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break before we come back?


MR. COHEN: Please, Your Honor.
THE COURT: Okay. Sure. Take ten and come
back.
Please step down. Thank you.
MR. BAJARDI: Thank you, Your Honor.
(Off the record - On the record.)
THE COURT: Address your clients ability to
give a lay opinion about ethics or how do you want to
proceed?
MR. COHEN: Your Honor, if its acceptable,
do you think I could brief this issue and have
something to you by Monday morning?
THE COURT: Yeah. Thats -- thats okay.
Well, theres nothing to brief. Just read the evidence
rule on lay opinion. I know the law. You have to have
a hearing. I dont need a brief.
MR. COHEN: Okay. Can we have a hearing, but
not right now?
THE COURT: Okay. Are his qualifications
going to change over the weekend?
MR. COHEN: No.
THE COURT: Then lets call him to the stand,
if thats what you want to do. Lets see what he knows
about ethics.

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MR. COHEN: Sure.


THE COURT: Okay. Good.
Please resume the stand.
Proceed.
VOIR DIRE EXAMINATION BY MR. COHEN:
Q
Lane, how long have you been involved in the
journalism industry?
A
In the industry since 1986. As a journalist since
1987.
Q
And how have you learned the trade? Did you
learn on the job?
A
I learned it on the job. Yes.
Q
Did you receive formal training on the job or
-A
Some of my employers offered formal training and - both a mix of formal and informal training.
Q
Okay. During your training -- your on-thejob training as a journalist, do you receive any
specific training about ethics?
A
Yes.
Q
As it relates to journalism?
A
Yes.
Q
Can you describe that training?
A
Different employers will have different policies
and codes and things, but there are many very basic

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tenets of journalist ethics. And sticking with the


truth is one of them. When at all possible, getting
multiple sources for your information, making sure
those sources are correctly identified whenever
possible. And it goes on. Its a long list of things.
And, like I say, for different positions you have
different things that apply as well as different types
of journalism.
Q
Have you ever received any training
specifically on conflicts of interest?
A
Yes.
Q
Could you go into more detail about that
training?
A
If it sounds and looks like a conflict, it is a
conflict. There are -- theres levels of training for
conflicts of interest both for corporate conflicts of
interest and journalistic conflicts of interest. At
most, larger companies that -MR. FLOWERS: Objection, Your Honor.
THE COURT: Just limit it to his journalistic
experience with ethics. Journalistic ethics.
MR. COHEN: Okay. Your Honor, I believe I
asked him specifically about the training in
journalistic ethics. I went into more detail about
training on conflicts of interest. So, Im not really

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sure I understand the objection. Unless it was an


objection to what Mr. Bajardi said.
THE COURT: What was the objection? Theres
no jury.
MR. FLOWERS: The objection is he started
talking about corporate ethics. Hes here to testify
as to -THE COURT: To the extent its not a
journalistic corporation, I mean, thats the objection.
MR. COHEN: Okay.
THE COURT: Corporate ethics implies many
things.
MR. COHEN: Correct, Your Honor.
BY MR. COHEN:
Q
Were you finished with your answer about your
training -THE COURT: Were not talking about
shareholder obligations or anything like that or
accounting. Were talking about the ethics of a
journalist.
MR. COHEN: Correct, Your Honor.
THE COURT: Okay. So, you can expand on that
if you want.
MR. COHEN: Okay. Thank you.
BY MR. COHEN:

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Q
Were you finished with your answer to the
question could you provide some -- could you describe
your training -A
No, I was not.
Q
-- specifically about conflicts of interest?
Could you finish your answer?
A
If youre in a situation where you are -- you have
intimate knowledge of a story to the effect that youre
-MR. FLOWERS: Objection, Your Honor.
THE COURT: Overruled.
THE WITNESS: Youre covering someone who is
a personal friend of yours and you want to give them
positive glowing coverage, thats a conflict of
interest. You shouldnt -- you shouldnt do that. If
you have a financial stake in a project that youre
doing a story on, you should not do that story. If
someone close to you has a financial stake in that, you
should not necessarily do that story. Im talking
about traditional ethics in traditional journalism as
Ive seen it. And that -- and that includes the radio
stations Ive worked for, the cable television
operations Ive worked for and my current employer.
Im talking about specifically traditional journalism,
traditional journalistic ethics in the roles that Ive

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had in traditional journalism.


