing issues, or if something went
8 down, I would learn after the fact. I like to know if
9 something goes down when it goes down.
10 Q Yeah. And for that reason, you're careful to
11 review correspondence that's copied to you; yes?
12 A Yeah.
13 Q Because it's important not to be surprised,
14 right?
15 A Not to be blindsided. For me, it is, that's
16 correct.
17 Q That's why you want to be cc'd on all
18 communications --
19 A That's correct.
20 Q -- involving the clerk-recorder?
21 A That's correct.
22 Q And those cc's are meaningful because you read
23 them; yes?
24 A Yes.
25 Q And if you don't understand them, you call
Page 95
1 someone?
2 A And they're meaningful because the employees
3 have complied with what I've asked them to do.
4 Q So earlier, when you said you wanted to be the
5 primary point of contact with AtPac --
6 A Uh-huh.
7 Q -- you didn't really mean that, did you. What
8 you meant is you just want to be copied on
9 communications with AtPac; yes?
10 A No. I wanted to be the primary point of
11 contact.
12 Q Okay. So whenever there was a need to
13 communicate with AtPac, it was -- you didn't delegate
14 that. You would do that directly; yes?
15 MR. POULOS: Objection. Misstates the
16 witness's testimony. Lacks foundation.
17 THE WITNESS: No, I wouldn't -- on some
18 occasions, yes. On some occasions, no.
19 BY MR. THOMAS:
20 Q Okay. Why, earlier, did you testify that you
21 received only positive feedback from Jim McCauley?
22 A Because that's true.
23 Q Except for when he scolded you, right?
24 A I look at that as positive feedback. I -- I'm
25 not a negative person. I know you can't learn if you're
Page 96
1 thinking everything and everyone is negative.
2 Q All right. So when you provided the list of
3 vendors for the RFP to the purchasing department in
4 2008, you had already become irritated with Jackie
5 Pollard's communications with AtPac that weren't copied
6 to you, right?
7 A Uh-huh.
8 Q And --
9 A Yes. Yes.
10 Q And you also --
11 A I was more -- sorry.
12 Q You were more what?
13 A Sorry. I didn't want to interrupt. Sorry.
14 Q No. That's fine. You were more what?
15 A More irritated with AtPac.
16 Q Oh. Tell me. Why?
17 A Because they would continue to go through
18 Jackie Pollard.
19 Q And who is "they"?
20 A AtPac.
21 Q Who at AtPac?
22 A I don't -- mostly I think Dave Krugle, I think.
23 Q And how did you know that?
24 A Because I could see and observe it after the
25 fact.
Page 97
1 Q How? Give me a specific instance of you seeing
2 and observing after the fact communications between Dave
3 Krugle and Jackie Pollard that you weren't informed of.
4 A It wasn't communications. It was issues.
5 There would be a time when the indexing module would be
6 slow. "Jackie, next time this happens, let me know."
7 Two weeks down the road, a staff member would
8 say: Wow, yesterday was really rough. Indexing was
9 down for three or four hours but we got it fixed.
10 I found out after the fact, a day later, from
11 staff, in an innocuous comment about how rough the prior
12 day was. I found out that way that there was a little
13 glitch for a couple hours in the recorder's office, when
14 time and time again before, with Jackie Pollard: If
15 there's a problem and you have to call AtPac, let me
16 know about it, will you? Would that be possible,
17 Jackie? Would that be something that would be okay with
18 you, Jackie?
19 Jackie replied: Yes. No problem.
20 Two weeks later, I find out after the fact that
21 there's a glitch, and that happened more than one
22 occasion.
23 Q And why did that cause you irritation with
24 AtPac? Why was it their -- weren't they just responding
25 to a customer, Ms. Pollard?
Page 98
1 A They were.
2 Q And so why do you blame AtPac for Ms. Pollard
3 not communicating with you?
4 A Because AtPac, to me, they just have poor
5 customer service.
6 Q Right.
7 A And I had talked to AtPac about things. Now,
8 in that particular situation, yeah, I'm a little annoyed
9 at AtPac, but I'm more annoyed at Jackie Pollard. I
10 thought that was more the question.
11 Q Then why, a moment ago, did you say you were
12 mostly annoyed with AtPac?
13 A Because I was mostly annoyed with AtPac because
14 I had enjoyed, for years, a level of customer service
15 that I did not receive when I became clerk-recorder in
16 Nevada County.
17 Q So why, a moment ago, did you then say you were
18 more annoyed with Jackie Pollard?
19 A Well, I was talking about your specific
20 question, and if you want to, let's just say I'm annoyed
21 at both of them. Maybe that will work better.
22 Q So after these instances where you claim that
23 you found out after the fact that AtPac had assisted
24 Ms. Pollard in whatever request she made concerning
25 clerk-recorder software --
Page 99
1 A Uh-huh.
2 Q -- why didn't you send any written
3 communications to AtPac telling them that they shouldn't
4 work directly with Ms. Pollard or anything to that
5 effect?
6 A Just didn't do it. No reason.
7 Q And there's no evidence that these instances
8 occurred other than your statement today; yes?
9 A You can talk to Jackie Pollard. If she decides
10 to be truthful, there's plenty of evidence. You can
11 talk to AtPac.
12 Q Who, within the clerk recorder's office, if
13 anyone, told you they thought AtPac had poor customer
14 service?
15 A Who?
16 Q Yeah.
17 A In the clerk recorder's office?
18 Q Yeah.
19 A Told me they thought that AtPac had poor
20 customer service?
21 Q Yes, if anyone.
22 A Eileen Moody. Angie Bain. A lady named Sonya.
23 I forget her last name but she left a couple years ago.
24 Jean Roberts. They did communicate with me complaining
25 about AtPac's customer service.
Page 100
1 Q Okay.
2 A There are some people from the IT department,
3 too. I'm not quite sure but they complained about Dave
4 Krugle on quite a few occasions.
5 Q Who was the primary IT department person
6 assigned to --
7 A There wasn't one. Nevada County has
8 centralized IT --
9 Q Okay.
10 A -- and...
11 Q Have you heard of -- are you familiar with
12 E-recorder server in Nevada County?
13 A I'm familiar with that term.
14 Q Yeah. You understand --
15 A Have I seen it? Do I know what it is? No.
16 Q Well, you understood it's the server that has
17 AtPac software; yes?
18 A That's my understanding.
19 Q And --
20 A My understanding, that's not the only server,
21 but that's one of the servers.
22 Q And you knew that when you were clerk-recorder,
23 right?
24 A Yes. Not from the get-go. On June 27th, I did
25 not know there was a server called ER, or whatever it's
Page 101
1 called, but during my tenure, yes, I became aware of
2 that fact.
3 Q Well, you knew there was a server in Nevada
4 County that had the AtPac software, obviously?
5 A Yes.
6 Q Okay. And you knew that server contained
7 software that allowed AtPac software to provide the
8 features it provided --
9 A Yes.
10 Q -- to the clerk-recorder's office?
11 A Yes.
12 Q And that software also had features that house
13 and store databases, right?
14 MR. POULOS: Objection. Lacks foundation.
15 Calls for speculation.
16 THE WITNESS: Yeah, I didn't really know that.
17 I really couldn't say that I really knew that.
18 BY MR. THOMAS:
19 Q Well, you knew clerk-recorder software is
20 database software, right?
21 A I never really heard it described that way as
22 database software.
23 Q Well, clerk-recorder software allows for the
24 recording --
25 A Uh-huh.
Page 102
1 Q -- storage and retrieval of data and databases.
2 A Uh-huh.
3 Q "Yes"?
4 A Okay. Yeah.
5 Q Well, you knew that because you were the vice
6 president of two companies --
7 A Yeah.
8 Q -- that provided that service?
9 A Yeah. Yeah. I just never heard it termed that
10 way.
11 Q But you agree with that, right?
12 A I agree with that. I --
13 Q Okay.
14 A When you asked if it was, you know, database
15 software, I just had never heard it termed that way.
16 Q But you agree with that, correct?
17 A Sure.
18 MR. POULOS: Objection. Vague and ambiguous.
19 BY MR. THOMAS:
20 Q And you knew AtPac's databases were stored on
21 servers within the county's computers, right?
22 A Yes.
23 Q So when did you notify the Nevada County
24 contracting department about AtPac's alleged substandard
25 performance, if ever?
Page 103
1 A I never did.
2 Q Why not?
3 A No reason to. It's not their responsibility.
4 It's not purchasing's responsibility.
5 Purchasing's responsibility goes more toward
6 procurement.
7 Q But once a contract is let with a vendor, then
8 it's the job of the department to ensure contract
9 compliance?
10 A Say that again.
11 Q Once -- strike that.
12 Is it your understanding that it was your job
13 to oversee and track whether AtPac was performing with
14 its contractual obligations?
15 A Yeah.
16 Q Okay. And you never reported to purchasing
17 that AtPac was providing poor customer service, right?
18 A Right.
19 Q That's your allegation.
20 A Right.
21 Q And you --
22 A I probably mentioned it, but no, never formally
23 charged AtPac with poor customer service.
24 Q And you never formally charged AtPac itself
25 with poor customer service?
Page 104
1 A Correct.
2 Q Now, specifically what was so poor about
3 AtPac's customer service, specifically, if you know?
4 A Yeah. If I recall, it was hard, at times, to
5 identify a point person or one person to deal with
6 issues. There were timeliness issues with getting some
7 of the fixes done.
8 Q Anything else?
9 A That's about it, that I can recall right now.
10 Q Do you ever remember getting those types of
11 complaints from customers when you worked at AMCAD?
12 MR. POULOS: Objection. Vague and ambiguous.
13 THE WITNESS: Customer service issues?
14 BY MR. THOMAS:
15 Q Yeah.
16 A I think once in a while, sure.
17 Q Sure. And timeliness issues, when you were at
18 AMCAD, right? You heard customer complaints about
19 responsiveness?
20 A It was hearsay. That was not my responsibility
21 to deal with issues and host counties.
22 Q Now, if there were communications between
23 Aptitude and Nevada County personnel that aren't copied
24 to you, clerk-recorder communications, that would be
25 contrary to your directives, correct?
Page 105
1 A Uh-huh.
2 Q Because you have informed all of your staff
3 that they are to copy you on all communications with
4 Aptitude; is that true?
5 MR. POULOS: Objection. Lacks foundation.
6 THE WITNESS: No, that's not true.
7 BY MR. THOMAS:
8 Q Really. Why haven't you sent out that
9 directive since you want to be informed of everything
10 and never blindsided?
11 A Because there are some issues that I'm aware of
12 and they don't have to cc me on every step of the fix.
13 Let me know what's wrong. If there's a problem with the
14 fix, let me know. Otherwise, you're going to let me
15 know when it's done.
16 Q Do you ever ask people to blind cc you, bcc you
17 on communications with Aptitude?
18 A No, I don't do --
19 Q Have you ever been blind copied or bcc'd on
20 communications with Aptitude?
21 A No.
22 Q Have you now identified for me the sum total of
23 things you can remember, according to your allegation
24 today, that were AtPac customer service issues?
25 A You know, there seem to have been some
Page 106
1 complaints from County IT that I just can't put my
2 finger on it, but I do -- I do remember some complaints
3 from IT. Again, what they were, I can't recall.
4 Q Now, have you received complaints from your
5 staff regarding the timeliness of Aptitude's response to
6 concerns regarding its software?
7 A Couple times, yes, sure.
8 Q Just only two?
9 A That I can remember, only two.
10 Q Two, you can remember?
11 A Uh-huh.
12 Q And have you -- have you received any
13 communications from your staff that Aptitude has more
14 than one point of contact for issues --
15 A No.
16 Q -- or concerns?
17 A No.
18 Q So with respect to AtPac, can you recall a
19 specific single customer service problem as you sit here
20 today?
21 Let me re-ask that. I'm going to fix that
22 question.
23 With respect to the service provided by AtPac
24 to the County of Nevada's Clerk-Recorder department, can
25 you recall, as you sit here today, a single specific
Page 107
1 example of a customer service problem?
2 A Yes. Now, I cannot give you the time and the
3 date, but I do remember there was an issue with our
4 indexing module.
5 The ladies -- and I believe it was a
6 verification issue. Indexing comes in two parts: Entry
7 and verification, and I remember it was very difficult
8 to come to conclusion with this issue, more difficult
9 than I ever remember in my years with dealing with
10 AtPac.
11 Calls were made. Someone else had to be
12 notified, and then you notify that person, and then
13 someone else had to be notified, and I thought that was
14 a good instance of poor customer service, that I
15 remember.
16 Q That's the only one you can remember, correct?
17 A Yeah, right now. The only other part is after
18 I had Kirk and Wayne in the office, there were some
19 issues about functionality. There were some talks about
20 automated indexing, about redaction, and those talks
21 were held with Jackie Pollard --
22 Q We have to --
23 A -- not with me.
24 Q I'm sorry, sir.
25 A That's okay.
Page 108
1 MR. THOMAS: I don't mean to interrupt. He has
2 to take a break because of his tape.
3 THE VIDEOGRAPHER: Going off the record at
4 11:30 -- 11:40 a.m. End of disc one.
5 (Recess taken from 11:40 a.m. to 11:47 a.m.)
6 THE VIDEOGRAPHER: Back on the record at
7 11:47 a.m. Beginning of disc two.
8 BY MR. THOMAS:
9 Q Earlier, sir, you testified about an incidence
10 where it was difficult to come to a conclusion on an
11 issue and you thought that was an instance of poor
12 customer service by AtPac.
13 Do you have any explanation why no e-mails
14 concerning that instance have been produced in this
15 case?
16 A No.
17 Q Were there e-mails about that issue?
18 A No. I don't know. None were sent by me or
19 received by me.
20 Q And who, within your office, handled that issue
21 besides you?
22 MR. POULOS: Objection. Vague.
23 BY MR. THOMAS:
24 Q Who, within your office, was dealing with
25 AtPac --
Page 109
1 A I believe it --
2 Q -- concerning the instance of poor customer
3 service you've alleged?
4 A I believe it was --
5 MR. POULOS: Objection. Lacks foundation.
6 THE WITNESS: -- Jackie Pollard and Eileen
7 Moody.
8 BY MR. THOMAS:
9 Q Now, when I asked you if that was the only
10 example, you then went on to say that there were some
11 discussions you had with Kirk and Wayne about
12 functionality.
13 Do you remember that testimony?
14 A Yes.
15 Q Were you talking about customer service issues
16 or software functionality issues?
17 A All of the above.
18 Q Well, my question was specific, though, to
19 customer service issues.
20 A Yes.
21 Q Okay. So what is it about the functionality
22 that you thought was a customer service issue when you
23 talked to Kirk and Wayne?
24 A I don't understand your question.
25 Q Let me clarify. I want to make sure we have a
Page 110
1 clear record.
2 I asked you to give me any single instance of
3 customer service you could remember.
4 A Uh-huh.
5 Q And you testified to about that one issue.
6 A Uh-huh.
7 MR. POULOS: I think that misrepresents the
8 witness's testimony.
9 MR. THOMAS: That's what we're trying to
10 clarify.
11 THE WITNESS: Uh-huh. Uh-huh.
12 BY MR. THOMAS:
13 Q You gave me one example where you thought it
14 took too long to come to issue --
15 A Uh-huh.
16 Q -- and different points of contact where it
17 happened.
18 A Uh-huh. Uh-huh.
19 Q I asked you if that was the only one you can
20 remember.
21 A Uh-huh.
22 Q And is it?
23 A Specifically, with specifics, yes, except I
24 think I mentioned I spoke with Kirk Weir and Wayne Long
25 and ask that I be apprised of situations, upcoming
Page 111
1 functionality, fixes, patches, that I want to know.
2 Now, in that conversation, we talked about
3 functionality, but when I asked them to make sure I know
4 about it and to contact me first, that's a customer
5 service issue, in my eyes, when they fail to do that.
6 Q It's your testimony that after you talked to
7 them about that, that they --
8 A That they --
9 Q -- failed to do so?
10 A Absolutely.
11 Q Is it your testimony they were e-mailing Jackie
12 Pollard without copying you?
13 A Yeah. I think I know that, uh-huh, yes.
14 Q Was it your instruction to them that if they
15 received a request or a directive from Jackie Pollard,
16 they were to not do anything until you confirmed it? Is
17 that your testimony?
18 A No.
19 Q So what were they to do when they got a
20 directive or a request from Jackie Pollard? Do nothing?
21 A They were to comply with that.
22 Q Okay. So were you critical if AtPac complied
23 with Jackie Pollard's directive?
24 A No.
25 Q What else were they supposed to do if Jackie
Page 112
1 Pollard asked AtPac to do something?
2 A Pretty much comply with that.
3 Q Okay. Do you have any criticism for them not
4 doing that?
5 A No, but I think, again, for the third time,
6 I -- if there were functionality issues, if there were
7 enhancements, if there were -- if there was
8 functionality that we may be proposing or thinking about
9 doing, those are the issues that I want to know about
10 and those issues were discussed with Jackie Pollard.
11 You just came back asking me when Jackie
12 notified AtPac, and AtPac complied, was that a problem,
13 and I mentioned to you no, that's not the problem, but
14 again, my problem is if we're talking about an
15 enhancement with the system, you talk to me first, not
16 to Jackie Pollard first.
17 Q Now -- now what instances are you aware of
18 where AtPac discussed enhancements that excluded you
19 from the communication?
20 A Cannot give you the specifics.
21 Q What instances are you aware of where AtPac
22 discussed functionalities with Jackie Pollard --
23 A Cannot --
24 Q -- excluded you from those communications?
25 A Cannot give you the specifics.
Page 113
1 Q Or generally?
2 A Cannot give you generally.
3 Q Now, with respect to the -- strike that.
4 What effort did you make -- we already know you
5 didn't search at all your personal e-mail accounts in
6 connection with this litigation and the document
7 requests we made.
8 What efforts did you make to search
9 documents -- search for documents in connection with
10 request for documents by AtPac in this case?
11 A I went through what I believe are the normal
12 search parameters and produced e-mails twice, one
13 pursuant to Public Record Act requests that were
14 plentiful before the litigation, and then the exact same
15 requests after the litigation was filed.
16 Q Okay. And you said normal search parameters?
17 A Yeah. That's all I am. I'm not a techie. I
18 don't know anything -- I don't know anything else but
19 the normal search parameters.
20 Q You said you're not a tech -- you sort of cut
21 off your word. You're not a tech --
22 A A techie. You know, I know some people who are
23 more adept at searching than I.
24 Q Who's that?
25 A I would think Steve Monaghan, he probably does
Page 114
1 more. Kathy Barale, Marie McCluskey. I would think Dan
2 Evers. I'm trying to think of all the people in IT and
3 then we can go to some of the other more techie people.
4 You have to give me a minute.
5 Q And when you say "techie" --
6 A Or IT personnel might be a better phrase.
7 Q Okay. Well, let me ask you this. What did you
8 do to search for documents or communications in response
9 to either Public Records Act requests or requests for
10 production in the lawsuit?
11 A That question is hard for me to answer because
12 you didn't give me a specific item that I was searching
13 for.
14 If I was searching for records or any e-mails
15 between me and, say, Patty Sandever from Aptitude, I
16 will put in the name of Patty Sandever. I would search
17 all my files. I would search my inbox. That's what I
18 do to search.
19 Q Well, how did you know what to search for when
20 you did this normal search parameter search?
21 A Because I was told by County Counsel: Greg, we
22 need all the e-mails.
23 MR. POULOS: I don't want you to reveal
24 communications from attorneys.
25 THE WITNESS: Oh. Okay.
Page 115
1 MR. THOMAS: I actually think those
2 communications would have been at the time when they
3 were waived, but if you're going to stand on the
4 objection --
5 MR. POULOS: Yeah. I don't -- I don't care
6 if -- your question about, you know, what he did to
7 search for documents is fair.
8 BY MR. THOMAS:
9 Q I want to know what you searched for,
10 specifically. What did you search for?
11 A E-mails between myself and Aptitude or Aptitude
12 personnel.
13 Q E-mails between yourself and Aptitude?
14 A Uh-huh, or Aptitude personnel, yeah.
15 Q Is that all you searched for?
16 A I don't know. There might have been a couple
17 other requests. Don't recall.
18 Q And that's the sum total of what you can recall
19 you looked for in connection with discovery in this
20 litigation?
21 A Yeah.
22 Q You never looked through file folders looking
23 for paper, copies of documents, correct?
24 MR. POULOS: Objection. That misstates the
25 witness's testimony.
Page 116
1 THE WITNESS: No, I looked through file
2 folders. I just don't have a lot.
3 BY MR. THOMAS:
4 Q Well, when I asked --
5 A The ones that I did, yeah.
6 Q Well, when I asked you if looking through your
7 e-mail for communications between Aptitude was the sum
8 total of what you did, why did you say yes, when now,
9 you say you did more?
10 A I don't know.
11 MR. POULOS: Objection. Misstates testimony.
12 THE WITNESS: I guess I just didn't remember to
13 say that with my couple file folders. My apologies.
14 BY MR. THOMAS:
15 Q Okay. It's just something you forgot?
16 A Yes. My apologies.
17 Q All right. So, now, let me get a recap.
18 Searching your recollection --
19 A Yeah.
20 Q -- tell me everything you did to search for
21 either documents or electronic documents or anything
22 else in this litigation.
23 A Okay. I went through file folders and did an
24 electronic search.
25 Q What file folders did you look through?
Page 117
1 A I don't know. They were folders in my cabinet.
2 Q You don't know what they were?
3 A I think one was labeled RFP. I believe one was
4 labeled Electronic Recording. I believe one was labeled
5 County Recorders Association of California. Yeah,
6 that's what I can recall, remember, recollect.
7 Q And you looked through those folders?
8 A Yes.
9 Q What did you do when you looked through them?
10 Did you make copies of everything in them?
11 A If there was correspondence between myself and
12 Aptitude, I would make copies --
13 Q Okay.
14 A -- yes.
15 Q So even with respect to the paper documents,
16 you limited what you gathered to correspondence between
17 yourself and Aptitude; yes?
18 A I limited it to anything that said Aptitude, I
19 will pull. If I wasn't sure, I had assistance and
20 decisions were made there.
21 Q So for example, if a document only had AtPac's
22 name on it, that wouldn't have fallen within the scope
23 of what you gathered, right?
24 A Yeah. There was a request to look for AtPac,
25 so anything that had the name of AtPac, I produced,
Page 118
1 yeah.
2 Q How did you search for e-mail?
3 A I just put in the name of a person or company
4 and see what popped up.
5 Q And what search terms did you use?
6 A Just the name of the companies and the people.
7 Q Can you list them for me, please?
8 A As far as I can recollect, on the AtPac side, I
9 know Dave Krugle, Kirk Weir, Wayne Long, Richard,
10 Richard Sandblade, the term AtPac, Aptitude, Paul
11 Miller, Tom McGrath, Patty Sandever, Alana Wittig. To
12 my recollection, that's -- those are the terms I put
13 into the little search box.
14 Q And when did you do that?
15 A When?
16 Q Yeah.
17 A I can't recall the exact day and month when I
18 did that.
19 Q Well, generally, do you have an estimate?
20 A No, I don't. Whenever I was told to do it, I
21 believe it was done before litigation. It was a couple
22 months before the litigation was filed, and then when
23 you all started all this discovery stuff. You probably
24 have a better idea of when than I.
25 Q It's your testimony that you did all those --
Page 119
1 you searched for all those search terms back before the
2 litigation?
3 A Yeah. There was some Public Record Requests
4 Acts and I was asked to search.
5 Q And my -- but the question is more specific.
6 A Uh-huh.
7 Q You specifically did the search with all the
8 search terms you've now listed back before the
9 litigation started, correct?
10 A No. No. Because before -- actually, yeah, I
11 will have to say yes. Yes. Uh-huh.
12 Q Okay.
13 A Yeah.
14 Q So do you have any explanation then of why
15 communications between Ms. Wittig and you weren't
16 produced until late in 2010 to AtPac?
17 MR. POULOS: Objection. Lacks foundation.
18 BY MR. THOMAS:
19 Q Do you have any explanation for that?
20 A No. Do you?
21 Q Could it be that you didn't do those search
22 terms until much later?
23 A Absolutely not.
24 Q When I asked you about what you had done to
25 search, and you said: I looked for anything. I limited
Page 120
1 it to communications between me and Aptitude.
2 A Uh-huh.
3 Q Do you remember that testimony?
4 A Uh-huh.
5 Q Why was it -- you just forgot about all this
6 searching and the search terms?
7 A I'm sorry. Can you repeat that question?
8 Q Why is it when I asked you the total of your
9 searching, you specifically said: I limited it to
10 communications between me and Aptitude. Why did you
11 testify to that?
12 MR. POULOS: Objection. Lacks foundation.
13 THE WITNESS: That's what I thought was the
14 truthful answer.
15 BY MR. THOMAS:
16 Q Well, are communications -- then why would you
17 have been searching for the word "Sandblade"?
18 MR. POULOS: Objection. Already asked and
19 answered.
20 THE WITNESS: He's an employee of AtPac.
21 BY MR. THOMAS:
22 Q Yeah. Isn't he?
23 A Yeah.
24 Q And so why would you search for that if you
25 were limiting your search to communications between you
Page 121
1 and Aptitude?
2 A I think I said to my recollection. And then
3 you mentioned AtPac, and I said yeah, yeah, there was a
4 request for AtPac as well. Isn't that how it went?
5 MR. THOMAS: Now, let's mark this next in
6 order.
7 MR. POULOS: 371.
8 (Exhibit No. 371 was marked for
9 identification.)
10 THE WITNESS: Thank you.
11 BY MR. THOMAS:
12 Q Sir, do you have Exhibit 371 in front of you?
13 A Yes.
14 Q And what is this document?
15 A It's an e-mail from Aptitude Solutions, Paul S.
16 Miller to Gregory Diaz.
17 Q And did you receive this e-mail?
18 A It looks like I did, yes.
19 Q Okay. When you see an e-mail with your name on
20 it and it's from Paul Miller, you acknowledge you
21 received this e-mail, right?
22 A Uh-huh.
23 Q Now, did you have any discussions with
24 Mr. Miller concerning Aptitude's interest in expanding
25 its market share or developing a market share in
Page 122
1 California?
2 MR. POULOS: Objection. Vague.
3 THE WITNESS: Yeah, I probably will have to say
4 yes, in the context of us issuing an RFP.
5 BY MR. THOMAS:
6 Q And what were those discussions?
7 A Look out for an RFP from Nevada County. The
8 response was: We're very interested and we will be
9 looking out for that.
10 Q And he specifically told you they were
11 interested in developing business in California, right?
12 A Not at that time. He told me they were very
13 interested in responding to Nevada County's RFP.
14 Q When was this communication with Paul Miller
15 you recounted?
16 A I don't know.
17 Q Was it before or after this e-mail?
18 A It was before this e-mail.
19 Q All right. And did you -- it says that you'll
20 receive a hard copy later this week.
21 Do you see that?
22 A Yes, uh-huh.
23 Q Did you receive a hard copy? It's a letter to
24 you.
25 A You know, I probably did. I don't remember
Page 123
1 receiving.
2 Q If you could turn to the third paragraph of the
3 attachment to the e-mail.
4 A Uh-huh. Uh-huh.
5 Q Do you see it says: California represents the
6 single largest market in the US for our business?
7 A Yes.
8 Q And you understood he's referring to
9 clerk-recorder software?
10 A That's my --
11 MR. POULOS: Objection. Lacks foundation.
12 THE WITNESS: That's my understanding when I
13 read this letter.
14 BY MR. THOMAS:
15 Q Yes. And do you agree with that statement that
16 California is the single largest market for
17 clerk-recorder software?
18 A I don't know. I never agreed nor disagreed.
19 It's just a statement.
20 Q My question is: As you sit here today, is that
21 a true statement?
22 A I don't know.
23 Q You don't know. You never learned that when
24 you were working as a vice president of two
25 clerk-recorder software companies?
Page 124
1 A Well, because of my experience in the private
2 sector is exactly why I don't know. On the face of it,
3 this sentence appears to be true, but when you realize a
4 county like LA has a home-grown system, that takes
5 millions and millions of documents out of play for
6 outside vendors, so that's why I don't know. I mean
7 Texas has 200-something counties. I don't know.
8 Q Okay. Sir, are you aware of any other e-mails
9 you received from any other clerk-recorder vendors
10 discussing the Request for Proposal process in Nevada
11 County other than Aptitude?
12 MR. POULOS: Objection. Vague.
13 THE WITNESS: Yes.
14 BY MR. THOMAS:
15 Q Which others?
16 A Exigent, Soft Tech, AMCAD. I think DFM. I
17 mean I got letters, brochures, information from all the
18 vendors.
19 Q Specifically discussing your upcoming
20 procurement?
21 A Absolutely. As soon as they knew, material was
22 sent to me, yeah.
23 Q And when you say "as soon as they knew," my
24 question was before you issued the Request for Proposal.
25 A Yeah, but this is before the RFP process.
Page 125
1 Q And why is it, sir, that those e-mails haven't
2 been provided to our office?
3 A They weren't e-mails.
4 MR. POULOS: Objection. Lacks foundation.
5 BY MR. THOMAS:
6 Q Why weren't those written materials provided to
7 my office?
8 A Because --
9 MR. POULOS: Same objection.
10 THE WITNESS: -- I didn't have a request to
11 produce those documents.
12 BY MR. THOMAS:
13 Q Now, the next sentence in that third paragraph
14 says: We are actively speaking with multiple counties
15 within California.
16 A Uh-huh.
17 Q Do you see that?
18 A Yes.
19 Q Do you know what counties --
20 A No.
21 Q -- at the time?
22 A No. I take that back. San Francisco, I do
23 know.
24 Q Because it says so in the next sentence?
25 A Humboldt County, I do know. Just those two.
Page 126
1 Q Okay. And at this point in time, did you know
2 they were pursuing Placer County?
3 A No.
4 Q Okay. You eventually learned that, right?
5 A Yes.
6 Q Okay.
7 A At this time, I didn't know Placer was looking.
8 Q Since this particular e-mail, have you had
9 discussions with personnel from Aptitude about their
10 business plans and expanding their customer base in
11 California?
12 A Since this e-mail?
13 Q Yeah.
14 A Yes.
15 Q And what have those communications been?
16 A Status reports on how they're doing in
17 California.
18 Q And do you know why it is you receive status
19 reports from Aptitude about other customers of theirs or
20 other marketing efforts of theirs?
