1:13-cv-01225 #68

11374491.
5
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

THE NATIONAL ORGANIZATION FOR )
MARRIAGE, INC., )
)
Plaintiff, )
)
v. )
)
UNITED STATES OF AMERICA and )
INTERNAL REVENUE SERVICE, )
)
Defendant. )
_______________________________________)

Case No. Case 1:13-cv-01225-J CC-IDD

MEMORANDUM OF LAW IN SUPPORT OF THE UNITED STATES OF AMERICAS
MOTION FOR SUMMARY JUDGMENT

INTRODUCTION
On October 3, 2013, Plaintiff, the National Organization for Marriage, Inc. an entity
organized pursuant to 501(c)(4) of the Internal Revenue Code filed this suit against the
United States seeking damages for a wrongful inspection and disclosure by the Internal Revenue
Service (IRS) of Plaintiffs amended 2008 Form 990, Schedule B (Schedule of Contributors)
to a third party. [Dkt. 1]; see 26 U.S.C. 7431. The Schedule B identifies the names, addresses,
and donation amounts of Plaintiffs donors who had contributed $5,000 or more during the
calendar year. While federal law requires the IRS to provide a copy of the 501(c)(4)s Form 990
to the public upon request, the IRS is also required to redact the names and addresses of the
organizations donors before complying with a request from the public for a copy of the tax
return. See, e.g., 26 U.S.C. 6104(b). At bottom, the undisputed facts show that an IRS clerk
simply made a mistake in photocopying and redacting Plaintiffs amended 2008 Form 990
Schedule B before the IRS sent it to a third-party requestor.
Case 1:13-cv-01225-JCC-IDD Document 68 Filed 04/28/14 Page 1 of 32 PageID# 606

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Accordingly, the government has admitted, from the very outset of this lawsuit, that the
IRS inadvertently disclosed one unredacted copy of the Schedule B from Plaintiffs amended
2008 Form 990 (2008 Schedule B) to that single third party-requestor, entitling Plaintiff to
$1,000 in statutory damages. Plaintiff, on the other hand and without any evidence has
alleged, among other things, that the IRS disclosed Plaintiffs 2008 Schedule B intentionally and
willfully to one or more third parties, including Plaintiffs ideological opponent, the Human
Rights Campaign (HRC), as part of some ill-defined conspiracy against it. [Dkt. 1 (Verified
Compl.) at 14]; Defendants Exhibit (DEX) 1, at Resps. to Interr. #1, 6, 7, 9.
Alternatively, Plaintiff has alleged that the disclosure was the result of gross
negligence, and that the inspection (i.e. the IRS review) of the tax return, which preceded the
disclosure at issue, was also unlawful and done willfully or as the result of gross negligence.
DEX. 1 at Resps. #1, 6, 7, 9. Plaintiff has also alleged several categories of actual damages
that it claims were caused as a result of the disclosure almost all of which are attorneys fees
Plaintiff incurred over a year after the disclosure, when unrelated third parties disseminated and
publicized the 2008 Schedule B. See id. at Resp. #5; DEX 2.
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After the completion of discovery, however, Plaintiff has failed to adduce any evidence:
(a) that the disclosure was intentional, willful, and/or the result of any agreement or conspiracy,
(b) that the disclosure was the result of gross negligence, (c) that the disclosure was made to
HRC, Plaintiffs ideological opponent, or (d) that there were any unauthorized inspections of
Plaintiffs 2008 Schedule B.

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In its Verified Complaint, Plaintiff originally asserted that it also suffered actual damages in the form of a lost
donation of $50,000. [Dkt. 1 at 33, 34 & 124.] Plaintiff, however, refused to provide any information regarding
this would-be donor, precluding the governments defense on this issue. After the parties had met-and-conferred on
this topic, Plaintiff withdrew that portion of its damages claim, and it is not at issue in this case. See DEX 2.

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Specifically with regard to Plaintiffs claim of an intentional disclosure as part of a
conspiracy, because of a unique, non-repeatable identifying watermark that was logged into the
IRS database systems and also imprinted onto the disclosed copy of Plaintiffs amended 2008
Schedule B, the United States has been able to prove definitively that the tax return was
inadvertently disclosed as part of a public request for a copy of Plaintiffs 2008 tax return (i.e., a
Form 4506-A). This unique watermark when considered along with other documents and IRS
database records, and the uncontradicted testimony of IRS employees demonstrates that the
IRS employee who accessed and printed Plaintiffs 2008 Schedule B did so in accordance with
her official responsibilities as an IRS clerk in order to respond to a request made by a member of
the public for a copy of Plaintiffs tax return. The IRS employee was supposed to redact the
names and addresses of Plaintiffs contributors before sending a copy of the tax return to the
third-party requestor. Unfortunately, she failed to do so despite understanding that this was the
proper procedure. As set forth below, however, Plaintiff has no evidence that the IRS employee
made this disclosure intentionally as part of an illicit conspiracy. Indeed, the disclosure occurred
more than a year before the information became public, and was to someone unknown to both
the IRS employee and Plaintiff.
Regarding Plaintiffs claim that the disclosure was the result of gross negligence, the
facts that Plaintiff has identified to support such a conclusion are insufficient as a matter of law
for a finding of gross negligence under the statute and relevant Fourth Circuit case law. Finally,
on the issue of actual damages, Plaintiff is precluded from recovering anything other than the
$1,000 provided by statute because: (a) superseding causes and intervening actions not the
disclosure itself resulted in the alleged damages; and, (b) Plaintiff fully mitigated and offset

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its alleged damages by aggressively publicizing the disclosure and its lawsuit against the
government to raise funds.
Because Plaintiff cannot demonstrate the existence of any material fact in genuine dispute
as to Counts I, II, and its claims for damages, and because the United States is entitled to a
judgment as a matter of law, this Court should grant the United States motion.
STATEMENT OF UNDISPUTED MATERIAL FACTS

A. Facts Related to the Single, Inadvertent Disclosure
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1. In mid-J anuary, 2011, Matthew Meisel sent the IRS a completed Form 4506-A (Request
for Public Inspection or Copy of Exempt Organization IRS Form) requesting publicly available
copies of the Plaintiffs Form 990 for tax years 2007 and 2008. DEX 4, at Resps. to Interrs. 2(b),
2(g), and 3; DEX 3.
2. While completing the Form 4506-A, Meisel checked a specific box on Form 4506-A
indicating he was a member of the media. DEX 3; DEX 5, (Peters Tr. 39:23-41:14); see also
DEX 6 (sample Form 4506-A).
3. It was IRS policy to expedite media requests for copies of tax exempt organizations
Forms 990. Moreover, members of the media were generally not charged a fee for requesting
copies of Forms 990. DEX 5, (Peters Tr. 40:23-41:3; 44:24-45:6); DEX 7, (excerpted Internal
Revenue Manual (IRM) portions from 3.20.13) (GOV-PROD-2734-36) (IRM 3.20.13.4.7.2 (1-
1-2011)), (GOV-PROD-2741 (IRM 3.20.13.4.8.1)).
4. In general, requestors sent completed Forms 4506-A to the IRS offices in Ogden, Utah
for processing. DEX 6; DEX 7 (GOV-PROD-2711-12 (IRM 3.20.13.2.2 (1-1-2011)).

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Unless otherwise stated, all facts regarding IRS positions, policies and practices are as of 2011, when the
disclosure occurred.

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5. The IRS Return and Income Verification Services (RAIVS) unit was responsible for
responding to Forms 4506-A. DEX 7 (GOV-PROD-002724 (IRM 3.20.13.4 (1-1-2011)).
6. RAIVS clerk Wendy Peters processed the vast majority of the Forms 4506-A, which
related to a request for a copy of an exempt organizations tax return. DEX 5, (Peters Tr. 66:8-
13.) As a part of her official duties, Peters inspected exempt organization tax returns in order to
process the Form 4506-A requests. DEX 4 at Resp. to Interr. 3; DEX 5, (Peters Tr. 18:10-
19:11).
7. On J anuary 18, 2011, Peters began processing Meisels request for a copy of Plaintiffs
tax returns. In doing so, and in accordance with IRS procedures, Peters sought to verify
Meisels claimed media status. DEX 3; DEX 7 (GOV-PROD-002734-36 (IRM 3.20.13.4.7.2 (1-
1-2011))); DEX 5, (Peters Tr. 39:23-41:3). Accordingly, Peters left a voicemail for Peggy Riley,
an IRS media relations specialist, whose duty it was to determine whether Meisel (and others)
was a member of the media. DEX 3.
8. The next day, on J anuary 19, 2011, Peters e-mailed Riley, following up on the voice mail,
and asked if Meisel was a member of the media. Riley responded that she would let Peters know
shortly. Id.
9. On J anuary 21, 2011, Peters accessed Plaintiffs Form 990s for 2007 and the original and
amended Forms 990 for 2008, and printed all three to a printer in the RAIVS unit. DEX 8,
(GOV-PROD-00001524-25; GOV-PROD-0000587-90; 594-595); DEX 9 (Hamilton 1-29-2014
Tr. 33:11-35:11); DEX 4 at Resp. to Interr. 3(c), 3(g).
10. When Peters accessed and viewed Plaintiffs amended 2008 Form 990, a unique, non-
repeatable and permanent tracking number was created and recorded in an IRS database called

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the Statistics of Income Exempt Organizations Return Image Network (SEIN). See DEX 10,
(Hamilton 3-11-14 Tr. 19:22-23:8).
11. In addition to being recorded in the SEIN network, creating a so-called audit trail, this
tracking number 100560209 was imprinted diagonally as a watermark on each page of the
printed copy of Plaintiffs amended 2008 Form 990, including the Schedule B. DEX 9,
(Hamilton 1-29-2014 Tr. 33:11-35:11.) The IRS did not obscure or alter the watermark prior to
producing it to Meisel. DEX 4; see also DEX 5, (Peters. Tr. 56:10-57:15) (stating generally that
she did not redact the watermark and that it would still be on the page when it was produced to
the requestor).
12. Moreover, IRS printer logs, which are maintained in a separate database, revealed that
Peters had printed Plaintiffs amended 2008 Form 990 at or around the same time she had
accessed that tax return via Online SEIN (OL-SEIN), the IRS application that provides
authorized IRS employees with access to the tax returns stored on SEIN. DEX 9, (Hamilton 1-
29-14 Tr. 35:17-37:16); DEX 8 at GOV-PROD-587-90.
13. To view and print Plaintiffs amended 2008 Form 990 Peters had to access OL-SEIN. In
order to gain access to OL-SEIN, users like Peters needed to be initially approved for access to
OL-SEIN; afterwards she needed to first login to her general user environment with one
password and then separately login to OL-SEIN, specifically, with a separate password. DEX
10, (Hamilton 3-11-14 Tr. 23:16-25:23); DEX 9, (Hamilton 1-29-14 Tr. 20:3-21:19).
14. On J anuary 24, 2011, Peters again e-mailed Riley, following up on her inquiry regarding
Meisels claimed status as a member of the media. DEX 3.
15. On J anuary 31, 2011, Peters made certain entries into a third separate database, the IRS
Integrated Data Retrieval System (IDRS). The entries she made on that day to the IDRS

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system caused an IRS 3983C letter to be created relating to Meisels request for a copy of
NOMs tax returns. DEX 11; DEX 4 at Resp. 3(t); DEX 12 at Resp. Interr. 20.
16. An IRS 3983C letter was a standard response letter that the IRS used to respond to
requests for Form 990s submitted using Forms 4506-A. DEX 7 at GOV-PROD-0002704; GOV-
PROD-0002731; see also DEX 13 (template example of a 3983C letter and a 3983C letter sent to
Fred Karger).
17. The 3983C letter was mailed from the IRS Ogden Service Center 7-10 days after the
entry into the IDRS system. The IRS Service Center matched the 3983C cover letter with
Plaintiffs amended 2008 Form 990 and sent them to Meisel. DEX 4 at Resp. 3(u)-(w).
18. IRS procedures required that Peters redact the names and addresses of Plaintiffs
contributors before causing its amended 2008 Form 990 to be sent out to Mr. Meisel. See DEX 7
at GOV-PROD-002714, GOV-PROD-0002723. Peters understood that she was required to
redact the names and addresses of any exempt organizations contributors before producing a
copy of the Form 990. DEX 5, (Peters Tr. 61:19-62:4; 69:22-70:4.) However, with regard to the
Meisel request at issue in this case, Peters neglected to redact the names and addresses of
Plaintiffs donors on the Schedule B. DEX 4 at Resp. 3.
19. On March 28, 2012 over a year after Peters responded to Meisels Form 4506-A for
Plaintiffs 2008 tax return Meisel sent Kevin Nix, a Campaign Media Director for the Human
Rights Campaign (HRC), a copy of Plaintiffs amended 2008 Form 990, Schedule B. The
copy Meisel sent to Nix contained a redaction of the diagonal watermark on the tax return.
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During discovery, Plaintiff partially redacted this exhibit on the basis of a First Amendment privilege. Without
agreeing with Plaintiffs redactions, or otherwise waiving any objections, the government has attached the redacted
version of the document because the redacted information (i.e., the donor names) is immaterial to this motion. As
(continued...)

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HRC then provided the 2008 Schedule B to a Huffington Post political reporter named Sam
Stein. DEX 14.
20. On March 30, 2012, HRC and the Huffington Post posted the Schedule B information,
with the redacted watermark, on their respective websites. Dkt. 1 15-16. Specifically, HRC
and the Huffington Post issued a press release and published an article that focused on the fact
that an Alabama state Political Action Committee (PAC) associated with Governor Romney
(Free and Strong America Alabama-PAC) made a $10,000 donation to Plaintiff in 2008. DEX
14 at HRC Documents000038-39.
21. Plaintiff and later the Treasury Inspector General for Tax Administration (TIGTA)
as part of its own investigation into the disclosure were able to digitally un-redact the
watermark, revealing that the number 100560209 was imprinted on each page of Plaintiffs
amended 2008 Schedule B that HRC and the Huffington Post posted. See Dkt. 1 20, 21, 24.
22. Querying 100560209 in the SEIN database back at the IRS allowed the SEIN database
system administrator, David Hamilton, to identify Peters as the specific individual who accessed
Plaintiffs amended 2008 Form 990, Schedule B, including the date and time of the access. The
e-mails between Peters and Riley demonstrate that Peters had accessed and printed the amended
2008 Form 990 in response to a request for a copy of Plaintiffs tax return, the Form 4506-A.
DEX 4, Resp. 3(a)-(c), 3(n); DEX 9, (Hamilton 1-29-2014 Tr. 45:9-23.); DEX 3 (e-mails
between Peters and Riley). And, the inputs into the IDRS system demonstrate that Peters caused

( continued)
originally produced by HRC, this document did not contain any redactions. The government can provide an
unredacted version to the Court upon request.