BY MR. COHEN:
Q
Have you ever had to -THE COURT: Excuse me. Could you define what
you mean by traditional journalism?
THE WITNESS: Traditional journalism meaning
just the facts. This is information thats provided to
you. Youre not supposed to be giving one slant or
another. Im talking about working in radio news,
working in television news, working in my current
position. Im not specifically talking about whats
being called the fifth estate, the world that, you
know, is online and much more complicated in the way
people cover stories and go backward. Im talking
about my role in the jobs that Ive had that have paid
me for my expertise as a journalist.
THE COURT: Thank you.
BY MR. COHEN:
Q
Lane, have you ever recused yourself because
you believed you had a conflict of interest?
A
Yes.
Q
Could you give me -- how many times have you
done that?
A
At least twice.
Q
Can you discuss each instance?

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A
They involved stories that involved political
figures in Hoboken that were airing on 1010 WINS.
Q
Both instances?
A
Both instances. Yes.
Q
Were you told to recuse yourself or did you
know to do that?
A
I was told. I knew to do that -MR. FLOWERS: Object.
THE COURT: Overruled. Overruled. He can
answer it.
THE WITNESS: I knew to do that and I was
told that that was something that I should do. And
thats how I know all the ethics that Im bound by by
my bosses explaining to me exactly what the ethics are
for the organization. And the ethics in this
organization, as explained to me, if theres a Hoboken
story, you dont do it. And you are to tell the editor
on duty to remind that editor on duty that they should
be taking another look at this and seeing if it can be
covered in a different way.
BY MR. COHEN:
Q
Have you ever -- in your career, have you
ever worked with someone who you believed should recuse
themselves from a story due to a conflict of interest?
A
I monitored journalists below me who had -- for

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223
instance, there are -- Ive had people work for me who
graduated from college in the same community that we
were covering news when there were controversial issues
related to that college. Say they wanted -- the
instances where they wanted to buy more land and or
they wanted reroute streets or things of this type, I
made sure that the coverage was right down the middle
and attempted to have people who didnt graduate from
that college reporting on that colleges activities.
Thats an example of when I was a news director I would
do that. I would try to take that out of the hands of
those who, you know, might even...
Its not so much that you go into it
expecting that youre going to side to one side or
another, but you dont want any biases that are deep
down inside to come out. And you also dont want
somebody to err on the other side saying, well, I went
to this school and I dont want anybody thinking that
Im protecting them or helping them in any way, so Im
going to help the other side more or make it -- or make
it seem that way. Thats why we have an understanding
of conflicts of interest and we address them.
Q
So, Lane, correct me if Im wrong, have you
provided actual -- have you provided guidance or
instructions to people where youve worked on

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journalistic ethics?
A
I have.
Q
Was it within your official job description
to train?
A
Yes. I was the news director which is the manager
of the new department.
Q
And how many employees worked under you as a
news director?
A
Full time, depending on the time, three to four.
With part timers that could also be three to four
additional.
Q
Now, this time where youre testifying when
you were the news director and you trained people on
ethics, has it only been once that youve been news
director or was there another time?
A
Its only once that I held that title.
Q
Okay. Have you -A
Ive held other titles, but.
Q
Yes. Have you served in another position,
other than news director, where you trained
subordinates on journalistic ethics?
A
Only less formally. It would -- it would come up
in conversation as you -- in journalism, there are many
people who want to be in electronic journalism in
particular. They go to many of these schools, and they