21 A They volunteered the information.
22 MR. POULOS: Objection. Calls for speculation.
23 BY MR. THOMAS:
24 Q They volunteered the information.
25 Have you ever seen any business plans by
Page 127
1 Aptitude for the California market?
2 A No.
3 Q Have they ever explained to you what their
4 business plans are --
5 A No.
6 Q -- in California?
7 A No.
8 Q What was your pre-RFP interaction with
9 Aptitude?
10 MR. POULOS: Objection. Vague.
11 THE WITNESS: I thought I already answered. My
12 interaction was obviously looking at their product, like
13 I routinely do at our conferences for all the vendors,
14 and then informing all the vendors, if they were
15 interested, they may want to look at an RFP coming from
16 Nevada County.
17 BY MR. THOMAS:
18 Q And what pre-Request for Proposal interaction
19 did your staff have with Aptitude?
20 A I don't know.
21 Q Why don't you know? Wouldn't they have copied
22 you on those e-mails or communications?
23 A If they did, they would have.
24 Q And because you're not aware of e-mails, then
25 apparently, you're not aware of any communication your
Page 128
1 staff had with Aptitude before the RFP.
2 A Correct.
3 (Exhibit No. 372 was marked for
4 identification.)
5 BY MR. THOMAS:
6 Q Sir, do you have Exhibit 372? Do you have
7 Exhibit 372, sir?
8 A Yes. I'm sorry.
9 Q What is this document?
10 A It's from me to Dee Murphy about an RFI
11 template, and then it's an e-mail from Patty Sandever to
12 me enclosing the attached RFI used by San Francisco
13 County.
14 Q Okay. And it says -- so you received this
15 e-mail from Ms. Sandever and then forwarded it to
16 Ms. Murphy; is that right?
17 A Yes.
18 Q Who is Ms. -- who is Dee Murphy?
19 A She was a paralegal working for the County.
20 Q And why did you send an e-mail from Patty
21 Sandever to Dee Murphy?
22 A Because Dee Murphy was involved with
23 creating -- actually, she was involved in the RFP
24 process in Nevada County.
25 Q Okay. And that's why you sent this e-mail to
Page 129
1 her?
2 A Yes.
3 Q Okay. And what was -- let's look at the e-mail
4 from Ms. Sandever to you.
5 Do you see that?
6 A Yes.
7 Q It says, "It was great speaking with you
8 yesterday."
9 A Yes.
10 Q "As promise attached please find an RFI
11 template we created."
12 Do you see that?
13 A Yes. Uh-huh.
14 Q And what was this RFI template that -- when she
15 says "we," that means Aptitude; yes?
16 A Yes.
17 Q Okay. And what was this RFI template that
18 Aptitude created that they sent to you?
19 A I don't know.
20 Q And then she says, "I have also attached the
21 RFI used by San Francisco County which we recently
22 responded to."
23 A Uh-huh.
24 Q And then it says, "This one, of course, is not
25 tailored to OnCore; however, we are able to handle all
Page 130
1 their requirements."
2 Do you see that?
3 A Yes.
4 Q And so let me ask you this. Was the RF -- was
5 the RFP in Aptitude at all -- strike that.
6 Was the RFP in Nevada County for clerk-recorder
7 software --
8 A Uh-huh.
9 Q -- issued in 2008 --
10 A Uh-huh.
11 Q -- was that in any way modeled after or
12 developed using the RFI template that Ms. Sandever
13 provided to you?
14 A I don't think so.
15 Q How do you know?
16 A Because Nevada County has their own template
17 for the RFP.
18 Q So Nevada County didn't need --
19 A And --
20 Q -- didn't need the RFI template from Aptitude?
21 A Can we go back to the other statement because I
22 wasn't finished my response.
23 Q I'm sorry. Go ahead, sir.
24 A That's okay. That's okay. Nevada County has
25 their own template for RFP, so the RFI that was sent to
Page 131
1 Dee Murphy, County Counsel, was a comparison of
2 functionality between a large county and a smaller
3 county.
4 The RFP itself, Nevada County has its own
5 template or so I'm to believe from Mary Ross.
6 Q Why did you forward this e-mail from
7 Ms. Sandever to Dee Murphy?
8 A Pursuant to Dee's request. Doesn't it say "as
9 promised"? I think it says "as promised," so that's why
10 I'm sure it's pursuant to her request.
11 Q Well, I don't see Dee on the e-mail from Patty
12 Sandever, do you?
13 A No.
14 Q So how did Dee know that you received that
15 document from Patsy Sandever?
16 MR. POULOS: Objection. Calls for speculation.
17 BY MR. THOMAS:
18 Q You would have had to have told her.
19 A I'm pretty sure I told her, yeah.
20 Q And what does "as promised" mean? That means
21 you promised to give it to her, right?
22 A Yeah.
23 Q That doesn't mean she asked for it, does it?
24 A No.
25 Q You use the word "as promised" repeatedly in
Page 132
1 your e-mail, don't you?
2 A In my e-mails?
3 Q Uh-huh.
4 A Repeatedly?
5 Q Yeah.
6 A Yeah. Sometimes.
7 Q What does it mean when you use it? It means
8 you've told someone you're going to send them something
9 and then you do it?
10 A Yes.
11 Q So there's nothing -- you're not aware of any
12 e-mail where Dee Murphy asked you for the RFI template
13 that Aptitude gave you --
14 A No.
15 Q -- are you?
16 A No.
17 Q Now, did you ask Dee Murphy to use the Aptitude
18 RFI to develop the Request for Proposal in Nevada
19 County?
20 A No.
21 Q Did Nevada County issue an RFI --
22 A No.
23 Q -- at any point in time? It only issued an
24 RFP.
25 A Correct.
Page 133
1 MR. POULOS: Objection.
2 BY MR. THOMAS:
3 Q What's an RFI, sir?
4 A It's, my understanding, it means Request for
5 Information.
6 Q And that's sometimes is a step that's done
7 before a Request for Proposal or an RFP?
8 A Sometimes.
9 Q Okay. That's not something you did in Nevada
10 County in 2008?
11 A No, we did not.
12 Q Okay. Who selected Aptitude as the vendor for
13 Nevada County?
14 A I did, pursuant to a recommendation from an
15 evaluation task force that was set up by purchasing.
16 Q And who was on that task force?
17 A I don't know. I don't have all the names in
18 front of me.
19 Q Were you on it?
20 A Yes.
21 Q Who else was on it, that you recall?
22 A I don't know. I don't have all the names in
23 front of me.
24 Q Well, can you recall anyone who was on the task
25 force?
Page 134
1 A Let's see. There was a lady named Teresa. I
2 forget what's her last -- Teresa, I forget her last
3 name. Mary Ross. I believe there was a guy named Phil
4 Russ. I forget. There was a list of names.
5 Q How many people were on this task force?
6 A I believe it was six.
7 Q And you were one of the six?
8 A Yes. Or probably better termed evaluation
9 committee.
10 Q Now, let's go down to Ms. Sandever's e-mail.
11 Do you have that in front of you?
12 A I do.
13 Q She says: "Please let me know if there's
14 anything else I can help you with."
15 Do you see that?
16 A Yes.
17 Q Did you ask her for help that this e-mail was
18 responding to?
19 A I don't recall.
20 Q You don't know what that means in this e-mail?
21 A Yeah, I know what it means. It's a
22 salesperson's way of trying to get into the door and
23 being chummy with the elected official.
24 Q Well, this isn't the firm time you'd spoken
25 with Ms. Sandever, is it?
Page 135
1 A No. I've known Patty for many years.
2 Q Okay. Then the next sentence says: "I look
3 forward to seeing you again soon."
4 Do you see that?
5 A Yes.
6 Q So she had spoken to you face-to-face the day
7 before; is that true? You see the first sentence?
8 A I don't think so, no, that's not true.
9 MR. THOMAS: All right. Mark this next in
10 order.
11 (Exhibit No. 373 was marked for
12 identification.)
13 BY MR. THOMAS:
14 Q All right. Sir, do you have Exhibit 373?
15 A Yes.
16 Q And this is another e-mail chain. Did you send
17 this e-mail, the one at the top?
18 A Yes.
19 Q And by sending this e-mail, you would have sent
20 everything connected in the chain of the e-mail; yes?
21 A I -- yes.
22 Q You believe so?
23 A I believe so.
24 Q Now, this particular e-mail, if we go back to
25 the beginning, can we turn -- turn back in the e-mail so
Page 136
1 we can start earlier in time, because I think -- or
2 actually, it's two e-mails, apparently.
3 Let's look at the second page. There's a third
4 page that I'm not interested in.
5 So we're on the second page of the e-mail. Do
6 you see the bottom number, it says NV 000504?
7 A Yes.
8 Q Okay. And you're on that page. So the first
9 e-mail at the bottom half of the page is from
10 Ms. Sandever to you, correct?
11 A Yes.
12 Q And you received that e-mail, right?
13 A Yes.
14 Q And she's referring to the Aptitude
15 certification status with the California DOJ?
16 A Yes.
17 Q And that refers to e-recording, right?
18 A Yes.
19 Q And Aptitude never did get certified with the
20 DOJ, correct?
21 A Yes.
22 Q And to your knowledge -- well, you don't know
23 if AtPac was or is certified with the DOJ for ER,
24 e-recording, are you? You don't know one way or the
25 other?
Page 137
1 A At this time?
2 Q Yeah.
3 A Oh, I do. They were not certified.
4 Q Okay. Do you know now whether they are?
5 A Yes.
6 Q What do you know?
7 A That they're not certified.
8 Q That AtPac's not certified for e-recording?
9 A Correct.
10 Q Now, with respect to the next sentence, it
11 says: As stated previously, we are committed to meeting
12 all certification requirements for ERDS.
13 What is ERDS?
14 A Electronic Recording Delivery System.
15 Q And then it says: "And Nevada County's
16 requirements for electronic recording."
17 Do you see that?
18 A Yes.
19 Q And at some point as of -- well, as of
20 June 2008, it was your intention to move Nevada County
21 and include electronic recording?
22 A Still is.
23 Q Okay. Oh, it is?
24 A Absolutely.
25 Q Okay. And at some point, was it your intention
Page 138
1 to require, as part of the Request for Proposal in 2008,
2 that the vendors provide e-recording? Did you ever
3 have --
4 A My intention was down the road, that vendor
5 would be in a position to supply electronic recording
6 services to us.
7 Q Okay. And this e-mail with Ms. Sandever, this
8 is before the Request for Proposal process, right?
9 A Oh, boy. This date seems like it's right in
10 the middle of the process.
11 Q Okay. Let's turn to the first page.
12 A Uh-huh.
13 Q Ms. Sandever is e-mailing you at June 11, 2008.
14 Do you see that?
15 A Yeah.
16 Q Five --
17 A Now, that was before the process, yeah.
18 Q Okay.
19 A Uh-huh.
20 Q And she's referring to her making the short
21 list in San Francisco RFI.
22 Do you see that?
23 A Yes.
24 Q And do you know why she told you that?
25 A Why?
Page 139
1 Q Yeah.
2 A I think it was part of her trying to get a sale
3 for Nevada County.
4 Q And let me ask you this. Why did you forward
5 that e-mail on to Dee Murphy?
6 A At this time, I believe correspondence from
7 Aptitude, I was asked to forward this to County Counsel.
8 I think. I think. I believe.
9 Q Well, on August 19, 2008, County Counsel asked
10 you to forward this to Dee Murphy; yes?
11 MR. POULOS: Objection. Calls for
12 attorney-client communications.
13 BY MR. THOMAS:
14 Q That's your explanation of why you sent it to
15 Dee Murphy?
16 A Yes.
17 MR. POULOS: You need to -- if I object and
18 call attorney-client, you need to listen, okay? So
19 we're not going to --
20 THE WITNESS: You said you'll tell me not to
21 answer.
22 MR. POULOS: Right. I was just about to before
23 you --
24 THE WITNESS: Oh. Okay.
25 MR. POULOS: -- answered the question.
Page 140
1 THE WITNESS: Okay. Okay.
2 MR. POULOS: So --
3 THE WITNESS: Yeah. Okay.
4 MR. POULOS: -- questions to and from
5 attorneys, off limits.
6 BY MR. THOMAS:
7 Q What was the general issue, without getting
8 into any specifics at all, of why County Counsel wanted
9 you to forward this e-mail in 2008 to Dee Murphy in
10 2008, August 2008, before the RFP or during the RFP?
11 MR. POULOS: If you can answer that without
12 revealing communications from attorneys --
13 THE WITNESS: I can't.
14 MR. POULOS: Okay. Then don't answer.
15 (Exhibit No. 374 was marked for
16 identification.)
17 BY MR. THOMAS:
18 Q Sir, I put in front of you Exhibit 374. Do you
19 have that?
20 A Yes.
21 Q And what is this document?
22 A It appears to be an e-mail from Tom McGrath.
23 The "to" line is blank. It appears to be "Eileen" is
24 Eileen Moody in our office.
25 Q You see that up at the top of the e-mail,
Page 141
1 right?
2 A Yeah. Yeah. Uh-huh.
3 Q When you print e-mail, usually the person who
4 prints it, the name ends up at the top.
5 Do you see that?
6 A I see that. I did not know that.
7 Q So this e-mail refers to questions about
8 fictitious business names that Tom McGrath is asking of
9 Eileen Moody.
10 Do you see that?
11 A I do.
12 Q And you were informed of these communications,
13 right, generally?
14 A No.
15 Q Oh. You didn't know these discussions were
16 taking place?
17 A Between Tom and Eileen, no.
18 Q This is a surprise to you?
19 A This e-mail, yes.
20 Q And so she did this on her own without your
21 approval?
22 MR. POULOS: Objection. Calls for speculation.
23 BY MR. THOMAS:
24 Q Oh. Did you approve of her communicating with
25 Tom McGrath about fictitious business name questions?
Page 142
1 A No. No.
2 Q How did Tom McGrath know to communicate with
3 her?
4 MR. POULOS: Objection. Calls for speculation.
5 THE WITNESS: No idea.
6 BY MR. THOMAS:
7 Q Is it your testimony, sir, that before the RFP,
8 you didn't know Aptitude was asking questions of your
9 staff about how to do fictitious business names?
10 A Yeah, that's my testimony.
11 Q Okay. And did you know that, before the RFP,
12 Aptitude did not have California fictitious business
13 name functionality?
14 MR. POULOS: Objection. Lacks foundation.
15 THE WITNESS: I had an idea that they may not
16 have had fictitious business name, that nomenclature.
17 BY MR. THOMAS:
18 Q Functionality?
19 A They had dba functionality. Dba, doing
20 business as functionality is very similar, if not
21 exactly the same, as FBN functionality. That's a
22 difference in nomenclature.
23 Q And if it's exactly the same, do you know why
24 Mr. McGrath would be asking Eileen Moody questions about
25 it?
Page 143
1 A Nope.
2 Q You have no explanation?
3 A No explanation.
4 Q And then if you look at the last sentence in
5 the e-mail --
6 A Uh-huh.
7 Q -- it says: "I have developers working on this
8 now."
9 A Uh-huh.
10 Q "Any information you can provide would be
11 greatly appreciated."
12 A Uh-huh.
13 Q Do you know if your staff was helping any
14 software companies develop functionality before the RFP
15 process other than helping Aptitude?
16 MR. POULOS: Objection. Vague.
17 THE WITNESS: No, I don't know.
18 MR. POULOS: Lacks foundation.
19 BY MR. THOMAS:
20 Q Did you instruct your staff to work with any
21 potential --
22 A No.
23 Q -- vendors before the RFP process?
24 MR. POULOS: Slow down.
25 THE WITNESS: No.
Page 144
1 MR. THOMAS: I gave you the wrong one. I have
2 a highlighted section. I'm going to do this.
3 Do you have a clear one? There we go. It's
4 the same document. Sorry, John.
5 MR. POULOS: No problem. 375.
6 (Exhibit No. 375 was marked for
7 identification.)
8 BY MR. THOMAS:
9 Q Sir, do you have Exhibit 375 in front of you?
10 A Yes.
11 Q All right. And what is this document, if you
12 know?
13 A The County has a committee called the ISSB
14 Committee, Information System Steering Board Committee.
15 They wanted a report from me about the procurement of
16 another recording system.
17 Q And why did they want that? What did they say?
18 A Why? I don't know why. This is a -- an
19 internal procedure done by Information Systems. Why
20 they decided to have a procedure like this, I don't
21 know.
22 Q And turn to the second page.
23 A Uh-huh.
24 Q Is -- this looks like a document -- it's got
25 your name at the top, "presented by Greg Diaz."
Page 145
1 Do you see that?
2 A Yes.
3 Q What is this document?
4 A It's a Project Evaluation and Prioritization
5 Criteria document.
6 Q And can you turn through the balance of this
7 exhibit, the next four pages?
8 A Uh-huh.
9 Q Is that -- do those four pages comprise the
10 balance of this document you called Project Evaluation?
11 A Yes.
12 Q All right. And who prepared this document?
13 A Greg Diaz prepared pages one, the first
14 paragraph under project scope, and then I worked with
15 Mary Ross and Marie for the middle of page two, name,
16 organizational role, project responsibility, project
17 milestones, the three of us worked on. Expected
18 benefits was mine. Expected cost was mine. Resource/
19 staffing requirements, mine. And the community of
20 interest chart, mine.
21 Q All right. Let's turn back to -- actually,
22 when I say the first page, the first page of the project
23 evaluation.
24 You said you prepared the entire first page?
25 A Yes.
Page 146
1 Q If we could turn just up to the second page,
2 did you prepare the bullets at the top of the second
3 page, also?
4 MR. POULOS: Just so the record's clear --
5 THE WITNESS: Yes.
6 MR. POULOS: -- the first page is actually the
7 second page of the exhibit.
8 MR. THOMAS: Yeah.
9 THE WITNESS: Okay.
10 BY MR. THOMAS:
11 Q So you prepared the entire first page?
12 A Yeah, uh-huh.
13 Q And in part, the bullets on the top of the
14 second page?
15 A Uh-huh.
16 Q Okay. And in terms -- if you go down to the
17 bottom of the first page, it says: "In addition to
18 standard recorder system core functions" --
19 A Uh-huh.
20 Q -- "the new system must support the following
21 critical core functions."
22 A Uh-huh.
23 Q Do you see that?
24 A Yes.
25 Q It says "Built in image redaction."
Page 147
1 A Yes.
2 Q What does that mean?
3 A It means if, after we scan a document, we have
4 the ability to redact specifically Social Security
5 numbers to comply with California legislation.
6 Q What did you mean by "built in"?
7 A The redaction -- how would I say -- software,
8 or that redaction feature would be part of the core
9 system.
10 Q And currently --
11 A As opposed to using a third party. I'm sorry.
12 Sorry.
13 Q Well, does Aptitude currently use a third party
14 for redaction?
15 A Yes.
16 Q So Aptitude does not comply with that new
17 system requirement that you listed at the bottom of --
18 A They do comply because they also have the
19 built-in redaction. There's manual redaction, which is
20 built in. There's automated redaction, which is
21 provided by a third party.
22 Q And with respect to, if you turn the page --
23 A Yeah.
24 Q -- you have "electronic document handling
25 including document receipt, recording, archive," et
Page 148
1 cetera.
2 Do you see that?
3 A Yes.
4 Q And that's something you ultimately elected not
5 to require as part of the RFP, correct?
6 A Correct.
7 Q Did AtPac ever, while it was the vendor for
8 Nevada County, did you ever ask AtPac to provide
9 redaction services or software?
10 A I think I did ask for how are we going to
11 address this legislation.
12 Q And what did AtPac --
13 A So that's a different -- that's a different
14 response to the actual question, so I guess the answer
15 is no.
16 Q What did AtPac --
17 A What I did ask is how are you going to comply
18 with the legislation.
19 Q Did AtPac -- AtPac, you understood, had
20 software product that provided for redaction. You
21 understood that, right?
22 A No.
23 Q Okay. Did AtPac ever send you a proposal to
24 provide redaction services?
25 A Yes, I think they did. Yeah, I think they did.
Page 149
1 Q And did you understand they had a software
2 product that provided that, or through a third party,
3 could provide that?
4 A I believe it was through a third party.
5 Q Like what Aptitude now does, correct?
6 A Yes. Well, no, no, because Aptitude has the
7 manual redaction. AtPac doesn't have the manual
8 redaction built in. Everything is done by a third
9 party.
10 Q So when you said built-in image redaction, you
11 were referring only to the manual redaction?
12 A Correct.
13 Q So you weren't requiring automated redaction at
14 all?
15 A Correct.
16 Q Now, if we turn to the second page, you're on
17 that, I see.
18 A Yes.
19 Q You have a cost estimate. It says: "The scope
20 of the project to purchase and implement new recording
21 system software meeting mandatory statutory requirements
22 by September 30, 2008" --
23 A Uh-huh.
24 Q -- "within the cost of $140,000 for the first
25 year of implementation."
Page 150
1 Do you see that?
2 A Yes.
3 Q And how did you arrive at that number?
4 A I have no idea.
5 Q Okay. Was it a number you arrived at that you
6 developed?
7 A Yeah, I think it was.
8 Q And was the money for this particular project,
9 did that come out of -- I've seen documents referring to
10 a particular fund.
11 Can you tell me what that fund is that was used
12 to fund the clerk-recorder software?
13 A The recorder's authorized to set up three
14 dedicated or special funds. Some people call them trust
15 funds. One fund is called the modernization fund. It's
16 a dollar for each page that gets recorded, and
17 obviously, that's for modernization in the office.
18 There's another fund called micrographics.
19 That's a dollar per doc, per document, and again, that's
20 to be used solely for micrographics efforts in the
21 office.
22 Q Okay.
23 A And we have a redaction fund, a dollar per doc
24 to enable recorders to redact Social Security numbers.
25 Q Okay.
Page 151
1 A The money came from the first two trust funds
2 that I mentioned, modernization and micrographics.
3 Q Okay. When you say "the money," are you
4 referring to the money that was ultimately used to
5 procure the Aptitude software?
6 A Yes.
7 Q Okay. And that money was earmarked for use for
8 modernizing the technology in the clerk-recorder's
9 office; is that right?
10 A Yes.
11 Q Okay. Now, there were specific documents which
12 describe the restrictions on those funds. Was there
13 some documents that you're aware that describe what
14 those funds can't --
15 A No.
16 Q -- can and can't be used for?
17 A No.
18 Q Okay. Does anything describe what those funds
19 are restricted to being used for?
20 A Yes.
21 Q What's that?
22 A I believe it's Government Code 27361, you will
23 find the verbiage.
24 Q Okay. And so those funds --
25 A And if I'm a little wrong there, we can find
Page 152
1 it. I believe it's 27361, California Government Code --
2 Q Okay.
3 A -- so -- and statute. It describes how the
4 funds are to be used.
5 Q Okay. And those are funds that are separate
6 and apart from the County's general fund?
7 A Correct.
8 Q I see. Have you heard of litigation where
9 those -- some counties have run into disputes about
10 using those funds for general fund purposes?
11 A Yes.
12 Q What county, if you know?
13 A I don't know.
14 Q If we look at the list of names on the
15 document, page two, which is exhibit -- or Nevada 510
16 Bate Stamp number, do you have that?
17 A Yes.
18 Q Your name is by clerk-recorder, project
19 sponsor.
20 A Yes.
21 Q It also says you're recorder office SME. What
22 is that?
23 A I don't know.
24 Q You don't know what SME means?
25 A No.
Page 153
1 MR. POULOS: Where do you see that? Oh. Okay
2 I got you.
3 THE WITNESS: I don't know.
4 BY MR. THOMAS:
5 Q The page where you have the cost estimate of
6 $140,000, on the next page, that said software license
7 cost.
8 Do you see that?
9 A Yes.
10 Q And you also have annual maintenance and
11 technical support cost, 25,000.
12 Do you see that?
13 A Yes. Yes.
14 Q Do you know where you developed that number or
15 how that number was arrived at?
16 A I believe it was very similar to what we were
17 paying AtPac.
18 Q Okay. So you were looking for an annual
19 maintenance cost that was essentially the same as what
20 you were paying AtPac?
21 A Yes.
22 Q Okay. And what about the software license
23 cost? Do you have a sense of whether that was the same
24 as what had been paid to AtPac?
25 A No. I -- no.
Page 154
1 Q Were you aware that the County had renewed its
2 license with AtPac periodically over the years before
3 you joined the County?
4 A Yes.
5 Q And did anyone ever tell you why the County did
6 that?
7 A No.
8 Q That was 375.
9 Exhibit 321, please, in the binders. One
10 moment, Mr. Diaz.
11 (Interruption in proceedings.)
12 BY MR. THOMAS:
13 Q Mr. Diaz, turning back to Exhibit 375, if you
14 could turn again to the third page of the document, down
15 at the bottom, it says "Expected Benefits."
16 Do you see that?
17 A Yes.
18 Q The first one, "The internal Nevada County
19 departments will have access to recorder documents at no
20 cost to them for hardware or software" --
21 A Yes.
22 Q -- that was an internal issue between County
23 departments?
24 A Yes.
25 Q Okay. Do you know, with respect to this AtPac
Page 155
1 system that was in place at the time you prepared this,
2 were the Nevada County departments being charged for
3 access to the AtPac software?
4 A I don't know.
5 Q Okay. The next bullet point says: "Nevada
6 County will have a system that enacts the Social
7 Security transaction legislation."
8 What's that?
9 A That should be actually "truncation
10 legislation."
11 What's that? California has enabling
12 legislation that says a document submitted for
13 recording, the recorder should truncate the first five
14 digits of a Social Security number.
15 Q Okay. And then the next expected benefit is
16 that Nevada County can offer e-recording.
17 Do you see that?
18 A Yes.
19 Q Okay. Those were benefits that you felt -- did
20 you feel the County did not already have those benefits
21 that you listed in this document from the AtPac
22 software?
23 MR. POULOS: Objection. Vague.
24 THE WITNESS: No, not particularly.
25 BY MR. THOMAS:
Page 156
1 Q When you say "not particularly," do you mean
2 the County did have the benefits from AtPac or it did
3 not?
4 A If -- I'm sure if we had stayed with AtPac, we
5 could have realized some of these expected benefits.
6 MR. THOMAS: All right. Let's turn to next in
7 order, Exhibit 376, please, if you could mark that.
8 (Exhibit No. 376 was marked for
9 identification.)
10 BY MR. THOMAS:
11 Q Sir, do you have 376 in front of you? Do you
12 have 376, sir?
13 A Oh. I'm sorry. Yes.
14 Q And this is -- what is this document?
15 A It's a letter from -- actually, it's an e-mail
16 from Kirk Weir to me. Attached is a letter from Kirk
17 Weir to me.
18 Q And this is from April 2008?
19 A Yes.
20 Q And did you receive this e-mail?
21 A Yes.
22 Q And if you look at the first paragraph of the
23 letter, it says: "As requested, at our February 14th
24 meeting, we have specifically addressed," and then
25 there's four little bullet points.
Page 157
1 Do you see that?
2 A Yes.
3 Q And do you see what the last bullet point says?
4 A Yes.
5 Q It says -- this is referring to redaction
6 services AtPac is offering; is that correct?
7 A Yes.
8 Q And did you ever respond to this proposal --
9 A I don't know.
10 Q -- and take AtPac up on its offer to provide
11 redaction services?
12 A I don't recall responding to it.
13 Q Do you know why you didn't?
14 MR. POULOS: Objection. Lacks foundation.
15 THE WITNESS: No, I don't know why I didn't.
16 BY MR. THOMAS:
17 Q And you notice this e-mail from Mr. Weir, this
18 is to you and Eileen Moody, correct?
19 A Eileen was cc'd, correct.
20 Q Okay. And so this is an instance where AtPac
21 is doing what you want them to do, communicate with you
22 directly --
23 A Yes.
24 Q -- right? Did you evaluate this proposal?
25 MR. POULOS: Objection. Lacks foundation.
Page 158
1 THE WITNESS: Yes.
2 BY MR. THOMAS:
3 Q And what was your conclusion?
4 A Pretty mediocre proposal was my conclusion.
5 Q And is that why you didn't respond?
6 A Probably.
7 Q What was mediocre about it?
8 A I don't know. Just seemed to me to be --
9 didn't knock my socks off.
10 Q Okay.
11 A You know, just -- I don't know.
12 Q You don't know?
13 A No.
14 MR. THOMAS: Okay. 321, please. You don't
15 have exhibits from yesterday, do you?
16 THE REPORTER: No.
17 MR. KRUGLE: We have a second book.
18 MR. THOMAS: John, this is a previously marked
19 exhibit.
20 MR. POULOS: Okay.
21 MR. THOMAS: With your stipulation, I don't
22 have a sticker version of it. Can I put that in front
23 of the witness and rely on that?
24 MR. POULOS: That's fine.
25 BY MR. THOMAS:
Page 159
1 Q Mr. Diaz, do you have in front of you
2 Exhibit 321?
3 A Yes.
4 Q And what is this e-mail?
5 A It's an e-mail to Marie about some other
6 vendors, in my opinion, should receive the RFP.
7 Q What is -- this is an e-mail from you to Marie?
8 A Yes.
9 Q All right. And what did you say in your e-mail
10 to her? Specifically what does it say?
11 A Marie, comma, as promised, comma, here is some
12 vendors that should receive our RFP.
13 Q Okay. You did not say to her: Here are some
14 other vendors, correct?
15 A Correct.
16 Q Thank you. And you sent that e-mail, right?
17 A Yes.
18 Q Did you expect Ms. McCluskey to send out,
19 electronically, Request for Proposals to vendors?
20 A No.
21 Q Did you expect someone to affirmatively send
22 out RFPs to vendors? Was that your intention?
23 A No. I don't know how purchasing dealt with
24 RFPs. Some counties, they get sent out. Most counties,
25 it's just posted. Notification is given to vendors that
Page 160
1 there's a posting.
2 Q And do you know how --
3 A But I don't know Nevada County purchasing. I'm
4 sorry. I don't know. Excuse me.
5 Q When you sent your e-mail to Ms. McCluskey, why
6 did you tell her: Here are some vendors that should
7 receive our RFP?
8 A No idea. That's just how I wrote it.
9 Q Do you know if the RFP in Nevada County
10 actually was affirmatively e-mailed or communicated to
11 any vendors?
12 A I don't know. I don't know how purchasing did
13 it.
14 (Exhibit No. 377 was marked for
15 identification.)
16 BY MR. THOMAS:
17 Q What exhibit do you have in front of you, sir?
18 MR. POULOS: 377.
19 BY MR. THOMAS:
20 Q Thank you. Do you have 377 in front of you?
21 A Yes.
22 Q And do you know what this document is?
23 A It appears to be an e-mail from Sandy Balzer
24 to -- I see South Tech Systems, Adam Mote, info @ record
25 fusion, L. Cook @ AMCAD. The subject: County of Nevada
Page 161
1 Recording System Request for Proposals.
2 So the Nevada County purchasing agent on behalf
3 of Nevada County clerk-recorder is requesting sealed
4 proposals at 950 Maidu until the hour... from all
5 interested providers of a recording system.