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a 3983C letter to be mailed out to the requestor in response to the submission of a Form 4506-A.
DEX 11; DEX 4 at Resp. 2(b), 2(g) & 3(t); DEX 12 at Resp. to Interr. 20.
23. At the time of the disclosure, Peters did not know anything about Plaintiffs mission, its
officers, or directors, or those of Plaintiffs political opponent, HRC. Neither did she know
Meisel, the person who requested Plaintiffs return. DEX 5, (Peters Tr. 74:16-75:11; 73:9-18).
24. Peters has also never participated in any advocacy groups that advocate same-sex
marriage. DEX 5, (Peters Tr. 58:16-18.)
25. Plaintiff had not heard of Matthew Meisel until his name appeared in an article published
in the National Review Online or in documents received in connection with the congressional
investigations related to this disclosure. DEX 15, (Brown Tr. 114:10-115:10) (testifying as
Plaintiffs Fed. R. Civ. P. 30(b)(6) representative).
26. Other than the disclosure that occurred in this case, the IRS has no record of any other
disclosure inadvertent or otherwise resulting from a RAIVS unit clerk failing to redact
properly a Schedule B before sending it to a third-party requestor. DEX 5, (Peters Tr. 72:16-25);
DEX 16, (Whitaker Tr. 88:9-19). Specifically, of the more than 48,000 Form 990s produced by
the RAIVS unit from 2009 through 2012, the disclosure of Plaintiffs 2008 Schedule B is the
only case of which the IRS is aware where a RAIVS clerk failed to redact properly a Schedule B.
See id.; DEX 17 (volume of Form 990s produced from 2009 through 2013, and including part of
2014); DEX 4 at Resp. 3(l), 3(x) (noting the IRS responded to subsequent Form 4506-A requests
for Plaintiffs Form 990, and properly redacted the names and addresses of Plaintiffs
contributors).
B. Facts Related to Plaintiffs Claims For Actual Damages

27. Plaintiffs claims for actual damages are comprised of the following:

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Costs and attorneys fees regarding the Karger Complaint: $12,500;
Costs and attorneys fees from the unauthorized disclosure: $46,086.37, which
are delineated as follows: $43,470.09 in legal fees and expenses paid to ActRight
Legal Foundation and $2,616.28 in expenses paid to J ohn C. Eastman.
DEX 2, at Resp. to Interr. 5.
28. Plaintiff has defined the Karger Complaint as the legal fees that Plaintiff incurred after
Fred Karger, a former Republican candidate for President and gay-rights activist, filed a
complaint (and later a supplemental complaint) with the California Fair Political Practices
Commission (FPPC) alleging that Plaintiff violated California election law in 2008 relating to
its involvement in the passage of Proposition 8. DEX 15, (Brown Tr. 80:19-82:14); DEX 18,
(Karger Tr. 54:17-55:6; 76:2-4.)
29. In April 2012, more than a year after Meisel received Plaintiffs unredacted amended
2008 Form Schedule B from the IRS, Karger filed a complaint with the FPPC alleging that
Plaintiff received donations that it used as part of its efforts to pass Proposition 8, the alleged
failure of which to report violated California law. DEX 18, (Karger Tr. 20:5-11; 55:9-22); DEX
19 (partially redacted to remove names and addresses of Plaintiffs donors).
30. According to Plaintiff here, the allegations made by Mr. Karger were based solely on
[the 2008 Schedule B] donor information Mr. Karger admittedly gleaned from the dissemination
and subsequent publication of the Schedule B. Dkt. 1 35.
31. Karger, however, stated that he did not need any of the information from the 2008
Schedule B to make his original complaint to the FPPC. That information specifically, that an
Alabama Political Action Committee connected with then-Presidential hopeful Governor Mitt
Romney had made a contribution to Plaintiff in 2008 was already public on the Alabama state

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reporting website. That donation was not on file with California, which is what prompted Karger
to file his original complaint with the FPPC. DEX 18, (Karger Tr. 58:25-61:7); DEX 19.
32. In May 2012, Karger supplemented his complaint to allege that Plaintiffs failure to
report several other donations violated California election law, two of which were already
publicly reported. DEX 18, (Karger Tr. 61:8-20.)
33. Karger did not know and did not communicate with Meisel regarding the filing of either
of Kargers FPPC complaints. DEX 18, (Karger Tr. 31:23-32:5; 62:14-20.)
34. Karger did not consult with anyone at the White House or anyone employed by the
United States, the IRS, including Peters, the Human Rights Campaign, J oe Solmonese (the then-
head of HRC), Nix or Sainz at HRC, or anyone at the Huffington Post prior to filing either of his
FPPC complaints. DEX 18, (Karger Tr. 25:22-26:24; 54:8-16; 62:14-63:1; 76:5-22; 162:3-7;
163:2-7).
35. Karger filed his complaints with the FPPC of his own free will and based on
information that [he] found in the public domain because he thought NOM had violated
California law. DEX 18, (Karger Tr. 76:2-22); see also (Karger. Tr. 57:25-58:24) (Karger
took information . . . [he] found on the internet and then filed [his] complaint). He further was
not aware that a Schedule B was not a public document. DEX 18, (Karger Tr. 133:1-3).
36. Despite having submitted several Forms 4506-A to the IRS requesting Plaintiffs Form
990, Karger did not receive a copy of a 2008 Schedule B from the IRS. DEX 18, (Karger Tr.
37:1-39:6; 44:4-12). Moreover, Karger never received an unredacted Schedule B, whether 2008
or any other year, from the IRS in response to a Form 4506-A. (Id.)

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37. No one, including Meisel, HRC, Nix, the Huffington Post, nor anyone employed by the
federal government, informed Karger that the 2008 Schedule B had been publicly disseminated.
DEX 18, (Karger. Tr. 57:25-58:24.)
38. During the course of discovery, Plaintiff produced copies of its attorneys bills that it
incurred related to the Karger Complaints, which total $12,500. See DEX 20 (covering J une
2012). Plaintiff retained ActRight Legal Foundation to (i) send two letters to the FPPC
responding to Kargers Complaints (approximately $3,000), (ii) request that TIGTA investigate
Karger as a result of his FPPC complaints (approximately $600), and (iii) draft a possible lawsuit
against the FPPC, which it did not file (approximately $8,900).
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See id.
39. With respect to Plaintiffs remaining claims for costs and attorneys fees as damages, and
as identified above, Plaintiff paid to ActRight Legal Foundation, which is also co-counsel in the
instant suit, $43,470 in legal fees for various actions ActRight took after the public dissemination
of Plaintiffs 2008 Schedule B. DEX 15, (Brown Tr. 100:22-102:12); DEX 21. Largely, these
legal fees were incurred with respect to three separate assignments: (a) Plaintiffs initial and
internal investigation into how the disclosure occurred and response to requests for information
from TIGTA, DEX 21, at NOM-001654-67; (b) Plaintiffs preparation and filing of six Freedom
of Information Act (FOIA) and Privacy Act requests, including appeals, with the IRS and
TIGTA, seeking information on the cause of the disclosure of the 2008 Schedule B and the
identity of the IRS employee that caused the disclosure, DEX 15, (Brown Tr. 105:22-108:6);
and, (c) lobbying efforts on behalf of Plaintiff on Capitol Hill, the purpose of which was

4
Because ActRights billing entries contain different descriptions within a specific entry, the United States is unable
to definitely state the exact amount spent on each category.

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allegedly to seek information relating to the circumstances of the disclosure and to testify before
Congress, DEX 15, (Brown Tr. 108:13-120:20). These invoices cover periods from March 30,
2012 through early J anuary 2014. DEX 21. Plaintiff also seeks as actual damages the
reimbursement for certain expenses ActRight paid (including Lexis fees) in connection with the
three assignments listed above, which total approximately $1,500. DEX 25.
40. Plaintiff seeks damages of $2,616.28 for expenses paid to J ohn C. Eastman, related to
investigating how the 990 disclosure occurred. However, Plaintiff could not say specifically
what each of the expenses were for or how they related to the disclosure of its 2008 Schedule B.
DEX 15, (Brown Tr. 82:15-83:21; 86:13-90:5); see also DEX 22 (invoices for J ohn C. Eastman).
41. Plaintiff used the disclosure of its 2008 Schedule B and this subsequent suit against
the government as an opportunity to raise funds and increase its donations. DEX 1 at Resp. to
RFA 16 (Please admit that, in connection with NOMs efforts to solicit contributions, NOM has
referred to and/or publicized the disclosure of NOMs 2008 Form 990, Schedule B); DEX 1 at
Resp. to RFA 17 (similar).
42. Plaintiff received at least $46,086.37 in aggregate donations from electronic or online
sources . . . that referenced the disclosure or [its] prospective or actual lawsuit against the United
States DEX 23 at Resp. to RFA 21.
43. In addition to fundraising using electronic and online means, Plaintiff also used direct
mail in fundraising efforts related to the disclosure and this lawsuit. Specifically, Plaintiff raised
$63,811 from mailings to supporters that referenced to varying degrees the disclosure of its 2008
Schedule B or this lawsuit. DEX 24.

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44. Also, after [Plaintiff] learned of the disclosure, NOM received at least $75,000 in
aggregate donations from donors who had never donated to NOM before March 30, 2012 the
date Plaintiff learned of the disclosure. DEX 23 at Resp. to RFA 30; Dkt. 1 at 14.
45. Similarly, after [it] learned of the disclosure, NOM received at least $75,000 in
aggregate donations from donors who had previously donated to NOM but did so after March 30,
2012 in a dollar amount (or in multiple dollar amounts) greater that they had in any prior
calendar year. DEX 23 at Resp. to RFA 31.
46. During the year of the disclosure (March 2012), Plaintiff has admitted that contributions
and/or donations to NOM in 2012 exceeded the 2011 contributions by more than $3 million.
DEX 1 at Resp. to RFA 13.
SUMMARY JUDGMENT STANDARD
Summary judgment is warranted where there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). As here,
where the non-moving party will bear the burden of proof at trial, the moving partys obligation
in the summary judgment context is satisfied upon a showing that there is a lack of evidence to
carry the non-moving partys burden on any essential element of its cause of action. See Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The non-moving party must then go beyond the
pleadings and mere allegations to set forth specific facts showing that there is a genuine issue
for trial. Id. at 324. A plaintiff cannot create a genuine issue of material fact through mere
speculation, through the building of one inference upon another, or by pointing to a scintilla
of evidence in support of his claims. Othentec Ltd. v. Phelan, 526 F.3d 135, 140 (4th Cir. 2008).
Moreover, the mere existence of some alleged factual dispute cannot defeat a motion for
summary judgment the dispute must be both material and genuine, meaning it must be

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capable of changing the outcome of the lawsuit. Bryant v. Bell Atlantic Maryland, Inc., 288 F.3d
124, 132 (4th Cir. 2002).
ARGUMENT
I. Overview of 26 U.S.C. 7431
Federal law provides a civil remedy against the government for taxpayers whose tax
return has been inspected or disclosed in violation of 26 U.S.C. 6103. See 26 U.S.C. 7431.
If either an unauthorized disclosure or inspection occurs, the taxpayer is entitled to statutory
damages of $1,000 per inspection or disclosure, but may be entitled to actual damages sustained
by the plaintiff as a result of such unauthorized inspection or disclosure to the extent those
actual damages are greater than the statutory damages. 26 U.S.C. 7431(c)(1)(A)-(B). Further,
only if the unauthorized disclosure or inspection was willful or the result of gross negligence
an extremely high standard may the taxpayer be entitled to punitive damages. 26 U.S.C.
7431(c)(1)(B)(ii).
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Proving causation is necessary in order for a plaintiff to recover actual or punitive
damages beyond the statutory damages of $1,000 per disclosure. See 26 U.S.C. 7431(c)(1)(B).
To recover actual damages, plaintiffs bear the burden of proving not only an unauthorized
disclosure of their tax return, but also that actual economic damages were the result of the
disclosure. See 26 U.S.C. 7431(c)(1)(B)(i); Barrett v. United States, 917 F. Supp. 493, 502
(S.D. Tex. 1995) (taxpayer-doctor failed to prove that disclosure that he was under criminal
investigation caused actual damages to medical practice, even where number of doctors patients

5
The taxpayer may also be entitled to costs, and may be entitled to attorneys fees if the plaintiff satisfies the
requirements of 26 U.S.C. 7431(c)(3).

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and revenue decreased after the disclosure), affd 100 F.3d 35 (5th Cir. 2006); see Paroline, - - S.
Ct. - -, 2014 WL 1612426 (Apr. 23, 2014) (requiring proof of but-for and proximate causation in
federal statutory torts). Here, in its Answer, the United States admitted that the IRS
inadvertently disclosed Plaintiffs 2008 Schedule B without the proper redactions for the names
and addresses of Plaintiffs donors. Under 26 U.S.C. 7431(c)(1), Plaintiff is entitled only to
$1,000 because it has failed to prove it is entitled to more.
II. Plaintiff Cannot Demonstrate that the Inspection of its 2008 Schedule B was
Unlawful
Under 26 U.S.C. 6104(b), Congress mandated that the annual returns filed by an
exempt organization, including a 501(c)(4) such as the Plaintiff, must be made available for
public inspection and provided to requestors without more than a reasonable charge for any
reproduction or mailing costs. One way to request a copy of a Form 990 is to submit a properly
executed Form 4506-A. SoF 1-5; see also DEX 6 (copy of Form 4506-A). Upon receipt of a
Form 4506-A, the IRS employee, in this case Ms. Peters, lawfully inspects the taxpayers Form
990 in order to respond to the request as required by the Internal Revenue Code. See 26 U.S.C.
6103(h)(1) (permits the inspection by or disclosure [of returns] to officers and employees of the
Department of the Treasury whose official duties require such inspection or disclosure for tax
administration purposes); see also SoF 6. Plaintiff has claimed that one unauthorized
inspection occurred of its 2008 Schedule B, but has provided no facts to support its assertion that
the inspection was unauthorized or the result of a conspiracy. DEX 1 at 11-12.
Indeed, the material undisputed facts listed above establish the opposite: that the
inspection of Plaintiffs 2008 Schedule B by Ms. Peters in response to the Form 4506-A from
Mr. Meisel was proper. SoF 1-6. In J anuary 2011, Ms. Peters inspected this return while
performing her official IRS duties to respond to a third-party request for a copy of Plaintiffs tax