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come out, some of them very well trained and some of


them not. And they learn a great deal on the job.
Its the kind of job that you have to learn by doing
and learn from people who have been doing it a long
time. And so, they are constantly having interns below
me that need guidance on issues like this. There are - as well as even occasionally new employees. So, yes.
In the past, thats been the case.
Q
Have you ever -- have you ever seen someone
that worked with you get disciplined or fired because
of an alleged conflict of interest?
A
Ive seen it happen elsewhere, but I havent -Q
At the place where youve worked?
A
Id have to think about that. Its possible -MR. KATZMAN: Judge, that question really is
irrelevant for purposes of this case. What does it
matter?
THE COURT: As to other people?
MR. KATZMAN: As to other people and in terms
of without a witness from CBS saying -THE COURT: I understand. The proffer is
that to establish the foundation for a lay opinion.
MR. KATZMAN: For the witness himself to say
that he -- that it would be because Ms. Pincus said -and I have got the exact quote, by the way, to put it

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in perspective -THE COURT: We didnt get there yet.


MR. KATZMAN: Okay. Okay.
THE COURT: I understand ultimately where
this may go, but this is an opportunity the plaintiffs
entitled to.
MR. KATZMAN: Yes. Youre absolutely right,
Judge.
THE COURT: So continue.
BY MR. COHEN:
Q
I think the question was have you ever worked
in a company where you saw someone be fired or
disciplined because of an alleged conflict of interest?
THE COURT: That doesnt go to his
qualifications.
MR. COHEN: Okay.
THE COURT: Okay.
BY MR. COHEN:
Q
Do you -- is the training that you receive in
ethics, is that continuing or has it already -- have
you already received it? Is it -A
Its received. And its continuing in the effect
that the people who hold the titles of news director
and many other titles that are supervisory will provide
regular updates and reminders on the policies of

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journalistic ethics that the company people work for


are ascribed to. There were many times at Bloomberg,
when I worked at Bloomberg, that we had to go through
ethics courses, specifically related to journalists.
The same was at CNBC. When I worked at CNBC,
there were -- there were ethics courses for journalism,
especially in that financial type of journalism where
so many things can be -- you know, journalists may not
even be -- journalists who may own a stock and then
reporting on a stock, and thats a no-no. And, you
know, Ive always advised people who have asked me
about that, you know, if they want to work in financial
news, they should own mutual funds that other people
operate as opposed to owning companies individually
that they may be asked to report on. These are the
types of ethics.
And, again, thats something that is specific
to CNBC or Bloomberg or any of the financial reporting
operations that you wouldnt hear as much about at a
CBS radio or 1010 WINS because that wouldnt be
something that would come up on a regular basis.
So, it would be -- its fluid. There are
pillars of journalistic ethics and then there are
constant updating. Just last election day, there was a
reminder that went out saying -- you know, reminding

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people that its company policy not to be in any way


politicking, electioneering. I havent printed it out.
If I knew I was going to be in this position, Id be
happy to read. But its essentially saying -- you
know, there are policies about this is election day.
This is not -- you know, it would be inappropriate in
the workplace for anybody to be in this newsroom to be
showing their interest one way or the other in the
election.
And, like I say, I dont want to quote this
particular memo because I dont have it in front of me,
but in the past it was also people shouldnt be
celebrating victories or defeats.
There are many -- I mean, the New York Times
makes publically available a very large journalistic
ethics booklet that they make all of their newsroom
employees follow, as well as employees of the New York
Times company that are told that they have to ascribe
to these journalistic ethics. Even family members who
dont work for the New York Times. They have one of
the strictest ethics policies.
Then you can turn to the Society of
Professional Journalists who are -- well, it was
formerly the Radio/Television News Directors
Association, which I was a member of, which is now the