6 So this appears to be an e-mail to prospective
7 responders of the Nevada County recording system Request
8 for Proposal and what the terms are for the response and
9 how the response should be packaged to the County.
10 That's what I'm getting from this first
11 paragraph.
12 Let's see. On the second page, I see
13 recipient, a line. I see a bc: Gregory Diaz.
14 Q What is that?
15 A It looks like a blind copy to me.
16 Q Well, were you blind copied on the e --
17 A I guess I was.
18 Q Okay. And did you read it?
19 A I don't remember it.
20 Q You didn't want to be blindsided, right? So
21 you looked at it, correct?
22 MR. POULOS: Objection. Mischaracterizes the
23 witness's testimony.
24 THE WITNESS: You know.
25 BY MR. THOMAS:
Page 162
1 Q Actually, I don't know.
2 A I saw -- oh. Okay. I don't know if I read it
3 or not. It's obvious, from the first paragraph, this is
4 just something sent to the vendors, so I don't think I
5 spent a whole lot of time looking through this e-mail.
6 The first paragraph pretty much informed me of
7 what I needed to be informed of.
8 Q Well, were you concerned when you looked at
9 this e-mail and saw that AtPac wasn't included on the
10 list?
11 A Like I say, I don't even -- I don't remember
12 looking at the list. The first paragraph told me what I
13 needed to know. Fine. That's not my area. That's not
14 my call. It's purchasing. It's not my call.
15 Q Well, then, if it's not your call, why, on
16 exhibit --
17 A Because --
18 Q -- on 321 --
19 A Yes.
20 Q -- were you making a list of vendors to respond
21 and to receive the RFP if it's not your call?
22 A Because I was asked what vendors do you think
23 should get this, so I replied.
24 Q All right. Thank you, sir.
25 A Whether they accepted my recommendation or not,
Page 163
1 I don't know.
2 Q And that's the list you excluded AtPac from,
3 correct?
4 A Yes, AtPac was not on that list since they're
5 the existing vendor and the existing vendor always gets
6 it.
7 Q Except in this case?
8 A I guess so, or so AtPac said. But that's not
9 my responsibility.
10 Q Let's look at Exhibit 370 --
11 A Not my responsibility.
12 Q Let's look at Exhibit 377.
13 A Okay.
14 Q Do you have the second page?
15 A Yep.
16 Q I said that AtPac didn't receive the proposal,
17 and you said: Well, that's what AtPac said.
18 A That's what they say. I'm sure I believe 'em,
19 you know.
20 Q Are you aware of any evidence to suggest AtPac
21 received the Request --
22 A No.
23 Q -- for Proposal --
24 A No.
25 Q -- when other vendors received it?
Page 164
1 MR. POULOS: Let him finish.
2 BY MR. THOMAS:
3 Q The answer's --
4 A No.
5 Q -- no? I'm done with 377.
6 (Exhibit No. 378 was marked for
7 identification.)
8 BY MR. THOMAS:
9 Q What is Exhibit 378, sir?
10 A Looks like an e-mail and purchasing is sending
11 prospective sponsors an addendum to the Request for
12 Proposal.
13 Q Okay. And so this is -- there's a modification
14 of some kind to the RFP that was communicated to the
15 potential vendors; yes?
16 A I don't think so. It's not a modification --
17 Q Okay. What was it?
18 A -- to the RFP. I believe it was a revision for
19 the proposed due date --
20 Q Okay.
21 A -- which I think that's -- I see that as two
22 different things.
23 Q Okay. And do you know why the due date was
24 changed on July 29th, 2008?
25 A Yeah. Because AtPac sent me a notice of
Page 165
1 termination and everyone in the County was worried about
2 it, and so provisions were made to extend the date, I
3 believe. I know of no other reason why it would have
4 been sent.
5 Q And so --
6 A You know what? Can I amend an earlier answer?
7 MR. POULOS: Sure.
8 THE WITNESS: Is that okay?
9 BY MR. THOMAS:
10 Q Well, you're under oath. If you want to
11 clarify something you said, you can.
12 A Yeah.
13 Q Just understand, I can comment on it in front
14 of the jury.
15 A You said --
16 Q Sir, just understand when you make changes to
17 your testimony, lawyers in the case can comment upon
18 that --
19 A I understand.
20 Q -- to a jury. It may affect your credibility.
21 A I understand.
22 Q All right.
23 A When I mentioned to you earlier I didn't know
24 of any evidence that AtPac had received this or had
25 knowledge of the RFP, during my years in the private
Page 166
1 sector, I was aware that AtPac, along with the companies
2 I worked for, along with the other competitors, did have
3 a subscription service which would alert them to RFPs
4 being issued by the County.
5 Q Okay. Looking at Exhibit 378, sir --
6 A Okay.
7 Q -- so this was a modification -- or some sort
8 of a change to the RFP that was sent from Ms. Balzer.
9 She's in the purchasing group --
10 A Yes.
11 Q -- at Nevada County?
12 A Uh-huh.
13 Q This was cc'd to you, right?
14 A Uh-huh.
15 Q And do you see AtPac as an addressee of this
16 e-mail?
17 A No.
18 Q Why not? Why wasn't it?
19 A You could ask purchasing. I don't know.
20 Q Did that concern you --
21 A No.
22 Q -- that they weren't?
23 A No.
24 Q Why not?
25 A It's not my gig. This is purchasing's gig.
Page 167
1 Q You didn't care?
2 A Nope.
3 MR. THOMAS: Next in order.
4 (Exhibit No. 379 was marked for
5 identification.)
6 BY MR. THOMAS:
7 Q Do you have Exhibit 379, sir? Do you have
8 that?
9 A Yes. Uh-huh. Sorry.
10 MR. POULOS: Do you have an extra copy?
11 MR. THOMAS: I'm sorry.
12 MR. POULOS: No problem.
13 BY MR. THOMAS:
14 Q Do you have Exhibit 379, sir?
15 A Yes.
16 Q And what is this document?
17 A Looks like a document from Marie to me, Marie,
18 Mary and Phil Russ, with evaluation worksheets attached
19 to this.
20 Q And did you receive this e-mail?
21 A Yes, uh-huh.
22 Q Okay. And what was -- it says Primary
23 Evaluation Team: Greg, Mary, Phil and Marie.
24 A Uh-huh.
25 Q What is that group? What's "Primary Evaluation
Page 168
1 Team" mean?
2 A I don't know.
3 Q Okay. And turning to the attachments, are any
4 of these attachments your writing? Do any of them have
5 your writing?
6 A No.
7 Q Okay. And if we turn to the third page of the
8 exhibit, it's Bate Stamped Page 441.
9 A 441. Yes. Uh-huh.
10 Q Okay. This is an RFP. It appears to be a
11 score sheet.
12 Do you see that?
13 A Yes.
14 Q Did you ever fill out a score sheet like this
15 during the RFP process?
16 A I don't remember doing it.
17 Q Okay. You understand every time I talk about
18 the RFP process in this deposition, I'm talking about
19 the Nevada County Clerk-Recorder RFP in 2008.
20 You understand that, right?
21 A Yes.
22 Q Okay. And you've known that every question
23 I've asked, right?
24 A Yes.
25 Q I just want to make sure there's no
Page 169
1 miscommunication.
2 Did you score the vendors that responded to the
3 RFP in any way?
4 A Yes.
5 Q How did you --
6 A I think so.
7 Q How did you do that?
8 A I don't recall. It just seems to me there was
9 another template that we used to score, other than this
10 one.
11 Q All right. And if you look at the core
12 features and standard functions -- it's the third row --
13 under -- which one do you have in front of you now?
14 Ms. McCluskey?
15 A Yes.
16 Q Do you see the core features, standard
17 functions?
18 A Yes.
19 Q And she lists 15 out of a possible 15. Do you
20 see that?
21 A I see ten. It says total possible points, in
22 parentheses, 15, and to the left of that, I see ten.
23 Am I reading from the wrong column here? I'm
24 on page, at the bottom, 442.
25 Q Interesting.
Page 170
1 A And I'm at the third -- doesn't that say ten?
2 MR. POULOS: Different dates. One of them is
3 for 9/22. The other one's 9/7.
4 MR. THOMAS: I see. I see. Yeah. Thank you.
5 Okay. So you're on --
6 MR. POULOS: They're both McCluskey.
7 BY MR. THOMAS:
8 Q You're on 442?
9 A Yes.
10 Q So looking at Bate Stamp Page 441, can you do
11 that, please?
12 A Oh. 441?
13 Q Turn to the other page.
14 A Uh-huh. Here, I see 15. I'm sorry.
15 Q Yeah. You see 15 for core features and
16 standard functions.
17 Do you see that?
18 A Yes. Uh-huh.
19 Q Now, one of the core features and standard
20 functions that the clerk recorder's office -- well, one
21 of the core features and standard functions of
22 clerk-recorder software in September of 2008 was bond
23 paper tracking functionality, correct?
24 A I would really have to look at the list to see.
25 I believe that's correct, but I couldn't give you a
Page 171
1 definite correct.
2 Q And do you know whether Aptitude Solutions had
3 bond paper tracking on September -- in September of
4 2008?
5 A I don't know. I would have to go back and look
6 at the evaluation worksheets.
7 Q Do you know whether Aptitude Solutions had
8 fictitious business name functionality for California
9 counties in 2008?
10 A I believe their response indicated that they
11 did.
12 Q No. That wasn't my question.
13 A Uh-huh.
14 Q Did Aptitude actually have fictitious business
15 name functionality in 2008 for California?
16 A I can't distinguish the questions. If they
17 tell me they did --
18 Q My question --
19 A -- who am I to say that they didn't? I did not
20 know that they didn't because they were not installed in
21 California so it's hard to know. There's no where I
22 could go to verify if they were telling me the truth or
23 not.
24 If they said they did, then we, as the
25 evaluation team, took 'em for their word.
Page 172
1 Q And you have a specific recollection of
2 Aptitude telling you they had California fictitious
3 business name functionality in their software,
4 clerk-recorder software in 2008. They told you that?
5 A No, they didn't tell me that. I believe it was
6 part of their response.
7 Q Do you recall the exhibit we looked at earlier
8 in June of 2008 where Eileen Moody --
9 A Yep.
10 Q -- was answering questions of Aptitude about
11 fictitious business name functionality?
12 A Yeah.
13 Q So at that point in time, you understood
14 Aptitude did not have fictitious business
15 name California --
16 A Sure looks like it, yes.
17 Q -- California functionality, right?
18 A Yes.
19 Q And so do you think it was -- your testimony
20 then is you assumed Aptitude developed the functionality
21 in just the two months between June and August 2008?
22 A I -- I didn't even think that hard about it.
23 It was in the response.
24 Q Well, didn't you -- didn't they demonstrate
25 their software, though?
Page 173
1 A They did. They came back and demonstrated
2 their software.
3 Q And how did you score fictitious business name
4 functionality?
5 A I would have to look at the score sheet.
6 Q How would you have scored bond paper tracking
7 functionality for Aptitude if it did not have it when
8 they demonstrated their software?
9 A I don't know.
10 MR. THOMAS: I actually can -- I don't know
11 what you want to do in terms of a break, but I'd be fine
12 with a break for lunch, if you guys would like to break
13 for lunch.
14 MR. POULOS: It's up to you. She's hungry.
15 MR. THOMAS: Normally, the court reporter needs
16 a break because she's working harder than anybody.
17 THE WITNESS: Your call. I'm just --
18 MR. THOMAS: Let's just take a lunch break and
19 return in one hour. Is that all right? It's up to you
20 but that's what seems reasonable for the court reporter.
21 THE VIDEOGRAPHER: Going off the record at
22 1:04 p.m.
23 (Lunch recess at 1:04 p.m.)
24 ---oOo---
25
Page 174
1 AFTERNOON SESSION
2 (The appearance of all parties having been
3 noted for the record, Mr. Schap no longer present, the
4 proceedings resumed at 2:07 p.m.)
5 --oOo--
6 (Exhibit Nos. 380 and 381 were marked for
7 identification.)
8 THE VIDEOGRAPHER: Back on the record at
9 2:07 p.m.
10 EXAMINATION (RESUMED) BY MR. THOMAS
11 Q Mr. Diaz, do you have Exhibit 380 in front of
12 you?
13 A Yes.
14 Q And is this an e-mail that you sent?
15 A Yes.
16 Q Okay. And down below, it's an e-mail from
17 Carolyn --
18 A Crnich.
19 Q -- Crnich.
20 A Sorry to interrupt.
21 Q It says: "I hope you are all settled in with
22 your new recording system."
23 So she's written this to you after you're
24 working with Aptitude; is that true?
25 A Yes.
Page 175
1 Q But as of 4/9/09, you hadn't yet gone live with
2 the Aptitude system, right?
3 A Correct.
4 Q When did the County of Nevada go-live with the
5 Aptitude clerk-recorder software?
6 A We went live with Aptitude solely on July 1st.
7 Q And -- go ahead, sir.
8 A If I could clarify, we went live running dual
9 systems on June 1st, and that was done for a reason, but
10 the AtPac contract expired on June 30th and that's when
11 we solely used Aptitude.
12 Q And you said you went live running dual systems
13 for a reason.
14 What was that reason?
15 A If there were some glitches in Aptitude, we
16 could still record documents through the AtPac system
17 while we pay attention and fix the glitches in the new
18 system.
19 Q So the County continued to -- strike that.
20 The County of Nevada continued to use the AtPac
21 clerk-recorder software through the end of June 2009; is
22 that true?
23 A Yes.
24 Q Before the end of June 2009, to your knowledge,
25 did you ever notify AtPac that you believed it was in
Page 176
1 breach of its contract or license agreement with the
2 County?
3 MR. POULOS: I'm going to object to the extent
4 it calls for a legal conclusion but go ahead.
5 THE WITNESS: Could you repeat the question?
6 I'm sorry.
7 BY MR. THOMAS:
8 Q Sure. It's a question about what you said to
9 AtPac.
10 Before June of 2009, the end of June 2009, at
11 any point in time, did you send AtPac any notice that
12 you believed AtPac was in breach of its agreement with
13 Nevada County?
14 MR. POULOS: Objection. Vague.
15 THE WITNESS: Not that I can recall.
16 BY MR. THOMAS:
17 Q And before the end of June 2009, are you aware
18 of anyone else within Nevada County sending notice to
19 AtPac declaring or stating that AtPac was in breach of
20 its agreement with Nevada County?
21 A Not that I can recall.
22 Q Okay. Now, at some point, was there -- there
23 was a schedule in place for the implementation of the
24 Aptitude software, correct?
25 A Yes.
Page 177
1 Q And at one point, did the schedule call for the
2 Aptitude software to go-live in approximately April of
3 2009?
4 A I don't recall that at all.
5 Q What do you recall? You don't recall there
6 being a change in the schedule with respect to when
7 Aptitude solution software would go-live in Nevada
8 County?
9 A I recall two, maybe three changes in the
10 schedule. The specific dates, I can't recall, but it
11 was certainly extended from our initial discussions.
12 Q Okay. And when you say "extended," what was
13 extended?
14 A The go-live date.
15 Q And how many times was the go-live date
16 extended?
17 A I can't specifically recall. It seems to me
18 two or three times.
19 Q Did you become aware, that at some point in
20 time, Placer County was also working to implement the
21 Aptitude Solutions software in the beginning of 2009?
22 A I don't think it was in the beginning of
23 2009 --
24 Q When was it?
25 A -- that I had knowledge of that.
Page 178
1 Q When did you become aware that Aptitude
2 Solutions was working with Placer County to implement
3 its software?
4 A Cannot give you a specific date. Generally, I
5 believe it was Spring 2009.
6 Q And how did you become aware of that?
7 A Well, someone told me. Who it was, I don't
8 recall, unless it came from Aptitude. It might have
9 been Patty Sandever who told me.
10 Q And did you ever talk to Jim McCauley about the
11 Aptitude software that was being provided or at least
12 attempted in Placer County?
13 MR. POULOS: Objection. Vague.
14 BY MR. THOMAS:
15 Q Let me ask a different question.
16 Did you ever talk to Jim McCauley about
17 Aptitude Solutions efforts in Placer County?
18 A Yes.
19 Q When did you have those discussions?
20 A Don't know. Don't remember. He --
21 Q Did you ask him?
22 A He approached me at -- I believe it was a Board
23 of Director's meeting for the California Recorders
24 Association of California informing me that he had some
25 problems with Aptitude.
Page 179
1 He felt Aptitude was or had breached their
2 contract and he was getting rid of Aptitude, or he was
3 going to -- I don't know what the right word is. I
4 guess they had a signed contract. Aptitude was in
5 breach of contract and he was going to go with another
6 vendor but he came to me with that.
7 Q And what was your response?
8 A "I'm sorry to hear about that, Jim," or words
9 to that effect.
10 Q Did you ask him any details about that?
11 A No.
12 Q Did that concern you at all since that was a
13 vendor you were working with, also?
14 A No.
15 Q Why not?
16 A I -- I have room to get concerned about a few
17 things and that wasn't one of the things I'm going to
18 get concerned about, Jim McCauley's relationship with
19 Aptitude.
20 Q Well, I'm not so much interested in whether you
21 were concerned about Jim McCauley's relationship with
22 Aptitude.
23 My question is: Did the fact that Jim McCauley
24 was telling you he believed Aptitude breached its
25 contract in Placer County give you any concern that
Page 180
1 Aptitude may not be able to perform in Nevada County?
2 A No.
3 Q Why not?
4 A Because I'm there in charge in Nevada County.
5 Q And how would that change whether or not
6 Aptitude was able to comply with Nevada County's
7 requirements?
8 A Because I just pay attention to the compliance
9 in Nevada County, and to that date, things had been
10 going along fine.
11 Q Well, to that date, had you already pushed the
12 schedule back in Nevada County?
13 A Oh, I think so. Yeah, I think so.
14 Q Well, how was that going along fine?
15 MR. POULOS: Objection. Vague.
16 THE WITNESS: How was that --
17 BY MR. THOMAS:
18 Q Is delay of the schedule --
19 A Uh-huh.
20 Q -- okay?
21 A No. The delay of the schedule mostly came from
22 AtPac's behavior with stonewalling getting the data
23 dictionary from them so we can do the conversion.
24 Q So you're talk -- so the delays in the schedule
25 you referred to before, that --
Page 181
1 A Uh-huh.
2 Q -- you attribute delays in the schedule to
3 AtPac's behavior?
4 A Mostly, yeah, uh-huh.
5 Q And specifically what?
6 A The e-mails about AtPac being able to hand over
7 some exports, the data structure, and the terms were
8 constantly changing, and we basically had to wait and
9 see if negotiations could be successful with AtPac.
10 Obviously, they weren't, and when they weren't,
11 IT put another plan in motion and that did cause delays.
12 Q And when you say -- you said something about
13 data dictionary.
14 What is a data dictionary?
15 A Yeah, that's what I call it. I guess it's a
16 data structure so that elements, or our data, the
17 County's data, could be easier -- easily migrated to the
18 new structure.
19 Q And I'd like to get some definitions here. You
20 talked about data structure and then you said elements.
21 First of all, what is data structure?
22 A I have no idea. That's what they call it. I
23 think data structure, my limited knowledge would be
24 there are fields in the software program containing
25 different data elements. A data element could include
Page 182
1 the recorder document number, the date of recording, the
2 title of the document, the grantor name, the grantee
3 name. Those are the data elements that have to fit into
4 a software program to enable search of the records.
5 Q Okay. Those are the data elements and data
6 structure --
7 A That's my understanding of what a data element
8 is, yes, sir.
9 Q Yes. And is the structure the organization of
10 those data elements?
11 A My understanding is -- yes. Sorry.
12 Q Is the data structure the organization of those
13 data elements inside the software and how they're
14 organized?
15 A That's my understanding, yes.
16 Q Okay. Have you heard the word "data schema"
17 before?
18 A Yes.
19 Q And what does that mean to you?
20 A Data dictionary.
21 Q Which is -- do you also -- is that another term
22 for data structure?
23 A In my, again, limited understanding, yes.
24 Q And that's different than a data element which
25 is a name, a date or a document title, right?
Page 183
1 A Yes.
2 Q And you talked about terms were constantly
3 changing, something to that effect. What were you
4 referring to?
5 A AtPac felt initially they needed hundreds of
6 hours to supply that information to the County.
7 Q How many hundreds?
8 A It may have been 100, the first e-mail, and I
9 believe the first e-mail talked about a hundred hours
10 and $15,000 to give us that information.
11 And then there was an e-mail talking about we
12 probably need additional hours, so let's bump it up to
13 $20,000, and then I believe in a second e-mail or maybe
14 subsequent -- subsequent correspondence, they were
15 talking about 30 business days to have this completed or
16 30 business days would be a rough estimate for when we
17 could get it completed.
18 So the negotiation for working with AtPac was a
19 little unsteady during that time.
20 Q Who was involved in those negotiations, to your
21 knowledge?
22 A I believe it was Marie McCluskey, Steve
23 Monaghan and County Counsel was involved as well.
24 Q What about you?
25 A I was there but not really negotiating with
Page 184
1 'em.
2 Q So any information you have --
3 A Yes.
4 Q -- about comments or statements made by AtPac
5 are pieces of information told to you by others; is that
6 what you're saying?
7 A Yes, for this negotiation.
8 Q And when you say "this negotiation," what was
9 the negotiation? Was it a contract negotiation?
10 A Yes. It was a negotiation to set up a
11 professional services contract with AtPac to provide the
12 exports, which I'm not sure what they meant by that, but
13 also the data structures, schema, dictionary, whatever
14 term we would like to use.
15 Q Well, isn't it true you were in discussions
16 with AtPac regarding a professional services contract to
17 provide the data elements?
18 A We have the data elements.
19 Q Where?
20 A That was embedded in AtPac's software.
21 Q And weren't you in negotiations with AtPac so
22 as to potentially have AtPac extract the data elements
23 and provide them to the Aptitude Solutions company so
24 that it could import the data elements into its data
25 structure? Isn't that what was going on? I have that
Page 185
1 right, don't I?
2 A I'm not sure if you have it right or not. That
3 could be.
4 Q Well --
5 A I was under the impression it was the schema,
6 if it was given to the County, the whole migration
7 effort which takes three, four months, in any install,
8 for a county recorder's office, that certainly wouldn't
9 have been done by AtPac. That would have been done by
10 the County and the new vendor.
11 AtPac would not be a major player in the
12 migration. AtPac would just give us a schema and then
13 the County and the new vendor undertakes the task of
14 migrating those elements from the old system to the new
15 system. That's my understanding.
16 Q Where did you get that understanding since you
17 weren't in the discussions?
18 A As far as being around recorder offices for
19 18 years.
20 Q So, for example, it's your understanding that
21 the County -- you owned Aptitude Solutions data schema.
22 That's your position as a clerk-recorder from Nevada
23 County, right?
24 A I don't know where that came from. I didn't
25 say that.
Page 186
1 Q Well --
2 A We entered into a contract with Aptitude for
3 Aptitude to install their software products in our
4 county to enable us to record documents, to enable the
5 document to search, to enable to make copies, et cetera,
6 et cetera.
7 Q Is it your testimony that you consider --
8 strike that.
9 Did Aptitude -- excuse me. Strike that.
10 Did AtPac ever tell you that it was willing to
11 provide its data schema to Aptitude?
12 A Well, maybe. I think so.
13 Q Really. When did that happen?
14 A During the negotiations for a professional
15 services contract. It was either to Aptitude or to the
16 County.
17 Q But you weren't in those discussions, right?
18 A The technical discussions, no.
19 Q How many data migrations have you been involved
20 in from one vendor to another, clerk-recorder software?
21 MR. POULOS: At Nevada County or anywhere?
22 MR. THOMAS: In his career.
23 THE WITNESS: In my career? For a whole
24 complete new system, or doesn't it matter? Modules
25 would count?
Page 187
1 BY MR. THOMAS:
2 Q From one vendor to another.
3 A To another? I think four.
4 Q Please look at Exhibit 381. I don't know if I
5 asked you this already, but you wrote Exhibit 380,
6 correct, the e-mail?
7 A The top -- the top e-mail, I wrote. The bottom
8 e-mail, I did not write.
9 Q But you sent the e-mail at the top which
10 included the one at the bottom, correct?
11 A Yes.
12 Q All right. Let's go to Exhibit 381, and I'd
13 like you to tell me what this is.
14 A This is a resolution authorizing execution of a
15 contract with Aptitude Solutions for a recorder system.
16 Q Okay. And is this the current contract that
17 Nevada County has with Aptitude?
18 A Yes.
19 Q Okay. And the contract itself is attached to
20 the resolution.
21 Do you see that?
22 A Yes.
23 Q Can you turn to Page 2087? I'd just like you
24 to confirm that that's your signature on Page 2087.
25 A Yes, it is.
Page 188
1 Q And then there are certain initials, like turn
2 to 2091.
3 Are your initials somewhere on there?
4 A Yes.
5 Q Initials for licensee?
6 A Yes.
7 Q Okay. And there's a fee summary. Do you see
8 that box?
9 A Yes.
10 Q And it says OnCore License Fee, 125,000.
11 A Yes.
12 Q It says Annual Maintenance Fee, 25,000.
13 A Yes.
14 Q And is that the cost -- well, that's the
15 license fee and the maintenance fee for the Aptitude
16 software?
17 A Yes.
18 Q What's the term of this agreement, in terms of
19 its duration; do you know?
20 A No.
21 Q Don't you have an understanding, as a
22 clerk-recorder, how long the software contract lasts?
23 A No. Someone will tell me when it gets
24 critical.
25 Q Did you understand it was a five-year term?
Page 189
1 A It may be, but again, I just don't recall.
2 Q All right. What would be typical on a
3 clerk-recorder software environment for software? Would
4 it typically be a multiyear contract?
5 MR. POULOS: Objection. Lacks foundation.
6 THE WITNESS: Typically, it would be multiyear,
7 but outside of that, I don't think there is any typical.
8 BY MR. THOMAS:
9 Q Okay. And then this resolution is passed on
10 November 18th, 2008; is that true?
11 A Yes.
12 Q Okay. And that's when the Aptitude contract
13 was confirmed by the Board of Supervisors?
14 A Yes.
15 Q And it also says, in the resolution, it talks
16 about software provided through Aptitude Solutions by
17 Mentis Technology Solutions in the amount of $214,428,
18 plus travel allowance of 15,000, for a total amount of
19 229,428.
20 Do you see that?
21 A I don't think that's accurate, what you just
22 said. If I recall, you just said -- you talked about
23 Mentis and that purchase price being 214,428, and I
24 respectfully disagree.
25 When we're talking about Aptitude and Mentis,
Page 190
1 then we get the amount of 214,428 with the travel
2 allowance of $15,000 for a total amount of 229.
3 Q And what does Mentis Technology Solutions refer
4 to?
5 A What does it refer to?
6 Q Yeah. What is Mentis Technology Solutions?
7 A Mentis Technology Solutions is a company that
8 provides us with the aiINDEX and aiREDACT software.
9 Q I see. So that's some functionality that's
10 provided outside the OnCore product?
11 A The base OnCore product, that's correct.
12 Q Okay. And the total number, the $229,000
13 number, is the sum of the Aptitude contract price plus
14 additional fees for the Mentis-related components?
15 A That's correct.
16 Q And are those fees paid directly to Mentis or
17 to Aptitude; do you know?
18 A To my knowledge, those fees are paid to
19 Aptitude.
20 Q Okay. Do you know why that is?
21 A I have no idea.
22 Q Have you ever signed a contract with Mentis,
23 that you know of?
24 A Yes. This contract.
25 Q Okay. Is Mentis a party to this contract
Page 191
1 somewhere?
2 A I don't believe so.
3 Q So when did you sign a contract with Mentis?
4 A Sorry. I take that back. This contract I
5 signed enabled us to use the Mentis product.
6 Q And if you could turn --
7 A So you're correct, I didn't sign it with
8 Mentis, but it enables us to use --
9 Q If you could turn to Page 2096. Do you see the
10 fee summary?
11 A Yes.
12 Q So these are additional fees in addition to the
13 OnCore fees we looked at earlier?
14 A Yes.
15 Q Okay. And do you see the aiREDACT license fee
16 of 7,448 or 7,044?
17 A Yes.
18 Q Do you know if that's a yearly fee or a fee --
19 a one-time fee? Do you have a sense of that?
20 A It's a yearly fee.
21 Q Okay. Do you remember what the yearly fee was
22 at Aptitude -- excuse me. Strike that.
23 Do you remember what the yearly fee was
24 proposed by AtPac when it provided your proposal for
25 redaction services?
Page 192
1 A No. That may have been on one of the other
2 documents that you produced but I don't remember that
3 yearly fee.
4 Q And is this redaction fee listed on Page 2096,
5 is that a fee that's the hand redaction product or is
6 that the automated redaction?
7 A That's the automated redaction.
8 Q Do you remember seeing one of the objectives
9 for this particular project, the implementation of the
10 software project in Nevada County, that you wanted the
11 redaction software to have -- to be embedded in the
12 clerk recorder software? Do you remember that?
13 A Yes.
14 Q But this is -- your testimony is now that you
15 were referring only to the manual redaction, not the
16 automated redaction. That's your testimony?
17 A Correct.
18 Q Does the clerk recorder's office prepare a --
19 strike that.
20 Does the clerk recorder's office have
21 accounting records for the financial transactions it
22 engaged in?
23 A Yes.
24 Q Okay. And I'm not so much talking about with
25 the public on transactions. I'm talking about things
Page 193
1 like, you know, paying software license fees and the
2 like.
3 Are there accounting records for the
4 clerk-recorder's office in that respect?
5 A Yes.
6 Q And where are those kept?
7 A In my department.
8 Q Do they have a particular name or they're just
9 clerk-recorder office accounting records? I mean do you
10 have a name for them?
11 A I have an administrative assistant by the name
12 of Abby Kelly who does that work. I have not gone into
13 Mrs. Kelly's files to see how she names particular
14 files.
15 Q I see. Do you have a sense that this contract
16 is at least a three-year contract? When I say "a
17 contract," I'm talking about Exhibit 381 from the Nevada
18 County Aptitude Solutions Software License Agreement.
19 A I'm sorry. What page?
20 Q Actually, I don't have a page. It's just a
21 question.
22 Do you have a sense that this contract is at
23 least for a three-year term?
24 A Yes.
25 Q Okay. Do you believe it's at least a four-year
Page 194
1 term?
2 A Yeah, I think so.
3 Q Okay. Do you believe it's at least a five-year
4 term?
5 A Perhaps. Again, I'm not sure what that is.
6 Q Okay. That's all I have for that.
7 A It looks like three years, huh?
8 Q Oh. You found something, Mr. Diaz. Where are
9 you?
10 A Perhaps. I'm on Page 2101.
11 Q All right. And this is, if you turn to page
12 2100, that's a Software Maintenance Agreement.