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returns. Id. Furthermore, as detailed below, there is no evidence that Ms. Peters inspected this
return as a part of a conspiracy or some other plot to disclose Plaintiffs unredacted 2008
Schedule B. Thus, because the inspection at issue was authorized by statute and did not violate
26 U.S.C. 6103, Plaintiffs claim of unlawful inspection fails as a matter of law. See 26 U.S.C.
7431(a)(1), 6103(h)(1) & 6104(b).
III. Plaintiff Cannot Demonstrate Willfulness Because It Has Not Identified any
Evidence that the Disclosure Was Other Than Inadvertent, Let Alone Part of a
Conspiracy Involving the IRS Employee Who Disclosed the 2008 Schedule B
Plaintiff has provided no evidence and, to be sure, none exists that the disclosure of
its 2008 Schedule B was willful, let alone part of some illicit agreement or conspiracy.
Specifically, Plaintiff has stated the following as proof that the disclosure was intentional:
The 2008 Schedule B was disclosed to a known political activist, opposed to
Plaintiffs ideology;
The 2008 Schedule B was altered to obscure its internal IRS markings;
Neither the United States nor the IRS informed Plaintiff that its confidential
Schedule B had been publicly disclosed; and,
The IRS and TIGTA have protected the identity of the IRS employee responsible
for the disclosure.
DEX 1 at Resp. to Interrs. #1, 6, 7, 9.
None of these allegations support the existence of a conspiracy by government employees
to intentionally disclose Plaintiffs 2008 Schedule B. The 2008 Schedule B was not disclosed to
a known political activist indeed, the IRS clerk who disclosed the tax return (as well as
Plaintiff itself) was not familiar with the requestors name or his political views. SoF 23.
Moreover, Plaintiff has failed to show that anyone at the IRS altered or obscured the internal IRS

18

markings instead of some third-party, like Mr. Meisel. Neither do the latter two proffered
allegations demonstrate any agreement, accord or conspiracy to intentionally disclose Plaintiffs
2008 Schedule B without the proper redactions.
6

In fact, there is no evidence whatsoever that connects Plaintiffs asserted indicia of
intentional conduct to the IRS employee that actually accessed, printed, and inadvertently failed
to redact the 2008 Schedule B before producing it, upon request, to a member of the public more
than a year before the subsequent publication by HRC and the Huffington Post. SoF 1-26.
And Plaintiff has adduced no evidence that would show the tax return came from anyone other
than the IRS employee tasked with providing the return in response to the Form 4506-A.
Because Plaintiff has failed in that regard, its allegations are irrelevant and its cited facts
immaterial. See Celotex Corp., 477 U.S. at 322-23 (where the non-moving party will bear the
burden of proof at trial, the moving partys obligation in the summary judgment context is
satisfied upon a showing that there is a lack of evidence to carry the non-moving partys burden
on any essential element).
By contrast and even though Plaintiff indisputably carries all evidentiary burdens at trial,
the material undisputed facts listed above provide a specific timeline that makes clear that
Plaintiffs 2008 Schedule B was disclosed inadvertently as part of a single clerks mistake while
performing her official IRS duties to respond to a third-party request for a copy of Plaintiffs tax

6
Under 26 U.S.C. 7431(e), Plaintiff was only entitled to learn about an unlawful disclosure or inspection if a
person was criminally charged by indictment or information with inspection or disclosure . . . . No person has
been charged with the disclosure or inspection. Furthermore, in this litigation, Plaintiff learned the identity of the
person responsible for the inadvertent disclosure and took that persons deposition. Plaintiff also took the deposition
of the TIGTA agent who was primarily responsible for the investigation of the disclosure. Hence these last two
bullet points do not support Plaintiffs argument that the inspection and/or disclosure of its amended 2008 Form 990
unredacted Schedule B was intentional or willful.

19

returns. SoF 1-26. Specifically, in early 2011 and more than a year before its publication by
HRC and the Huffington Post, Ms. Peters received a Form 4506-A from Mr. Meisel, processed it
but failed to redact it properly, and caused it to be sent out from the IRS service center in Ogden,
Utah. Id. Furthermore, Ms. Peters did not know Mr. Meisel, had no connection with HRC, was
not involved in the same sex marriage debate, and was not otherwise directed to disclose
Plaintiffs unredacted Schedule B, either inside or outside of the government. SoF 23-25.
Plaintiff has provided nothing conspiratorial about this timeline, let alone provided any evidence
that creates a question of fact regarding the allegations included within its Verified Complaint.
Accordingly, the Court should grant the United States motion for summary judgment regarding
Plaintiffs claims concerning a willful inspection and disclosure.
IV. Plaintiff Cannot Demonstrate that the Disclosure of its 2008 Schedule B Was the
Result of Gross Negligence
Plaintiff, as a matter of law, cannot demonstrate that the disclosure of its 2008 Schedule
B was the result of gross negligence. Indeed, even assuming, arguendo, the truth of all facts that
Plaintiff has contended support that the disclosure was the result of gross negligence, those facts
fail as a matter of law to rise to the level of gross negligence under 26 U.S.C. 7431(c), and
relevant Fourth Circuit case law.
In support of its gross negligence claim, Plaintiff identified the same facts as its
conspiracy claim: namely, that the tax return was disclosed to a known political activist
opposed to Plaintiffs ideology; the 2008 Schedule B was altered to obscure its internal IRS
markings; neither the United States nor the IRS informed Plaintiff that its confidential Schedule
B had been publicly disclosed; and the IRS and TIGTA protected the identity of the IRS
employee responsible for the disclosure. DEX 1 at Resp. to Interrs. #1, 6, 7, and 9 (identifying,

20

without any explanation, the same facts as support for both the existence of a conspiracy and of
gross negligence).
These identified facts are immaterial to the question of whether the 2008 Schedule B was
disclosed as a result of gross negligence especially actions the government allegedly took
after the disclosure occurred, such as the alleged altering of internal IRS markings, failing to
inform Plaintiff of the disclosure, and protecting the identity of the IRS employee responsible for
the disclosure.
7
Even the first factor Plaintiff cites that the return was allegedly disclosed to a
known political activist is immaterial. See Miller v. United States, 66 F.3d 220, 224 (9th Cir.
1995) (IRS employees disclosure to person he knew to be reporter did not constitute gross
negligence, but instead was an oops case).
8
More significantly, there is uncontroverted
testimony that neither Peters nor Plaintiff was familiar with Meisel or his political views, and
that Peters understood that she was required to redact the names and addresses of Plaintiffs
donors, so there is no genuine issue of material fact as to this. SoF 18, 23. Indeed, Brian
Brown, Plaintiffs Fed. R. Civ. P. 30(b)(6) representative and its President, admitted during his
deposition that he had not heard of Matthew Meisel until a year and a half after the disclosure
when Meisels name appeared in an article published in the October 30, 2012 National Review
Online or in documents received in connection with the congressional investigations related to
this disclosure. DEX 15, (Brown Tr. 114:10-115:10).

7
Of course, the government does not concede that it took any of these actions, but for purposes of this motion they
are immaterial because these actions do not constitute gross negligence even if they were true.
8
Under 26 U.S.C. 6104(b), the IRS must redact the names and addresses of donors before producing a copy of the
Schedule B to anyone; whether the recipient was a political activist is immaterial.

21

In the context of 26 U.S.C. 7431 the statute under which Plaintiff brings its claims
gross negligence requires conduct that is marked by wanton or reckless disregard of the
rights of another. Scrimgeour v. Internal Revenue, 149 F.3d 318, 324 (4th Cir. 1998) (internal
citations omitted); Mallas v. United States, 1995 U.S. App. LEXIS 10766, at *8 (4th Cir. May
15, 1995) (requiring, for a finding of gross negligence, that the disclosure represents a flagrant
violation of 26 U.S.C. 6103) (internal citation omitted). By contrast, simple negligence is
the lack of due care, or the failure to do what a reasonable and ordinarily prudent person would
do under the circumstances. Scrimgeour, 149 F.3d at 324 (citing Zfass v. Commr, 118 F.3d
184, 188 (4th Cir. 1997)) (internal citations and quotations omitted). The case law shows that
the inadvertent disclosure here was simple negligence and nothing more.
In Scrimgeour, a case with similar facts, but far more favorable to that plaintiff, the
Fourth Circuit held that gross negligence did not exist where the taxpayers sister as part of a
lawsuit against the taxpayer submitted signed IRS Forms 4506
9
and a clearly insufficient
subpoena to two IRS service centers, which requested numerous copies of the taxpayers tax
returns. 149 F.3d at 321. One service center noticed that the requests were invalid and refused
to supply the requested information, but deficiencies in the requests went unnoticed, and
[photocopies of] Scrimgeours tax returns were released inappropriately to the sisters attorney
by the second service center. Id. at 322-24. On November 24, 1993, after Scrimgeour realized
that his sister had improperly obtained his tax returns, he requested that the IRS investigate the
disclosures. Still, for over two months, while the request for an investigation was winding its

9
Similar to an IRS Form 4506-A, which is at issue in this case and is used by third parties to request the public
copies of others tax returns, the Form 4506 is used by taxpayers to request copies of their own tax returns.
Scrimgeour, 149 F.3d at 321 n.5.

22

way through the various departments at the IRS at a snail-pace, the second service center
continued to release Scrimgeours tax returns. Id. at 322, 325. Only after the second service
center was notified about the disclosures, around February 7, 1994, did it cease photocopying
and producing the requested tax returns per the Form 4506. Id. The district court determined
that neither the disclosures that occurred before nor after the request for an investigation were the
result of gross negligence. The Fourth Circuit affirmed, stating that inefficiency in the
investigation and the simple lack of care were insufficient to rise to the level of gross negligence.
See id. at 325-26.
Likewise, in Mallas, the Fourth Circuit affirmed a district courts determination that the
IRS disclosures of the taxpayers return information in 73 separate instances was neither willful
nor the result of gross negligence. Mallas, 1995 U.S. App. LEXIS 10766 at *7-8 (4th Cir. 1995).
Mallas had been prosecuted for tax evasion and fraud for promoting a tax shelter to investors;
after his conviction, the IRS prepared reports that it sent to dozens of investors in Mallas tax
shelter scheme, informing them that their losses would be disallowed. Id. at *2-3. This report,
however, was disseminated to these investors for three years after the Fourth Circuit had
reversed Mallas convictions. Id. at *8. The Fourth Circuit affirmed the district courts
determination that the disclosures were not the result of gross negligence, despite Mallas
position that gross negligence could be inferred from the mere fact that the IRS disseminated
the [reports] for over three years after his convictions were reversed. Id.
Scrimgeour and Mallas demonstrate that, as a matter of law, the disclosure of Plaintiffs
2008 Schedule B here falls far short of this high standard of gross negligence. In Scrimgeour,
the Fourth Circuit determined that the IRS disclosures over several months responsive to clearly
insufficient requests for information were not the result of gross negligence even where the

23

disclosures continued for over two months after the taxpayer had requested an investigation into
the disclosures. See 149 F.3d at 321-26. Likewise, in Mallas, the Fourth Circuit determined that
the IRS continued dissemination of protected information for three years after the Court of
Appeals had reversed the taxpayers convictions failed to constitute gross negligence. 1995 U.S.
App. LEXIS 10766 at *8. As is apparent from the two leading cases in the Fourth Circuit, gross
negligence is an extremely high standard, and Plaintiff here has failed to come close to
identifying facts in support of such an allegation. Plaintiff cannot prove that the single
inadvertent disclosure of its unredacted Schedule B, out of more than 48,000 Form 990s
produced by the IRS from 2009 through 2012 that included a number of other copies of
Plaintiffs Form 990s, constituted gross negligence. SoF 26. Therefore, the Court should grant
the governments motion for summary judgment regarding Plaintiffs claims of disclosure
resulting from gross negligence. See also Jones v. United States, 207 F.3d 508, 509-512 (8th
Cir. 2000) (IRS agents tip of impending raid to a confidential informant, who informed
television station, did not constitute gross negligence); Barrett v. United States, 100 F.3d 35, 41
(5th Cir. 1996) (bad faith in disclosure that occurred during criminal investigation insufficient
to constitute gross negligence); Hamad v. IRS, 1997 U.S. Dist. LEXIS 7698 at * 3-9 (D. Tex.
May 22, 1997) (IRS processing of request for copies of tax returns based on obviously expired
Form 4506 did not constitute gross negligence).
Furthermore, because Plaintiff cannot demonstrate that the disclosure was either willful
or the result of gross negligence, it is not entitled to punitive damages, and the Court should
grant the United States motion for summary judgment on Plaintiffs claim for punitive damages.
See 26 U.S.C. 7431(c)(1)(B)(ii).

24

V. Plaintiff Cannot Demonstrate That It Is Entitled to any Actual Damages
Section 7431 provides that a plaintiff may recover actual damages against the United
States if the plaintiff can prove it sustained those damages as a result of an unauthorized
disclosure of its tax return information. See 26 U.S.C. 7431(c)(1)(B)(i). In this case,
Plaintiffs alleged actual damages are primarily attorneys fees in two different forms. First,
Plaintiff seeks $12,500 in attorneys fees in connection with its response to the Karger
Complaint. Second, Plaintiff seeks the recovery of attorneys fees it expended between the time
that HRC published the unredacted 2008 Schedule B and the filing of the complaint in this civil
action, as well as certain limited expenses incurred by J ohn Eastman, Plaintiffs Chairman and
one of its counsel of record, and ActRight Legal Foundation. None of these alleged damages are
recoverable as actual damages under section 7431 because, as a matter of law: (i) the actual
damages claimed were not sustained as a result of the IRS inadvertent disclosure, but rather
were the result of the intervening actions of third parties; and, (ii) the losses alleged as
damages were mitigated and offset by Plaintiffs aggressive solicitation of donations from its
supporters based on the disclosure and this lawsuit.
A. Plaintiffs Alleged Damages Were Not Caused By the Disclosure
Plaintiff here cannot meet its burden to prove that the damages it claims were caused by
the unauthorized disclosure. E.g., 26 U.S.C. 7431(c)(1)(B) (sustained . . . as a result of . . .);
Jones v. United States, 9 F. Supp. 2d 1119, 1137 (D. Neb. 1998) (plaintiff bears burden to prove
two elements of causation but for and proximate cause in wrongful disclosure suit under
26 U.S.C. 7431), affd in part, revd in part on other grounds, Jones, 207 F.3d at 509-12; see
Barrett, 100 F.3d at 40.
The Supreme Courts recent decision in Paroline v. United States is particularly
instructive on causation in connection with statutory torts. In that case, the Supreme Court

25

addressed actual and proximate causation in the context of a statute awarding restitution for
victims of child pornography. Paroline, -- S. Ct. --, 2014 WL 1612426 (Apr. 23, 2014). The
statute at issue in that case like section 7431 here provides for restitution the victim
sustained as a result of the alleged harm. See id. at *6, quoting 18 U.S.C. 3364(e).
In Paroline, the Supreme Court recited the common maxim that a plaintiff must prove
both proximate and actual cause to recover damages that are a result of a particular defendants
conduct. 2014 WL 1612426 at *7. Because events tend to have many causes, proximate cause is
a legal concept that generally refers to the basic requirement that there must be some direct
relation between the injury asserted and the injurious conduct alleged. Id. (citations and internal
quotations omitted). A requirement of proving proximate cause thus serves, inter alia, to
preclude liability in situations where the causal link between conduct and result is so attenuated
that the consequence is more aptly described as mere fortuity. Id.
10

Finally, the Supreme Court reaffirmed that an injured party must prove that the conduct
by the defendant (as opposed to other actions by other actors) caused the alleged damages. Id. at
*8 (This is an important point, for it means the central concern of the causal inquiry must be the
conduct of the particular defendant from whom restitution is sought); id. at *20-21 (Roberts,
C.J ., dissenting) (citing other instances interpreting nearly identical statutory language to
preclude recovery for losses caused by any other crime or any other defendant). In sum, if a
chain of events includes intervening, independent actors or occurrences, causation is lacking.