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229
Radio/Television Digital News Association, they have an
ethics -- these are ethics frameworks that are put out
there so employers can put together -- and news
directors can put together their own set of ethics for
their particular organization. The set of ethics for
1010 WINS is not going to be the same in entirety as
CNBC or the Huffington Post. Its -- there are basic
tenants and then there are company policies.
MR. COHEN: Thats all I have, Your Honor.
THE COURT: Cross?
MR. KATZMAN: I have no cross, Your Honor.
THE COURT: Mr. Booth?
MR. BOOTH: Yes.
CROSS-EXAMINATION BY MR. BOOTH:
Q
You indicated that -- well, first of all, how
far did you go in school?
A
High school.
Q
What high school did you graduate from?
A
Ketcham High School in Wappingers Falls, New York.
Q
Was there a course on journalism in high
school that you took?
A
There was a radio club, but there was no
journalism course. No.
Q
Okay. And I take it you went right to work.
You didnt go to college?

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Thats correct.
Q
So, you never -- you never went to a
journalism school either.
A
Didnt go to a journalism school and was hired, I
believe, for my first three jobs in journalism by
people that didnt go to journalism school.
Q
Yeah. Theres probably a lot of people in
the industry that didnt go to journalism school.
A
Thats correct.
Q
Okay. Is there a code of ethics, a standard
code of ethics, for the industry?
A
As I mentioned, no code of ethics is adopted
universally. Tenets -- tenets of a code of ethics are
adopted.
Q
So, the anser to my question is no. Theres
no universal code of ethics, right?
A
There are those that are put out there as
universal codes by the Society of Professional
Journalists, by Radio/Television Digital -Q
I take it theyre suggested codes. Theyre
recommended. Theyre not, like, established as
something that youre required to follow.
A
They are established as the benchmark.
Q
And there are more than one. Theres more
than one such code.

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As is typical in most industries, yes.


Q
And the different companies will choose -pick and choose among themselves. In other words, its
not, like, standard. I think you said that 1010 WINS
and CBS may have different policies.
A
Not when it comes to the most basic conflicts of
interest.
Q
Thats not my question. Theyll have
different policies, correct?
A
Not necessarily, no.
Q
Didnt you just testify that 1010 WINS -A
No. 1010 WINS is CBS radio. CBS radio owns 1010
WINS.
Q
Theyll have a different -- theyll have a
different -A
Than Bloomberg or CNBS or the New York Times.
Q
Okay.
A
To the letter of the law. Theyll have a
different constitution.
Q
Now, in the training that you got, was it all
on-the-job training?
A
Yes.
Q
Theres no -- like, you didnt go -- they
didnt send you away to a seminar at Vale or Aspen or
something like that to study --

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THE COURT: Counsel, your question -- is your
question limited to journalistic training or ethical
training?
MR. BOOTH: In ethics. Journalistic ethics.
THE COURT: Okay. Rephrase the question.
BY MR. BOOTH:
Q
Okay. Did the company ever send you to a
course on journalistic ethics?
A
Not specifically.
Q
Okay. Is Rush Limbaugh -- do you have the
same ethics that Rush Limbaugh might follow in his
radio news program?
A
Absolutely not. He is not a journalist.
MR. COHEN: Thats all I have.
THE COURT: Okay. Mr. Flowers?
MR. FLOWERS: Yes.
CROSS-EXAMINATION BY MR. FLOWERS:
Q
Mr. Bajardi, have you written any articles
regarding journalistic ethics that have been published?
A
No.
Q
Have you taught any courses regarding
journalistic ethics?
A
Only -Q
I asked you if you taught any courses.
A
Taught any courses? No.

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233
Q
Have you been asked to speak at any seminar
regarding journalistic ethics?
A
Ive been asked questions about journalistic
ethics at colleges.
Q
No. Answer the question, please. Have you
been asked to speak about journalistic ethics at any
seminar on journalistic ethics?
A
Youre making it more specific than I can answer.
I would have to answer no, if thats the way -THE COURT: Sir, did you -THE WITNESS: Yes, sir?
THE COURT: Let me -- did you understand the
question?
THE WITNESS: Yes.
THE COURT: Answer the question.
THE WITNESS: Not specifically, no.
BY MR. FLOWERS:
Q
Are you generally aware that various
industries have annual conventions or seminars or
continuing education programs?
A
Various industries?
Q
Yes.
A
I focus on my industry, not various industries.
THE COURT: So, youre not aware? Are you
aware or not?