13 Do you see that?
14 A Uh-huh.
15 Q And then if you turn to 2101, where you were --
16 A Uh-huh.
17 Q -- and this says that the term of the agreement
18 shall remain in effect for a period ending on the date
19 immediately prior to the third annual anniversary date
20 of the maintenance agreement effective date.
21 Do you see that?
22 A Yes.
23 Q Does that suggest to you it was a three-year
24 term?
25 A Yes.
Page 195
1 Q Okay. And do you know if, at the end of the
2 three-year term, Aptitude Solutions would have to pay
3 another initial software fee if it wants to continue
4 using the software?
5 A I don't know.
6 Q You don't know. Is that important for you to
7 know that?
8 A Yes.
9 Q But you don't know?
10 A Yes.
11 Q All right. That's all I have for that right
12 now.
13 So are you aware of any other contract between
14 Nevada County and Aptitude Solutions other than the
15 software license agreement attached to the resolution at
16 Exhibit 381?
17 A I had a small contract with Aptitude, along
18 with 21 other vendors, when I hosted the 2009 Annual
19 County Recorders Association of California Conference.
20 When the vendors signed up, they obviously had
21 to pay. We entered into a very informal contract, if
22 you will: You get to have this space for the conference
23 in exchange for -- I believe we were charging them $700
24 per vendor for that space. That was something entered
25 into with Aptitude, again, along with the other 21
Page 196
1 vendors who attended our conference.
2 Q Okay. But other than that small informal
3 contract, you're not aware of any other contracts
4 between Nevada County --
5 A No. No.
6 Q -- and Aptitude other than Exhibit 381?
7 A Correct.
8 MR. THOMAS: Okay.
9 (Exhibit No. 382 was marked for
10 identification.)
11 BY MR. THOMAS:
12 Q All right. Do you have Exhibit 382?
13 A Yes.
14 Q And you sent this e-mail?
15 A Yes.
16 Q And you're at the top, so you would have sent
17 everything attached to the e-mail in the chain, correct?
18 A Yes.
19 Q All right. And if we turn -- this looks like
20 it's dated around the time the contract was signed.
21 Do you notice that, when I say "the
22 contract" --
23 A Yes.
24 Q -- the Aptitude contract?
25 And if you look at the e-mail at the bottom of
Page 197
1 the first page, it looks like it's from Tom McGrath to
2 Marie.
3 Do you see that?
4 A Yes.
5 Q And you understand that's Marie McCluskey?
6 A Yes.
7 Q What was her role with respect to the Aptitude
8 project?
9 A I believe she was named as project manager.
10 Q Okay. And it looks like Mr. McGrath says: I
11 understood that the board has approved the contract and
12 we are ready to move forward. Here's what we'll need
13 from AtPac.
14 Do you see that?
15 A Yes.
16 Q So does this essentially indicate to you that
17 once the contract was signed, Aptitude was providing
18 information that it wanted from AtPac to the County?
19 A I'm sorry. I'm sorry. Could you repeat that,
20 please?
21 Q Do you understand this to be Mr. McGrath's
22 request from the County of what Aptitude wanted from
23 AtPac?
24 A Yes.
25 Q Okay. And then if you look at the e-mail above
Page 198
1 that, Ms. McCluskey responds to him and says: I'll
2 submit your request to AtPac.
3 A Uh-huh.
4 Q Okay. Do you know how Mr. McGrath understood
5 the board had approved the contract?
6 MR. POULOS: Objection. Calls for speculation.
7 THE WITNESS: No.
8 BY MR. THOMAS:
9 Q Did you tell him that the board had approved
10 the contract?
11 A Don't think so, no.
12 Q Do you know who did?
13 A No.
14 Q Because this e-mail's on the same day that the
15 contract is approved, I notice.
16 You have no knowledge of how he knew that?
17 A No.
18 Q Okay. All right. And you see under the
19 request from Mr. McGrath to Ms. McCluskey, at the bottom
20 of the first page, where it says: Here's what we'll
21 need?
22 A Yes.
23 Q It says: File/field layout, field layout for
24 all document image and administrative data exports --
25 A Yes.
Page 199
1 Q -- should include field name, size and format
2 for each file.
3 A Yes.
4 Q Do you see that?
5 And is it your understanding Ms. McCluskey
6 then -- she says she'll submit your request to AtPac in
7 her e-mail above.
8 Do you know if she did that?
9 A I don't know.
10 Q Okay. You forward this e-mail on to two
11 people: Christine Peters and Krista Pyzer.
12 A Yes.
13 Q Who are they?
14 A They are recorder staff.
15 Q Why did you send this e-mail to them?
16 A I have no idea. I was trying to remember that.
17 Q If you look at about the eighth line down in
18 Ms. McCluskey's e-mail, she says: This is a migration
19 plan.
20 Do you see that?
21 A Yes.
22 Q It says: This is a migration plan because the
23 current production system does not meet Aptitude
24 systems' requirements and can't be reused for the new
25 system which is what the County had originally planned
Page 200
1 when we submitted the RFI.
2 Do you see that?
3 A Yes.
4 Q Do you know: Was that news to you that
5 Aptitude Solutions' system wouldn't be able to reuse the
6 County's equipment?
7 A I -- this is the first time I'm hearing about
8 that.
9 Q So during the Request for Proposal process, did
10 Aptitude Solutions then represent to you that it would
11 be able to use the County's existing equipment since
12 this is the first time you're hearing about it?
13 A Yes.
14 Q And does it trouble you that Aptitude made that
15 misrepresentation to you?
16 MR. POULOS: Objection. Lacks foundation.
17 THE WITNESS: I don't see it as a
18 misrepresentation. The Aptitude is using the County's
19 equipment.
20 BY MR. THOMAS:
21 Q No. My question is about the County's current
22 equipment.
23 Did Aptitude -- it's a surprise to you -- the
24 first time you're seeing it is this e-mail -- where
25 Aptitude says it's unable to use or Aptitude cannot use
Page 201
1 the County's current production system, and that would
2 be the system in place in 2008, correct?
3 A Yes.
4 Q And that's news to you today.
5 A Yeah.
6 Q Okay. So during the proposal process, Aptitude
7 represented to you that it could use the County's then
8 existing equipment, correct?
9 MR. POULOS: Objection. Lacks foundation.
10 Calls for speculation.
11 THE WITNESS: You know, I believe they
12 represented to us that they would need more space,
13 server space than what was currently provided to AtPac,
14 so I know that.
15 I know they needed more server space, so I
16 guess the answer to your question is it didn't concern
17 me.
18 BY MR. THOMAS:
19 Q Wasn't that one of the objectives of the RFI to
20 use the existing equipment?
21 A Yes.
22 MR. POULOS: Objection. Lacks foundation.
23 THE WITNESS: Uh-huh.
24 BY MR. THOMAS:
25 Q Wasn't one of the objectives identified, in the
Page 202
1 Request for Proposal, that the vendors use the existing
2 County equipment?
3 A Yeah. Yeah.
4 Q And Aptitude Solutions didn't meet that
5 objective, correct?
6 MR. POULOS: Objection. Lacks foundation.
7 THE WITNESS: Yeah. They needed more space.
8 BY MR. THOMAS:
9 Q And different equipment, right?
10 A Not that I know of. I believe it was a space
11 issue with the servers. That's my recollection.
12 Q Do you know what kind of server AtPac used as
13 of 2008?
14 A I have no idea.
15 Q Did you pay for a new server to house the AtPac
16 software sometime during your tenure, "you" being your
17 department?
18 A I paid -- no, I did not pay for a new server.
19 Q It sounds like you --
20 A Can I clarify?
21 Q Yes, please.
22 A I did pay for space on a County server, called
23 a virtual server, and we share that server with other
24 departments, so technically, I did not pay for a new
25 server.
Page 203
1 Q My question was: Did you pay for a new server
2 to house the AtPac software sometime before 2008?
3 A Under my tenure, no.
4 Q All right. Did you talk to Tom McGrath about
5 the needs that Aptitude expressed in his e-mail to Marie
6 McCluskey?
7 A No.
8 MR. THOMAS: Okay. I'm done with Exhibit 382.
9 (Exhibit No. 383 was marked for
10 identification.)
11 BY MR. THOMAS:
12 Q Please identify Exhibit 383.
13 A This is an e-mail from Marie McCluskey to Dave
14 Krugle, it looks like Linda Reed, Richard Sandblade, and
15 Phil Russ and myself were cc'd, the subject line being
16 CRiis information.
17 Q And you received this e-mail?
18 A Yes.
19 Q Okay. And do you understand this is an e-mail
20 where Ms. McCluskey forwarded on to AtPac the request
21 being made by Aptitude?
22 A No.
23 Q Okay. What did you understand this e-mail to
24 be?
25 A CRiis information.
Page 204
1 Q Okay. Look at the substance of the e-mail. It
2 says: "In preparation for the upcoming system change
3 and data conversion, Nevada County requests the
4 following information from AtPac."
5 A Uh-huh.
6 Q Do you see it says "field/file layout"?
7 A Uh-huh.
8 Q "Field layout for all documents"?
9 A Uh-huh.
10 Q If I refer you back to the bottom of
11 Exhibit 382, that's also right in front of you --
12 A Uh-huh.
13 Q -- the very bottom, do you see that e-mail from
14 Tom McGrath to Marie?
15 A Uh-huh.
16 Q Do you see he's identified what he wants her to
17 ask AtPac for?
18 A Yes, uh-huh.
19 Q And then she relays that request to AtPac,
20 those pieces of information?
21 A Oh. Okay. Yes. Yes. Okay. I'm sorry. No,
22 it is an e-mail to AtPac, yes. I see that. Uh-huh
23 uh-huh.
24 Q Right. And so this is Ms. McCluskey asking
25 AtPac for the information --
Page 205
1 A Uh-huh.
2 Q -- Aptitude had asked --
3 A Uh-huh.
4 Q -- the County to ask for, right?
5 A Okay. Yes.
6 Q And you understood that?
7 A Yes.
8 Q You understood that at the time, right?
9 A Yes.
10 Q Of course. You paid attention to this. This
11 was important business?
12 A Didn't pay too much attention to this.
13 Q Oh, really?
14 A No.
15 Q It wasn't important to you?
16 A Yeah, it's important to me, but not this -- I
17 don't micromanage. Great. An e-mail's being sent to
18 AtPac. I'm sure Marie's on top of it.
19 MR. THOMAS: All right.
20 (Exhibit No. 384 was marked for
21 identification.)
22 BY MR. THOMAS:
23 A And why did you send that e-mail, 382, to
24 Ms. Pyzer and Ms. Peters?
25 MR. POULOS: I think you misspoke.
Page 206
1 THE WITNESS: I don't know.
2 MR. POULOS: 383, you meant.
3 THE WITNESS: I'm trying to remember that.
4 MR. THOMAS: Yes. Thank you. Actually, 382.
5 Q You sent Exhibit 382 to Ms. Pyzer and
6 Ms. Peters, right?
7 A Yes.
8 Q And you wouldn't have sent that unless it was
9 important, right?
10 A Right. Right.
11 MR. POULOS: No, I think --
12 THE WITNESS: I think it's probably for
13 informational purposes.
14 BY MR. THOMAS:
15 Q No. All right. All e-mails are informational,
16 right?
17 A Yeah. Uh-huh.
18 Q I mean every e-mail's about providing
19 information; don't you agree?
20 A Yes, uh-huh.
21 Q All right. So let's look at Exhibit 384. Do
22 you have that now, sir?
23 A Yes, I do.
24 Q All right. And this is also another e-mail
25 that you sent --
Page 207
1 A Right. Yes.
2 Q -- to Ms. Peters and Ms. Pyzer again?
3 A Yes.
4 Q And what is this?
5 A I don't know. I'm reading this.
6 What is this? This seems to be a letter from
7 AtPac to Marie McCluskey. McCluskey -- frankly, this is
8 the beginning of the stonewalling by AtPac for us to get
9 the conversion done, but I don't understand the last
10 paragraph: "Finally, please clarify if it is your
11 intention that your earlier message constitutes a 60-day
12 notice of cancellation as called for in our County
13 contract."
14 MR. THOMAS: I hate to interrupt you, sir, but
15 can we change the tape right now, please?
16 MR. POULOS: He has to change the tape.
17 THE VIDEOGRAPHER: Going off the record at
18 2:50 p.m. End of disc two.
19 (Recess taken from 2:50 p.m. to 2:54 p.m.)
20 THE VIDEOGRAPHER: Back on the record at
21 2:55 p.m. Beginning of disc three.
22 BY MR. THOMAS:
23 Q Sir, I'm looking at the e-mail from Ms. --
24 Mr. Weir to Ms. McCluskey that was forwarded to you. Do
25 you have that in front of you?
Page 208
1 A Yes.
2 Q And you've read this e-mail at the time, right?
3 A Yes.
4 Q Right. It says -- please read the second
5 paragraph into the record starting with "I hope."
6 A "I hope you will accept this prompt response as
7 an indication of our commitment to provide an
8 appropriate level of cooperation during the conversion
9 to the new recording system."
10 Q And if you look at Exhibit 383, Ms. McCluskey's
11 e-mail to Mr. Weir --
12 A Yes.
13 Q Actually, to Dave Krugle and Linda Reed of
14 AtPac, do you see that?
15 A Yes.
16 Q That was at 1:31 p.m. Do you see that?
17 A Yes.
18 Q And then Mr. Weir's response was within about
19 40 minutes of that.
20 A Yes.
21 Q Okay. And the second paragraph, can you please
22 read that into the record of Mr. Weir's e-mail to
23 Ms. McCluskey?
24 A "I hope you will accept this prompt response as
25 an indication" --
Page 209
1 Q I'm sorry. I think you --
2 A I thought you said the second paragraph.
3 Q I did, but I meant to say the third. Sorry to
4 interrupt you.
5 A That's okay.
6 Q Please read the third paragraph in --
7 A Sure.
8 Q -- Exhibit 384.
9 A "I have discussed the various options outlined
10 in your original message with our solutions support vice
11 president, Dave Krugle. Unfortunately, the alternate
12 method you described, which involves read-only access,
13 does not appear to be workable with the CISAM data place
14 employed by CRiis. There are a lot of issues and tasks
15 that will need to be planned for."
16 Q Okay. And you read that at the time?
17 A Yes.
18 Q All right. And had you understood that one of
19 the proposals Ms. McCluskey made was to allow read-only
20 access to the AtPac databases?
21 A To the extent that I read her paragraph, in her
22 e-mail, that I was cc'd on.
23 Q All right. And turning to the fourth paragraph
24 of Mr. Weir's e-mail, can you please read that into the
25 record?
Page 210
1 A "As you may already be aware, this is an
2 extremely busy time for AtPac and its other customers,
3 nearly all of whom require another set of new marriage
4 forms and many will also be implementing day forward
5 redaction by 11/09."
6 Q And as of November 2008, that fourth paragraph,
7 you just read, is that consistent with your recollection
8 of the -- how busy it was for clerk-recorders at that
9 time? Let me strike that.
10 Were you aware, in November of 2008, that
11 nearly all clerk-recorders would require a new set of
12 marriage forms in California?
13 A Yes.
14 Q Why was that?
15 A I forget which legislation it was that was
16 passed.
17 Q But did it have to do with same sex marriage,
18 to your knowledge?
19 A I don't know. It may have.
20 Q And then Mr. Weir also says that many
21 clerk-recorders will also be implementing day forward
22 redaction by 11/09.
23 Do you see that?
24 A Yes.
25 Q And that was a true statement, also, right?
Page 211
1 A I believe so, yes.
2 Q So you would agree that the fourth paragraph of
3 Mr. Weir's e-mail is true, to your knowledge, correct?
4 It was a true statement?
5 A I have no reason to believe that it's not true.
6 Q All right. Did you talk about this e-mail with
7 Ms. McCluskey?
8 A No.
9 Q Okay. You forwarded it to others within the
10 clerk recorder's office?
11 A Yes.
12 Q Can you now please turn to Exhibit 21? That's
13 in an existing binder, sir. I'll put that in front of
14 you.
15 Here's another e-mail. Do you have Exhibit 21
16 in front of you?
17 A Yes.
18 Q And did you receive this e-mail?
19 A Yes.
20 Q And the attachment?
21 A Yes.
22 Q Okay. And do you remember reading this e-mail
23 at the time and the attachment?
24 A I don't remember reading the e-mail at the
25 time, but now that I'm looking at it, I do remember that
Page 212
1 I did read it.
2 Q Looking at the e-mail -- or excuse me -- the
3 document attached to the e-mail, the third numbered
4 paragraph, do you see that it says "third"?
5 A Yes, uh-huh.
6 Q Can you please read that first sentence into
7 the record?
8 A "Third: The format and structure of our data
9 files is proprietary so we will need to create exports
10 for all of the clerk-recorder's files, slash, groups of
11 files in CRiis. We will also have to document each of
12 the exports as to the size and data type in each field.
13 If it will be helpful for us to prioritize the export of
14 a particular type group, in parentheses, subset of the
15 data, we will do all we can to accommodate you."
16 Q Is it -- did you have any reason to think AtPac
17 wasn't being truthful in that statement, this paragraph
18 you just read?
19 A Yeah, because during my time in the private
20 sector, I had never seen an outgoing vendor express
21 these type of concerns to an incoming vendor.
22 Q You'd only been involved in four --
23 A Yes.
24 Q -- conversions?
25 A Right. I'm just saying I had never seen it so
Page 213
1 it was puzzling to me.
2 Q And for at least two of the four years, you
3 were in private sector, you didn't have a single
4 successful sale, so --
5 A Right.
6 Q -- two of the years, you had no experience with
7 any change of vendors, right?
8 A Correct.
9 Q Because you didn't sell a single customer?
10 A Not a single one.
11 Q So you understood AtPac's position that the
12 format and structure of its data files was proprietary
13 no later than November 20th, 2008, correct?
14 MR. POULOS: Objection.
15 THE WITNESS: I read this e-mail and that's
16 what they said.
17 BY MR. THOMAS:
18 Q Right. And did you talk to anyone about that?
19 A About what?
20 Q About the fact that AtPac said the format and
21 structure of its data files is proprietary, about that.
22 A Yeah, I think I spoke with Marie about that.
23 Q And what were those discussions?
24 A "Marie, what are you going to do?"
25 Q Okay. What did she say?
Page 214
1 A I don't recall.
2 Q You didn't give her direction. You asked her
3 what she would do?
4 A No, I do not give her direction on IT matters.
5 I don't have enough knowledge to give anyone direction
6 on IT matters.
7 As a department head here, it appeared there
8 was a concern by AtPac and the proprietary nature of
9 their files, and I asked Marie to consult with Steve
10 Monaghan so we can fix it and get the migration going.
11 Q Well, AtPac was still proposing to assist you
12 with migrating its --
13 A Uh-huh.
14 Q -- or the data, correct?
15 A Yeah.
16 Q All right. So --
17 A And I was prepared to pay the money.
18 Q Okay. What money?
19 A I think there's an e-mail somewhere, that I
20 recall, and I remember vividly they wanted $15,000 for
21 this.
22 Q And you remember that being a not to exceed
23 contract price, right? So AtPac didn't want actually
24 15,000. They were willing to move forward with a
25 contract that would not exceed 15,000. Do you remember
Page 215
1 that?
2 A No, I don't. I just remember 15,000. I don't
3 remember if it was not to exceed. I just remember
4 15,000 and I remember telling IT, Marie and Steve
5 Monaghan: Okay. We can do that. We'll do that.
6 Q Now, when you say you remember 15,000, once
7 again, you weren't involved in the negotiation, so it's
8 not something you have personal knowledge of, hearing
9 that from AtPac, right?
10 A I read it --
11 Q All right.
12 A -- on an e-mail from AtPac.
13 Q Okay. So you said -- you talked to Steve
14 Monaghan trying to fix this. What did you do to fix the
15 fact that AtPac --
16 A I didn't say I talked to Steve Monaghan. I
17 spoke with Marie McCluskey, who was the project manager,
18 to go to her boss, who was Steve Monaghan, and let's do
19 what we need to do to get the migration started.
20 Q Okay. And what did you do with respect to the
21 information Kirk Weir said that the format and structure
22 of the data files is proprietary?
23 A What did I do with that?
24 Q Yeah.
25 A Nothing.
Page 216
1 Q Did that impact the way you moved forward in
2 any way?
3 A Yes.
4 Q How?
5 A There was an issue with AtPac about proprietary
6 files that we had to solve.
7 Q And how did you solve it?
8 A I asked Marie to huddle up with her boss and
9 get a solution so we can have the migration get started.
10 Q And what was the solution?
11 A The initial solution was we will pay AtPac 15
12 grand and they would do what they had to do to get this
13 information to us.
14 Q All right. And what was -- apparently, you say
15 that was the initial solution. What other solution was
16 there?
17 A AtPac came back saying they couldn't do it for
18 15 grand and they wanted 20 grand to do it and AtPac
19 came back with a date uncertain as to when they could
20 accomplish it. That's my recollection of the e-mails
21 that I read.
22 Q Okay. So you said there was an initial
23 solution.
24 What was the other solution?
25 A The other solution was we will pay 20 grand if
Page 217
1 I can get a date certain.
2 Q Okay. Was that the only other solution?
3 A Well, the last solution was Steve Monaghan
4 represented to me, with County Counsel, that they could
5 work with the new vendor to accomplish this without
6 AtPac, and that's the solution we arrived at.
7 Q And when did that discussion take place?
8 A I have no idea.
9 Q And did Steve Monaghan represent to you -- so
10 he represented to you that IT, IT of Nevada County,
11 could work with the new vendor to accomplish this. What
12 is "this"?
13 A To accomplish migrating these Della (phonetic)
14 elements from the old system to the new system.
15 Q And did he tell you that he could do that
16 without disclosing the format and structure of Atpac's
17 data files to Aptitude?
18 Did he tell you he could do that, Mr. Monaghan,
19 did he tell you he could do that without disclosing to
20 Aptitude the format and structure of AtPac's data files?
21 MR. POULOS: Objection. Vague and ambiguous.
22 Compound.
23 THE WITNESS: I don't recall if he used those
24 exact words.
25 BY MR. THOMAS:
Page 218
1 Q Well, words to that effect. Is that what he
2 said to you?
3 A Yes.
4 Q Okay. I'm done with Exhibit 21.
5 A Sir, do I give this back to you?
6 Q You can just --
7 A I'm sorry.
8 (Exhibit No. 385 was marked for
9 identification.)
10 BY MR. THOMAS:
11 Q Do you have Exhibit 385, sir?
12 A Uh-huh.
13 Q And this is another e-mail from you, correct?
14 A Yes.
15 Q This is where you're forwarding the memo or
16 letter --
17 A Uh-huh.
18 Q -- from Kirk Weir?
19 A Uh-huh.
20 Q You thought it was important enough to forward
21 on to Krista and Christine?
22 A Yeah. I believe they were being point people
23 for me, if you will.
24 Q Oh. What do you mean by that? Point people
25 for what?
Page 219
1 A For the upcoming migration from the old vendor
2 to the new vendor at this time.
3 Q When you say "point people," what does that
4 mean?
5 A If I need information or if I need to recall
6 something or if I need to see something, I could be
7 assured that it was forwarded to Christine and Krista
8 and they would have the information.
9 Q Do they both still work for the County?
10 A Yes.
11 Q Did you talk to them to prepare for your
12 deposition?
13 A No.
14 MR. THOMAS: Okay. 386.
15 (Exhibit No. 386 was marked for
16 identification.)
17 BY MR. THOMAS:
18 Q Exhibit 386.
19 MR. POULOS: Do you have an extra?
20 MR. THOMAS: Sorry, John.
21 Q What is Exhibit 386, sir?
22 A It's an e-mail from me to County Counsel.
23 Q And this is also forwarding the very same memo
24 from Kirk Weir that you forwarded to your point people
25 in your office, right?
Page 220
1 A Yes.
2 Q Why did you send this as a separate e-mail
3 instead of just sending it to all three people at once?
4 A Krista, Christine are staff members of my
5 office. Mike is County Counsel. I don't send the same
6 e-mail to all three. I don't consider them to be
7 providing me with similar services.
8 Q Can we get Exhibit 130, please?
9 So Mr. Diaz, when you said that you thought
10 AtPac told you it was willing to provide its data
11 structure and schema, and that's what you were
12 contracting for AtPac to do, do you remember that
13 testimony?
14 A The personal services contract?
15 Q Yes.
16 A Yes.
17 Q Isn't that directly contradictory to Kirk
18 Weir's memo to Marie McCluskey on November 20th saying
19 the format and structure of the data files is
20 proprietary?
21 A No.
22 Q Why not? How's that not directly the opposite
23 of what you said?
24 A What did I say?
25 Q What did you say? Go ahead and tell me again
Page 221
1 since you're under oath. Just go ahead.
2 A We were negotiating a personal services
3 contract.
4 Q Yes.
5 A So AtPac could give us the information we
6 needed without infringing upon AtPac's proprietary
7 files.
8 This letter right here, with the other letter
9 right here, is a letter from AtPac pointing out to the
10 County, most importantly, the format and structure of
11 our data files is proprietary.
12 Q Yes.
13 A So I respectfully disagree. This is not
14 contradictory. This is in fact in keeping with our
15 position of trying to work with AtPac so there wouldn't
16 be any violation. AtPac's concerned about a violation.
17 I call my folks and say: Get this fixed because we
18 don't want to run afoul of AtPac; and therefore,
19 communications began to formulate a personal services
20 contract that would be suitable to both the County, the
21 new vendor and the old vendor, so that's why I don't
22 understand. Why do you say they're contradictory?
23 Q So you didn't disagree with AtPac's position
24 that the format and structure of its data files was
25 proprietary.
Page 222
1 A I believe I mentioned before, I had no reason
2 to disagree with that statement. If they say so, fine.
3 Q All right.
4 A And that's why we wanted to pursue a personal
5 services contract so we would not infringe upon these
6 proprietary files.
7 Q Okay. Do you have Exhibit 130 in front of you,
8 sir?
9 A Yes.
10 Q Sir, you're not suggesting that because the
11 County and Aptitude did not ultimately reach agreement
12 on a personal services agreement, that the County had
13 the right to infringe AtPac's intellectual property
14 rights, are you?
15 MR. POULOS: Objection. Calls for a legal
16 conclusion, plus I think you misspoke in your question.
17 MR. THOMAS: All right. Let me restate it.
18 Q Sir, you're not suggesting that because the
19 County and AtPac ultimately did not enter into a
20 personal services agreement, that that gave the County
21 the right and Aptitude the right to infringe AtPac's
22 proprietary rights in its data file structures, are you?
23 MR. POULOS: Object to the extent it calls for
24 a legal conclusion and it calls for speculation, but if
25 you can answer it, go ahead.
Page 223
1 THE WITNESS: No.
2 BY MR. THOMAS:
3 Q You're not saying that?
4 A No.
5 Q And do you have Exhibit 130 in front of you?
6 A Yes.
7 Q Turn to the second -- well, actually, what is
8 this document, Exhibit 130?
9 A Let's see. It's a document -- it seems to
10 summarize an intro technical meeting which was held
11 before the migration.
12 Q Okay. And it says you were one of the
13 participants. Were you?
14 A I guess I was. It says so, so I guess I was.
15 Q The bottom of page one talks about data
16 exports.
17 Do you see that?
18 A Yes.
19 Q It says: "Marie provided a briefing on the
20 status of the AtPac data exports and the required change
21 for a professional services contract with AtPac to
22 fulfill the data export requirements."
23 Did I read that correctly?
24 A Yes.
25 Q "Marie reported the data exports will not be
Page 224
1 available before January 15th."
2 Did I read that correctly?
3 A 2009.
4 Q Thank you. It says: "This delays the data
5 conversion and requires the County to be specific about
6 data export/extract requirements for AtPac to deliver."
7 Do you see that?
8 A Yes.
9 Q Do you remember discussing that during this
10 meeting, this whole subject that's in that data exports?
11 A No.
12 Q And then the second line that I read, it says:
13 Data exports and the required change for a professional
14 services contract.
15 Do you see that?
16 A Yes.
17 Q What was that referring to, if you recall?
18 A Don't recall.
19 Q Do you recall the substance of any of this
20 meeting as it related to data exports?
21 A No.
22 Q Did you ever tell Aptitude that AtPac was
23 concerned about the proprietary nature of its data
24 files?
25 A No.
Page 225
1 Q Why not?
2 A Because I believe those concerns were relayed
3 to Aptitude by Marie, so I did not call up Aptitude to
4 try to repeat what Marie had already said to Aptitude.
5 Q I see. So you believe Aptitude received that
6 information. It just wasn't from you?
7 A Correct.
8 Q Okay. All right. Can we turn to Exhibit 131?
9 I don't actually see you on this e-mail.
10 Are you a sender or recipient of this? Have
11 you ever seen this e-mail before? I actually thought
12 you were on it, but you're not, so I'm going to move
13 past it.
14 A No, I don't.
15 Q We'll move past it.
16 A Okay.
17 Q Can you turn to Exhibit 134, please, in your
18 binder?
19 A Yes. Yes.
20 Q Looking at this e-mail, did you receive this
21 e-mail?
22 A Yes. It says that I did, yes.
23 Q All right. And right below the numbered
24 paragraphs, it says: After the process mapping work
25 session, Aptitude was providing Nevada County a copy of
Page 226
1 the processing work sessions and a summary of
2 discoveries and differences between the current AtPac
3 system and the new Aptitude system.
4 Do you see that?
5 A Yes.
6 Q Did you explain differences between the AtPac
7 system and the Aptitude system to Aptitude?
8 A No.
9 Q How did Aptitude know differences between its
10 systems and AtPac system as of December 11th, 2008, to
11 your knowledge?
12 A I have no idea.
13 MR. POULOS: Objection. Let me finish.
14 THE WITNESS: Sorry.
15 MR. POULOS: Objection. Calls for speculation.
16 BY MR. THOMAS:
17 Q Have you ever seen instances, or did you see
18 instances, before AtPac left Nevada County, where
19 Aptitude personnel sat at terminal screens looking at
20 how the AtPac software worked?
21 A Yes.
22 Q How many instances did that happen to your
23 knowledge? Strike that.
24 On how many instances did you observe that,
25 Aptitude personnel working at a terminal where AtPac
Page 227
1 software was displayed and being used?
2 A Three, four times.
3 Q During the migration process?
4 A During the migration process.
5 Q And who was involved in that work? You saw it
6 happen. Who was at the terminal?
7 A I saw Tom McGrath and I saw Alana Wittig.
8 Q Was anyone from Nevada County with them?
9 A No.
10 Q Were these terminals within Nevada County's
11 work space or were they the public terminals?