10
In addition, the phrase proximate cause does not need to appear in a statute; the injured party still must make the
required and specific showing. Id. at *8-10 (observing that the Court has more than once found a proximate-cause
requirement built into a statute that did not expressly impose one, reciting that proximate causation is a part of
causation, and holding that 18 U.S.C. 2259 requires proof of proximate causation for any claimed losses).

26

See Barrett, 100 F.3d at 40 (holding that evidence of possible independent causes of taxpayers
financial loss due to IRS disclosure, and not the disclosure itself, precluded award of actual
damages); Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012) ( 1983 claims require a
demonstration of both but-for and proximate causation and subsequent acts of independent
decision-makers . . . may constitute intervening superseding causes that break the causal
chain); see also Paroline, 2014 WL 1612426, at *7-13.
In this case, Plaintiffs alleged actual damages arise out of acts by non-IRS personnel,
several steps removed from any conduct by the IRS or any of its employees. Specifically, the
alleged damages stem from HRCs acts and various internet news outlets publishing and
disseminating what yet another third-party provided to HRC. The IRS inadvertently disclosed
Plaintiffs 2008 Form 990 Schedule B in early 2011. SoF 1-25. The Schedule B was
disclosed to an individual Meisel with no known ties to HRC or any media outlet. SoF
23, 25. More than a year later, on March 30, 2012, Plaintiffs 2008 Schedule B appeared on
HRCs website. SoF 20. Exhibit 14 indicates that Meisel sought out an individual at HRC,
and provided him with the 2008 Schedule B. HRC further disseminated the 2008 Schedule B
when it sent it to a reporter at the Huffington Post, who published an article on it. Id. These are
separate decisions by independent actors: first, Meisels decision to deliver the 2008 Schedule B
to HRC over a year after having received it from the IRS; second, HRCs use of the Schedule B
in publicity; and third, HRCs decision to further send this information to the Huffington Post
were all intervening events. The causal chain between the inadvertent disclosure, which
occurred in early 2011, and Plaintiffs legal fees over a year later, in 2012 and 2013, is far too

27

attenuated, and full of intervening, independent actions by multiple third parties, to justify actual
damages under section 7431 for the inadvertent act by an IRS clerk.
11

Nonetheless, Plaintiff seeks to recover nearly $50,000 in attorneys fees and expenses for
investigating the publishing of the 2008 Schedule B, for filing multiple FOIA and Privacy Act
requests with the IRS and with TIGTA, and for contacting members of Congress and their staff.
But those legal fees were linked to the ultimate publication and broad dissemination of the 2008
Schedule B, which was the result of the independent choices by multiple intervening actors
not the result of the initial IRS disclosure itself.
12
Further, the substance of these damages claims
were not even the but-for cause of the disclosure; rather, Plaintiff affirmatively chose to lobby
members of Congress and their staff, and to file multiple FOIA and Privacy Act requests. These
actions, and the legal fees Plaintiff incurred as a result of its decisions, are not injuries properly
compensable as actual damages, but merely the cost of voluntary action taken by Plaintiff.
Similarly, Plaintiff also seeks to recover $12,500 in attorneys fees associated with Fred
Kargers administrative complaints that alleged violations of Californias campaign finance

11
Furthermore, Plaintiff believes that Meisel (and others) have committed a felony under federal law by violating 26
U.S.C. 7213(a)(3), which prohibits the publishing or printing of tax return information. See dkt. 1 37, 71. In
response to deposition questions and on the advice of counsel, Meisel asserted his rights under the 5th Amendment
and declined to answer deposition questions. He also withheld certain unknown documents that might have been
responsive to the parties Rule 45 subpoenas. Plaintiff moved to compel the production of documents from Meisel;
a hearing was held before J udge Davis, who did not discount the possibility that Meisel had violated section
7213(a)(3), and accordingly denied Plaintiffs motion to compel. Dkt. 54. While the United States takes no position
on Plaintiffs interpretation of section 7213(a)(3) or whether Meisel or others may have violated that statute, if that
interpretation were valid, then the criminal actions of a third party (or parties) would be an additional intervening act
and superseding cause sufficient to break any claimed causal chain of damages relating to the IRS original
disclosure of Plaintiffs 2008 Schedule B to Meisel.
12
Moreover, to the extent that Plaintiff is claiming actual damages from attorneys fees relating to filing multiple
FOIA and Privacy Act requests, the Court should disallow its claim because both of those statutes provide for their
own award of attorneys fees should a litigant substantially prevail in a FOIA or Privacy Act suit against the
government. See 5 U.S.C. 552(a)(4)(E) (FOIA); 5 U.S.C. 552a(g) (Privacy Act). Plaintiffs demand for
attorneys fees as actual damages is simply a backdoor attempt to obtain fees improperly.

28

regulations. Karger did not obtain the unredacted Schedule B from the IRS, and he filed his
complaint without any assistance or involvement by the IRS. SoF 31, 34, 36, 37. He, alone,
chose to file a complaint based on information published on the Internet more than a year after
the IRS inadvertent disclosure, and without the involvement of Meisel, HRC or any other third
party. SoF 29, 31-37. Plaintiffs attorneys fees in response to Kargers actions are also too
removed to provide a causal link that reaches back to the IRS sole inadvertent disclosure for the
additional reason that the California FPPCs decision to investigate Plaintiff for alleged
violations of state law was another independent, intervening action by a separate third party.
13

B. Plaintiff Has Mitigated / Offset its Claims for Actual Damages Through
Aggressive Fundraising in Multiple Forums

Finally, Plaintiff should not be allowed to recover the amounts it seeks because it has
fully mitigated / offset any damages. As recounted above, Plaintiffs actual damages claim
totals $58,586.37: $12,500 in connection with Karger and $46,086.37 in attorneys fees and
expenses. SoF 27. Plaintiff admitted that it raised a total of $63,811 from direct mailings to
supporters that referenced to varying degrees the disclosure of its 2008 Schedule B or its lawsuit
against the government. SoF 43. Similarly, Plaintiff has admitted that it received at least
$46,086.37 in online or electronic donations that, to some extent, referenced the disclosure of the
2008 Schedule B or this action. SoF 42. As more proof that Plaintiff successfully raised more
as a result of the disclosure than it claims to have lost in actual damages, Plaintiff has stated that
after it learned of the disclosure, it received at least $75,000 in aggregate donations from donors

13
Also, as with the decisions to submit FOIA and Privacy Act requests and to lobby Congress, Plaintiffs
expenditure of $8,900 to explore a lawsuit against the FPPC, which Plaintiff then chose not to file, are the result of
Plaintiffs independent decisions, and not the but for result of the disclosure.

29

who had never donated to NOM before March 30, 2012 the date Plaintiff learned of the
disclosure. SoF 44. And, Plaintiff received additional contributions of at least $75,000 from
donors who had previously donated to NOM but did so after March 30, 2012 in a dollar amount
(or in multiple dollar amounts) greater that they had in any prior calendar year. SoF 45.
Actual damages are limited to what is necessary to place the plaintiff as nearly as
possible in the position he or she would have occupied had it not been for the defendants tort.
22 Am. J ur. 2d Damages 137; Kittrell v. RRR, L.L.C., 280 F. Supp. 2d 517, 522-523 (E.D. Va.
2003), citing 22 Am. J ur. 2d Damages 27 (2003) (Likewise, limiting plaintiffs recovery to a
single award is consistent with the principle that compensatory damages, such as actual damages
available under [15 U.S.C.] 1640(a)(1), are intended to make an injured party whole, not to
allow her to turn a profit or gain a multiple recovery.); see also 22 Am. J ur. 2d Damages 32
([a] plaintiff may not receive a double recovery for the same injuries or losses arising from the
same conduct or wrong). Accordingly, it would be incongruous with fundamental principles of
law to allow Plaintiff to recover damages when it has already mitigated and offset those alleged
damages by soliciting and receiving donations using the instant lawsuit and the very action it has
complained about.
14
See Johnson v. Sawyer, 120 F.3d 1307, 1330 (5th Cir. 1997) (allowing for
consideration of mitigation in determining actual damages incurred after the disclosure of

14
Although Plaintiff appears to hide behind the lack of knowledge or ability to discern whether a particular
donation was connected to this litigation or the unauthorized disclosure, that claim is insufficient to create a genuine
issue of material fact. Moreover, it is Plaintiffs burden to prove with admissible evidence that it is entitled to each
dollar of claimed actual damages. Because Plaintiff has refused to identify any of its donors in response to
discovery requests about motives for donations, it cannot now assert that these unidentified donors may have given
money for some reason unrelated to the present litigation or the disclosure of the 2008 Schedule B. Indeed, given
that Plaintiff has admitted that it received over $75,000 in aggregate donations from donors who never contributed
to Plaintiff before the disclosure, and over $75,000 from donors who gave more than they had historically donated
only after the disclosure, Plaintiff bears the burden of disproving that these donations were as a result of the
disclosure or its lawsuit against the United States. SoF 41-46.

30

confidential information in a section 7431 suit). Given all of these admissions by Plaintiff, the
Court should grant the United States motion for summary judgment on Plaintiffs claims for
actual damages so that Plaintiff does not recover the funds to pay its attorneys twice once
from its supportive contributors, and once from the United States.
CONCLUSION
For these reasons, this Court should grant the United States motion, enter judgment in
favor of the Plaintiff for $1,000 only and deny its claims for attorneys fees and costs since it
cannot establish that it was a prevailing party under 26 U.S.C. 7430.
15

Respectfully submitted,

Date: April 28, 2014
KATHRYN KENEALLY
Assistant Attorney General
Tax Division

PHILIP M. SCHREIBER*
BENJ AMIN L. TOMPKINS*
CHRISTOPER D. BELEN
Trial Attorneys, Tax Division
U.S. Department of J ustice
Post Office Box 14198
Ben Franklin Station
Washington, DC 20044
(202) 514-6069 (Mr. Schreiber)
(202) 514-5885 (Mr. Tompkins)
(202) 307-2089 (Mr. Belen)
Fax: 202 514-9868
E-Mail: philip.m.schreiber@usdoj.gov

15
While we believe that a judgment that the United States owes only $1,000 in statutory damages should be
dispositive on the issue of prevailing party for purposes of section 7430, if the Court does not agree, the United
States reserves the right to respond separately to any motion by Plaintiff for attorneys fees on all grounds, including
whether Plaintiff is a prevailing party, whether the United States defenses in the litigation were substantially
justified, and the reasonableness of Plaintiffs attorneys fees.

31

benjamin.l.tompkins@usdoj.gov
christopher.d.belen@usdoj.gov

DANA J . BOENTE
UNITED STATES ATTORNEY

_/s/___________________________
David Moskowitz
Assistant U.S. Attorney
2100 J amieson Avenue
Alexandria, Virginia 22314
Telephone: (703) 299-3845
Fax: (703) 299-3983
E-Mail: david.moskowitz@usdoj.gov

Attorneys for the United States of America

* Admitted pro hac vice

11374491.5
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on April 28, 2014, I will electronically file the foregoing with
the Clerk of Court using the CM/ECF system, which will send a notification of electronic filing
to the following:
J ason Torchinsky
Shawn Toomey Sheehy
Holtzman Vogel J osefiak PLLC
45 North Hill Drive, Suite 100
Warrenton, VA 20186
(540) 341-8808 (telephone)
(540) 341-8809 (fax)
jtorchinsky@hvjlaw.com
ssheehy@hvjlaw.com

/s/
David Moskowitz
Telephone: (703) 299-3845
Fax: (703) 299-3983


11387530.1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

MARRIAGE, INC. )
)
Plaintiff, )
)
v. ) Civil Action No. 1:13-1225-J CC-IDD
)
THE UNITED STATES OF AMERICA, )
)
Defendant. )
__________________________________________)

DEFENDANTS EXHIBIT LIST IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT

Below is a list of exhibits in support of the United States motion for summary judgment:
Def.
Exhibit
Number
(DEX)
Description
1
Plaintiffs Responses to the Defendants First Set of Discovery Requests, dated
1/21/2014 (cited discovery responses only)
2
Plaintiffs Suppl. Response to the Defendants First Set of Discovery Requests, dated
2/12/2014 (Resp. No. 5)
3 GOV-PROD-0002163-66 (e-mails between Wendy Peters and Peggy Riley)
4
Defendants Supplemental and Amended Responses to Plaintiffs First Set of
Discovery Requests, dated 3/4/2014
5 Excerpts from the J anuary 29, 2014 Deposition of Wendy Peters
6 Sample IRS Form 4506-A with instructions (GOV-PROD-001593, 1595-96)
7 Excerpts from Internal Revenue Manual 3.20.13 (1-1-2011)
8 IRS Access and Printer Logs (GOV-PROD-0001524-25, 587-590, and 594-95)
9 Excerpts from the J anuary 29, 2014 Deposition of David Hamilton
10 Excerpts from the March 11, 2014 Deposition of David Hamilton
11 Excerpt from IRS ENMOD transcript (GOV-PROD-0000708)
12
Defendants Objections and Responses to Plaintiffs Second Set of Discovery
Requests, dated 3/12/2014
Case 1:13-cv-01225-JCC-IDD Document 68-1 Filed 04/28/14 Page 1 of 2 PageID# 638
2

13
Template example of a 3983C letter (GOV-PROD-000638-642) and 3983C letter sent
to Fred Karger (Karger 000020-21)
14
HRC documents regarding the information received from Matthew Meisel and HRCs
communication with the Huffington Post
(HRC Documents0000007-19, 38-39 and 97)
15 Excerpts from March 14, 2014 Deposition of Brian Brown
16 Excerpts from March 11, 2014 Deposition of Sherry Whitaker
17 Volumes of copies of Form 990s produced by the IRS (GOV-PROD-0000643)
18 Excerpts from March 12, 2014 Deposition of Fred Karger
19 Karger FPPC Complaints (Karger000167-180, 190-205)
20 ActRight Legal Foundation Karger-related invoices (NOM-003700-03)
21 ActRight Legal Foundation IRS related invoices (NOM-01654-1790)
22 Invoices for J ohn C. Eastman (NOM-01633-49)
23
Plaintiffs Responses to Defendants Set of Requests for Admission and
Interrogatories, dated 3/11/14
24
Plaintiffs Supplemental Response to Defendants Second Set of Requests for
Admission and Interrogatories to Plaintiff, dated 4/1/2014
25 ActRight Expenses (NOM-001791-98)