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234
THE WITNESS: Im aware of my own industry.
THE COURT: Next question.
BY MR. FLOWERS:
Q
Okay. Does your industry have any seminars
or any conventions or any meetings where journalistic
ethics are ever discussed?
A
I would imagine they do, yes.
Q
Have you ever been asked to speak at one?
A
No.
Q
Have you ever been asked by anyone to write
or speak about any journalistic ethics issues?
A
Yes.
Q
Who?
A
There was a professor at SUNY New Paltz asked me
to come to his communications class and talk a wide
variety of issues, including journalistic ethics. It
was a long time ago.
Q
So, you went to SUNY New Paltz, and thats
the extent of your public perception or tenure as an
expert in journalistic ethics.
A
No. My tenure as an expert in journalism ethics
is my time in journalism and -Q
Do you have anything objective other than
your personal opinion as to how you qualify? Is there
any third-party validation of your testimony about your

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235
ability to speak as an expert on journalistic ethics?
A
I dont -- I dont know -- I dont know if one
exists.
Q
You dont understand the question.
A
A third party -THE COURT: Have you been recognized as an
expert in the field of journalistic ethics, to your
knowledge?
THE WITNESS: I dont have any certification
to that effect. No.
MR. FLOWERS: I dont have any other
questions, Judge.
THE COURT: Okay. Any redirect?
MR. COHEN: Yes, Your Honor.
REDIRECT EXAMINATION BY MR. COHEN:
Q
One of the questions, I think, from Mr. Booth
was he asking are there different codes of journalism.
Do you remember that question?
A
From Mr. Booth?
Q
Yes.
A
Yes.
Q
And your answer was yes?
A
Yes.
Q
Are you aware of any codes of journalism that
say it is acceptable to participate in stories that you

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report on?
A
Not in regards to the fourth estate journalism.
No.
Q
And what do you mean by fourth estate?
A
Fourth estate? I mean the fourth estate
traditional journalism that I participate in as far as
receiving a salary since 1987 with a gap.
MR. COHEN: No further questions.
THE COURT: Okay. Anything further? Okay.
You may step down.
THE WITNESS: Thank you, Your Honor.
THE COURT: Thank you. Okay. Ill hear you,
Mr. Cohen.
MR. COHEN: Hear me on -THE COURT: On why you think you established
that you laid a foundation to elicit a lay opinion from
Mr. Bajardi.
MR. COHEN: Okay. Well, as Mr. Bajardi
testified, he has many years of on-the-job experience
in journalism and has received training on the job in
journalistic ethics, has provided guidance and
instruction to subordinates on journalistic ethics, and
I think thats all he needs to provide a lay opinion on
journalistic ethics.
THE COURT: Okay. Mr. Katzman?

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237
MR. KATZMAN: My position, Your Honor, would
be that expert opinion is necessary.
THE COURT: Lay opinion.
MR. KATZMAN: I understand. But my opinion,
our position is that expert testimony is necessary on
this witness on this issue and that a party should not
be permitted under this set of circumstances to be
laying -- to setting forth his own lay opinion on the
issue of ethics.
How hes going to be tying this in also
becomes very, very interesting particularly when were
talking about a blog that was written in March of 2012
pertaining to a 2009 election. I just want the Court
to understand that. It becomes even more tenuous when
the witness is now attempting to give his lay opinion
that it would be unethical for him to be supporting a
candidate three years earlier while he is now employed
with CBS.
The whole issue is tenuous. Thank you.
THE COURT: Mr. Booth?
MR. BOOTH: Judge, I dont believe that this
is a subject thats ripe for lay opinion. Its not -THE COURT: Because?
MR. BOOTH: Its something that a non-expert
can give an opinion on matters of common knowledge and