12 A The public terminals.
13 Q Did you ever see Nevada County -- strike that.
14 Did you ever see Aptitude Solutions personnel
15 sitting at or working at a terminal that was not a
16 public terminal where AtPac software was displayed?
17 A I don't know. I saw Aptitude personnel sitting
18 behind a terminal that was not a public terminal. I was
19 not privy to what they were looking at. I did not go
20 and sit down next to them to see what they were looking
21 at --
22 Q And this was --
23 A -- so I don't know.
24 Q This was in the clerk recorder's office?
25 A Correct.
Page 228
1 Q Was it a terminal that, to your knowledge,
2 could have been displaying AtPac software?
3 A To my knowledge, it could have.
4 MR. POULOS: Objection. Calls for speculation.
5 BY MR. THOMAS:
6 Q Could you turn to Exhibit 140 in your binder,
7 please?
8 MR. POULOS: Give me a chance to object.
9 THE WITNESS: Okay. Okay.
10 BY MR. THOMAS:
11 Q 140. It looks like this is an e-mail that's
12 cc'd to you. Do you see that --
13 A Yes.
14 Q -- dated December 24, 2008?
15 A Yes.
16 Q And did you receive this e-mail?
17 A Well, it says that I did, uh-huh.
18 Q All right. You have no reason to disagree with
19 that?
20 A No.
21 Q All right. And it says: "Marie: Alana
22 informed us of your decision to move forward with an
23 AtPac professional services contract to provide data
24 exports needed for conversion."
25 Do you see that?
Page 229
1 A Yes.
2 Q So as of November 24th, 2008, it was your
3 intention to enter into a professional services contract
4 with AtPac?
5 MR. POULOS: Objection. Misstates the evidence
6 and the document. I think you misspoke, Mike.
7 MR. THOMAS: I'll say it again.
8 Q So as of December 24th --
9 MR. POULOS: Yeah.
10 BY MR. THOMAS:
11 Q -- 2008, it was your intention, on behalf of
12 Nevada County, to enter into a contract for professional
13 services with AtPac to provide data exports?
14 A Yes.
15 Q And you understood that contract was intended
16 to be one in which AtPac would provide data elements to
17 the County and Aptitude for insertion into Aptitude
18 software; is that true?
19 MR. POULOS: Objection. Vague.
20 THE WITNESS: No.
21 BY MR. THOMAS:
22 Q What was your understanding then of the
23 purpose?
24 A My understanding was this professional services
25 contract would be suitable to both the County and to
Page 230
1 AtPac for AtPac to provide the County whatever it is the
2 County wanted.
3 Q Anything the County wanted?
4 A No, whatever it was the County wanted for the
5 migration of data elements from one system to another.
6 Q And that contract was never entered into,
7 correct?
8 A Correct.
9 Q Who broke off the discussions regarding the
10 negotiation between AtPac and Nevada County concerning
11 the professional services agreement?
12 A I think the County did.
13 (Exhibit No. 387 was marked for
14 identification.)
15 BY MR. THOMAS:
16 Q Do you have Exhibit 387, sir?
17 A Yes.
18 Q And do you recognize this as an e-mail that you
19 received?
20 A Well, it says that I received it, so yes.
21 Q And you would have received the e-mail chain
22 attached to it as well, correct?
23 A Yes.
24 Q And you believe you received this e-mail,
25 right?
Page 231
1 A Yes.
2 Q All right. And you see it's from Ms. Barale --
3 A Yes.
4 Q -- to you and Tom McGrath, copied to you?
5 A Yes.
6 Q It says: "We are concerned that if AtPac gets
7 wind of us combining forces with Placer, that they may
8 increase their fees regarding the data extractions."
9 Do you see that?
10 A Yes.
11 Q So you certainly knew, no later than
12 December 31, that Aptitude was working with Placer,
13 right? December 31, 2008, right?
14 A Yes.
15 Q You knew before that, right? This wasn't your
16 first notice of that, was it?
17 A Pretty, pretty much it was.
18 Q All right. Let's turn to the e-mail below that
19 at the bottom of the page.
20 Do you see that?
21 A Uh-huh.
22 Q It's to Kathy from Tom McGrath.
23 A Uh-huh.
24 Q And it says, in the second full paragraph --
25 can you read the first sentence in?
Page 232
1 A "Regarding the database and image structures at
2 Nevada and Placer, they are certainly similar if not
3 identical."
4 Q Okay. And you received that e-mail containing
5 that statement from Tom McGrath of Aptitude on
6 December 31, 2008; yes?
7 A Yes.
8 Q All right. Now, you had already been told by
9 Kirk Weir, of AtPac, that AtPac's position was that the
10 database structures for AtPac software were proprietary,
11 correct?
12 A Yes.
13 Q Okay. Didn't this statement from Mr. McGrath
14 concern you that he knew and was able to assess the
15 database and image structures at Nevada and Placer
16 County and comment that they are similar if not
17 identical? Didn't that concern you?
18 A No.
19 Q Why not?
20 A I don't see what the concern -- where the
21 concern would be, if in fact this e-mail is telling me
22 that Tom has been working with Placer. I don't know
23 what type of work Tom was doing in Placer, but according
24 to this e-mail, Tom is making a statement that the
25 database and image structure at Nevada and Placer are
Page 233
1 certainly similar.
2 I have no reason to think or this sentence did
3 not ring any red bells that there was a concern
4 anyplace.
5 Q Well, how did you think, at the time, Tom
6 McGrath would know what the database structures in
7 Nevada County were?
8 MR. POULOS: Objection. Lacks foundation.
9 Calls for speculation. Vague and ambiguous.
10 THE WITNESS: My thinking at the time is Tom
11 was in Placer and he viewed it.
12 BY MR. THOMAS:
13 Q Viewed what?
14 A He viewed the database and image structures in
15 Placer County.
16 Q Yes. And he also refers -- and he compares
17 them to the database and image structures in Nevada
18 County, correct?
19 A Yes.
20 Q So what was your understanding of how
21 Mr. McGrath was aware of the database structures in
22 Nevada County as of December 31, 2008?
23 MR. POULOS: Objection. Lacks foundation.
24 Calls for speculation.
25 THE WITNESS: I guess I just don't understand.
Page 234
1 I am assuming, at this time, he was also familiar with
2 the database and image structures in Nevada County.
3 BY MR. THOMAS:
4 Q And how did he become familiar with them? Why
5 did you assume that?
6 A Well, we had a contract in place. Migration
7 efforts were beginning, and as part of the migration
8 efforts, I assume Tom McGrath, as the lead technical
9 person for Aptitude, was viewing database and image
10 structures in Nevada.
11 Q And didn't that concern you given that Kirk
12 Weir had already told you, approximately a month or more
13 before, that AtPac considered its database structures to
14 be proprietary?
15 A No, I didn't put that together.
16 MR. POULOS: Objection. Lacks foundation.
17 THE WITNESS: Sorry. No, I didn't put that
18 together.
19 BY MR. THOMAS:
20 Q Do you see now what Mr. McGrath is saying would
21 conflict with the proprietary concerns of Mr. Weir?
22 MR. POULOS: Objection.
23 THE WITNESS: Not really.
24 MR. POULOS: Vague.
25 THE WITNESS: Not really.
Page 235
1 BY MR. THOMAS:
2 Q Why not?
3 A I just don't have that type of understanding to
4 specifically see how they conflict.
5 Q Well, Mr. Weir told you that he believed the
6 database structures of AtPac's software were
7 proprietary, correct?
8 MR. POULOS: Objection. Lacks foundation.
9 THE WITNESS: Where is that?
10 BY MR. THOMAS:
11 Q Oh. I'm sorry. You must have forgotten. It's
12 an e-mail you sent to three different people.
13 A You said database structure?
14 Q Yes.
15 A Okay. Yep, you're right. Didn't get that,
16 because it says the format structure of our data files
17 is proprietary.
18 Q Yes.
19 A This says the database and image structures are
20 certainly similar.
21 Q Yeah. So Mr. Weir informed you that the format
22 and structure of the data files is proprietary, correct?
23 A Say that again. I'm sorry.
24 Q Oh. Mr. Weir told you the format and structure
25 of the data files is proprietary.
Page 236
1 A Yeah.
2 Q On November 20th, 2008, you learned that, from
3 Mr. Weir, right?
4 A Right. That was written to Marie, right.
5 Q And about 40 days later, Mr. McGrath writes an
6 e-mail that you receive --
7 A Uh-huh.
8 Q -- where he's revealing, certainly, that he's
9 able to compare the database image and structures --
10 excuse me -- the database and image structures in
11 Placer.
12 A Uh-huh.
13 Q And that didn't concern you at all?
14 A At all.
15 MR. POULOS: Objection. Asked and answered,
16 but I think part of the problem is you keep saying "told
17 you," and you're referring to that document.
18 MR. THOMAS: Well, he told Marie and Marie told
19 you.
20 MR. POULOS: Well, the letter certainly, as you
21 read it, it gets a little confusing when you say "told
22 you, told you."
23 MR. THOMAS: Let me restate it.
24 Q Kirk Weir wrote a letter to the County, Marie
25 McCluskey, that you received on November 20th, telling
Page 237
1 the County that the format and structure of AtPac's data
2 files is proprietary.
3 A Uh-huh.
4 Q On December 31, you receive an e-mail which
5 contains a statement by Tom McGrath --
6 A Uh-huh.
7 Q -- which reveals that he has compared the
8 database structures in Nevada and Placer County,
9 correct?
10 A Uh-huh.
11 Q And you didn't have any concern with that given
12 Kirk Weir's statement to you?
13 A No. I didn't put them together, no.
14 Q You didn't put them together?
15 A No.
16 Q You've been a clerk-recorder in this business
17 for what? 20 years?
18 A Yeah. For a while. I don't know what that has
19 to do with the price of fish, though.
20 Q And you read both e-mails, of course, right?
21 Because you don't like to be blindsided, right? That's
22 why you're copied on e-mails, correct?
23 A Right.
24 Q Exhibit 336. I'll come back to that. Do you
25 have Exhibit 28 in your binder, please, sir? It's the
Page 238
1 first one.
2 Do you have Exhibit 28, sir?
3 A Yes.
4 Q And please identify that, for the record.
5 A It's an e-mail from Kathy Barale to Alana
6 Wittig and Tom McGrath, and Debra Russell, Phil Russ and
7 Greg Diaz were cc'd. Subject: Initial Copy of AtPac
8 Data.
9 Q And you received this e-mail?
10 A It says that I did so I must have.
11 Q Did you read it?
12 A I think I did.
13 Q Okay.
14 A Skimmed it.
15 Q Sir, you went to law school, correct?
16 A Yes.
17 (Exhibit No. 388 was marked for
18 identification.)
19 MR. POULOS: 388.
20 BY MR. THOMAS:
21 Q Do you have 388 in front of you?
22 A Yes.
23 Q Sir, did you -- just so I can understand your
24 background, your undergraduate degree is in what?
25 A History and education.
Page 239
1 Q Okay. And you -- did you graduate from law
2 school?
3 A No.
4 Q Okay. You finished -- you stopped at some
5 point during what year?
6 A What year of law school?
7 Q Yes.
8 A Third year.
9 Q All right. Do you have Exhibit 388 in front of
10 you?
11 A Yes.
12 Q And this is another copy of the e-mail you saw
13 from November 19th. Strike that. It's a different
14 e-mail.
15 So you have Exhibit 388. You forwarded this
16 e-mail to Ms. Peters and Ms. Pyzer.
17 Do you see that?
18 A Yes.
19 Q All right. And if you could turn down to the
20 e-mail from Tom McGrath to Ms. McCluskey. Do you have
21 that?
22 A Yes.
23 Q Okay. And that's dated November 19th, right?
24 A Yes.
25 Q Okay. And did you read that e-mail, too?
Page 240
1 A I'm sure that I did.
2 Q Okay. Can you look down into the second
3 paragraph of Mr. McGrath's e-mail?
4 A Uh-huh.
5 Q The third line at the end, to the right, it
6 says "during."
7 Can you read that into the record?
8 A Yeah. "During my recent visit to your County,
9 however, I found the AtPac schema to be somewhat
10 different from the one encountered at our prior
11 project."
12 Q Okay. Do you know what prior project he was
13 referring to?
14 A No.
15 Q Okay. Did the fact that he informed you that
16 he was -- he had analyzed that AtPac's schema, was that
17 concern to you?
18 A No.
19 MR. POULOS: Objection. Lacks foundation.
20 BY MR. THOMAS:
21 Q Why not?
22 A I leave it up to my migration team. If they
23 have concerns, they voice those concerns to me.
24 They did not voice concerns to me about this
25 sentence so I didn't have any concerns about this
Page 241
1 sentence.
2 Q So as long as other people don't make --
3 express a concern, you have no concern?
4 MR. POULOS: Objection. Misstates the
5 witness's testimony.
6 THE WITNESS: As long as my project manager,
7 for this particular project, has not approached me with
8 concerns, that's correct, I'm not going to have
9 concerns.
10 BY MR. THOMAS:
11 Q And do you know how it is that Tom McGrath had
12 seen AtPac's schema during a recent visit to the County?
13 A Do I know how Tom --
14 Q Yes.
15 MR. POULOS: Objection. Calls for speculation.
16 THE WITNESS: No.
17 BY MR. THOMAS:
18 Q Well, "do you know" couldn't call for
19 speculation.
20 Do you know when Tom McGrath visited the County
21 before November 19th -- the visit before that, that
22 date?
23 A I do not have the specific dates for when he
24 visited Nevada County.
25 Q You have no idea, as you sit here today, at
Page 242
1 that -- strike that.
2 On November 19th, 2008, you had no idea how it
3 is Tom McGrath would have had knowledge of AtPac's
4 schema?
5 A No.
6 Q And you forwarded that e-mail on. You thought
7 it was important enough to forward that e-mail on,
8 correct?
9 A Yes. May I say something?
10 MR. POULOS: Yes.
11 THE WITNESS: May I say something?
12 BY MR. THOMAS:
13 Q Do you want to clarify an answer?
14 A Yes.
15 Q What answer?
16 A Why these e-mails were forwarded to Krista and
17 Christine.
18 Q Sure. You told me already, they're your point
19 people.
20 A If I could, please.
21 Q Fair enough.
22 A I'm in the middle of conducting the largest
23 election Nevada County ever had. That was the
24 November 8th, 2008 election. We have a canvas that goes
25 on for 28 days afterward, which I preside over, and this
Page 243
1 particular situation, we had a congressional race that
2 was less than .5 of a percentage point, which calls for
3 a postelection, manual audit, which involved hours,
4 attorneys, and frankly, a lot of these e-mails were
5 viewed by me but were sent on to Christine and Krista.
6 Marie had her assignments, and the bulk of my attention,
7 at that time, my priority, at that time, was to get
8 through the largest canvas the County has ever had and
9 to get through a very rare postelection manual audit and
10 a congressional district race. Just want to clarify.
11 Q Okay. So what exhibit do you have in front of
12 you?
13 A I have 388.
14 Q 388. And what is that? That's the --
15 A That's where I forwarded an e-mail to Krista
16 and Christine.
17 (Exhibit No. 389 was marked for
18 identification.)
19 BY MR. THOMAS:
20 Q Please look at Exhibit 389. That's the
21 original e-mail you received from Ms. McCluskey. Do you
22 see that? Excuse me.
23 MR. POULOS: I think we're messed up here.
24 BY MR. THOMAS:
25 Q Exhibit 388, do you have that?
Page 244
1 A Yes.
2 Q And that is the e-mail you forwarded on?
3 A Yes.
4 Q Okay. And then let's go to 389.
5 A Okay.
6 Q Do you have that?
7 A Yes.
8 Q And this is actually an e-mail to you but Tom
9 McGrath actually says "Marie" in the introduction or
10 salutation.
11 Do you see that?
12 A Yes.
13 Q Or the greeting. But this is an e-mail you
14 received, Exhibit 389, correct?
15 A Yes.
16 Q All right. Thank you. I want to set these
17 aside for one moment.
18 Can we go -- let me grab some more papers.
19 MR. POULOS: You actually handed me one, Mike,
20 and then didn't mark it.
21 MR. THOMAS: Maybe we haven't marked this.
22 Let's just go ahead and -- just one second.
23 That's 386, John.
24 MR. POULOS: It is?
25 MR. THOMAS: Yeah.
Page 245
1 (Exhibit No. 390 was marked for
2 identification.)
3 BY MR. THOMAS:
4 Q Please take a look at Exhibit 390, sir.
5 All right. Do you have 390?
6 A Yes.
7 Q And did you receive this e-mail from
8 Ms. Sandever?
9 A Yes.
10 Q And it's on Sunday, November 2nd. Do you see
11 that?
12 A Yes.
13 Q Okay. Please read into the record her first
14 paragraph to you.
15 A "Since this week is extremely busy for you and
16 your staff, and Marie has not had an opportunity to put
17 our support box on your network, we will have to
18 reschedule our trip to evaluate your data."
19 Q Okay. When she said "evaluate your data," what
20 did you understand that to mean?
21 MR. POULOS: Objection. Lacks foundation.
22 THE WITNESS: I understood that to mean an
23 evaluation of our data.
24 BY MR. THOMAS:
25 Q Well, what did that mean, though?
Page 246
1 A That's all it meant to me.
2 Q Did -- she next says they'll still be in the
3 area this week.
4 Do you see that in the next paragraph?
5 A Yes.
6 Q Did in fact Aptitude Solutions' staff -- you
7 understand they did visit Nevada County that first week
8 of November.
9 Do you recall that?
10 A No.
11 Q And then the next sentence, in the second
12 paragraph, says: "Of course, if Marie and anyone in the
13 IT staff does have time to put the support box on the
14 network, then we will be happy to be there on Tuesday or
15 Wednesday."
16 Do you see that?
17 A Yes.
18 Q Do you know if that happened?
19 A I don't know.
20 Q Can we get Exhibit 211, please?
21 All right. Do you have Exhibit 211 in front of
22 you, sir?
23 A Yeah. Yes.
24 Q All right. And could you identify this
25 document? What is this?
Page 247
1 A This is an NCSP-102 A1 Vendor End User Security
2 Affidavit.
3 Q Do you understand this is a form that's filled
4 out to create a vendor login account?
5 A That was what was told to me, yes.
6 Q Who told you that?
7 A Marie McCluskey, I believe.
8 Q And what did she say specifically about this
9 document?
10 A Sign it.
11 Q She provided this to you?
12 A I don't think so. I think Abby Kelly, from my
13 office, my administrative assistant, asked me to sign
14 this.
15 Q And can you turn to Page 2121?
16 A Yes.
17 Q Is your signature --
18 A Yes.
19 Q -- under -- that's under "Authorized
20 Requester," says "Gregory J. Diaz," that's you?
21 A Yes.
22 Q And that is your signature?
23 A Yes.
24 Q Okay. And did you read this document?
25 A No.
Page 248
1 Q You signed it without reading it?
2 A Yes.
3 Q Do you do that frequently?
4 A Yes.
5 Q Why do you do that?
6 A Because I trust my people when they describe to
7 me what the document is and what I'm signing.
8 Q Okay.
9 A And if I have concern, I read. If I don't, I
10 don't read.
11 Q And how do you know if there are concerns if
12 you don't read it?
13 A This is an IT form and my sister department is
14 just asking for this form to be filled out so the vendor
15 could have a login, and with that information being
16 provided to me, I did not have a concern.
17 Q All right.
18 A It's overseen by IT.
19 Q All right. And what did Abby Kelly tell you
20 about this form, the purpose of it, if anything?
21 A I don't think Abby said anything about it. She
22 said: Greg, here is the form that needs to be signed
23 for the new vendor to have access.
24 Q Have access to what?
25 A I believe it's access to County information.
Page 249
1 Q Okay. Did you -- what information?
2 A I would imagine, or I thought, at the time, it
3 would be information that would be germane to the
4 migration from the new vendor to the old vendor.
5 Q And what information, specifically?
6 A I don't know everything but I would imagine a
7 lot of the information would be the data elements that
8 we have in AtPac software.
9 Q Well, when you say you imagine, I'm not sure
10 what you mean. I don't want you to guess or speculate
11 in this deposition.
12 A I'm not guessing at -- when this was presented
13 to me for the login, my thoughts were this was necessary
14 for the migration.
15 Q Did your thoughts include your obligations to
16 be careful not to disclose AtPac's intellectual property
17 to third parties?
18 A That --
19 MR. POULOS: Objection. Calls for a legal
20 conclusion.
21 THE WITNESS: No.
22 BY MR. THOMAS:
23 Q You understood the County had an obligation to
24 protect and prevent the disclosure of AtPac's
25 intellectual property to third parties, correct?
Page 250
1 MR. POULOS: Same objection.
2 THE WITNESS: At this time?
3 BY MR. THOMAS:
4 Q At all times.
5 A Yeah. I'll give that a yes. Uh-huh.
6 Q Did you think about that when you signed this
7 form?
8 A Absolutely not.
9 Q Did you understand this form was providing
10 Aptitude Solutions with access to the server that housed
11 AtPac's proprietary software?
12 MR. POULOS: Objection. Lacks foundation.
13 Calls for a legal conclusion.
14 THE WITNESS: Just didn't think that far, no.
15 BY MR. THOMAS:
16 Q But you understand that now right?
17 MR. POULOS: Objection. Lacks foundation.
18 THE WITNESS: Not really.
19 BY MR. THOMAS:
20 Q You don't know?
21 A Not really.
22 Q Did you read the part above your signature, at
23 least the page that you signed, or no?
24 A I did.
25 Q And it says what?
Page 251
1 A The part -- what? Above my signature? What
2 does it say?
3 Q Anywhere on this page. Did you read any of
4 this page?
5 A I read the second paragraph. It says: "We
6 will remote in to our support server" -- "our support
7 server," that means Aptitude's support server -- "and
8 need read-only access to the current land record data
9 for conversion purposes."
10 Q Okay. And what did you understand that to
11 mean?
12 A I understand this to mean a very standard and
13 typical step before the migration of data from an old
14 vendor to a new vendor.
15 Q How many times, in Nevada County, have you ever
16 filled out a form which gave one vendor an account to
17 another vendor's server?
18 A How many times?
19 MR. POULOS: Objection. Lacks foundation.
20 THE WITNESS: Once.
21 BY MR. THOMAS:
22 Q This one time?
23 A Yes.
24 Q And how many times, in your experience as a
25 vice president for clerk-recorder software companies,
Page 252
1 did you become aware of a county giving your employer a
2 password to a server which housed a competitor's
3 software?
4 MR. POULOS: Objection. Lacks foundation.
5 Calls for speculation.
6 THE WITNESS: I think only once.
7 BY MR. THOMAS:
8 Q Really?
9 A In North Carolina.
10 Q Really?
11 A Yes.
12 Q And did both software vendors approve of that?
13 A I can't say I really know that --
14 Q Did you --
15 A -- but yeah.
16 Q Well, you can't say you really know that, but
17 your recollection is what? That both vendors were aware
18 in North Carolina?
19 A Yes.
20 Q Okay. In this instance, did you ever tell
21 AtPac that you had authorized the creation of an account
22 giving Aptitude a password to the server that housed
23 AtPac's software?
24 A No.
25 Q Why not?
Page 253
1 A Why should I?
2 Q Did you ever --
3 A This was -- I signed this form so that there
4 could be a login for the new vendor.
5 I don't speculate and think that wrongdoing is
6 going to occur when this type of a form is given to me.
7 Q In filling out this form, you understood the
8 intent was to give Aptitude Solutions' access to the
9 server that housed AtPac software.
10 You understood that?
11 MR. POULOS: Objection. Lacks foundation.
12 THE WITNESS: No. I understood this paragraph
13 right here, "We will remote into our support server,"
14 this support server was not AtPac's server. It was
15 Aptitude's server.
16 BY MR. THOMAS:
17 Q That's the first half of the sentence.
18 A Okay. "And need read-only access to the
19 current land record data for conversion purposes."
20 Q And where --
21 A That's read-only access.
22 Q And where was the land record data when you
23 filled out this form? That was on the server that
24 housed AtPac software, correct?
25 A Absolutely.
Page 254
1 Q You understood that?
2 A At the time that I signed?
3 Q Yes.
4 A No, I'm not thinking about all that: Wow,
5 there might be a problem here signing this form because
6 the server containing our land information has something
7 that AtPac considers proprietary, and I didn't even know
8 about the concern with proprietary information until
9 this letter was forwarded to me which came well after me
10 signing this form.
11 Q Sir, at the time you filled out this form --
12 A Yeah.
13 Q -- that's Exhibit 211 --
14 A Yeah.
15 Q -- the County was under contract with AtPac,
16 right?
17 A Uh-huh.
18 Q There was a Software License Agreement --
19 A Uh-huh.
20 Q -- correct?
21 A Yeah.
22 (Exhibit No. 391 was marked for
23 identification.)
24 MR. POULOS: What exhibit is this?
25 THE WITNESS: 391.
Page 255
1 BY MR. THOMAS:
2 Q Did you ever read that contract?
3 A Yes.
4 Q When?
5 A I don't recall.
6 Q Did you read it before or after you filled out
7 the exhibit? Strike that.
8 Did you read the AtPac contract before or after
9 you authorized the creation of an account for Aptitude
10 to a server housing AtPac software?
11 A Before.
12 Q Okay. And can you turn to the Program License
13 Agreement, which is -- it's about two-thirds of the way
14 through.
15 It looks like this, sir. There's an Exhibit E
16 at the top. There you go.
17 Did you read Exhibit E before you signed
18 Exhibit 211, which is the authorization for Aptitude to
19 have an account?
20 A Yes.
21 Q And when did you read that, specifically?
22 A I don't know.
23 Q And did you discuss this Program License
24 Agreement with anyone when you read it?
25 A I believe so, yes.
Page 256
1 Q Who did you discuss it with?
2 A I don't know.
3 Q Did you ever provide this agreement, this AtPac
4 Nevada County License Agreement to Aptitude?
5 A Did I provide this to Aptitude?
6 Q Yes.
7 A No.
8 Q Do you know if anyone else did from the County?
9 A I don't know.
10 Q Okay. If you turn to page two of the Program
11 License Agreement, do you have that?
12 A Yes.
13 Q All right. Do you see the numbered paragraphs
14 starting with paragraph number two?
15 A Yes.
16 Q And did you read Paragraph 2.2, proprietary
17 rights, nondisclosure?
18 A Yes.
19 Q Now, when you told me the first notice you had
20 of AtPac's concern about proprietary rights, you said it
21 was Kirk Weir's November 20th memo --
22 A Yes.
23 Q -- 2008.
24 A Yeah.
25 Q But you had read this AtPac contract before
Page 257
1 then.
2 A Yes.
3 Q And you read Paragraph 2.2 before then.
4 A Yes.
5 Q And you see Paragraph 2.2 is titled Proprietary
6 Rights?
7 A Yes.
8 Q So you understood AtPac did have concerns with
9 respect to proprietary rights before you received Kirk
10 Weir's memo on November 20th, correct?
11 A Yes.
12 Q So why did you say your first notice was when
13 you received Kirk Weir's memo?
14 A I consider this to be a lot of boilerplate
15 material and I approached it as boilerplate material. I
16 don't see wording in here that matches the wording on
17 Mr. Weir's letter at all. And again, in my ignorance,
18 if you will, with intellectual property, the proprietary
19 rights, I'm looking at a fairly, in my mind, innocuous
20 document setting up the new vendor to begin a migration.
21 The new vendor and the County authorizes the
22 sponsoring department to sign this form, so I signed it.
23 It did not occur to me to go back to previous contracts
24 and exhibits that the County had with AtPac and to zero
25 in on Paragraph 2.2 under two to see if this would have
Page 258
1 anything to do with this form that was submitted to me
2 for signature for a new vendor to have login rights.
3 Q And that's your testimony, notwithstanding the
4 fact that you've already testified that once purchasing
5 enters into and forms a contract with a vendor --
6 A Uh-huh.
7 Q -- it's your job, as the clerk-recorder, to
8 ensure compliance with that contract, correct?
9 MR. POULOS: I'm going to object to the extent
10 it calls for a legal conclusion but go ahead.
11 THE WITNESS: Yeah, I suppose.
12 BY MR. THOMAS:
13 Q Now, let's look at Notice of Unauthorized Use,
14 Paragraph 2.4.
15 Do you see that?
16 A Yes. Uh-huh.
17 Q It says Licensee -- you went to law school.
18 You know that's the County, right? The licensee is the
19 county licensing the software, right?
20 A Yes, uh-huh.
21 Q Right?
22 A Uh-huh.
23 Q It says: Licensee shall notify licensor
24 immediately --
25 A Uh-huh.
Page 259
1 Q -- of known or suspected --
2 A Uh-huh.
3 Q -- unauthorized use --
4 A Uh-huh.
5 Q -- access --
6 A Uh-huh.
7 Q -- or possession of the package --
8 A Uh-huh.
9 Q -- or any part thereof?
10 A Uh-huh.
11 Q Okay. You understood that you had authorized
12 access to the server housing AtPac software when you
13 signed Exhibit 211?
14 A Uh-huh.
15 MR. POULOS: Objection. Calls for a legal
16 conclusion. Lacks foundation.
17 BY MR. THOMAS:
18 Q You understood that, correct, sir?
19 A Understood what? Paragraph 2.4?
20 Q No. My question. You understood, when you
21 signed Exhibit 211, you've already testified that you
22 understood it gave access to the land records --
23 A Uh-huh.
24 Q -- data that was contained --
25 A Uh-huh.
Page 260
1 Q -- on the server --
2 A Uh-huh.
3 Q -- that housed AtPac software?
4 A Correct.
5 Q So you granted and approved a password to the
6 server that housed AtPac software; yes?
7 MR. POULOS: Objection. Lacks foundation.
8 THE WITNESS: Yes.
9 BY MR. THOMAS:
10 Q All right. And you also, before you did that,
11 read this contract between -- the license agreement
12 between Nevada County and AtPac and you read
13 Paragraph 2.4. You were aware of Paragraph 2.4,
14 correct?
15 A Absolutely.
16 Q And that specifically required you to
17 immediately notify AtPac of any known or suspected
18 unauthorized access.
19 MR. POULOS: Objection. Lacks foundation.
20 BY MR. THOMAS:
21 Q Right?
22 A Right.
23 Q And you never did that. You never notified
24 AtPac of any access to its server by Aptitude, did you?
25 A I did not.
Page 261
1 Q Why not?
2 A Never occurred to me to do so.
3 Q Because you considered this boilerplate.
4 That's your testimony.
5 A Yes, and the fact I -- it did not occur to
6 me -- I think I mentioned this before -- did not occur
7 to me that Paragraph 2.4, from Exhibit E, attached to
8 Resolution Number 05.44 would be relevant to this
9 document. Just never occurred to me. I guess just
10 wasn't on top of that, sir. Wasn't on top of that, that
11 the --
12 MR. POULOS: For the record --
13 THE WITNESS: -- 2005 Reso had something to do
14 with this 2008 form from IT.