1
ALEXANDRIA DIVISION
The NATIONAL ORGANIZATION FOR
MARRIAGE, INC.,
Plaintiff,
v.
The UNITED STATES OF AMERICA,
INTERNAL REVENUE SERVICE,
Defendant.
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Case No. 13-1225-JCC-IDD
PLAINTIFFS RESPONSES TO DEFENDANTS FIRST SET OF REQUESTS FOR
PRODUCTION OF DOCUMENTS, INTERROGATORIES, AND
REQUESTS FOR ADMISSION TO PLAINTIFF
Plaintiff, The National Organization For Marriage, Inc., by counsel, pursuant to Rules33,
34, and 36of the Federal Rules of Civil Procedure, and Local Civil Rule 26, hereby provides its
responses to Defendant, the United States of America, Internal Revenue Services First Set of
Requests For Production of Documents, Interrogatories, and Requests for Admission to Plaintiff
dated December 18, 2013(Defendants First Discovery Requests).
GENERAL OBJECTIONS
Plaintiff incorporates by reference its general objections dated J anuary 2, 2014.
I. SPECIFIC OBJECTIONS AND RESPONSES TO REQUESTS FOR
PRODUCTION OF DOCUMENTS
1. All documents that you filed with, sent to, or received from the Internal Revenue
Service, the U.S. Treasury Inspector General for Tax Administration (TIGTA), the
Department of Justice, or any member or committee of the United States Congress that relate
to this lawsuit, the IRS disclosure or alleged inspection of NOMs 2008 Form 990, Schedule
B, or any of the contentions in your Complaint.
Objections: Plaintiff incorporates by reference its objections dated J anuary 2, 2014, and
J anuary 6, 2014.
Defendant
Exhibit
_____________
1
10
I. INTERROGATORIES
INTERROGATORY NO. 1
State all facts and describe in detail all disclosures and inspections of NOMs tax
returns or tax return information that form the basis of your Complaint in this case,
including, separately for each alleged disclosure or inspection:
(a) what specific tax return or tax return information was unlawfully inspected or
disclosed;
(b) who inspected or disclosed the tax return information;
(c) where and when such inspection or disclosure occurred;
(d) to whom (outside the Internal Revenue Service) the tax return or tax return
information was directly provided by the IRS;
(e) how you contend the alleged inspection constituted an unauthorized inspection
under 26 U.S.C. 6103, and all factual and legal bases for that contention;
(f) whether you contend the disclosure or inspection was the result of gross negligence
or was willful (as those terms are used in 26 U.S.C. 7431 and applicable case law), and all
factual and legal bases for that contention;
(g) when NOM or anyone associated with NOM learned of the inspection or disclosure,
and;
(h) identify all documents and persons with knowledge that tend to support or
undermine your contentions in (a) through (g) above.
J anuary 6, 2014.
Response: Subject to and without waiving its objections, Plaintiff responds as follows:
(a) As is set forth in Plaintiffs complaint, at minimum, theunredacted Schedule B to its
2008 Form 990 (Schedule B) was unlawfully inspected and/or disclosed. As Plaintiffs
investigation and discovery is still ongoing, this response will be supplemented as needed.
(b) As is set forth in Plaintiffs complaint, one or more individuals employed by the
Internal Revenue Service(IRS) inspected and/or disclosed Plaintiffs tax return and/or return
11
information. As Plaintiffs investigation and discovery is still ongoing, this response will be
supplemented as needed.
(c) As is set forth in Plaintiffs complaint, individuals employed by the IRS inspected
and/or disclosed its tax return and/or return information on or before the public dissemination of
its Schedule B by the District of Columbia-based Human Rights Campaign on March 30, 2012.
As Plaintiffs investigation and discovery is still ongoing, this response will be supplemented as
needed.
(d) To the best of Plaintiffs knowledge one or more IRS employees disclosed Plaintiffs
tax return and/or return information to, at a minimum, Mr. Matthew Meisel, the Human Rights
Campaign, the Huffington Post, and other news media outlets. As Plaintiffs investigation and
discovery is still ongoing, this response will be supplemented as needed.
(e) As is set forth in Plaintiffs complaint, in the process of illegally disclosing Plaintiffs
tax return and/or return information, one or more IRS employees inspected tax return and/or
return information. In its answer, Defendant admits that at least one unauthorized disclosureof
Plaintiffs 2008 Form 990 unredacted Schedule B occurred. See Defendants Answer to
Plaintiffs Complaint at 105-108(Dkt. 33.) Further, Defendant admits that an IRS employee
inspected Plaintiffs 2008 Form 990. Id. at 112. Based on Defendants admissions, Plaintiff
reasonably infers that Defendants inspection was also unauthorized. To date, neither Defendant,
nor any third party, has provided anything to Plaintiff that rebuts that inference. Nor has
Defendant averred that any inspection of Plaintiffs tax return or return informationresultedfrom
a good faith, but erroneous interpretation of section 6103, 26 U.S.C. 7431(b)(1), or were
requested by NOM. 26 U.S.C. 7431(b)(2).
12
As Plaintiffs investigation and discovery is still ongoing, this response will be
(f) As is set forth in Plaintiffscomplaint, although certain returns and return information
are open to public inspection, federal law explicitly prohibits the IRS from publicly disclosing
the name or address of any contributor to any organization or trust . . . which is required to
furnish such information. 26 U.S.C. 6104(b). Therefore, the unredacted copy of Plaintiffs
Schedule B is protected from public disclosure and inspection. It is self-evident that [a]
reasonable IRS agent can be expected to know the provisions of sections 6103 and 7431, as they
may be further clarified by IRS regulations and other IRS interpretations. Gandy v. United
States, 234 F.3d 281, 285 (5th Cir. Tex. 2000). Yet, without Plaintiffs prior knowledge or
authorization, its unredacted Schedule B was inspected and/or publicly disclosed.
Plaintiff believes such disclosure and/or inspection was grossly negligent or willful
because, among other things, Plaintiffs confidential Schedule B was disclosed to, at minimum, a
known political activist, whostrongly opposes Plaintiffs ideology. This individual was likely to
disseminate and is known to havedisseminatedPlaintiffs tax return and/or return information.
Also, the copy of Plaintiffs Schedule B that was published by the Human Rights
Commission, the Huffington Post, and other news outlets was altered to obscure its internal IRS
markings. Such obscuration, patently designed to hide the fact that the document came from
within the IRS, strongly supports Plaintiffs claim that the disclosure was willful or grossly
negligent.
Further, neither Defendant nor the IRS informed Plaintiff that its confidential Schedule B
had been publicly disclosed. Plaintiff is aware that the IRS has informed other entities when their
confidential return information was disclosed, even if advertently, without authorization.
13
Lastly, despite Defendants claim that the unauthorized disclosure of Plaintiffs Schedule
B was inadvertentand therefore not a criminal act, 26 U.S.C. 7213the IRS and TIGTA
have steadfastly protected the identity of the IRS employee(s) responsible for the disclosure. In
fact, the IRS and TIGTA have denied Plaintiff access to any materially relevant information
concerning the disclosure of Plaintiffs Schedule B despite Plaintiffs repeated requests for this
information. (Dkt. #1 45-71.)
(g) As is set forth in Plaintiffs complaint, Plaintiff and those associated with Plaintiff
first learned of the unauthorized disclosure when its Schedule B was published by the Human
Rights Campaign on March 30, 2012.
(h) The persons with knowledge regarding this information are those listed in Plaintiffs
and Defendants Initial Disclosures. For documents, see documents produced in response to
Request for Production 1-11, above, and documents attached to the Complaint. Also see
PlaintiffsInitial Disclosuresand Defendants Initial Disclosures, bothdatedDecember 20, 2013.
INTERROGATORY NO. 2
Please identify each and every individual, entity or donor that has stopped financially
supporting NOM or has stepped back from considering making contributions to NOM as a
result of the disclosure of NOMs 2008 Form 990, Schedule B, and identify all documents that
support such a contention. See Compl. 33-34.
J anuary 6, 2014.
14
As is set forth in Plaintiffs complaint and Brian Browns supporting affidavit, Plaintiff is
seeking recovery of actual damages incurred in the form of the lost donations of one donor that
has stopped donating to Plaintiff as a result of Defendants unauthorized disclosure. For the
following reasons, Plaintiff will not identify that individual. First, such specific identificationis
irrelevant to any partys claim or defense. Second, to compel such identification would violate
Plaintiffs and the donors constitutional right to freedom of association and is likely to lead to
harassment and other negative consequences for Plaintiff and its donors. Further, the
unauthorized disclosure and inspection of donor and tax returninformation is the impetus for this
lawsuit and the cause of Plaintiffs damages. Plaintiff will not create further harm by publicly
releasing more confidential tax information pursuant to this Interrogatory.
See also Exhibit C to Plaintiffs Complaint (Dkt. 1-5). As Plaintiffs investigation and
discovery is still ongoing, this response will be supplemented as needed.
INTERROGATORY NO. 3
Please state all facts, identify all individuals having knowledge and identify all
documents relating to your contention that NOMs lost [donor] contributions exceed
$50,000 and that it has incurred in excess of $10,500 in legal fees as a result of a complaint
filed by Mr. Fred Karger with the California Fair Political Practices Commission (FPPC).
Compl. 34, 36, 124-125. Please state all facts, identify all individuals having knowledge and
identify all documents that support your contention that these alleged damages were a result
of the IRS disclosure or alleged inspection of NOMs 2008 Form 990, Schedule B.
J anuary 6, 2014.
As is set forth in Plaintiffs complaint and Brian Browns supporting affidavit, Plaintiff is
seeking recovery of actual damages incurred in the form of the lost donations of one donor that
has stopped donating to Plaintiff as a result of Defendants unauthorized disclosure. For the
following reasons, Plaintiff will not identify that individual. First, such specific identificationis
15
irrelevant to any partys claim or defense. Second, to compel such identification would violate
Plaintiffs constitutional right to freedom of association and is likely to lead to harassment and
other negative consequences for Plaintiff and its donors. Further, the unauthorized disclosure and
inspection of donor and tax return information is the impetus for this lawsuit and the cause of
Plaintiffs damages. Plaintiff will not create further harm by publicly releasing more confidential
tax information pursuant to this request.
As is set forth in Plaintiffs complaint, Plaintiff is seeking therecovery of actual damages
incurred as a result of Mr. Fred Kargers complaint to the California Fair Political Practices
Commission (FPPC). Mr. Kargers allegations were based solely on confidential tax return and
donor information Mr. Karger admittedly gleaned from the dissemination and subsequent
publication of Plaintiffs Schedule B. The FPPCs investigation of Mr. Kargers complaint
revealed that Plaintiff committed no violations of law and the investigation has been closed.
Plaintiff is seeking recovery of attorneys fees incurred to mitigate the damage caused by
Defendants disclosure and Mr. Kargers resultant complaint, and to ensure that Plaintiffs
confidential tax information was not illegallydisseminated further.
The persons with knowledge regarding this information are those listed in Plaintiffs
Initial Disclosures.
See also Responses to Requests for Documents 9 and 11 and Plaintiffs Initial
Disclosures dated December 20, 2013.
16
INTERROGATORY NO. 4
Please state all facts, identify all individuals having knowledge and identify all
documents relating to your contention that Mr. Fred Kargers allegations against NOM to the
California FPPC were based solely on confidential tax return and donor information Mr.
Karger admittedly gleaned from the dissemination and subsequent publication of NOMs
2008 Form 990, Schedule B. See Compl. 35.
J anuary 6, 2014.
On or about May 14, 2012, the FPPC received a sworn complaint against Plaintiff filed
by Mr. Karger, a self-described enemy of NOM. The complaint included as Exhibit 1
Plaintiffs unredacted 2008 Schedule B that was disclosed by the IRS without authorization. The
complaint, and specifically Exhibit 2, also repeatedly referenced Plaintiffs confidential tax and
donor information that Mr. Karger could have compiled only fromPlaintiffs Schedule B. In
fact, Mr. Karger specifically predicates his complaint on the information he obtained from the
Schedule B. But for the disclosure of Plaintiffs Schedule B by the IRS, Mr. Karger could not
have constructed the complaint. The FPPC conducted an investigation and, eighteen months
later, found no violation and closed the complaint.
The persons with knowledge regarding this information are those listed in Plaintiffs
Initial Disclosures.
See also Responses to Requests for Documents 9 and 11 and Plaintiffs Initial
Disclosures dated December 20, 2013.
17
INTERROGATORY NO. 5
Please state with specificity the exact numerical amount and breakdown of actual and
punitive damages you seek in this case, how you calculated that amount, and state all facts
and identify all documents, individuals, entities, or donors that you will use to support your
claim for actual and punitive damages, including all facts supporting the causal link between
the disclosure (or alleged inspection) and your claim for actual and/or punitive damages.
J anuary 6, 2014.
Regarding actual damages, Plaintiff calculates itsyet-known actual damages as follows:
Lost donations: $50,000
Legal fees and expenses regarding the Karger Complaint: $12,500
Additional legal fees and expenses resulting from the unauthorized disclosure:
$46,086.37. A summary of the total amount sought from each invoice from
ActRight Legal Foundationfor these damagaesis provided below.
Invoice Number
Attorney
Fees
Non-
Attorney
Fees
Costs Total
230 $2,275.00 $2,275.00
241 $4,592.15 $335.00 $1,092.47 $6,019.62
289 $170.81 $170.81
323 $5,885.42 250.00 $6,135.42
356 $3,606.42 $550.00 $4,156.42
358 $275.00 $275.00
262 $300.95 $120.00 $420.95
401 $5,200.67 $176.44 $5,377.11
437 $922.13 $950.00 $1,872.13
486 $1,233.28 $250.00 $1,483.28
508 $3,343.53 $3,343.53
535 $127.31 $127.31
587 $2,829.18 $150.00 $2,979.18
618 $260.38 $24.98 $285.36
653 $2,497.98 960.00 $3,457.98
672 $673.84 $55.60 $729.44
700 $32.15 $360.00 $392.15
753 $240.50 $38.40 $278.90
767 $444.00 $444.00
800 $2,146.00 $2,146.00
841 $55.50 $55.50
710 $814.00 231.00 $1,045.00
Total: $37,651.20 $2,806.00 $3,012.89 $43,470.09
18
Regarding the facts and documents, see Responses to Interrogatories 1-4 and Requests
for Production 9and 11. See alsoExhibit C to Plaintiffs Complaint (Dkt. 1-5).
Regarding punitive damages, Plaintiff has, to the best of its knowledge, stated the basis
for its claim that the disclosure and/or inspections were willful or grossly negligent. However,
the gathering of information responsive to this Interrogatory is still ongoing and, therefore,
Plaintiff is unable to provide any additional response at this time. Plaintiff will supplement this
response when itsinvestigation and discovery is complete.
INTERROGATORY NO. 6
Please state with specificity all facts and identify all documents that tend to support or