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observations, but I think this hearing demonstrated


clearly that this is an area where the opinion must be
from a qualified expert, I think.
THE COURT: Mr. Flowers?
MR. FLOWERS: I concur, Your Honor. What Mr.
Cohen is trying to do is basically have Mr. Bajardi
testify to an ultimate issue in the case, and then say
that hes an expert in that determination. Its selfserving. I didnt hear anything from the witness which
would point to any objective circumstances, facts or
educational background that would qualify him as an
expert. Its woefully inadequate, Judge, by any
criteria for establishment of expert testimony.
THE COURT: Okay. All right. Based on the
proffer at sidebar and not knowing the background of
the witness, plaintiff was given an opportunity to have
this hearing.
And generally, lay opinions are admissible
when they relate to observations or something; for
example, drunkenness or speed of a car or the value of
ones personal property, things in that regard. Its
clear to this Court from the testimony of the witness
that hes aware of standards in the journalism
industry, but has not been formally schooled, trained
in any quantifiable or objective seminar courses. He

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239
has never written, published or lectured as an expert,
couldnt point to being recognized as an expert in the
field. Clearly, he makes distinctions between news
media, acknowledging, you know, traditional, which Im
not by way of his definition.
Interestingly that the witness indicated that
reporters should not report on stories or organizations
where they have an interest. And almost every night on
the network news one of the networks announce that
their parent company is the subject of a story given
todays climate when four or five news organizations
control most of the media. Its a daily occurrence.
So, I find that opinion, frankly, wrong and
contra to reality these days because organizations do
report on stories in which they have interest in which
their parent companies have interest every day.
But regardless of that, I mean, Im not
satisfied the witness has any specialized knowledge in
the field to give an opinion, lay opinion, certainly
not an expert opinion on ethics. So, the objection to
testifying as to his impression of journalistic ethics
is sustained.
MR. COHEN: Your Honor?
THE COURT: Yes.
MR. COHEN: So, would Your Honor permit me to

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submit any briefing at all on this or are we -- Id


like for the opportunity. Obviously, I cant make Your
Honor read what I write, but -THE COURT: No. Youre wrong, Counsel. Im
obligated to consider anything you submit whether its
late or invited or otherwise. And I will read it. So,
do what you deem fit.
MR. COHEN: Thank you, Your Honor.
THE COURT: Okay. Any regarding the second
part of the motion, the other shoe is going to fall as
to where this is going to go as far as the effect or
the cause. You know, thats got to be followed up by
you some other way through testimony.
MR. COHEN: Im sorry.
THE COURT: In other words, the effect of
these statements allegedly made, okay, have to be tied
in and causally related to some, you know, defamation
or elements of your case through some other testimony
that has been served in discovery and is admissible.
MR. COHEN: Yes, Your Honor.
THE COURT: Okay. Good. All right. So,
Monday, 9:30, and well continue. In the meantime, any
other e-mails that counsel can work out, you know,
between themselves by stipulation -- and then just so
you know, for example, you have these statements or

241
blogs made by one of the defendants, okay, thats going
to come in. But, again, what you do with it as far as
your proofs, I mean, thats going to be the issue.
Statements by the parties are most likely going to be
admitted, okay, but you need something to causally
relate or tie that into your case. Okay?
So, all right. Then Monday, 9:30.
MR. KATZMAN: Thank you, Judge.
THE COURT: All right. Have a nice weekend.
MR. FLOWERS: Thank you, Your Honor.
MR. COHEN: Thank you.
(Proceedings Concluded.)
* * * * * * *

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C E R T I F I C A T I O N
I, Karen English, the assigned transcriber,
do hereby certify the foregoing transcript of
proceedings on electronic recording dated 1/29/15,
electronic recording time from 01:28:11 to 03:05:11, is
prepared in full compliance with the current Transcript
Format for Judicial Proceedings and is a true and
accurate compressed transcript of the proceedings as
recorded.

/S/ Karen English


SIGNATURE

#421
AOC NUMBER

Karen English Trans. Svc.


AGENCY

March 27, 2015


DATE

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