15 BY MR. THOMAS:
16 Q Well, you understood the 2005 Resolution was in
17 fact the contract that was binding and in force at the
18 time --
19 A I --
20 Q -- you signed Exhibit 211, correct?
21 A I'm not arguing with you, correct. I just did
22 not put them together.
23 MR. POULOS: And for the record, the witness
24 has been pointing to Exhibit 211 in the binder.
25 BY MR. THOMAS:
Page 262
1 Q Now, after you signed this, what did you do
2 with it, Exhibit 211?
3 A I gave it back to Abby Kelly.
4 Q And do you know what she did with it?
5 A No, I don't absolutely know. I could
6 speculate.
7 Q I don't want you to speculate.
8 A Okay.
9 Q Did Ms. McCluskey ever tell you what she did
10 with it?
11 A No.
12 Q And you understand that an account was created
13 pursuant to this NCSP 102 document you signed, right?
14 A I became aware of that, yes.
15 Q I mean you expected there to be one when you
16 signed it, right?
17 A Yes.
18 Q People -- when you sign a document --
19 A When it was created, no one came and told me:
20 Now we have an account open.
21 I became aware of it once that was done, yes.
22 Q Could you turn to Exhibit 213 in your binder?
23 If you could, these are notes that Dan Evers created
24 when he was employed with Nevada County.
25 Have you ever read these?
Page 263
1 A No.
2 Q All right. You've heard of Dan Evers, right?
3 A I have.
4 Q Can you turn to the fifth page of Mr. Evers'
5 chronology?
6 And there's some dates, and the bottom date is
7 4 November 2008.
8 Do you see that?
9 A I'm sorry. The -- yes.
10 Q Do you see that, sir?
11 A Yes.
12 Q Are you with me?
13 A Yes.
14 Q And he's recording various conversations and
15 activity.
16 A Uh-huh.
17 Q And you see November 4, that's two days after
18 Patty Sandever wrote you an e-mail telling you that
19 potentially, they would be at the County the following
20 week, right?
21 A Okay.
22 Q If you look at the third paragraph he wrote, it
23 says: "As per Russ's request."
24 A Yes.
25 Q It says: "I held off creating the ER recorder
Page 264
1 login to Aptitude until after talking with Marie
2 McCluskey."
3 All right. Can you please read into the record
4 the balance of that paragraph?
5 A "McCluskey instructed that I create an
6 ambiguous ER dash recorder login which, in parentheses,
7 which begot" --
8 Q Surely, you've heard the word "isphydoux" by
9 now. You've heard the word "isphydoux" by now, haven't
10 you? No?
11 A Not really. Okay. "Which begot" -- it's I --
12 what? Isphydoux. Okay.
13 "When I asked McCluskey why the nonstandard
14 format; i.e., parentheses, IS versus VN, she told me
15 that this was agreed upon by Phil Russ and Gregory Diaz
16 and herself during previous conversations and that they
17 didn't trust AtPac to know that Aptitude was logging
18 into the system. See Russ, Diaz and McCluskey for
19 further details."
20 Q All right. Now, tell me about your discussions
21 with Mr. Russ and Ms. McCluskey regarding the IS versus
22 VN.
23 MR. POULOS: Objection. Lacks foundation.
24 THE WITNESS: I don't even remember having a
25 discussion with Marie and Russ about -- what's this
Page 265
1 called -- IS -- what do you call it -- IS Fildo? I
2 don't recall having a conversation with Phil and Marie
3 about nonstandard formats; i.e. IS versus VN, that we
4 didn't trust AtPac. No. The answer is no.
5 BY MR. THOMAS:
6 Q So you don't recall that discussion?
7 A No. No. Never happened.
8 Q Oh. It never happened, you say?
9 A I don't recall it ever happening.
10 Q Okay. That's different. Do you -- you just
11 don't recall one way or the other?
12 A I don't recall.
13 Q Okay. So it might have happened. You're just
14 not sure as you sit here today?
15 A No. I'm sure it didn't happen.
16 Q Oh. Well, that's different testimony then.
17 So --
18 A Well, we'll go with that one then.
19 Q You do recall it. You do recall it but you're
20 saying it didn't happen?
21 A No, it didn't happen.
22 Q You recall it didn't happen?
23 A I don't remember a conversation where, what
24 Marie said, that ISO, whatever, was agreed upon by Phil
25 Russ and me and herself, no.
Page 266
1 Q Well, let me ask you a more basic question.
2 Did you have a discussion with Marie about making sure
3 that the account given to Aptitude would be named
4 something that would be difficult to detect by AtPac?
5 A No.
6 Q You're sure?
7 A I'm sure.
8 Q Okay. So if Mr. Russ says otherwise, he's
9 lying. That's your testimony?
10 A That's my testimony.
11 Q And if Mr. Evers testifies, under penalty of
12 perjury, that Ms. McCluskey said that to him --
13 A Uh-huh.
14 Q -- then Ms. McCluskey lied to him. That's your
15 testimony?
16 A That's my testimony.
17 Q And that he just made these notes up on
18 November 4th, 2008 and he's lying?
19 A Yeah.
20 Q Did you trust AtPac as of November 4th, 2008?
21 A I don't understand the question. What do you
22 mean "trust AtPac"?
23 Q Did you trust AtPac? What do you mean? What's
24 not understandable about that?
25 A What do you mean "trust AtPac"?
Page 267
1 Q Did you trust AtPac?
2 A I don't trust anybody.
3 Q Okay.
4 A I don't know. No.
5 Q Well, the answer's no?
6 A The answer's no.
7 Q So the statements -- the conversation that's
8 attributed to both you and Mr. Russ and Ms. McCluskey is
9 consistent with the fact that at the time, you didn't
10 trust AtPac --
11 MR. POULOS: Objection.
12 BY MR. THOMAS:
13 Q -- yes?
14 MR. POULOS: Misstates the witness's testimony.
15 Misstates the document.
16 BY MR. THOMAS:
17 Q It's a new question. I'm not stating anything.
18 A Could you repeat the question?
19 Q The fact that you didn't trust AtPac, as of
20 November 4th, that's consistent with the comments that
21 Mr. Evers was told by Ms. McCluskey that you, Russ and
22 McCluskey didn't trust AtPac, right?
23 MR. POULOS: Objection. Same objection.
24 THE WITNESS: If that's how you want to
25 categorize that, that's fine. Yes.
Page 268
1 BY MR. THOMAS:
2 Q Why didn't you trust AtPac?
3 A I don't trust anybody.
4 Q So there's nothing about AtPac that was unusual
5 or different that would cause you to distrust AtPac?
6 A People have preferences in this world and one
7 of my preferences was not being endearing to AtPac.
8 Let's put it that way.
9 Q What do you mean "endearing"?
10 A Didn't like the company. Didn't like the
11 customer service. Didn't like the functionality.
12 Didn't like Dave Krugle. Didn't like the company, okay?
13 AtPac. Isn't that clear?
14 Q I don't know.
15 A Well, it's clear now, or should be clear.
16 Q When did you form that feeling about AtPac?
17 A Dealing with Wayne Long and Kirk Weir. Because
18 before that, I had years and years of good relationships
19 with that company, years and years. And when Kirk Weir
20 and Wayne Long came in, I didn't like 'em, didn't like
21 anything about the new direction with the company. So
22 we got together an RFP process and we got a new vendor,
23 which is my right as the clerk-recorder in Nevada
24 County.
25 Q Now, when you said you had years and years of
Page 269
1 good relations with that company, you've already
2 testified that in 2002, Jim McCauley and Jim Maclam
3 essentially dissed you --
4 A Yeah.
5 Q -- at a public conference.
6 A Yeah.
7 Q Didn't that upset you then?
8 A Of course, but that has nothing to do with my
9 tenure as clerk-recorder coming in in 2007 and working
10 with AtPac.
11 Q Really. Are you sure?
12 A Really. I'm sure.
13 Q Are you sure you didn't think to yourself --
14 A Because I'm a professional.
15 Q I didn't mean to talk over you.
16 A Okay. Well, I'm a professional. You're
17 talking about a personal exchange. I do not bring my
18 personal exchanges into a professional relationship.
19 I have many professional relationships that
20 were fine and I don't like the people, but
21 professionally, they work.
22 Q And as a professional, it was your view that
23 the terms and binding conditions of the AtPac license
24 were boilerplate, right?
25 A Absolutely, they're boilerplate.
Page 270
1 Q And binding on the County --
2 A Absolutely.
3 Q -- right?
4 What did you mean by "boilerplate" then?
5 A You see exhibits like this in many, many
6 contracts.
7 Q And so you were comfortable -- you were
8 experienced in seeing contracts that provided for
9 software vendors to counties, clerk-recorder software
10 vendors, providing that their software and all portions
11 of their software were proprietary and confidential.
12 You've seen these provisions before. That's your
13 testimony, right?
14 A Yes.
15 Q In many contracts?
16 A Yes.
17 Q And so you were familiar with them?
18 A Yes.
19 Q And you understood that they restricted the
20 County's ability to disclose AtPac software to anyone,
21 right?
22 MR. POULOS: Objection. Calls for a legal
23 conclusion.
24 THE WITNESS: No, not to those specifics, no.
25 BY MR. THOMAS:
Page 271
1 Q Really?
2 A This -- when I read Exhibit 211, I believe it
3 is --
4 Q Yeah. The Dan Evers --
5 A -- it did not occur to me that there could be a
6 conflict with Paragraph 2.2 and 2.4 contained in
7 Exhibit 391. I think I've mentioned that a few times.
8 I missed that.
9 Q You see it now, though, of course, right?
10 A With your help, yes.
11 Q Okay. Now, let's turn to Exhibit 5. John,
12 please.
13 Do you have Exhibit 5 in front of you, sir?
14 Sorry. I thought you did.
15 A Yes.
16 Q There you go. You got Exhibit 5 in front of
17 you?
18 A Yes.
19 Q And what is this document?
20 A Let's see. It's a document from Tom McGrath to
21 Kathy Barale.
22 Q Copied to you, right?
23 A I was cc'd.
24 Q You received this e-mail, of course, right?
25 A Oh, yeah. Uh-huh, uh-huh, uh-huh.
Page 272
1 Q And it's January 2nd, 2009?
2 A Yes, that's what it says.
3 Q Was the big election you talked about, was that
4 over by January 2nd?
5 A Yes, it was.
6 Q Okay. And you read this e-mail; yes?
7 A Yes, uh-huh.
8 Q And let's turn down to the fourth paragraph
9 that Tom McGrath wrote.
10 A Uh-huh.
11 Q And you knew Tom McGrath was a vice president
12 of technology for Aptitude, right?
13 A I always knew him as vice president. I did not
14 see that he was vice president of technology.
15 Q Okay. And read into the record the first
16 sentence of that fourth paragraph.
17 A Uh-huh. "Regarding data access, both Placer
18 and Nevada County's have provided Aptitude Solutions
19 with read-only access of AtPac images and data files."
20 Q Okay. What did you think when you read that?
21 A I thought Placer and Nevada have provided
22 Aptitude with read-only access of AtPac images and data
23 files.
24 Q And did that concern you?
25 A No.
Page 273
1 Q Well, were you concerned that the contract
2 between AtPac and Nevada County prohibited the County of
3 Nevada from disclosing --
4 A Didn't. Didn't.
5 Q -- disclosing AtPac's data files to Nevada --
6 to Aptitude?
7 A No.
8 MR. POULOS: Objection. Lacks foundation.
9 Calls for a legal conclusion.
10 BY MR. THOMAS:
11 Q You weren't?
12 A Huh-uh.
13 Q Why not?
14 A It didn't occur to me that this situation could
15 in fact have an effect on the signed contract with
16 AtPac.
17 Q Okay. Well, did it concern you that
18 Mr. McGrath had told you, in this e-mail, that he had
19 access to AtPac's data files when Kirk Weir had written
20 you a memo, or written the County a memo, which was
21 provided to you, which specifically stated that AtPac
22 considered its database structures and its data files
23 proprietary?
24 A It did not concern me.
25 Q Why not?
Page 274
1 A I'm not concerned about the welfare of AtPac.
2 That's not my job.
3 Q Okay.
4 A And I was not concerned because I saw no
5 evidence at all or did it appear to me at all that
6 anyone, me, IT staff, staff of my department, was
7 attempting to knowingly and willingly do any wrongdoing
8 to AtPac. I saw nothing like that. And as a matter of
9 fact, as I mentioned before in my testimony, we wanted
10 to make sure that we had a suitable contract with AtPac.
11 That's why we put forth the effort to come up with a
12 professional services contract that AtPac and the County
13 could agree upon.
14 Q Well, when you read this e-mail from Tom
15 McGrath on January 2nd --
16 A Uh-huh.
17 Q -- where he told you that Nevada County had
18 provided Aptitude Solutions with read-only access to
19 AtPac images and data files --
20 A Uh-huh.
21 Q -- did you tell that to AtPac?
22 A No.
23 Q Why not?
24 A I saw no reason to.
25 Q To your knowledge, nobody from the County told
Page 275
1 AtPac that, correct?
2 A To my knowledge.
3 Q Did that concern you?
4 A No.
5 Q Didn't you think you should be telling AtPac
6 that you had given its competitors access to its data
7 files?
8 MR. POULOS: Objection. Lacks foundation.
9 THE WITNESS: No.
10 MR. POULOS: Vague and ambiguous. Calls for
11 speculation.
12 BY MR. THOMAS:
13 Q Why not?
14 A Didn't -- didn't match the pieces.
15 Q You match them now, though, right?
16 A With your help, and we can continue to go over
17 these same questions and I'll keep on giving you the
18 same answers.
19 My -- my focus was: Let's make sure there's no
20 injury to AtPac. Let's make sure this is done
21 correctly. AtPac can leave. We can acquire a new
22 vendor and do our thing.
23 Q Could you get Exhibit 336, please? That's in
24 the new binder.
25 No, that's the binder without the tabs. It's
Page 276
1 supposed to be one that doesn't have the sticker on it.
2 Actually, guys, you know what? I'm okay.
3 Yeah, let's just -- I just want to authenticate 336.
4 MR. POULOS: I brought this stuff from -- I got
5 it. I got it right here.
6 BY MR. THOMAS:
7 Q Okay. Sir, would you please take a look at
8 Exhibit 336?
9 I'd like you to confirm that this is an e-mail
10 of January 9th that you were cc'd on. Did you receive
11 this e-mail?
12 A Yes.
13 Q And it's an e-mail that's forwarded to you.
14 It's originally from Kirk Weir to Marie McCluskey.
15 A Yes. Uh-huh.
16 Q Okay. And this is an e-mail where Mr. Weir is
17 indicating that there's some more hours that would be
18 anticipated for the conversion.
19 Do you see that?
20 A Yes.
21 Q And then there's also a statement that he
22 suggests -- and it's in the middle of the last large
23 paragraph -- it says: My suggestion is that you revise
24 the NTE -- I believe that means "not to exceed" --
25 amount to 20,000.
Page 277
1 Do you see that?
2 A Yes.
3 Q And do you remember that testimony? You talked
4 about these -- this earlier. Do you remember that?
5 A Yes.
6 Q And is this what caused you to decide that you
7 weren't going to move forward with AtPac in the personal
8 services agreement?
9 A No.
10 Q No. What was it then?
11 A I believe there was a subsequent e-mail where
12 we talked about the deliverable date. It was all about
13 the deliverable date, not so much the money. The money,
14 I was prepared to go forth with the 15,000. I was
15 prepared to go forth with the 20,000.
16 It was the delivery, and we never got a firm
17 answer on the deliverable, and that was the straw that
18 broke the camel's back.
19 Q Okay. So sometime after this e-mail is when
20 the straw broke the camel's back?
21 A I believe so. AtPac, we did ask for a more
22 date certain and we weren't able to get a date certain.
23 Q Can you look at the last sentence of the large
24 paragraph?
25 A Yeah. "We also believe we can shoot for the 30
Page 278
1 business days from execution due date."
2 To me, that was not a certain deliverable.
3 Q And after this e-mail, is it your testimony
4 that you told AtPac: We need a date certain?
5 A I don't think I told them that but it was
6 relayed. I relayed it to the IT team that we need a
7 date certain.
8 Q Okay. And do you know if they communicated
9 that to AtPac?
10 A I don't really know. I have not seen any
11 document where that was communicated to AtPac.
12 MR. THOMAS: Dave, can I have the next stack?
13 One moment, sir.
14 Can we break for a minute?
15 MR. POULOS: Sure. We've been going about an
16 hour-and-a-half.
17 THE VIDEOGRAPHER: Going off the record at
18 4:21 p.m.
19 (Recess taken at 4:21 p.m. to 4:33 p.m.)
20 (Exhibit No. 392 was marked for
21 identification.)
22 THE VIDEOGRAPHER: Back on the record at
23 4:33 p.m.
24 MR. POULOS: Thank you.
25 BY MR. THOMAS:
Page 279
1 Q All right. What exhibit do you have in front
2 of you, sir?
3 A I have an e-mail that I sent to my personal
4 e-mail address at home.
5 Q All right. And this is an e-mail from you at
6 work to you at home?
7 A Yes.
8 Q And that's the Mustang Valley Alpaca --
9 A Yes.
10 Q -- gmail.com account?
11 A Uh-huh.
12 Q That's your home account?
13 A Yes.
14 Q Okay. And it says "questions for story." And
15 then below that is an e-mail you wrote to -- who's Dave
16 Moller?
17 A A reporter at the Union.
18 Q Okay. And then who is L. Kellar?
19 A A reporter at the Union.
20 Q Okay. And then if we go down in the chain of
21 this e-mail, it looks like there's an e-mail from
22 Mr. Moller to you that says "questions for story."
23 A Yes.
24 Q Okay. And did you receive that e-mail from
25 Mr. Moller?
Page 280
1 A Yes.
2 Q And apparently, he's asking questions about
3 this lawsuit.
4 A Yes.
5 Q Okay. And then you then responded to him.
6 A Yes.
7 Q Okay. And did you send him this e-mail?
8 A Yes.
9 Q Okay. And did you write this e-mail --
10 A Yes.
11 Q -- e-mail to Mr. Moller?
12 A Yes.
13 Q Okay. And you understood this e-mail would be
14 used to write a newspaper article?
15 A Yes.
16 Q Okay. And so you understood it was important
17 to be accurate?
18 A Yes.
19 MR. THOMAS: Okay. What exhibit number was
20 that?
21 MR. KRUGLE: 392.
22 BY MR. THOMAS:
23 Q Okay. All right. Mr. Diaz, let me ask you --
24 I'm done with that exhibit, sir -- with respect to
25 Aptitude, have you talked to Aptitude about this
Page 281
1 lawsuit?
2 A Yes.
3 Q Okay. Outside the presence of counsel?
4 A Yes.
5 Q Okay. And who have you spoken with?
6 A Paul Miller.
7 Q And what were your discussions? What were your
8 discussions with Mr. Miller?
9 A Varied. Discussions were -- it would still be
10 nice to understand what the lawsuit's about, since
11 plaintiff has not described damages, so we talk about
12 what the other side, what their damages really are. We
13 talk about costs. We talk about the political
14 motivation behind the lawsuit. We talk about damage to
15 all parties concerned, in terms of reputation, from the
16 County to AtPac to Aptitude.
17 We talk about the fact that there was just no
18 intent by any of the defendants to do any wrongdoing to
19 AtPac.
20 Let's see. What else do we talk about? We
21 talk about the attorneys, the style of the attorneys.
22 We talk about possible settlement, how things could be
23 resolved. We talk about many things.
24 Q Okay. And when you say you talk about damages,
25 what were those discussions?
Page 282
1 A We have not seen how AtPac has been damaged.
2 AtPac seems to be, for a year now, really delaying this
3 forensics examination of the server and we talk about it
4 would really be nice to know how AtPac has been damaged,
5 and that seems to both of us to be a pretty essential
6 element in trying to resolve this litigation.
7 Q Is that something you're interested in doing?
8 A Resolving the litigation?
9 Q Yeah.
10 A Absolutely.
11 Q And has anyone -- strike that.
12 Have you and Mr. Miller discussed the existence
13 of an account on the ER recorder server that gave
14 Aptitude access to AtPac software? Have you discussed
15 that?
16 A No.
17 Q Okay. Have you read any deposition testimony
18 given in this case?
19 A No.
20 Q Are you aware that Dan Evers has testified that
21 the account created under your authorization gave
22 Aptitude access to every part of AtPac's proprietary
23 confidential software? Are you aware he testified to
24 that?
25 MR. POULOS: I'm going to object. Lacks
Page 283
1 foundation.
2 THE WITNESS: No.
3 BY MR. THOMAS:
4 Q Okay. And are you aware that there's testimony
5 that there were multiday file transfers from AtPac
6 server to Aptitude server in June of 2009 using the
7 account that was created under your authorization? Are
8 you aware of that?
9 A No.
10 MR. POULOS: Same objections.
11 BY MR. THOMAS:
12 Q Never heard that before?
13 A Never heard that before.
14 Q Have you heard that a court has made a ruling
15 granting issue sanctions against you?
16 MR. POULOS: Objection. That lacks foundation.
17 THE WITNESS: There were some sanctions. I
18 didn't know they were against Gregory Diaz. I thought
19 they were against the attorneys.
20 BY MR. THOMAS:
21 Q What sanctions are you aware of?
22 A $20,000 sanction.
23 Q Are you aware of other sanctions the court has
24 issued as a result of the destruction of the AS-Nevada
25 server during the lawsuit?
Page 284
1 A No.
2 Q You don't know about that?
3 A No.
4 Q Are you aware of -- do you have any explanation
5 for why there were multiday file transfer protocol
6 sessions --
7 A No.
8 Q -- between the Aptitude, AS-Nevada server,
9 using the isphydoux account that was created under your
10 authorization? Do you have any explanation for those
11 transfer sessions?
12 MR. POULOS: Objection. Lacks foundation.
13 Calls for speculation.
14 THE WITNESS: No.
15 MR. POULOS: Misstates the record. Vague and
16 ambiguous.
17 BY MR. THOMAS:
18 Q Well, do you have any explanation for why there
19 would be file transfer protocol sessions initiated from
20 Aptitude server to AtPac server in June of 2009?
21 MR. POULOS: Same objections.
22 THE WITNESS: No.
23 (Exhibit No. 393 was marked for
24 identification.)
25 BY MR. THOMAS:
Page 285
1 Q Sir, do you have Exhibit 393?
2 A Yes.
3 Q And --
4 MR. POULOS: You're not listed on this e-mail.
5 BY MR. THOMAS:
6 Q Yeah, I don't see you listed, either.
7 But could you turn -- point your attention to
8 the second to the last paragraph. You see the date of
9 the e-mail, February 13, 2009?
10 A Uh-huh.
11 Q And do you see it's from Patty Sandever to
12 others inside Aptitude?
13 A Yes.
14 Q And you know Patty Sandever, right?
15 A Yes.
16 Q You talk to her from time to time?
17 A Yes.
18 Q Okay. And she's an Aptitude sales
19 representative?
20 A Yes.
21 Q Kind of like the sales rep that you say you
22 were at other software companies?
23 A Yes.
24 Q And she says: "I know from my conversation
25 with Greg Diaz this week, he's very interested in
Page 286
1 getting live ASAP. He is also very easy to work with so
2 we may have a good opportunity to get some concessions."
3 A Uh-huh.
4 Q Did you talk to her about being very interested
5 in going live ASAP?
6 A Absolutely.
7 Q Okay. And if you look at the first sentence of
8 her e-mail, it says: "Can we have a call prior to the
9 call with Nevada today."
10 A Uh-huh.
11 Q It says: "I am very concerned about putting
12 off the go-live to mid to late summer."
13 Do you see that?
14 A Uh-huh. Uh-huh.
15 Q And -- but the go-live date was put off to
16 midsummer as you testified already, right?
17 A Uh-huh.
18 Q And do you recall your discussion with
19 Ms. Sandever that she's discussing in this e-mail?
20 MR. POULOS: Hold on.
21 THE WITNESS: Paragraph four, "I know from my
22 conversation" -- no.
23 BY MR. THOMAS:
24 Q You don't recall that conversation --
25 A No idea.
Page 287
1 Q -- with Ms. Sandever?
2 A No.
3 Q Is there any limit to how many extensions of
4 time you would have given to Aptitude Solutions?
5 MR. POULOS: Objection. Vague.
6 BY MR. THOMAS:
7 Q Before you moved on to another vendor?
8 A I suppose there would be a limit.
9 Q And do you see, she says: "We may have a good
10 opportunity to get some concessions"?
11 A Yes.
12 Q Do you see that?
13 A Yes.
14 Q Do you know what she was referring to there?
15 A I don't.
16 Q She says you're very easy to work with, so
17 "we," being Aptitude, may have a good opportunity to get
18 some concessions.
19 A I see that.
20 Q Does that concern you at all that someone talks
21 about you that way?
22 A A little bit, yes.
23 Q What does it make -- why does it concern you?
24 A Because I don't know what it means.
25 Q How do you interpret it?
Page 288
1 A I don't know. I don't know what it means. It
2 just doesn't look good.
3 Q It looks like she's saying you're a pushover,
4 doesn't it?
5 A Yeah. Uh-huh. That could be an
6 interpretation, uh-huh.
7 Q Were you?
8 A A pushover?
9 Q Yeah.
10 A I have never heard anyone categorize me as
11 such.
12 Q Except for Ms. Sandever. That's how you
13 interpret her e-mail, right?
14 A Well, she says I'm easy to work with and you
15 could interpret it as me being a pushover.
16 I don't see any phrase where she says Greg Diaz
17 is a pushover, do you?
18 Q No, I didn't see the word "pushover."
19 A Yeah.
20 Q But that's how interpreted it and I think you
21 agreed with me.
22 A Yeah. And it could be also that being easy to
23 work with, if there are some concerns from the new
24 vendor, they're able to come and talk with me. I think
25 that is a credible interpretation as well.
Page 289
1 MR. THOMAS: Could you get the letter?
2 MR. KRUGLE: Which letter?
3 MR. THOMAS: The category -- next in order.
4 Oh, I did it again. Can I have a clean copy,
5 John?
6 Next in order, please.
7 (Exhibit No. 394 was marked for
8 identification.)
9 BY MR. THOMAS:
10 Q All right. Sir, do you have Exhibit 394 in
11 front of you?
12 A Yes.
13 Q And what is this document?
14 A It's a document from Marie McCluskey to Kathy
15 Barale and Greg Diaz.
16 "For your information, here's the AtPac
17 response to the BSC server for data export work. I
18 don't quite understand or get his drift about the
19 contract being an agreement, not a dictation."
20 Q And did you receive this e-mail?
21 A It says that I did, uh-huh.
22 Q Okay. And do you see the e-mail below, it's
23 Ms. McCluskey to Mr. Weir. It's at the bottom of the --
24 A Yes.
25 Q -- the first page.
Page 290
1 A Uh-huh.
2 Q And she's asking for followup on the contract
3 language to finalize this week.
4 Do you see that?
5 A Yes.
6 Q So as of January 6, 2009, the County was still
7 interested in entering into a professional services
8 agreement with AtPac --
9 A Yes.
10 Q -- for the migration.
11 Okay. And then Mr. Weir responded to her, on
12 the same day, correct, on the 6th up at the top?
13 Actually, above that, sir, but you're free to
14 look at the whole document. I'm right here.
15 A Oh. I'm sorry. Yes.
16 Q So you see on the 6th, Ms. McCluskey followed
17 up with Mr. Weir and asked him about the status of the
18 contract, right, on the 6th?
19 A Yes.
20 Q And then Mr. Weir wrote back at about a half
21 hour later.
22 Do you see that?
23 A Yes.
24 Q Telling her that he's home sick that day?
25 A Yes.
Page 291
1 Q And then at the -- his last comment is: "I
2 think 30 business days gets us closer."
3 A Yes.
4 Q And you understood he was referring to the time
5 frame until which AtPac could provide the data elements
6 for the migration.
7 You understood that, right?
8 A No.
9 Q 30 days?
10 A No, I did not understand that.
11 Q What did you understand "I think 30 business
12 days get us closer" meant?
13 A I didn't really have too much an opinion on
14 that. I don't -- I don't put a lot of stock into
15 speculation, that type of thing.
16 Q Well, let's go back to Ms. McCluskey's e-mail
17 to Kirk, okay?
18 A Sure.
19 Q So that's on the second page.
20 A Sure.
21 Q And if you look about three-quarters of the way
22 down her e-mail, it says: "I talked to project
23 sponsors."
24 A Uh-huh.
25 Q And it says -- you're the project sponsor,
Page 292
1 right?
2 A Uh-huh.
3 Q Okay.
4 A And --
5 Q -- received --
6 A Okay.
7 Q -- received an agreement on changing the
8 contract language to provide 30 business days for
9 delivery of the first full export --
10 A Uh-huh.
11 Q -- right?
12 A Uh-huh.
13 Q And Mr. Weir's response, even though he's home
14 sick, I think he says: I think 30 business days gets us
15 closer.
16 A Okay.
17 Q Okay.
18 A And what does that mean?
19 Q My question is: Did you understand that
20 Mr. Weir was referring to the 30 business days
21 referenced in Ms. McCluskey's e-mail?
22 A No.
23 Q What did you think he was referring to?
24 A I -- I didn't know.
25 Q Did you ask?
Page 293
1 A No.
2 Q Okay. Why not? Didn't it matter to you?
3 A No.
4 Q Why not?
5 A This is speculation to me. Right now, when I
6 got this, I am understanding that Marie is working with
7 AtPac to develop language that would be suitable to the
8 County and AtPac so we could develop a professional
9 services agreement. This is making the contract, if you
10 will --
11 Q Uh-huh.
12 A -- almost like making sausage. I don't get
13 into a lot of details with making sausage.
14 Q All right. Now, that was January 6, a
15 Tuesday --
16 A Yes.
17 Q -- right?
18 Okay. Could you turn to Exhibit 24?
19 A Uh-huh.
20 Q And this is -- what is this Exhibit 24?
21 A This is a proposed letter to AtPac telling
22 AtPac that Nevada County will be extracting the County's
23 official records and clerk records' data.
24 Q Okay. And this is one day after Kirk Weir's --
25 A Uh-huh.
Page 294
1 Q -- letter telling Ms. McCluskey's he's home
2 sick and he'll follow up with --
3 A Right.
4 Q -- to her e-mail, right?
5 A Uh-huh.
6 Q So what happened between January 6th, at
7 12:59 p.m. --
8 A Uh-huh.
9 Q -- and Ms. Barale's e-mail to you of 12:53 p.m.
10 the next day --
11 A Uh-huh.
12 Q -- that caused Nevada County to draft this
13 letter?