undermine your contention that the IRS disclosure is part of a deliberate attempt to chill the
First Amendment activity of NOM, its donors, and others who associate with NOM. See
Compl. 2.
J anuary 6, 2014.
Regarding the facts and documents, see Responses to Interrogatories 1, above.
Specifically, as is set forth in Plaintiffs complaint, although certain returns and return
information are open to public inspection, federal law explicitly prohibits theIRS from publicly
disclosing the name or address of any contributor to any organization or trust . . . which is
required to furnish such information. 26 U.S.C. 6104(b). Therefore, the unredacted copy of
Plaintiffs Schedule B is protected from public disclosure and inspection. It is self-evident that
[a] reasonable IRS agent can be expected to know the provisions of sections 6103 and 7431, as
they may be further clarified by IRS regulations and other IRS interpretations. Gandy v. United
19
States, 234 F.3d 281, 285 (5th Cir. Tex. 2000). Yet without Plaintiffs prior knowledge or
because, among other things, Plaintiffs Schedule B was disclosed to, at minimum, a known
political activist strongly opposed to Plaintiffs ideological position. This individual was likely to
disseminate and is known to have disseminated Plaintiffs tax return and/or return information.
Commission, the Huffington Post, and other news outlets was altered to obscure the known IRS
markings. Such obscuration supports Plaintiffs claim of gross negligence or willfulness as the
individuals involved in the disclosure sought to hide the fact that the document came from within
the IRS.
Further, neither Defendant nor the IRS informed Plaintiff that the disclosure and/or
inspection occurred. Plaintiff is aware that the IRS has informed other entities when their
confidential return information was disclosed without authorization.
See also Requests for Production 10 and response to Interrogatory 1.
20
INTERROGATORY NO. 7
With regard to 82-92 of your Complaint, please state all facts and identify all
documents that support your contention that examples of similar IRS misconduct towards
other groups perceived as being aligned with conservative policy positions indicate that the
disclosure of NOMs [2008 Form 990, Schedule B] was made willfully, or at a minimum, as a
result of gross negligence, and state how each of those facts or documents that you identify
are logically or factually related to the disclosure of NOMs 2008 Form 990, Schedule B in
this case or this lawsuit.
J anuary 6, 2014.
information are open to public inspection, federal law explicitly prohibits theIRS from publicly
disclosing the name or address of any contributor to any organization or trust . . . which is
required to furnish such information. 26 U.S.C. 6104(b). Therefore, the unredacted copy of
Plaintiffs Schedule B is protected from public disclosure and inspection. It is self-evident that
[a] reasonable IRS agent can be expected to know the provisions of sections 6103 and 7431, as
they may be further clarified by IRS regulations and other IRS interpretations. Gandy v. United
States, 234 F.3d 281, 285 (5th Cir. Tex. 2000). Yet without Plaintiffs prior knowledge or
21
the IRS.
Finally, contemporaneous events involving the IRS discriminatory and illegal treatment
of other groups with perceived conservative philosophies is probative of the IRS intent in this
case.
See alsoRequests for Production 10 and response to Interrogatory 1.
INTERROGATORY NO. 8
Please identify each and every individual or entity that conducted any kind of analysis
(including computer and/or forensic analysis), investigation (whether internal or conducted by
a third party), created any report, conducted any interviews or provided any presentations to
NOM relating to the disclosure or alleged inspection of NOMs 2008 Form 990, Schedule B or
this lawsuit, and identify all documents relating to the same.
J anuary 6, 2014.
To Plaintiffs current knowledge, the following people conducted any kind of analysis,
investigation, created any report, conducted any interviews or provided any presentations to
NOM: those listed in Plaintiffs Initial Disclosures, Plaintiffs counsel, Travis Phillips, the
Treasury Inspector General for Tax Administration, and the United States House of
22
Representatives. As Plaintiffs investigation and discovery is still ongoing, this response will be
See also Requests for Production 10 and response to Interrogatory 1. As Plaintiffs
investigation and discovery is still ongoing, this response will be supplemented as needed.
INTERROGATORY NO. 9
With regard to 102 & 113 of your Complaint, please state whether you contend that
the unauthorized disclosure ( 102) or alleged inspection ( 113) was (a) intentional, (b) the
result of gross negligence, or (c) the result of negligence, and why.
J anuary 6, 2014.
information are open to public inspection, Congress specifically stated that the IRS is not
authorized to publicly disclose the name or address of any contributor to any organization or
trust . . . which is required to furnish such information. 26 U.S.C. 6104(b). Therefore, the
unredacted copy of Plaintiffs Schedule B is protected from public inspection. Given the
importance of the protections afforded by Congress in 26 U.S.C. 6103, Plaintiff has reason to
believe that employees of the IRS would be trained to maintain taxpayer confidentiality. Yet
without Plaintiffs knowledge or authorization, its tax return and/or return information was
inspected and/or disclosed.
23
the IRS.
See also Requests for Production 1, 9, 10, and 11, and response to Interrogatory 1.
INTERROGATORY NO. 10
Please state with specificity all facts and identify all persons with knowledge and
documents that relate to, whether supporting or undermining, your contention, that IRS
employees inspected and disclosed NOMs 2008 Form 990, Schedule B directly to the Human
Rights Campaign, and to one or more employees, agents, or volumes of HRC, Compl. 2,
that IRS employees inspected and disclosed NOMs 2008 Form 990, Schedule B to one or
more persons at the HRC, and that the IRS employees chose to share NOMs 2008 Form
990, Schedule B with HRC intending that HRC further publish the information on its
website, through media releases, and through other means. See Compl. 2, 14, 103.
J anuary 6, 2014.
Specifically, to Plaintiffs knowledge, HRC was the first entity to publish the 2008 Schedule B
and claimed the document was leaked. On that same day, the Huffington Post claimed to have
24
received the 2008 Schedule B from HRC and stated that HRC received the document from a
whistleblower.
HRC advocates nationwide for redefining marriage to include same-sex couples. See
HRC, Marriage Center, http://www.hrc.org/marriage-center (last visited September 27, 2013). Its
mission is directly opposed to Plaintiffsmission. Among other activities, since April 2009, HRC
has conducted a campaign-style operation called NOM Exposed, which tracks and
challenges Plaintiff, its donors, and its members. See HRC, NOM Exposed,
http://www.hrc.org/nomexposed (last visited September 27, 2013).
Further, at the time HRC published the Confidential Return Information, J oe Solmonese
was the President of HRC. On March 31, 2012one day after HRC published the Confidential
Return Information Solmonese stepped down as President of HRC to become a national co-
chairman of President Barack Obamas re-election campaign.
SeealsoRequests for Production 1-11andPlaintiffsInitial Disclosures.
If the documents in response to any of these interrogatories or requests for production
are in the possession of a third party, and you are not providing them in response to any of the
document production requests, please identify the third party and which documents(s) it
possess.
J anuary 6, 2014.
Plaintiff believes that there could be documents within the custody and control of the
following individuals: (1) Mr. Matthew Meisel, (2) the Human Rights Campaign, (3) the
31
REQUEST FOR ADMISSION NO. 11
Please admit that, after you learned of the disclosure of NOMs 2008 Form 990,
Schedule B, NOM received in excess of $60,500 in aggregate donations from donors who had
previously donated to NOM but did so after March 30, 2012 in a dollar amount (or in multiple
dollar amounts) greater than they had in any prior calendar year.
J anuary 6, 2014.
Response: In light of itsobjections, including the objection on grounds of relevancy, Plaintiff
provides the following response:
After diligent inquiry, Plaintiff does not have enough information to admit or deny.
Plaintiff will supplement itsresponse at a future date as discovery permits.
Please admit that contributions and/or donations to NOM in 2011 was approximately
$6,267,550.
Objections: Plaintiff incorporates by referenceitsobjections dated J anuary 2, 2014, and
J anuary 6, 2014.
Response: Subject to and without waiving its objections, Plaintiff responds as follows: Admit.
Please admit that contributions and/or donations to NOM in 2012 exceeded the 2011
contributions by more than $3 million.
J anuary 6, 2014.
32
Please admit that contributions and/or donations to NOM in 2013 will exceed the
amount received in 2012.
J anuary 6, 2014.
Response: Subject to and without waiving its objections, Plaintiff responds as follows: Deny.
Please admit that contributions and/or donations to NOM in 2013 will exceed the
amount received in 2011.
J anuary 6, 2014.
Please admit that, in connection with NOMs efforts to solicit contributions, NOM has
referred to and/or publicized the disclosure of NOMs 2008 Form 990, Schedule B.
J anuary 6, 2014.
Please admit that NOM has solicited contributions based on the disclosure of NOMs
2008 Form 990, Schedule B or the prospective or actual lawsuit for wrongful inspection
and/or disclosure of NOMs 2008 Form 990, Schedule B.
J anuary 6, 2014.
37
Response: Plaintiff contends that this request seeks information that is wholly irrelevant
to any partys claim or defense. Such documentation is not relevant to any claim or defense and
is beyond the scope of permissible discovery. In a showing of good faith, Plaintiff provided a
response to Request for Admission 3-17, above. With those responses, no further information
should be sought.
Please state all actions you, or someone on your behalf, took to mitigate your alleged
actual damages in connection with or as a result of the disclosure or alleged inspection of
NOMs 2008 Form 990, Schedule B.
J anuary 6, 2014.
Plaintiff took extraordinary steps to prevent further damages related to the unauthorized
inspection(s) and/or disclosure(s), including, inter alia, thefollowingaffirmative steps:
4/11/2012: Plaintiff sent demand letter to HRC seekingremoval of the 2008 Schedule B.
4/11/2012: Plaintiff sent demand letter to Huffington Post seeking removal of the 2008
Schedule B.
4/11/2012: Plaintiff sent letter to IRS Treasury Inspector General (TIGTA) requesting an
investigationof the disclosure.
4/13/2012: HRC removes the 2008Schedule B from its website pursuant to Plaintiffs
demand letter.
4/25/2012: NOM sent letter to DOJ requesting criminal investigation regarding the
disclosure.
6/13/2012: Plaintiff sent to FPPC demanding the destruction of the 2008 Schedule B
wrongfully filed by Mr. Karger.
6/22/2012: Plaintiff sent letter to FPPC reiterating its demand for the destruction of the
2008ScheduleB.
6/25/2012: Plaintiffs counsel sent letter to TIGTA requesting investigation of Karger and
FPPC relating to the unauthorized disclosure.
8/9/2012: Plaintiff submits first FOIA request to IRS seeking information on the
unauthorizeddisclosure.
9/6/2012: IRS responds to FOIA request largely by deferring to TIGTA.
9/21/2012: Plaintiff submits second FOIA request to TIGTA seeking information on the
unauthorized disclosure.
38
10/3/2012: IRS responds to FOIA request #2, with no significant additional information
and contending that all responsive informationwas already provided.
11/7/2012: Plaintiff files FOIA appeal withtheIRSseeking responsive documents.
12/3/2012: Plaintiff appeals TIGTA FOIA response, seeking responsive documents.
4/15/2013: Plaintiff files Privacy Act request with TIGTA seeking results of the
investigationregarding the unauthorized disclosure.
5/3/2013: TIGTA denies Privacy Act request, asserting that the identity of the person
who leaked tax return is protectedreturn information.
5/9/2013: Plaintiff files FOIA #3 with TIGTA, seeking whether any NOM officers ever
requested copies of its returns
8/6/2013: IRS responded to Plaintiffs FOIA #3, confirming that the IRS has no records
from any personrequesting copies of Plaintiffs tax returns or return information.
Dated J anuary 21, 2014
J ason Torchinsky (Va. 47481)
Shawn Sheehy (Va. 82630)
Holtzman, Vogel, J osefiak, PLLC
Warrenton, VA 20186
(540) 341-8808 (telephone)
(540) 341-8809 (fax)
jtorchinsky@hvjlaw.com
ssheehy@hvjlaw.com
Counsel for Plaintiff
J ohn C. Eastman (Cal. 193726)*
Anthony T. Caso (Cal. 88561)*
Center for Constitutional J urisprudence
c/o Chapman University School of Law
One University Drive
Orange, CA 92866
(877) 855-3330 x2 (telephone)
(714) 844-4817 (fax)
jeastman@chapman.edu
caso@chapman.edu
________________________
Cleta Mitchell, of counsel
(D.C. 433386)*
William E. Davis, of counsel
(D.C. 280057)*
Mathew D. Gutierrez, of counsel
(Fla. 0094014)*
Kaylan L. Phillips (Ind. 30405-84)*
Noel H. J ohnson (Wisc. 1068004)*
ACTRIGHT LEGAL FOUNDATION
209 West Main Street
Plainfield, IN 46168
(317) 203-5599 (telephone)
(888) 815-5641 (fax)
cmitchell@foley.com
wdavis@foley.com
mgutierrez@foley.com
kphillips@actrightlegal.org
njohnson@actrightlegal.org
* Admitted Pro Hac Vice
____ _______________ __ __ ____ ____ ____ __ ________ _________ __ __ __ ___ ___ __ __ _________ __________ ________ _________ ____ __ __ __ __ _________ __ ___ ___________ __________________ __ __ ____ __ _______ ______ __ __ __ __ __ __ __ ___ ___ ____ _________ _______ _____ __________ __ _________________________ __
Cleta Mi Mi Mi Mi Mi Mi Miii Miiiiii Mii Mii Mii Mi Mi Mi Mii Mi MMMii Mii Miii Mi Mi MMMMMMMMMMMi MMMMMi Mi MM tttttc tttttttttttttttttttttttttttttttttttttttttttttt hell, ooof ooooooo couns ns ns ns ns ns ns ns ns ns ns nssss ns nns nsss ns ns nss nnnsss nsssssss nnsss ns nnsss ns nnsss nssss nss ns nssel
(D.C. 43 43 443 443 43 43 4443 4443 43 443 4444443 4443 43 4444444443 4444444444444444444444443 43333 3333333333333333333333333333333333333333333333333333333333333 86)*
Certificate of Service
I hereby certify that on J anuary 21, 2014, I served the foregoingPlaintiffs Responses to
Defendants First Set of Requests for Production of Documents, Interrogatories, and Requests for
Admission to Plaintiff on counsel of record by email and courier:
Philip Schreiber
Christopher D. Belen
U.S. Department of J ustice - Tax Division
555 4th Street, NW
Room 6222
(202) 307-2089 (telephone)
(202) 514-6866 (fax)
Christopher.D.Belen@usdoj.gov
David Moskowitz
U.S. Attorneys Office
Alexandria, VA 22314
(703) 299-3845 (telephone)
(703) 299-3983 (fax)
david.moskowitz@usdoj.gov
________________________
Kaylan L. Phillips (Ind. 30405-84)
Plainfield, IN 46168
(317) 203-5599 (telephone)
(888) 815-5641 (fax)
______________ __ __ ____ ____ __ __________ _______________________ __ ____ __ ____ __ __ __ ___ __________________ __ _______ __ _________ ___ ______ __ _____ ____ __ _____________________ __________ __
Kaylan an an an an an an an an nnnn an an nn an aan an an aann an an nn an an n an nn aan aaa LLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLL. Philli llllllllllllllllllllllllll ps (Ind. dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd 30
ACTR TR TR RRRR TR RRRRRRRRRRRRRRRRRRRRRRR TR RRRRRRRRRRRRRRRRRRRRRRRRRRRRRIG IG G IG IG GGGG IG IG IG GGG IG IG IG GGGGGG IG G IG IG G IG IG GGGGGGG IG GG IG IG G IG IG IG IG GG IIIIG IIG GG IG IGGG IGGGGGG IG IG IG GG IIIGG IIIIIGGHT LEGAL FOU
1

ALEXANDRIA DIVISION

MARRIAGE, INC.,
Plaintiff,
v.
Defendant.
)
)
)
)
)
)
)
)
)
)
)
PLAINTIFFS SUPPLEMENTAL RESPONSE TO DEFENDANTS FIRST SET OF
REQUESTS FOR PRODUCTION OF DOCUMENTS, INTERROGATORIES,
AND REQUESTS FOR ADMISSION TO PLAINTIFF
PlaintiII, The National Organization For Marriage, Inc., by counsel, pursuant to Rules 33,
34, and 36 oI the Federal Rules oI Civil Procedure, and Local Civil Rule 26, hereby provides its
supplemental responses to DeIendant, the United States oI America, Internal Revenue Service`s
First Set oI Requests For Production oI Documents, Interrogatories, and Requests Ior Admission
to PlaintiII dated December 18, 2013 ('DeIendant`s First Discovery Requests).
GENERAL OBJECTIONS
PlaintiII incorporates by reIerence its general objections dated January 2, 2014.
I. SPECIFIC OBJECTIONS AND RESPONSES TO REQUESTS FOR
PRODUCTION OF DOCUMENTS
Defendant
Exhibit
_____________
2
2

INTERROGATORY NO. 5
Please state with specificity the exact numerical amount and breakdown of actual and
punitive damages you seek in this case, how you calculated that amount, and state all facts
and identify all documents, individuals, entities, or donors that you will use to support your
claim for actual and punitive damages, including all facts supporting the causal link between
the disclosure (or alleged inspection) and your claim for actual and/or punitive damages.
Objections: PlaintiII incorporates by reIerence its objections dated January 2, 2014, and
January 6, 2014.
Response: Subject to and without waiving its objections, PlaintiII responds as Iollows:
Due to the possibility that PlaintiII would have to reveal the identity oI donors and donor
prospects iI it persisted in its claim Ior damages based on lost donations, PlaintiII has decided to
withdraw that portion oI its claim Ior damages in order to protect the anonymity oI those
donors, the breach oI which was the catalyst Ior this lawsuit.
Regarding the remaining actual damages, PlaintiII calculates its yet-known actual
damages as Iollows:
Costs and reasonable attorneys Iees regarding the Karger Complaint: $12,500
Costs and reasonable attorneys Iees Irom the unauthorized disclosure: $46,086.37,
which may be broken down as Iollows:
o $43,470.09 in legal Iees and expenses paid to ActRight Legal Foundation
o $2,616.28 in expenses paid to John C. Eastman

PlaintiII provided all documents regarding these expenses in its production dated January
21, 2014 and its supplemental production dated January 24, 2014. The legal Iees and expenses
sought herein all relate to the unauthorized disclosure but do not include those costs and
reasonable attorneys Iees resulting Irom the above-captioned lawsuit which are requested in
PlaintiII`s Complaint and will be sought at a later date, iI appropriate.
Regarding the invoices provided Irom ActRight Legal Foundation, portions oI the
invoices not attributable to the damages sought here have been redacted and noted on PlaintiII`s
3

privilege log. In light oI these redactions, PlaintiII provides a chart, below, detailing the speciIic
Iees and costs sought Irom each invoice.

Invoice Number
Attorney
Fees
Non-
Attorney
Fees
Costs Total
230 $2,275.00 $2,275.00
241 $4,592.15 $335.00 $1,092.47 $6,019.62
289 $170.81 $170.81
323 $5,885.42 250.00 $6,135.42
356 $3,606.42 $550.00 $4,156.42
358 $275.00 $275.00
262 $300.95 $120.00 $420.95
401 $5,200.67 $176.44 $5,377.11
437 $922.13 $950.00 $1,872.13
486 $1,233.28 $250.00 $1,483.28
508 $3,343.53 $3,343.53
535 $127.31 $127.31
587 $2,829.18 $150.00 $2,979.18
618 $260.38 $24.98 $285.36
653 $2,497.98 960.00 $3,457.98
672 $673.84 $55.60 $729.44
700 $32.15 $360.00 $392.15
753 $240.50 $38.40 $278.90
767 $444.00 $444.00
800 $2,146.00 $2,146.00
841 $55.50 $55.50
710 $814.00 231.00 $1,045.00
Total: $37,651.20 $2,806.00 $3,012.89 $43,470.09

Regarding the Iacts and documents, see Responses to Interrogatories 1-4 and Requests
Ior Production 9 and 11 (dated January 21, 2014 and supplemented on January 24, 2014).
As PlaintiII`s investigation and discovery is still ongoing, this response will be
Regarding punitive damages, PlaintiII has, to the best oI its knowledge, stated the basis
Ior its claim that the disclosure and/or inspections were willIul or grossly negligent. However,
the gathering oI inIormation responsive to this Interrogatory is still ongoing and, thereIore,
4
PlaintiII is unable to provide any additional response at this time. PlaintiII will supplement this
response when its investigation and discovery is complete.
Dated February 12, 2014

Jason Torchinsky (Va. 47481)
Holtzman, Vogel, JoseIiak, PLLC
Warrenton, VA 20186
(540) 341-8808 (telephone)
(540) 341-8809 (Iax)
jtorchinskyhvjlaw.com
ssheehyhvjlaw.com

John C. Eastman (Cal. 193726)*
Center Ior Constitutional Jurisprudence
c/o Chapman University School oI Law
Orange, CA 92866
(877) 855-3330 x2 (telephone)
(714) 844-4817 (Iax)
jeastmanchapman.edu
casochapman.edu

Cleta Mitchell, oI counsel
(D.C. 433386)*
William E. Davis, oI counsel
(D.C. 280057)*
Mathew D. Gutierrez, oI counsel
(Fla. 0094014)*
Noel H. Johnson (Wisc. 1068004)*
PlainIield, IN 46168
(317) 203-5599 (telephone)
(888) 815-5641 (Iax)
cmitchellIoley.com
wdavisIoley.com
mgutierrezIoley.com
kphillipsactrightlegal.org
njohnsonactrightlegal.org


Cleta Mi Mi Mi Mi Mi MMMi Mi Mi Mi MMMMi Mi Mi MMi MMMMMi MMi MMi MMMMMMMMMi Mi MMi Mi MMii MMi Mi Miiii MMMMM tchell, oI couns nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn el
(D.CCCCCCC. 43 43 43 43 43 443 443 43 43 43 43 433 433 4433 43 43 43 433 43 43 43 43 43 43 433 43 443 433 43 443 443 4443 43 433 43 43 43 43 43 43 4433 4443 433 4333333 43 443 443 43333 433 44443 44443 43 444433386)*
VERIFICATION OF COMPLAINT
PURSUANT TO 28 U.S.C. 1746
I declare under penalty oI perjury that the Ioregoing is true and correct to the best oI my
knowledge.
Executed on February 12, 2014

Brian S. Brown
President, National Organization Ior Marriage, Inc.
I hereby certiIy that on February 12, 2014, I served the Ioregoing PlaintiII`s
Supplemental Responses to DeIendant`s First Set oI Requests Ior Production oI Documents,
Interrogatories, and Requests Ior Admission to PlaintiII on counsel oI record by email and U.S.
mail:
US Department oI Justice - Tax Division
PO Box 227
Christopher.D.Belenusdoj.gov
David Moskowitz
U.S. Attorney`s OIIice
2100 Jamieson Avenue
david.moskowitzusdoj.gov


Kaylan an an an an an an an an nnnn an an nn an aan an an aann an an nn an an n an nn aan aaa LLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLL. Philli llllllllllllllllllllllllll ps (Ind. dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd 30
ACTRRRRRRRIG IG IG IIG IIIG IG IIIG IIG IG IG IG IG IIIG IG IG G IG IG IG IG IG IG IGGG IIG IIG IGG IG GG IGGGGGGGGGGGGGGGGGGGGHT HHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHH LEGAL FOUNDA
Defendant
Exhibit
_____________
3

11177471.1
Alexandria Division
MARRIAGE, INC. )
)
Plaintiff, )
)
v. ) Civil Action No. 13-1225-J CC-IDD
)
THE UNITED STATES OF AMERICA, et al., )
)
Defendants. )
_________________________________________ )
DEFENDANTS OBJECTIONS AND SUPPLEMENTAL AND AMENDED RESPONSES
TO PLAINTIFFS FIRST DISCOVERY REQUESTS
Pursuant to Local Rule 26(C) and Federal Rules of Civil Procedure 26 and 33, Defendant,
the United States of America, through its undersigned counsel, provides the following objections
and supplemental and amended responses to Plaintiffs first set of interrogatories in the above-
captioned action. The responses below incorporate, as if fully set forth in general and for each
specific discovery request, the United States Objections to Plaintiffs First Discovery Requests,
dated J anuary 7, 2014. As discovery is ongoing, the United States will supplement these
discovery responses in accordance with Fed. R. Civ. P. 26(e).
INTERROGATORY OBJECTIONS AND RESPONSES
2. For each individual(s) identified in Interrogatory Number 1, state all facts and
describe in detail any inspections and/or disclosures of NOMs return and return information,
including the following for each disclosure:
(a) What specific return and/or return information was inspected and/or disclosed;
(b) Where and when such inspection(s) and/or disclosure(s) occurred;
Defendant
Exhibit
_____________
4

2
(c) Regarding disclosure(s), to whom was the return and/or return information disclosed;
(d) Regarding disclosure(s), whether and how the disclosure(s) was/were requested;
(e) Which individuals associated with the United States, if any, were consulted or
informed of the inspection(s) and/or disclosure(s);
(f) When any individuals listed in (e), if any, were informed of such inspection(s) and/or
disclosure(s);
(g) Identify all documents and persons with knowledge that tend to support or undermine
your contentions in (a) through (f) above.
Response: Defendant incorporates its objections dated J anuary 7, 2014 in its response to
this interrogatory. Subject to these objections, Defendant supplements and amends its previous
response to the subparts below, and states as follows:
(b) The United States contends that the disclosure occurred on or around February 10,
2011 after Plaintiffs amended 2008 Form 990 was sent out from the IRS Ogden Service Center
in Ogden, Utah and when it was received by a third party.
(g) The United States supplements its previous response to this subpart and further
identifies GOV-PROD-0000708, which indicates when (plus approximately seven days) the
3983C letter was sent out from the IRS; GOV-PROD- 0002163-66, GOV-PROD- 0002167-70,
and GOV-PROD- 0002173-81, which indicate that Mr. Meisel made two requests for Plaintiffs
tax information; GOV-PROD- 0002533 involving media relations; and, as noted in its second
supplemental initial disclosures, Peggy Riley also has relevant information concerning this topic,
as noted in Defendants disclosures.

3
3. Please state with specificity all facts and identify all documents that tend to
support or undermine your contention that the disclosure of Plaintiffs return and/or return
information was inadvertent and limited to one occurrence. See Answer, 105-08.
Response: Defendant incorporates its objections dated J anuary 7, 2014 in its response to
this interrogatory. Subject to these objections, Defendant supplements its response to this
interrogatory and states as follows with regard to documents: see response to interrogatory
number 2, above. With regard to the facts and in addition to the United States J anuary 7, 2014
objections, the United States supplements and amends its response to this interrogatory as
follows:
(a) the diagonal watermark on the excerpted version of Plaintiffs amended 2008
Form 990, unredacted Schedule B that was included in Plaintiffs Verified
Complaint in this case, and which was disclosed by the IRS and later allegedly
disseminated by the Human Rights Campaign and the Huffington Post
(100560209), is a unique identifying number created as a watermark by the
IRS database system that indicates the specific IRS employee who accessed
Plaintiffs amended 2008 Form 990 on a specific date and time in response to a
Form 4506-A;
(b) that identifying number is never repeated and is embedded into the tax return
when it is accessed and caused to be printed out by the IRS employee;
(c) querying the IRS database regarding that unique identifier revealed that a low-
level IRS RAIVS clerk properly accessed Plaintiffs amended 2008 Form 990,
including the unredacted Schedule B, in J anuary 2011 and printed it in order to
respond to an IRS Form 4506-A, Request for Public Inspection or Copy of
Exempt Organization IRS Form;
(d) the IRS had properly scanned two versions of Plaintiffs amended 2008 Form 990
one with a redacted Schedule B and one with an unredacted Schedule B
into the IRS database;
(e) at the time of the disclosure, the IRS clerk who inadvertently disclosed the
unredacted Schedule B from Plaintiffs amended 2008 Form 990 was not aware of
Plaintiffs mission, its viewpoint, its agenda, or its officers;