14 A Nothing.
15 Q Okay. When you say "nothing," why did
16 Ms. Barale draft this letter, to your knowledge?
17 A Which letter? This e-mail --
18 Q Exhibit 24.
19 A -- right here?
20 Q Yeah.
21 A Attach -- because discussions occurred before
22 January 6th about extracting the data ourselves.
23 Q And when did those take place?
24 A The discussions did not occur between the 6,
25 12:59 p.m. and the 7, 12:53 p.m.
Page 295
1 Q I see. Well, as of January 6th, was the County
2 still interested in contracting with AtPac?
3 A On that date, I believe we were strongly
4 considering, and had probably made the decision, we
5 would like to go in a different direction.
6 Q When was that decision made?
7 A Again, I couldn't tell you exactly.
8 Q What was the reason for the change in position?
9 A The head of IT, Steve Monaghan, approached me
10 and County Counsel and explained to us that in his
11 opinion --
12 MR. POULOS: Okay. But wait a second. I don't
13 want you to review -- I don't want you to disclose
14 conversations that were made directly by Mr. Monaghan to
15 County Counsel.
16 THE WITNESS: Okay.
17 BY MR. THOMAS:
18 Q Well, if he's telling you his opinion about a
19 technical issue and counsel happened to be there, I
20 don't think that's seeking legal advice, so I think I'm
21 entitled to that.
22 A It absolutely was.
23 MR. POULOS: They're talking about going
24 forward on an agreement, or something, I mean -- if you
25 and Mr. Monaghan were present in a conversation to
Page 296
1 County Counsel, about how to proceed with the contract,
2 I'm going to instruct you not to answer that --
3 THE WITNESS: Okay.
4 MR. POULOS: -- or reveal those communications
5 here.
6 THE WITNESS: Okay.
7 BY MR. THOMAS:
8 Q Were there any e-mails regarding that subject
9 with County Counsel?
10 A Not that I recall.
11 Q Any other correspondence with County Counsel?
12 A Not that I recall.
13 Q Did you ever take any notes of any meetings
14 with County Counsel?
15 A When? During my tenure from June 2007 till
16 now?
17 Q In connection with the migration project, yeah.
18 A Yeah, probably.
19 Q Okay. Where are those notes?
20 A They're in my notebook.
21 Q Have you produced them?
22 A Absolutely.
23 Q Your notebook is what? It's a bound notebook?
24 A Yes.
25 Q All right. So it's your testimony that by
Page 297
1 January -- by January 6th, Nevada County had already
2 decided, because you learned from Mr. Monaghan, that
3 Nevada County had already decided not to use AtPac for
4 the professional services agreement?
5 MR. POULOS: Objection. Misstates the
6 testimony. Lacks foundation.
7 THE WITNESS: No.
8 BY MR. THOMAS:
9 Q Well, let's look at Exhibit 394 again.
10 A Yes.
11 Q Ms. McCluskey is following up with Kirk Weir.
12 You see that?
13 A Uh-huh.
14 Q And she's asking him that -- she says: "I'd
15 like to get the contract language finalized this week."
16 A Uh-huh.
17 Q So she believes the County is still working
18 toward a contract with AtPac, right?
19 A Uh-huh. Uh-huh.
20 Q Was it?
21 A I believe at this time, Marie was.
22 Q But you weren't.
23 A We decided on January 7th. You asked me if we
24 decided on January 6th to send a letter and it was not
25 the 6th. It was the 7th.
Page 298
1 Q So as of --
2 A That's why I replied no.
3 Q Okay. So what caused you to make the decision?
4 So you made the decision to abandon the contract with
5 AtPac.
6 A There was no contract.
7 Q You made the decision to abandon an effort to
8 contract with AtPac on what date? January 7th?
9 A January 7th.
10 Q Okay. Because on January 6th, Marie McCluskey
11 was telling AtPac she was trying to form a contract.
12 A Uh-huh.
13 Q Now, why did you tell me earlier that sometime
14 before January 6th --
15 A Uh-huh.
16 Q -- the decision had really already been made
17 not to pursue a contract with AtPac?
18 MR. POULOS: Objection. Misstates the
19 witness's prior testimony.
20 BY MR. THOMAS:
21 Q You didn't say that?
22 MR. POULOS: Did not.
23 THE WITNESS: No.
24 BY MR. THOMAS:
25 Q All right. So what happened on January 7th
Page 299
1 that you made the -- well, who made the decision to
2 pursue -- strike that.
3 Who made the decision to no longer pursue a
4 professional services agreement with AtPac?
5 A I did. The buck stops with me.
6 Q All right. And why did you make that decision?
7 A Because I'd had several conversations with
8 Steve Monaghan. We had a conversation with Steve
9 Monaghan and County Counsel, and out of those
10 conversations came the decision to extract without
11 entering into a professional services contract with
12 AtPac.
13 Q Extract what? Data elements?
14 A We will be extracting the County's official
15 records and clerk records data from the AtPac CRiis
16 system data files.
17 Q Well, this letter was written -- this is a
18 draft letter by Ms. Barale. Do you see that,
19 Exhibit 24?
20 A It attached -- Kathy sent this to Tom, Rob
21 Shulman, who was County Counsel, Debra Russell, and Greg
22 Diaz.
23 Q Why is the letter for your signature?
24 A Why is it for my signature?
25 Q Right.
Page 300
1 A Because I'm the department head.
2 Q Did you help in writing the content of this
3 particular version of the letter?
4 A Yes.
5 Q Okay. And what part did you help develop or
6 write?
7 A Most of it.
8 Q Okay. And this was written when? On the 7th?
9 A Yes, but this was not the letter sent to AtPac.
10 Q Understood.
11 A Okay.
12 Q The letter was modified slightly from this
13 point in time, right?
14 A I don't know if it was modified slightly but it
15 was modified --
16 Q All right.
17 A -- yes.
18 Q And did you have any of those discussions with
19 Steve Monaghan, outside the presence of counsel, as to
20 how he thought --
21 A Huh-uh.
22 Q -- you could extract data?
23 A No.
24 Q And the discussion entailed extracting data
25 without violating AtPac's intellectual property rights.
Page 301
1 Was that the discussion?
2 MR. POULOS: Objection. Calls for a legal
3 conclusion. Calls for speculation. Vague and
4 ambiguous.
5 BY MR. THOMAS:
6 Q You have no answer?
7 A Yes, uh-huh.
8 Q The answer is -- and how did he explain that
9 the County can do that?
10 A I don't remember.
11 Q Okay. Do you have the next exhibit?
12 A But the last sentence seemed to be key in terms
13 of informing AtPac how we were looking at the approach.
14 Q And as you sit here today, you understand that
15 Aptitude Solutions -- excuse me -- the County didn't do
16 what was set forth in the letter. You know that, right?
17 MR. POULOS: Objection. Lacks foundation.
18 THE WITNESS: Actually, I don't know that.
19 BY MR. THOMAS:
20 Q Okay. You never asked Ms. Barale?
21 A Ask her what?
22 Q Whether the County complied with what was in
23 the January 8th letter to AtPac.
24 A No, I never asked Ms. Barale.
25 Q Never cared?
Page 302
1 MR. POULOS: Objection. Argumentative.
2 THE WITNESS: No, I did care.
3 BY MR. THOMAS:
4 Q Why didn't you ask then?
5 A Don't know.
6 MR. THOMAS: Okay. Let's mark next in order.
7 (Exhibit No. 395 was marked for
8 identification.)
9 BY MR. THOMAS:
10 Q I'd just like you to authenticate this
11 document, 395, sir.
12 MR. POULOS: Do you have one?
13 MR. THOMAS: Apparently not. I'm sorry, John.
14 I apologize.
15 MR. POULOS: It's all right.
16 THE WITNESS: I'm sorry. I don't understand
17 how I can authenticate this. This was an e-mail from
18 Rob Shulman.
19 BY MR. THOMAS:
20 Q And it lists you as a recipient?
21 A Yes. Sure.
22 Q You received this e-mail?
23 A Sure.
24 Q And this indicates your County Counsel was
25 involved in assisting and drafting the letter to AtPac?
Page 303
1 A Yes.
2 Q I'm done with that.
3 Can you turn to Exhibit 25, please? And this
4 is another e-mail dated January 7th from Mr. Shulman to
5 you.
6 Do you see that?
7 A Yes.
8 Q And it looks like he's made some changes to the
9 letter.
10 A Yes.
11 Q And he's proposing them to you.
12 Do you see that?
13 A Yes.
14 Q And it has -- the first paragraph, is that the
15 paragraph he added, the underlined paragraph?
16 A To my knowledge, yes.
17 Q Okay. And the last paragraph?
18 A To my knowledge, yes.
19 MR. THOMAS: Okay.
20 (Exhibit No. 396 was marked for
21 identification.)
22 BY MR. THOMAS:
23 Q What exhibit do you have in front of you, sir?
24 A Exhibit 396.
25 Q And what is that?
Page 304
1 A It's an e-mail from Greg Diaz to Rob Shulman,
2 cc Kathy Barale, and the subject is revision to letter
3 to AtPac, and the content says: Rob, excellent
4 revision. Thanks. Greg.
5 Q Now, this is an e-mail you sent in response to
6 the Exhibit 25 red line changes he sent to you, right?
7 A Correct.
8 Q All right. And you sent that e-mail --
9 A Yes.
10 MR. THOMAS: -- 396.
11 (Exhibit No. 397 was marked for
12 identification.)
13 BY MR. THOMAS:
14 Q Okay. You have Exhibit 397 in front of you?
15 A Yes.
16 Q And you sent Exhibit 397, did you? It's an
17 e-mail that you sent?
18 A Yes.
19 MR. THOMAS: All right.
20 (Exhibit No. 398 was marked for
21 identification.)
22 BY MR. THOMAS:
23 Q It looks like on Exhibit 398 --
24 MR. POULOS: Do you have one?
25 MR. THOMAS: I'm sorry, John.
Page 305
1 BY MR. THOMAS:
2 Q What is Exhibit 398?
3 A It's an e-mail from Rob Shulman to Greg Diaz.
4 Steve Monaghan and Kathy Barale are copied. Subject is
5 Indemnification Agreement.
6 Q And tell me about that. Why were you provided
7 with an indemnification agreement?
8 A We were not provided with an indemnification
9 agreement.
10 Q No. Mr. Shulman provided you with an
11 indemnification agreement.
12 A Yeah, the County drafted an indemnification
13 agreement.
14 Q Why?
15 A Because Aptitude Solutions and the County
16 agreed to have an indemnification agreement.
17 Q Why?
18 A Why did they agree? I think the bottom line is
19 the County felt that the way they would be approaching
20 the migration would be fine and they would be in a
21 position to indemnify Aptitude if in fact there was some
22 harm to AtPac.
23 Q So was Aptitude -- Aptitude's the one who asked
24 for an indemnification agreement, right?
25 A I don't know that for a fact.
Page 306
1 Q It's possible that the County just volunteered
2 it for no reason?
3 A I presume Aptitude asked for an indemnification
4 agreement. I don't know that for a fact.
5 Q Did you ever talk to --
6 A They did not ask me for an indemnification
7 agreement.
8 Q And do you know why Aptitude asked for an
9 indemnification agreement?
10 A Aptitude felt that --
11 MR. POULOS: Objection. Calls for speculation.
12 Do you know what Aptitude felt?
13 BY MR. THOMAS:
14 Q What were you told, sir?
15 A I'm thinking.
16 MR. POULOS: You're speculating.
17 THE WITNESS: Oh. Okay.
18 BY MR. THOMAS:
19 Q Were you told why Aptitude asked for an
20 indemnity agreement?
21 A Yes.
22 Q What were you told?
23 MR. POULOS: Unless you were told by County
24 Counsel. If you were told by County Counsel, then I
25 don't want you to answer the question.
Page 307
1 THE WITNESS: Okay. Can't answer.
2 BY MR. THOMAS:
3 Q Other than what you told by County Counsel, you
4 have no idea why Aptitude asked for an indemnity
5 agreement.
6 A Well, I have an idea but that's speculation.
7 Q Other than County Counsel, did anyone tell you
8 that Aptitude was concerned that the process you were
9 proposing, together, to extract data would potentially
10 infringe AtPac's rights and that's why they wanted an
11 indemnity agreement?
12 A Huh-uh.
13 Q Well, then, why do you think they wanted an --
14 why do you think Aptitude wanted an indemnity agreement?
15 MR. POULOS: You didn't get that, right? He
16 said huh-uh.
17 THE WITNESS: Oh. I'm sorry.
18 MR. POULOS: You need to say -- you need to
19 answer because it's showing up as uh-huh.
20 THE WITNESS: Oh. Okay.
21 MR. POULOS: No.
22 THE WITNESS: What was your last question? I'm
23 sorry.
24 BY MR. THOMAS:
25 Q Why did you understand Aptitude was asking for
Page 308
1 an indemnity agreement? What was your speculation?
2 MR. POULOS: No, I don't want you to.
3 THE WITNESS: I don't know.
4 BY MR. THOMAS:
5 Q Well, you signed the agreement, right,
6 indemnity agreement?
7 A Yes.
8 MR. THOMAS: All right. We need to take a
9 break here and change the tape.
10 THE WITNESS: Okay.
11 THE VIDEOGRAPHER: Going off the record at
12 5:06 p.m. End of disc three.
13 (Recess taken from 5:06 p.m. to 5:12 p.m.)
14 (Exhibit No. 399 was marked for
15 identification.)
16 THE VIDEOGRAPHER: Back on the record at
17 5:12 p.m. Beginning of disc four.
18 BY MR. THOMAS:
19 Q All right. Do you have Exhibit 399, sir?
20 A Yes.
21 Q And this is an e-mail that you wrote to
22 Mr. Shulman; yes?
23 A Yes.
24 Q On January 7, 2009?
25 A Yes.
Page 309
1 Q And it looks like it has an attachment. Do you
2 see the indemnification agreement attached it to?
3 A Yes.
4 Q And it says: Rob, thanks for the agreement.
5 We made a couple of revisions. Thanks. Greg.
6 Do you see that?
7 A Yes.
8 Q You wrote that?
9 A Yes.
10 Q Who's "we"?
11 A Couldn't tell you.
12 Q Were you with Tom McGrath that week?
13 A I don't know.
14 Q Did Tom McGrath have input into this agreement,
15 to your knowledge?
16 A I don't know.
17 Q Okay. And did you participate then in making
18 changes to the indemnification agreement?
19 A It appears that I did. I said that we made,
20 yeah, uh-huh.
21 Q And what changes did you make?
22 A I'm trying to see.
23 Q I don't want to do a red line comparison right
24 now, but if you can quickly see a change. If you don't
25 know, the answer is you don't know.
Page 310
1 MR. POULOS: Do you -- if you have one --
2 MR. THOMAS: No. It's not a trick question. I
3 just thought maybe you knew.
4 THE WITNESS: I don't see the change between
5 Exhibit 398 and 399.
6 BY MR. THOMAS:
7 Q All right. You don't see any changes. How
8 about this? Without further study, you don't see any
9 changes?
10 A No.
11 Q Okay. All right. What I want you to do,
12 though, is look at the exhibit attached to 399.
13 Do you have that in front of you?
14 A Yes, uh-huh.
15 Q Why don't we look at Paragraph C. Actually,
16 you can open up the other one as well, focus just on
17 Paragraph C, in the "whereas clauses."
18 Do you see that?
19 A Paragraph C, yes.
20 Q All right. And can you read that into the
21 record from Exhibit 399?
22 A "Aptitude Solutions, Inc. can accomplish a
23 conversion if the County extracts the data from AtPac's
24 CRiis system data files and puts the data into flat
25 files without in any way using AtPac's definition or
Page 311
1 schema information and without using or preserving
2 AtPac's tables and their current format for future use."
3 Q Okay. When you saw this, did it concern you at
4 all that Tom McGrath has written you an e-mail, more
5 than a month before, telling you he had seen AtPac's
6 data schema?
7 A Again, I didn't put that together.
8 Q But you remember that e-mail now?
9 A Yes.
10 Q And that didn't concern you?
11 A No.
12 Q Because you didn't put the two together?
13 A No. More because of my reliance on the County
14 and the County IT people.
15 Q Well, when you say your reliance, you knew that
16 the County and the County IT people had allowed Tom
17 McGrath to see AtPac's data schema because Tom McGrath
18 said that to you in an e-mail, right?
19 A Right. And Paragraph C is what I was relying
20 upon when the County, Steve Monaghan, first came to me
21 suggesting we can do this extraction without a
22 professional services contract.
23 Q But now looking at this Paragraph C --
24 A Yeah.
25 Q -- where it says AtPac (sic) Solutions can
Page 312
1 accomplish the conversion if the County -- that means
2 the County of Nevada, right?
3 A Correct.
4 Q -- extracts the data from AtPac's CRiis system
5 data files --
6 A Uh-huh.
7 Q Do you see that?
8 A Uh-huh.
9 Q And when it says "extracts the data," you
10 understand that to be referring to extracting data
11 elements?
12 A Uh-huh.
13 Q "Yes"?
14 A Yes.
15 Q And so you understand that the agreement was
16 that the County would extract data elements --
17 A Uh-huh.
18 Q -- from AtPac's CRiis system data files --
19 A Right.
20 Q -- right? And you understood that the
21 arrangement was that the County would not provide the
22 data files themselves to Aptitude.
23 A That was my understanding, correct.
24 Q And you understand that was the arrangement
25 that was represented to the Board of Supervisors when
Page 313
1 they approved the indemnity agreement, right?
2 A Represented to me and to the Board of
3 Supervisors, yes.
4 Q And represented by who? Steve Monaghan?
5 A That's correct.
6 Q And then it says that the County, after
7 extracting the data elements from AtPac's data files,
8 would put those data elements into flat files.
9 That's what this means, right? That was the
10 intent.
11 MR. POULOS: Objection. Vague, but go ahead.
12 BY MR. THOMAS:
13 Q That's what you understand this to mean, right?
14 MR. POULOS: Objection. Vague. Lacks
15 foundation.
16 THE WITNESS: Yes.
17 BY MR. THOMAS:
18 Q Okay. That's Exhibit 399. Okay. I'm done
19 with 399.
20 Now, can you open Exhibit 41? Do you have
21 Exhibit 41?
22 A Yes.
23 Q You see there's a series of e-mails on
24 Exhibit 41.
25 Sir, you see that from Kathy Barale to Phil
Page 314
1 Russ?
2 A Yes.
3 Q And Kathy Barale was the project manager for
4 the migration at some time after Ms. McCluskey
5 transitioned out.
6 A Yes.
7 Q You knew that, right?
8 A Yes.
9 Q And so on June 18th, 2009, you understood Kathy
10 Barale was a project manager for the Nevada County
11 migration to Aptitude Solutions software.
12 A Yes.
13 Q Okay. And she's writing to Phil Russ. You see
14 that?
15 A Yes.
16 Q And he's another IT person --
17 A Yes.
18 Q -- at the County?
19 A Yes.
20 Q And it says, in this e-mail -- can you read
21 that into the record?
22 MR. POULOS: Which e-mail?
23 MR. THOMAS: The top e-mail.
24 THE WITNESS: "I copied the AtPac dot dat files
25 onto the Aptitude support server, AS-Nevada, as dot txt
Page 315
1 files. I was given the names of the dot dat files they
2 needed and the names they would like them copied to.
3 I'm not sure what you are referring to regarding
4 extraction of the data into tables. I do not know how I
5 would have extracted the data and placed into tables
6 since that was a large part of the activity Aptitude had
7 been working on for the past six months and we opted to
8 use them for that service."
9 BY MR. THOMAS:
10 Q Okay. Does that e-mail concern you at all in
11 view of the representation made to the Board Of
12 supervisors in the indemnity agreement?
13 MR. POULOS: Objection. Vague.
14 THE WITNESS: Yes, but I was not privy to this
15 e-mail on June 18th, 2009.
16 BY MR. THOMAS:
17 Q And why does that concern you?
18 A What concerns me is the first sentence that
19 AtPac dot dat files were copied onto the Aptitude
20 support server which seems to conflict with Paragraph C
21 of the indemnification agreement.
22 Q And then doesn't the next paragraph also
23 conflict? Paragraph C of the indemnity agreement is one
24 in which the County was supposed to extract data from
25 the AtPac data files.
Page 316
1 A Yes.
2 Q The County was supposed to do the extraction.
3 A Yes.
4 Q Not Aptitude.
5 A I understand that.
6 Q And this e-mail, from Ms. Barale, Exhibit 41,
7 makes very clear that she did not do the extraction of
8 the data from the data files. Aptitude did.
9 MR. POULOS: Objection. Misstates the
10 document.
11 BY MR. THOMAS:
12 Q Do you see that in this e-mail? You understand
13 that, right?
14 MR. POULOS: Compound.
15 THE WITNESS: You previously asked me if I was
16 concerned about this. I said yes, but I was also not
17 privy to this correspondence at that time.
18 BY MR. THOMAS:
19 Q Did you understand, as of June 2009, that the
20 County had, instead of extracting data elements from
21 AtPac data files, instead had given the data files to
22 Aptitude so that Aptitude --
23 A No.
24 Q -- could extract the data elements? Did you
25 know that?
Page 317
1 A No.
2 Q Does that concern you, sir, given the promises
3 you made to AtPac and the representations you made to
4 the Board of Supervisors?
5 MR. POULOS: Objection. Compound. Lacks
6 foundation. Vague and ambiguous.
7 THE WITNESS: Yes.
8 BY MR. THOMAS:
9 Q Why does that concern you?
10 A Seems to conflict with Paragraph C in the
11 indemnification agreement.
12 Q Well, when you say "seems," of course, it
13 conflicts.
14 MR. POULOS: Let me ask: Was this ever
15 executed? Do we know?
16 MR. THOMAS: Oh, yeah.
17 MR. POULOS: The indemnification agreement?
18 You got a final version?
19 MR. THOMAS: Yeah. In fact, I'll try to --
20 (Exhibit No. 400 was marked for
21 identification.)
22 MR. THOMAS: Okay.
23 THE WITNESS: I never got a copy of this stuff.
24 MR. POULOS: I don't know why --
25 BY MR. THOMAS:
Page 318
1 Q Sir, do you have Exhibit 400?
2 A Yes.
3 Q Okay. And what is this document, Exhibit 400?
4 A This is a letter written from me to Wayne Long
5 and Kirk Weir indicating that the County will be
6 extracting the County's official records and clerk
7 records data from AtPac's CRiis system data files.
8 Q All right. And that's your signature on this
9 letter?
10 A Yes.
11 Q And this is the letter you sent AtPac?
12 A Yes.
13 Q Okay. And you also provided this letter to the
14 Board of Supervisors, did you, in connection with the
15 indemnity? Do you know?
16 A I don't know if I did or not. If it said that
17 I did, then I guess I did.
18 Q Now, in this letter, why did you not tell AtPac
19 that you had already granted Aptitude Solutions a
20 password to the server housing AtPac software?
21 MR. POULOS: Objection. Lacks foundation.
22 THE WITNESS: Didn't feel that it was relevant.
23 This, this letter was drafted by me, yet it went through
24 County Counsel before it was sent out, and again, I
25 relied on County Counsel. Obviously, they did not see
Page 319
1 the relevance, either, of putting that in there.
2 BY MR. THOMAS:
3 Q Did you tell County Counsel that you had
4 granted Aptitude a password to the server that had AtPac
5 software?
6 MR. POULOS: Objection. Don't answer the
7 question. Calls for attorney-client communications.
8 BY MR. THOMAS:
9 Q Well, do you have reason to know that County
10 Counsel was aware you had done that?
11 MR. POULOS: Same objection. Don't answer
12 that.
13 BY MR. THOMAS:
14 Q In this particular letter, why did you not tell
15 AtPac that Aptitude Solutions had already seen the data
16 file structure of AtPac's data files?
17 MR. POULOS: Objection. Lacks foundation.
18 Calls for speculation.
19 BY MR. THOMAS:
20 Q Okay. I'm going to ask a different question,
21 sir.
22 You remember the earlier e-mails where Tom
23 McGrath discussed comparing the data file structures in
24 Nevada and Placer Counties, right?
25 A Yes.
Page 320
1 Q And that was before January 8th, 2009, correct?
2 A Yes.
3 Q Why didn't you mention that in this letter to
4 AtPac?
5 A Didn't think about it.
6 Q You concealed it from AtPac, correct?
7 MR. POULOS: Oh, please. Objection.
8 Argumentative.
9 THE WITNESS: "Concealed" seems to suggest that
10 I knowingly decided not to offer up that information.
11 BY MR. THOMAS:
12 Q Yes.
13 A And no, that's not true.
14 Q Well, you also saw --
15 A Absolutely not true.
16 Q Before January 8, 2009, you saw e-mail from Tom
17 McGrath indicating that he had seen AtPac's data schema.
18 He used that term. You remember that e-mail, right?
19 A Absolutely.
20 Q Okay. And in this particular letter, you
21 specifically say: We are not asking for any definition
22 or schema information from AtPac.
23 Do you see that?
24 A Yes. Uh-huh.
25 Q That's a letter you wrote to AtPac?
Page 321
1 A Uh-huh.
2 Q In saying that to AtPac, why didn't you inform
3 AtPac that Aptitude had already seen AtPac's data
4 schema?
5 MR. POULOS: Objection. Asked and answered
6 multiple times.
7 MR. THOMAS: I don't think so.
8 MR. POULOS: Vague and ambiguous.
9 BY MR. THOMAS:
10 Q Sir?
11 A I don't know. Just didn't seem relevant at the
12 time, and obviously, it wasn't relevant to County
13 Counsel, also, at the time.
14 Q Now, it's also true, sir, that when you
15 authorized the creation of the account --
16 A Uh-huh.
17 Q -- on the ER recorder server --
18 A Uh-huh.
19 Q -- that was before the County had ever even
20 asked AtPac to consider a professional services
21 agreement --
22 A Uh-huh.
23 Q -- regarding the extraction, right?
24 A Correct.
25 Q So whatever your criticisms are of AtPac,
Page 322
1 concerning the professional services agreement that was
2 being negotiated -- you said you had criticism. You
3 said it was stonewalling.
4 A Uh-huh.
5 Q That had nothing to do with your decision to
6 give Aptitude a password to the server housing AtPac
7 software, correct?
8 MR. POULOS: Objection. Lacks foundation.
9 Misstates the witness's testimony. Misstates the
10 document. Vague and ambiguous.
11 BY MR. THOMAS:
12 Q Correct?
13 A Correct.
14 Q It's your testimony -- when did you first learn
15 that -- you would agree the County didn't comply with
16 the promises in the January 8th letter?
17 MR. POULOS: Objection.
18 BY MR. THOMAS:
19 Q True?
20 MR. POULOS: Calls for a legal conclusion.
21 Irrelevant.
22 THE WITNESS: The question again, please?
23 BY MR. THOMAS:
24 Q You would agree the County did not do what it
25 promised AtPac it would do in the January 8th, 2009
Page 323
1 letter, correct?
2 MR. POULOS: Same objection.
3 THE WITNESS: I don't know that.
4 BY MR. THOMAS:
5 Q Well, you saw Ms. Barale's e-mail; yes?
6 A Uh-huh.
7 Q And she says that Aptitude extracted the data.
8 You saw that, right?
9 MR. POULOS: Where -- where does it say that?
10 MR. THOMAS: Well, she said they used Aptitude
11 to extract data.
12 MR. POULOS: Where is that?
13 MR. THOMAS: I'll find it for you, John. If
14 you look at -- it says -- I'm not sure. Do you see
15 that?
16 MR. POULOS: Yeah, I do see that.
17 THE WITNESS: Uh-huh.
18 BY MR. THOMAS:
19 Q Let's read that into the record, sir.
20 MR. POULOS: We've already done that, so we're
21 not going to do that again, but go ahead.
22 MR. THOMAS: She says: I do not know how I
23 would have extracted the data --
24 MR. POULOS: Uh-huh.
25 MR. THOMAS: -- and placed it in the table
Page 324
1 since that was a large part of the activity Aptitude
2 have been working on for the past six months.
3 MR. POULOS: Yeah, but it doesn't say that
4 Aptitude extracted the data.
5 MR. THOMAS: Are you testifying?
6 MR. POULOS: No. I'm trying to figure out if I
7 was missing something that you were representing.
8 THE WITNESS: You're reading from an e-mail
9 that I never saw, was never copied, and what I saw, if
10 you look down the string of e-mails, what was relevant
11 to me is the last e-mail on this page, or the e-mail
12 dated June 11th from Alana to me, Greg: We received all
13 of our data from your County and txt files. No tables
14 were sent and we had no ability to view the table
15 structures.
16 It was this fact that made the conversion as
17 difficult as it was. Same thing with the images. They
18 were not sent in any tables. The images were sent
19 directly to us in folders. This was the information I
20 was privy to. This does not conflict with the promises
21 made in the indemnification agreement.
22 BY MR. THOMAS:
23 Q So that's nonresponsive to my question.
24 You were concerned about the first paragraph
25 and the second paragraph of Ms. Barale's e-mail?
Page 325
1 A Today.
2 Q When you read it today?
3 A Today, when I read them today, sure, that would
4 concern me.
5 Q And you would agree her statements conflict
6 with the information Aptitude was providing you in the
7 bottom of the e-mail chain; yes?
8 A Yes.
9 Q Okay. That was a "yes"?
10 A Yes. Yes.
11 Q All right. Now, when did you actually enter
12 into the indemnity agreement with --
13 A I don't recall the date the board approved this
14 indemnification agreement.
15 Q Does January 13th sound about right to you?
16 A Again, I don't recall. It's in the ballpark.
17 Q Okay. Let's turn to Exhibit 246. Do you have
18 that? I mean you don't, I know, but if Dave could help
19 me.
20 MR. POULOS: 246.
21 MR. THOMAS: Yeah.
22 THE WITNESS: Thank you.
23 BY MR. THOMAS:
24 Q Tell me what Exhibit 246 is, sir. Just
25 summary. You don't have to read the whole thing.
Page 326
1 A It appears to be an e-mail from Alana Wittig to
2 Gloria Coutts about the Nevada County indemnification
3 agreement.
4 Q And down below, what do you see? Is there
5 another e-mail below that?
6 A I see an e-mail from Gregory Eckstein to Alana
7 Wittig.
8 Q And can you turn to the attachment?
9 A Uh-huh.
10 Q I'd like you to just confirm, if you know,
11 whether this is the official Nevada County indemnity
12 agreement with Aptitude Solutions bearing your
13 signature.
14 A Yes, it appears to be.
15 Q Okay. And Paragraph C of the official
16 agreement, you see that?
17 A Yes.
18 Q That also says Aptitude Solutions, Inc. can
19 accomplish the conversion if the County -- that's County
20 of Nevada, correct?
21 A Yes.
22 Q -- extracts the data from AtPac's CRiis system
23 data files --
24 A Uh-huh.
25 Q -- and puts the data into flat files.
Page 327
1 A Uh-huh.
2 Q And that's the same as the exhibit, Paragraph C
3 in the draft we looked at earlier, right?
4 A Yes.
5 Q And that is your signature on the bottom of
6 this indemnity agreement?
7 A Yes.
8 Q Did you ever talk with Mr. Miller about whether
9 or not the defendants were liable in this case?
10 MR. POULOS: Objection. Calls for a legal
11 conclusion. Go ahead.
12 THE WITNESS: Yes.
13 BY MR. THOMAS:
14 Q And what was your discussion?
15 A The discussion was there could have been an
16 unauthorized look at AtPac's proprietary data.
17 Q When?
18 A Don't know. Don't know.
19 Q And who said that?
20 A Very high level conversation.
21 Q Him or you or both of you?
22 A I'd say I think I said it and I think Paul said
23 it as well, so both of us.
24 Q Okay. And why did you say that?
25 A Because it appears there could have been an
Page 328
1 unauthorized look at AtPac's data.
2 Q By who?
3 A Don't know.
4 Q When?
5 A Don't know.
6 Q Who told you that?
7 A May have been Kathy Barale.
8 Q And why did it appear to you there may have
9 been an unauthorized look at AtPac's proprietary
10 confidential data?
11 MR. POULOS: Objection. Misstates the
12 witness's testimony.
13 THE WITNESS: I think hearsay from Kathy
14 Barale.
15 BY MR. THOMAS:
16 Q So Ms. Barale told you she believed there could
17 have been an unauthorized look at AtPac's proprietary
18 data?
19 A I believe it was Kathy, yes.
20 Q Okay. And what did she say in that regard,
21 specifically?
22 A Just that.
23 Q Did she tell you why she thought that?
24 A No.
25 Q Was that after?
Page 329
1 A Or maybe she did. Maybe it was about some
2 logs, I guess, people you can find out who accessed
3 what, when. I think that was --
4 Q Okay --
5 A -- sort of the premise of what she was saying
6 to me.
7 Q And when did she tell you that?
8 A I don't know.
9 Q What did Mr. Miller say? Did he agree with
10 you?
11 A He thought there might have been, yeah, uh-huh.
12 Q And why did he think there might have been?
13 A I have no idea. I -- well, I don't want to
14 speculate.
15 Q As you sit here today, you believe there was an
16 unauthorized look at AtPac's proprietary data, correct?
17 MR. POULOS: Objection. Lacks foundation.
18 Calls for a legal conclusion.
19 THE WITNESS: I wouldn't be surprised.
20 BY MR. THOMAS:
21 Q Why wouldn't that surprise you?
22 A Because of my earlier conversations with Kathy
23 Barale.
24 Q Has anyone told you that Dan Evers testified
25 that on November 4th, Nevada County allowed Tom McGrath
Page 330
1 and Patty Sandever to come into Nevada County IT
2 department and sit in a windowless locked room, logged
3 into both AS-Nevada and ER recorder for several hours
4 without anyone --
5 A No.
6 Q -- attending them?
7 A No.
8 MR. POULOS: Objection. Compound.
9 THE WITNESS: No.
10 BY MR. THOMAS:
11 Q Has anyone told you that -- well, strike that.
12 You've already answered that.
13 Do you have exhibit number --
14 A November 4th --
15 Q Yeah, 2000 --
16 A -- '8.
17 Q That's right.
18 A Election day.
19 Q Yeah. Exactly.
20 A I don't recall anyone from Aptitude being on
21 the premises of the County on election day.
22 MR. THOMAS: Uh-huh. Could we mark that next
23 in order, please?
24 MR. POULOS: You had nothing better to do.
25 /////
Page 331
1 (Exhibit No. 401 was marked for
2 identification.)
3 MR. THOMAS: What is this? 401?
4 MR. POULOS: 402.
5 MR. THOMAS: Oh. 402?
6 THE REPORTER: 401.
7 Let's go off the record. I don't want to do
8 this on the record.
9 THE VIDEOGRAPHER: Going off the record at
10 5:37 -- sorry -- 5:38 p.m.
11 (Exhibit No. 402 was marked for
12 identification.)
13 THE VIDEOGRAPHER: Back on the record at
14 5:39 p.m.
15 BY MR. THOMAS:
16 Q All right. Do you have Exhibit 401 in front of
17 you, sir?
18 A Yes.
19 Q And this is an e-mail you received from Paul
20 Miller?
21 A Yes.
22 Q And you received this -- you're sure you
23 received this from Mr. Miller --
24 A Yes.
25 Q -- January 14th; yes?
Page 332
1 A Yes.
2 Q It says: "Greg, thank you for shepherding that
3 through."
4 A Uh-huh.
5 Q He's talking about the indemnity agreement?
6 A Yes.
7 Q How is it that you shepherded through the
8 indemnity agreement and yet were never told by Aptitude
9 why they wanted it? Doesn't that seem odd to you?
10 MR. POULOS: Objection. Argumentative. Lacks
11 foundation. Calls for speculation.
12 BY MR. THOMAS:
13 Q Well, let me back up.
14 A So --
15 Q You testified that Aptitude never told you why
16 they wanted the indemnity agreement, correct?
17 A You know, it went through County Counsel.
18 Q Did you shepherd it through?
19 A Sure.
20 Q And then it says: "With this, we will begin in
21 earnest the conversion effort."
22 Do you see that?
23 A Yes.
24 Q You understood that Aptitude was unwilling to
25 proceed until it received the indemnity agreement.
Page 333
1 A Oh, yes, uh-huh.
2 Q Why was that?
3 MR. POULOS: Objection. Calls for speculation.
4 THE WITNESS: I -- they wanted this
5 indemnification agreement.
6 BY MR. THOMAS:
7 Q Who else did you talk to, other than
8 Mr. Miller, about the belief that there may have been a
9 view of AtPac's proprietary data by Aptitude?
10 A County Counsel.
11 Q Anyone else?
12 A Kathy Barale, County Counsel. Yeah, that's it.
13 Q Tom McGrath, did you ever talk to him about
14 that?
15 A No.
16 Q All right. Let's turn to Exhibit 402. Do we
17 have that? Did I hand that to you already? Oh. You
18 have it.
19 Do you have 402 of in front of you?
20 A Yes.
21 Q And what is this, sir?
22 A It's an e-mail from me to Tom indicating the
23 indemnification agreement was ratified by the Board:
24 Sent you and Paul an e-mail yesterday and your e-mail
25 was sent back as being undeliverable. I therefore
Page 334
1 called and left a message yesterday; left a message
2 today on your cell phone. I also called Patty
3 yesterday. If you have any questions or require
4 additional information, please let me know. Hopefully,
5 we can jump on this.
6 Q Has the County paid Aptitude the $229,000
7 listed in the contract?
8 A When?
9 Q Ever.
10 A Yes.
11 Q Okay. And the County's also paid how many
12 yearly maintenance fees, the $25,000 maintenance fees?
13 A Must be, I think, twice.
14 Q So $50,000 in maintenance fees paid to Aptitude
15 from Nevada County?
16 A Correct.
17 Q Now, is it your understanding that after
18 June 30th -- strike that.
19 Your testimony is that the County continued to
20 use AtPac software through the end of June 2009.
21 A Correct.
22 Q And after that date, you're aware that there
23 was a period of time where the County had refused to
24 allow AtPac to delete and remove the data files from the
25 County's servers. You understand that, right?
Page 335
1 A No, I don't at all. I have never heard that.
2 Q Really?
3 A Never heard that.
4 Q Have you ever read the complaint in this case?
5 A The complaint from whom to whom about what?
6 Q From me to the United States District Court
7 complaining about you on behalf of AtPac, a complaint, a
8 lawsuit.
9 A Have I read the lawsuit?
10 Q Yeah.
11 A Yeah, I think maybe real quickly. I don't
12 think I --
13 Q Do you know one way or the other whether the
14 County removed --
15 A You were complaining to me about what?
16 Q I never complained to you about anything, sir.
17 A You just said --
18 Q I might have misspoken. If I did, I didn't
19 mean to say what you think I said.
20 Are you aware, one way or the other, whether
21 the County removed AtPac's computer software immediately
22 after the end of the AtPac contract with Nevada County?
23 Do you know?
24 A No.
25 Q You don't know?
Page 336
1 A I can tell you what I do know.
2 Q What do you know?
3 A I know that the County called AtPac and they
4 were to agree on a date so AtPac could come and oversee
5 the removal of the AtPac files.
6 Q And who told you that?
7 A I think it was Steve Monaghan and Kathy Barale.
8 Q Okay. And -- but you don't know when that was,
9 do you?
10 A No, I don't know when that was.
11 Q Okay. So you're not able to confirm that that
12 happened before the end of June 2009, for example?
13 A No, it was after June --
14 Q Okay.
15 A -- 30th, 2009.
16 Q Are you aware of any facts to suggest that
17 anyone from the County ever wrote to Aptitude -- strike
18 that.
19 Are you aware of any facts or evidence that the
20 County wrote to AtPac to confirm that the County had
21 deleted AtPac's computer software from the County
22 system? Did the County ever write to AtPac to tell it
23 that?
24 MR. POULOS: Objection. Inappropriate
25 contention question. Vague, ambiguous.
Page 337
1 THE WITNESS: I don't know.
2 MR. THOMAS: I don't know how much time we have
3 but maybe when there's a little bit more left, I'd like
4 to take a break and confer with you about --
5 MR. POULOS: I think you got 20 minutes.
6 MR. THOMAS: Okay. I have one of those things
7 I want to authenticate that we talked off -- not to
8 him -- off the record.
9 Do you have the first binder with exhibits one
10 through 80-some-odd? Can you get those, please? What
11 I'm interested in is Exhibit 33, John.
12 MR. POULOS: 43?
13 MR. THOMAS: 33, please.
14 MR. POULOS: 33.
15 BY MR. THOMAS:
16 Q All right. Do you have Exhibit 33, sir?
17 A Yes.
18 Q And you see this is an e-mail from Richard
19 Sandblade --
20 A Yes.
21 Q -- on June 8th, 2009?
22 A Yes.
23 Q And you received this e-mail; yes?
24 A Yes.
25 Q All right. And can you please read into the
Page 338
1 record the second -- first sentence of the second
2 paragraph written by Mr. Sandblade?
3 A "I would like you to please confirm that you
4 are not providing the dot dat files to Aptitude
5 Solutions."
6 Q Okay. And you were -- you received that
7 information on June 8th, correct?
8 A Yes.
9 Q And what did you do with that information?
10 A I don't remember.
11 Q What steps did you take to confirm that Nevada
12 County was not providing dot dat files to Aptitude
13 Solutions?
14 A I don't remember.
15 Q Do you see the next sentence? It says: "The
16 format of these files is the intellectual property of
17 AtPac."
18 A Yes.
19 Q "And the sharing these files with any
20 organization outside of AtPac" --
21 A Yeah.
22 Q Excuse me -- "outside of Nevada County without
23 the prior written concept of AtPac is strictly
24 prohibited," exclamation point.
25 Did I read that correctly?
Page 339
1 A Yes.
2 Q And what did you do to confirm that Nevada
3 County was complying with AtPac's request there, if
4 anything?
5 A I just don't remember. We -- I don't know if I
6 called a meeting with Steve Monaghan or not.
7 Q Let's turn to the next exhibit.
8 A Yeah.
9 Q Do you have Exhibit 34 in front of you?
10 A Yeah, uh-huh.
11 Q All right. Is this an e-mail that you wrote?
12 A Oh. I guess we did have a meeting, yeah. So I
13 knew -- I knew this was very alarming to me and I was
14 concerned about that.
15 Q Why was it alarming to you?
16 A We had an indemnification agreement and we laid
17 out how we were going to extract this data. This
18 conflicts with the paragraphs in the indemnification
19 agreement, so it was concerning, so I did call a
20 meeting.
21 Q Well, actually, Mr. Sandblade's statement that
22 he wants you to confirm you're not providing the dot dat
23 files to Aptitude --
24 A Yes.
25 Q -- that's actually what you promised to do in
Page 340
1 the indemnity agreement and the letter to AtPac, right?
2 You promised not to give Aptitude the data files.
3 A Correct.
4 Q And Mr. Sandblade merely wanted confirmation
5 that the County was doing what it promised, right?
6 A Correct.
7 Q So why did that concern you, because at the
8 time --
9 A Well -- I'm sorry.
10 Q At the time, did you believe the County was not
11 complying with its agreement?
12 A When I saw this e-mail, I wanted to have a
13 meeting to try to get the facts.
14 Q Well, at the time you saw this e-mail, did you
15 already know the County was providing --
16 A No.
17 Q -- AtPac's data files to Aptitude Solutions?
18 A No. No.
19 Q So why did this e-mail concern you, Exhibit 33,
20 if you felt the County was in compliance?
21 A I had not heard that or seen any correspondence
22 that the County was not in compliance until I saw this.
23 Not having any correspondence, evidence,
24 hearsay, that the County was not in compliance led me to
25 believe that the County was in compliance until I saw
Page 341
1 this e-mail.
2 Q All right. So looking at Exhibit 34, you had
3 had -- you had an urgent impromptu meeting, according to
4 your e-mail, Exhibit 34.
5 Can you turn to Exhibit 34, please? Okay. And
6 what was the substance of the urgent impromptu meeting?
7 Let me ask you this: Did you send Exhibit 34,
8 the e-mail?
9 A Yes.
10 Q Okay. And what was the subject of the meeting?
11 The e-mail from Richard Sandblade?
12 A Yes.
13 Q Okay. And what was the discussion?
14 A Protected --
15 MR. POULOS: What discussion?
16 THE WITNESS: The discussion to address this
17 e-mail.
18 MR. POULOS: Well, you're not to reveal
19 conversations with County Counsel, but go ahead. I mean
20 if you can reveal without...
21 THE WITNESS: The subject of this meeting was
22 are the allegations by Richard Sandblade true.
23 MR. POULOS: Who was in the meeting?
24 THE WITNESS: This is who it was sent to and I
25 think Mike Jamison, Kathy Barale. I know Steve and Phil
Page 342
1 were there.
2 MR. POULOS: Okay.
3 THE WITNESS: I'm not sure about Debra Russell.
4 MR. THOMAS: All right. So --
5 MR. POULOS: Ask a different question then.
6 BY MR. THOMAS:
7 Q Well, do you know if there was any conclusion
8 reached at the meeting?
9 MR. POULOS: Well, same objections. If it's a
10 conclusion that was reached from legal counsel, you
11 can't reveal that.
12 BY MR. THOMAS:
13 Q So you're not going to testify about what was
14 discussed at that meeting?
15 A Huh-uh.
16 Q You're going to follow his instruction not to
17 testify about the meeting?
18 A I'm going to follow my attorney's instructions?
19 Yes.
20 Q I just have to confirm that on the record.
21 A Yes.
22 Q It's not that I don't believe you.
23 Okay. Let's turn to Exhibit 35. Did you send
24 that -- or did you receive that e-mail, Exhibit 35, from
25 Steve Monaghan?
Page 343
1 A It appears that I did, and I actually remember
2 this, uh-huh.
3 Q And can we turn to Exhibit 36? Can we -- can
4 you confirm that you received that e-mail from Phil
5 Russ?
6 A Yes.
7 Q Okay.
8 A Don't remember it but it looks like I did.
9 Q And do you remember the earlier e-mail where
10 Ms. Barale said she copied the dot dat files to the
11 Aptitude server and renamed them as txt files?
12 A Yes.
13 MR. POULOS: Objection. Lacks foundation.
14 BY MR. THOMAS:
15 Q Do you remember Exhibit 41?
16 MR. POULOS: Go back to Exhibit 41.
17 BY MR. THOMAS:
18 Q Yeah. You can look at it.
19 MR. POULOS: Does it say that?
20 THE WITNESS: Uh-huh.
21 BY MR. THOMAS:
22 Q Can you read that, just so we have a
23 foundation, of the first sentence of Exhibit 41?
24 MR. POULOS: It doesn't say renamed.
25 MR. THOMAS: That's fine.
Page 344
1 THE WITNESS: Again, this is an e-mail that I
2 was not privy to until today.
3 BY MR. THOMAS:
4 Q I understand. What does the first sentence of
5 exhibit --
6 A "I copied the AtPac dot dat files onto the
7 Aptitude support server in, parentheses, AS dash Nevada,
8 as dot txt files."
9 Q Okay. And I'll represent to you she testified
10 that she just renamed them and didn't change them in any
11 way, okay?
12 Assuming that's true, that she did that, which
13 is what she testified to, would that concern you, sir,
14 given the promises made to AtPac?
15 A Yes, it would.
16 Q Why?
17 A Because it's contrary to what we wrote in the
18 indemnification agreement.
19 Q And it's contrary to the letter you wrote to
20 AtPac on January 8th, 2009, correct?
21 A It's also contrary to that letter, that's
22 correct.
23 MR. THOMAS: All right. Can we go off the
24 record for a moment? I can regroup because I realize
25 we're pretty close to being at least done for today.
Page 345
1 We'll agree to disagree on whether I can finish today
2 but can we regroup and let me just sort of figure out
3 what I've got? We can talk about authentication. Would
4 that be okay?
5 MR. POULOS: What I'd rather do is let, you
6 know, let him go, finish your questions with him, and I
7 will represent to you, on the record, that I'll enter
8 into a similar stipulation that I did with you with the
9 prior witness, Ms. McCluskey, as to documents received,
10 you know, that were produced by the County, you know, to
11 receive, that kind of thing, on authenticity.
12 MR. THOMAS: Okay. I appreciate that.
13 MR. POULOS: It's a better use of the witness's
14 time, and frankly, your time, because I'm not going
15 to -- where there's no indication -- in my view, you
16 know, there's no basis to litigate or dispute
17 authenticity where there's no indication that something
18 is other than it purports to be. I'll expect the same
19 courtesy from you when the time comes.
20 BY MR. THOMAS:
21 Q May I have you look at Exhibit 40, please? And
22 what is Exhibit 40, sir?
23 A It's an e-mail from Kathy Barale to Frank
24 Barnes, and Alana Wittig and Debra Russell are copied.
25 The subject is AtPac file.
Page 346
1 Q Okay. What does the first sentence say?
2 A "I have copied the image dot dat file to C,
3 colon, back slash, ER, dash, recorder, underscore,
4 files, back slash, 20090616 on AS dash Nevada. Are
5 there additional problems with any of the image's files
6 previously copied?"
7 Q All right. Did that concern you given it
8 indicates that AtPac dot dat file being copied to the
9 Aptitude server?
10 MR. POULOS: Objection. Vague.
11 THE WITNESS: I have never seen this e-mail
12 before today, and if I'm reading this -- well,
13 obviously, I'm reading it right now -- I wouldn't know
14 or assume that AS-Nevada was the Aptitude server.
15 BY MR. THOMAS:
16 Q Okay.
17 A As a matter of fact, I thought AS-Nevada was
18 the County's server.
19 Q AS-Nevada's the server that was scrubbed.
20 A It was the County server, right?
21 Q I don't know.
22 A Of course, it was the County server.
23 Q So the County scrubbed its own server. That's
24 your testimony?
25 A Well, that's my understanding.
Page 347
1 Q All right. Sir, I would like to -- may I just
2 take a moment --
3 MR. POULOS: Sure.
4 MR. THOMAS: -- to look at a few things off the
5 record?
6 MR. POULOS: That's fine.
7 THE VIDEOGRAPHER: Off the record at 5:57 p.m.
8 (Recess taken from 5:57 p.m. to 6:02 p.m.)
9 THE VIDEOGRAPHER: Back on the record at
10 6:02 p.m.
11 BY MR. THOMAS:
12 Q Sir, placing before you -- I don't -- I'd just
13 like to know: Are those your notes? Is that your
14 handwriting?
15 A Huh-uh.
16 Q If not, you can just hand it back to me.
17 A No, it doesn't look like my handwriting.
18 Q Thank you, sir. How about -- I've given you
19 another exhibit.
20 A Huh-uh, no.
21 MR. POULOS: Why don't you just show him all of
22 them and see if he recognizes any of them.
23 BY MR. THOMAS:
24 Q There's only two more. I think maybe that's
25 yours. You tell me, sir.
Page 348
1 A This looks like my handwriting --
2 Q Okay.
3 A -- here. This is not my handwriting here.
4 Q Do you know whose it is?
5 A No, I don't.
6 Q Okay. May I see that, sir?
7 A Sure.
8 (Exhibit No. 403 was marked for
9 identification.)
10 BY MR. THOMAS:
11 Q So Exhibit 403, sir, could you just thumb
12 through that and confirm this is all of your
13 handwriting?
14 A Yes, it looks like my handwriting.
15 Q Okay. All right.
16 A My personal notes.
17 MR. THOMAS: All right. Thank you, sir.
18 (Exhibit No. 404 was marked for
19 identification.)
20 BY MR. THOMAS:
21 Q Take a look at Exhibit 404. Do you have that?
22 A Yes.
23 Q And this is an e-mail you received from Mike
24 Jamison; yes?
25 A Yes.
Page 349
1 Q And this refers to the issue raised by Richard
2 Sandblade that you were addressing with counsel, right?
3 A I believe so, yes.
4 Q Okay. And did Mr. Monaghan ever tell you that
5 he believed the County has violated Section 2.2 of the
6 AtPac Nevada County contract?
7 A Mr. Monaghan never -- oh.
8 MR. POULOS: I'm going to object if that was in
9 the presence of counsel. If there was any such
10 discussion, I would ask you not to reveal that
11 conversation, but you can go ahead and answer with that
12 admonition.
13 THE WITNESS: Steve Monaghan never told me that
14 he thought the County violated 2.2.
15 BY MR. THOMAS:
16 Q Okay. And did Mr. Jamison ever tell you that
17 in the context of writing you this e-mail?
18 MR. POULOS: Don't answer the question.
19 BY MR. THOMAS:
20 Q You received Exhibit 404 from Mr. Jamison; yes?
21 A Yes.
22 Q And can you look at Exhibit 42 in your binder?
23 And did you send Exhibit 42?
24 A Did I --
25 Q Send Exhibit 42?
Page 350
1 A Yes, it looks like it.
2 Q And this is referring to the issue raised by
3 Richard Sandblade --
4 A Uh-huh.
5 Q -- again?
6 A Yeah, it appears so, yes.
7 Q Okay. And what did you say?
8 A My thoughts are if AtPac makes no more mention
9 of this, we make no more mention of this. If AtPac does
10 inquire again, we follow your suggestions as outlined in
11 your e-mail.
12 Q Did you ever tell Richard Sandblade, in
13 response to his e-mail, that the County had in fact
14 provided dot dat files to Aptitude?
15 A No.
16 Q Do you know if anyone else did?
17 A I don't know.
18 Q Did you make an effort to communicate with
19 AtPac to tell it the County had done that?
20 A No.
21 Q Why not?
22 A Didn't occur to me to do it. I think this
23 e-mail's pretty clear. My position is if -- no harm --
24 no foul, no harm. If there is a foul, then we'll
25 address it.
Page 351
1 Q But you never told AtPac that there was a foul,
2 right?
3 A Because -- because I'm not really sure and
4 County Counsel wasn't really sure if there was a foul.
5 Q But you knew that Richard Sandblade wanted to
6 know -- he wanted the County to confirm that it was not
7 providing dot dat files --
8 A Right.
9 Q -- to Aptitude.
10 A Right.
11 Q And you learned the County was providing dot
12 dat files to Aptitude.
13 MR. POULOS: Objection. Misstates the record
14 and the testimony.
15 THE WITNESS: No, because there's this e-mail
16 from Alana Wittig which seems to suggest that they
17 received all of the data from the County in txt files.
18 BY MR. THOMAS:
19 Q Right. And you also --
20 A No tables were sent. We had no ability to view
21 the table structure.
22 Q But you also saw the e-mail from Ms. Barale
23 that said she copied the dat files as txt files.
24 A And I saw that e-mail today. I did not see
25 that e-mail on June 18th, 2009.
Page 352
1 Q Okay. Understood, sir. Now, I follow.
2 All right. I'm done with 42.
3 (Exhibit No. 405 was marked for
4 identification.)
5 BY MR. THOMAS:
6 Q Sir, I'd like you to look at Exhibit 405. Do
7 you have that?
8 A Yes.
9 Q Okay. And at the bottom half of the page is an
10 e-mail from Debra Russell to you.
11 Do you see that?
12 A No. There's an e-mail from Debra Russell to
13 Dave Krugle where I was cc'd.
14 Q Okay.
15 A I don't see an e-mail from Debra Russell to me.
16 Q Fair enough, sir. Did you receive that cc
17 e-mail?
18 A Yes.
19 Q And this is informing you that Mr. Weir had
20 written to the County asking for AtPac to ensure that
21 the CRiis and other software licensed from AtPac has
22 been removed from the County servers.
23 A Could you repeat your question again? I'm
24 sorry.
25 Q You understood this was letting you know, at
Page 353
1 least copied you on a correspondence, where you're
2 informed that AtPac was the one who had written to the
3 County asking to remove its software from the County's
4 servers, right?
5 A No. It's when I read this e-mail, I see it to
6 read that it was Debra's understanding, my assistant at
7 the time, that AtPac would like to visit our office to
8 ensure that CRiis and other software licensed from AtPac
9 has been removed from all servers.
10 I don't know how that came to be. This
11 certainly doesn't say that AtPac wrote a letter to set
12 up a visit to the office.
13 Q Well, what does --
14 A It just says AtPac would like to visit our
15 office.
16 Q And what does the first part of the e-mail say?
17 Per the letter --
18 A Per the letter from Mr. Weir to our office.
19 Yeah, you're right. Yeah, uh-huh.
20 Q You're not aware -- strike that.
21 So this informed you that AtPac had asked to
22 come to the County to remove its --
23 A Yeah, I think I mentioned that, too, in earlier
24 testimony, it was my understanding that AtPac was going
25 to coordinate with the County to come to remove their
Page 354
1 software --
2 Q And did they?
3 A -- after June 30.
4 Q Did anyone -- did anyone tell you that AtPac
5 tried to do that on June 30th?
6 A Well, this says right here: Would you be
7 available on Tuesday, June 30th for this inspection. If
8 not, and then Dave Krugle said to Debra, Tuesday,
9 June 30th works for me, so...
10 Q Do you know what happened on June 30th?
11 A No.
12 MR. THOMAS: Okay.
13 (Exhibit No. 406 was marked for
14 identification.)
15 MR. POULOS: This is it? Are we done here?
16 MR. THOMAS: Yeah. Let's put our little -- can
17 we put our stipulation on the record?
18 MR. POULOS: Yeah.
19 BY MR. THOMAS:
20 Q Can you just authenticate this exhibit that's
21 in front of you, sir?
22 A It's an e-mail from Mike Jamison to me.
23 MR. THOMAS: All right. Counsel and I have
24 reached an agreement that there's many, many, many
25 pieces of correspondence here in the deposition room
Page 355
1 that I would like to ask you questions about; at a bare
2 minimum, have you confirm that they're e-mails you
3 either sent or received or letters you can authenticate
4 as being genuine.
5 We've stipulated we're going to do that off the
6 record and perhaps add them as exhibits to the
7 deposition but maybe not. We don't have to do that.
8 MR. POULOS: Yeah. I just want to make sure
9 that we let Mr. Diaz go.
10 MR. THOMAS: Yeah.
11 MR. POULOS: And then as I did with
12 Ms. McCluskey, e-mails, documents that were produced by
13 the defendants that bear Mr. Diaz's name, as either
14 something he created or received, I'm willing to
15 stipulate to the authenticity of those documents, and we
16 can, at your pleasure, either add them back as
17 exhibits --
18 MR. THOMAS: Uh-huh.
19 MR. POULOS: -- or we can enter into a
20 stipulation that you can use at trial. I don't really
21 care.
22 (Clarification by reporter.)
23 MR. POULOS: Or we can enter into a stipulation
24 that you may use at trial. I don't have a preference.
25 MR. THOMAS: We'll figure that out off the
Page 356
1 record.
2 MR. POULOS: Yeah.
3 MR. THOMAS: For now, my intention is to hold
4 the deposition open because I still have more questions
5 for Mr. Diaz, but it's getting late today and I agree to
6 go off the record now.
7 MR. POULOS: And obviously, my position is
8 we're at the seven-hour limit and we'll address whatever
9 else. I'm not asking -- you know,k I understand your
10 position and so we will adjourn for the day.
11 MR. THOMAS: We'll agree to disagree and we'll
12 adjourn for the day. Thank you.
13 MR. POULOS: Thank you.
14 THE VIDEOGRAPHER: Going off the record at
15 6:14 p.m. End of disc four. End of today's
16 proceedings.
17 (The deposition adjourned at 6:14 p.m.)
18
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Page 357
1 --oOo--
2
3 WITNESS' SIGNATURE
4
5 Please be advised I have read the foregoing
6 deposition, pages 1 through 356, inclusive. I
7 hereby state there are:
8
9 (check one)
10 ______________ no corrections
11 ______________ corrections per attached
12
13 ____________________________________________
14 GREGORY J. DIAZ
15
16
17 --oOo--
18
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Page 358
1 WITNESS' CHANGES OR CORRECTIONS
2
3 NOTE: If you are adding to your testimony, print the exact words you want to add. If you are
4 deleting words from your testimony, print the exact words you want to delete. Specify with
5 "Add" or "Delete" and sign this form.
6 Deposition of: GREGORY J. DIAZ Case Title: ATPAC VS. APTITUDE
7 Date of Deposition: May 27, 2011 I, _________________________________, have the following
8 correction to make to my deposition.
9 Page Line Changes/Add/Delete
10 ____ ____ _________________________________________
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Page 359
1 CERTIFICATE OF REPORTER
2
3 I, JOANIE Y. MURAKAMI, a Certified Shorthand
4 Reporter, hereby certify that the witness in the
5 foregoing deposition, GREGORY J. DIAZ, was by me duly
6 sworn to tell the truth, the whole truth and nothing but
7 the truth in the within-entitled cause; that the
8 testimony of said witness was taken down in shorthand by
9 me, a Certified Shorthand Reporter and a disinterested
10 person, at the time and place herein stated, and that
11 the testimony of the said witness was thereafter reduced
12 to typewriting, by computer, under my direction and
13 supervision.
14 I further certify that I am not of counsel or
15 attorney for either or any of the parties to the said
16 deposition, nor in any way interested in the outcome of
17 this cause, and that I am not related to any of the
18 parties thereto.
19 I hereto declare under penalty of perjury that the
20 foregoing is true and correct. I have hereunto set my
21 hand on June 8th, 2011.
22
23 ________________________________________
24 JOANIE Y. MURAKAMI, CSR NO. 5199
25