4
(f) there are no facts that support that the IRS clerk was directed, instructed, bribed,
coerced, blackmailed, or otherwise influenced by anyone to release Plaintiffs
amended 2008 Form 990, Schedule B without the proper redactions;
(g) the IRS clerk does not recall the request for Plaintiffs 2008 Form 990, nor does
she recall processing the request;
(h) the IRS clerk has denied intentionally disclosing Plaintiffs amended 2008 Form
990, Schedule B without the proper redactions;
(i) at the time of the disclosure, the IRS clerk did not know Matthew Meisel, Kevin
Nix, Sam Stein, anyone at the Human Rights Campaign (HRC) or the
Huffington Post, or Fred Karger, or anyone mentioned on pages 75-78 of her
deposition;
(j) at the time of the disclosure, the clerk did not know any of the other individuals
Plaintiff identified to TIGTA as persons who disagree with Plaintiffs mission;
(k) at the time of the disclosure, the IRS clerk was processing a substantial majority
of the approximately 100 to 300 requests for copies of Form 990s the IRS
received per week;
(l) the IRS Wage and Information Division (W & I) unit tasked with responding to
requests for Form 990s the W & I RAIVS unit located in the Ogden, Utah IRS
Service Center processed over approximately 11,000 Form 4506-A requests in
2010 and over approximately 13,000 Form 4506-A requests in 2011;
(m)at the time of the disclosure and through the time of the TIGTA investigation
leading to its ROI dated October 10, 2012, the IRS W & I Ogden Accounting
Operations Quality Review unit, which reviewed RAIVS unit completed work
related to the IRS production of copies of Form 990s, had never detected errors
with regard to the IRS clerk who disclosed Plaintiffs amended 2008 Form 990,
unredacted Schedule B;
(n) before responding to Mr. Meisels request for Plaintiffs 2007 and 2008 (and
possibly 2009) Forms 990, the IRS clerk contacted an IRS media relations
specialist to determine whether Mr. Meisel was a member of the media, which he
indicated he was based on a box he checked on the completed and filed IRS Form
4506-A;
(o) before responding to Mr. Meisels request for a copy of Plaintiffs 2007 and 2008
(and possibly 2009) Forms 990, the IRS clerk waited until at least J anuary 24,
2011 before continuing to process Mr. Meisels request for Plaintiffs Forms 990;

5
(p) the IRS clerk contacted the IRS media relations employee a total of four times
between J anuary 18, 2011 and J anuary 24, 2011, requesting a determination of
Mr. Meisels status as a member of the media;
(q) on J anuary 21, 2011, the IRS clerk accessed and then immediately printed
Plaintiffs 2007 Form 990 and both of Plaintiffs original and amended 2008
Form 990, including an unredacted Schedule B, at a printer located within the
RAIVS unit;
(r) after printing Plaintiffs amended 2008 Form 990, the IRS clerk failed to redact
the names and addresses of Plaintiffs contributors, even though redacting that
information was her responsibility and normal practice and procedure, and was
required to satisfy the Internal Revenue Code and the IRS policies and
procedures;
(s) the IRS clerk did not produce to Mr. Meisel a copy of Plaintiffs original 2008
Form 990, a tax return that included a Schedule B that listed more donors than the
Schedule B attached to Plaintiffs amended Schedule B;
(t) on J anuary 31, 2011, the IRS clerk caused the IRS systems to create a Form
3983C letter, which is a standard letter used in responding to Form 4506-A
requests;
(u) the IRS clerk did not personally mail the copy of Plaintiffs Forms 990 to Mr.
Meisel. The IRS clerk sent photocopied Forms 990 to the CRX unit, which was
responsible for assembling photocopied tax forms together with 3983C letters
responding to the persons requesting the copies. A 3983C letter was printed at the
Ogden Service Center print center in response to an instruction entered into the
IRS database system and sent to CRX, where it was assembled with the relevant
photocopied Forms, and then set aside to be picked up and mailed by IRS mail
clerks;
(v) the IRS produced a 3983C letter and the 2007 Form 990 and amended 2008 Form
990 (and possibly the 2009 Form 990) in response to a Form 4506-A request;
(w)the actual disclosure of Plaintiffs amended 2008 Form 990, unredacted Schedule
B to Mr. Meisel occurred in or around early February, 2011 (approximately ten
days after the clerk entered in the codes to print a 3983C letter on J anuary 31,
2011) when Mr. Meisel received the unredacted Schedule B. This was a year
before the disclosure became widely known and a year before the Schedule B
information was unforeseeably publicized and disseminated by HRC, the
Huffington Post, and Fred Karger;
(x) the Internal Revenue Service responded to subsequent Form 4506-A requests for
Plaintiffs Form 990 in, at least, March and August 2011, and properly redacted
the names and addresses of Plaintiffs contributors. Specifically, the clerk who

6
inadvertently disclosed the amended 2008 Form 990, Schedule B at issue in this
case also processed the March request, and possibly processed the August request;
(y) the March, 2011 response was also to Mr. Meisel, who using via a Form 4506-
A had submitted a second request in February, 2011 for Plaintiffs Forms 990
for the 2007 and 2009 tax years only. After the IRS clerk again sought, and
received, verification that Mr. Meisel was not a member of the media, she
processed this request following proper IRS procedures. Accordingly, when the
IRS produced these two Form 990s, the 2009 Form 990 was properly redacted (to
our knowledge the 2007 Form 990 never contained a Schedule B, thus no
redaction was required to that Schedule); and,
(z) the Internal Revenue Service played no part in any effort by any third parties,
including Mr. Meisel, HRC, or the Huffington Post, to obscure the unique
identifiers located on the Schedule B that Plaintiff allegedly uncovered through its
investigation.

11177471.1
Dated: March 4, 2014 As to objections and Interrogatory
Response 3
KATHRYN KENEALLY
/s/ Philip Schreiber
CHRISTOPHER D. BELEN
(202) 514-6069 (Mr. Schreiber)
(202) 514-5885 (Mr. Tompkins)
(202) 307-2089 (Mr. Belen)
Fax: 202 514-9868
- and
DANA J . BOENTE
ACTING UNITED STATES ATTORNEY
DAVID MOSKOWITZ
Telephone: (703) 299-3845
Fax: (703) 299-3983

11177471.1
I HEREBY CERTIFY that on March 4, 2014, I served the foregoing Supplemental and
Amended Objections and Responses to Plaintiffs First Discovery Requests on counsel of record
below by electronic mail and by U.S. Mail addressed as follows:
J ason Brett Torchinsky
45 North Hill Drive
Suite 100
Warrenton, VA 20186
540-341-8808
Fax: 540-341-8809
Email: jtorchinsky@hvjlaw.com
PHILIP M. SCHREIBER
Trial Attorney, Tax Division
1
1 IN THE UNITED STATES DISTRICT COURT
2 FOR THE EASTERN DISTRICT OF VIRGINIA
3 Alexandria Division
4 -o0o-
5
6 THE NATIONAL ORGANIZATION FOR)
MARRIAGE, INC., )
7 ) Civil No. 13-1225-JCC-IDD
Plaintiff, )
8 )
v. )
9 )
UNITED STATES OF AMERICA, )
10 )
Defendant. )
11 _____________________________)
12
13 VIDEOTAPED DEPOSITION OF
14 WENDY PETERS
15 Taken on Wednesday, January 29, 2014
16 at 11:18 a.m.
17
CITY CENTER BUILDING
18 2484 Washington Boulevard
Ogden, Utah 84401
19
20
REPORTED BY: Michelle Mallonee, RPR, CSR
21
ATKINSON-BAKER COURT REPORTERS
22 500 N. Brand Blvd., Third Floor
Glendale, CA 91203
23 (818) 551-7300
www.depo.com
24
FILE #A800C72
25
Defendant
Exhibit
_____________
5
2
1 APPEARANCES
2
3 FOR PLAINTIFF:
4 WILLIAM E. DAVIS, ESQ.
FOLEY & LARDNER, LLP
5 Two South Biscayne Boulevard, Suite 1900
Miami, Florida 33131
6 Telephone: (305) 482-8404
Email: wdavis@foley.com
7
8 JASON TORCHINSKY, ESQ.
SHAWN SHEEHY, ESQ.
9 HOLTMAN VOGEL JOSEFIAK, PLLC
10 Warrenton, Virginia 20186
Telephone: (540) 341-8808
11 Email: jtorchinsky@hvjlaw.com
ssheehy@hvjlaw.com
12
KAYLAN L. PHILLIPS, ESQ.
13 ACT RIGHT LEGAL FOUNDATION
14 Plainfield, Indiana 46168
Telephone: (317) 203-5599
15 Email: kphillips@actrightlegal.org
16
17 FOR DEFENDANT:
18 BENJAMIN L. TOMPKINS, ESQ.
U.S. DEPARTMENT OF JUSTICE, TAX DIVISION
19 P.O. Box 14198
20 Telephone: (202) 514-5885
Email: benjamin.l.tompkins@usdoj.gov
21
22 CHRISTOPHER D. BELEN, ESQ.
23 P.O. Box 227
24 Washington, DC 20044
Telephone: (202) 307-2089
25 Email: christopher.d.belen@usdoj.gov
3
1 FOR THE IRS:
2 ALAN S. KLINE, ESQ.
INTERNAL REVENUE SERVICE, OFFICE OF CHIEF COUNSEL
3 One Newark Center, Suite 1500
Newark, New Jersey 07102
4 Telephone: (609) 575-4531
5
6 ALSO PRESENT:
7 LANCE HARRISON, VIDEOGRAPHER
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
4
1 I N D E X
WITNESS PAGE
2
WENDY PETERS
3
Examination by Mr. Davis 6
4
Examination by Mr. Tompkins 59
5
Further Examination by Mr. Davis 78
6
Further Examination by Mr. Tompkins 86
7
8
9
10
11
12
13
14
E X H I B I T S
15
16 EXHIBIT NO. DESCRIPTION PAGE
17 Exhibit 6 - Collection of Emails 39
18 Exhibit 7 - Request for Public Inspection or 64
Copy of Exempt or Political Organization
19 IRS Form, Form 4506-A
20
21
22 (Exhibit 6 is marked Confidential)
23
24
25
18
1 Q. So once you had that authorization, you could 11:38:50
2 then access the SEIN online database for any number of 11:38:54
3 4506-A requests. Is that correct? 11:39:01
4 A. Correct. 11:39:06
5 Q. You didn't have to go back and get authorization 11:39:07
6 for access for each individual request? 11:39:10
7 A. No. 11:39:14
8 Q. Is that correct? 11:39:15
9 A. Correct. 11:39:15
10 Q. When you accessed the SEIN online database to 11:39:16
11 provide a response to a 4506-A request where the 990 form 11:39:31
12 and Schedule B were requested, what would you do, 11:39:42
13 physically, to get online and perform your job? 11:39:48
14 A. To get online for On-Line SEIN, there's two 11:39:53
15 passwords that you have to enter in, in order to access 11:39:57
16 the program. 11:39:59
17 Q. And you get those passwords when you get 11:40:01
18 authorization. And do you keep them? 11:40:03
19 A. Correct. 11:40:07
20 Q. Okay. So you've got the passwords. What do you 11:40:09
21 do? 11:40:13
22 A. You go into the system and enter in the EIN. 11:40:17
23 Q. That's the tax identification number? 11:40:23
24 A. Tax -- yes. 11:40:32
25 Q. Okay. 11:40:35
19
1 A. And enter in the year that you're looking for, 11:40:35
2 the year and the month. And then it pulls it up. 11:40:38
3 Q. And what would dictate the tax identification 11:40:42
4 number and the year you were looking for? Would that be 11:40:50
5 what was requested on the 4506-A? 11:40:53
6 A. Correct. 11:40:57
7 Q. Would you ever enter the system, the SEIN online 11:40:58
8 database system, for any reason other than to respond to 11:41:04
9 a 4506-A request? 11:41:10
10 A. No. You would have to have a request in order 11:41:12
11 to -- a reason to get into that system. 11:41:15
12 Q. And is there someplace in the process where you 11:41:18
13 articulate what the reason is that you're making access 11:41:25
14 to the SEIN system? 11:41:29
15 A. No. 11:41:31
16 Q. Is there a form you fill out, is there an email 11:41:32
17 you send, or anything like that? 11:41:35
18 A. No. 11:41:36
19 Q. On a day-to-day basis, do you have someone who 11:41:41
20 supervises your activities with respect to accessing the 11:41:51
21 SEIN online database to respond to 4506-A requests? 11:41:54
22 MR. TOMPKINS: A time period? 11:42:00
23 Q. (BY MR. DAVIS:) In January through March of 11:42:01
24 2011. 11:42:04
25 A. What was in place was QR, quality review, and 11:42:11
39
1 Q. Under what circumstances? 12:19:53
2 A. It's been submitted on letterhead. We are 12:19:54
3 allowed to process those. 12:19:58
4 Q. What kind of letterhead? 12:20:00
5 A. A letterhead from a media outlet. 12:20:02
6 Q. And by "media," you mean, what, broadcast media? 12:20:10
7 Newspaper? What? 12:20:15
8 A. Yes. 12:20:17
9 Q. Both? 12:20:18
10 A. Media. Yeah, if they check the box on the form 12:20:20
11 for media. 12:20:24
12 (Exhibit-6 was marked for identification.) 12:22:03
13 MR. DAVIS: Do you have a clear date -- 12:22:43
14 document -- 12:22:47
15 MR. BELEN: The witness -- you mean the one with 12:22:49
16 the Bates stamp? 12:22:49
17 MR. DAVIS: Mine, I can't even decipher. 12:22:51
18 MR. TOMPKINS: The witness' copy is clear, so I 12:22:53
19 don't know if that helps you. 12:22:55
20 MR. DAVIS: Let's just establish for the record 12:22:57
21 what they are. 12:22:59
22 MR. BELEN: Yep. I'll show you. 12:23:05
23 Q. (BY MR. DAVIS:) I want to show you what I've 12:23:07
24 marked as composite Exhibit 6, which is made up of 12:23:09
25 documents produced under government production numbers 86 12:23:12
40
1 through 98, inclusive. And direct your attention to the 12:23:18
2 first page of that, which purports to be an email from 12:23:26
3 Wendy J. Peters to Peggy E. Riley, dated Wednesday, 12:23:35
4 January 19, 2011. 12:23:46
5 Is that an email that you authored? 12:23:48
6 A. Yes. 12:23:51
7 Q. Who is Peggy E. Riley? 12:23:52
8 A. She's a media specialist and IRS employee. 12:23:57
9 Q. And what does Peggy Riley do as a media 12:24:01
10 specialist? 12:24:05
11 A. I don't know her full job requirements. I work 12:24:07
12 with her to verify media requests that I have received. 12:24:12
13 Q. And your email says, "I thought I'd do a 12:24:18
14 follow-up with an email to you regarding the phone 12:24:24
15 message I left you yesterday. This was in regards to a 12:24:27
16 Matthew Meisel of Somerville, Massachusetts. He checked 12:24:30
17 the media box and states the reason for the request is to 12:24:35
18 be analyzed for personal blog." 12:24:39
19 You wrote that email? 12:24:43
20 A. Yes. 12:24:44
21 Q. And what is this email -- why did you write this 12:24:46
22 email? 12:24:52
23 A. I had a request from this person. And I have to 12:24:53
24 verify with the media specialist. She covers a certain 12:24:58
25 area of the country. And if this person is from 12:25:05
41
1 Massachusetts, Peggy handled the state of Massachusetts. 12:25:07
2 So we have to verify that he qualifies for media, which 12:25:10
3 is expedited request. 12:25:15
4 Q. Did Mr. Meisel submit a 4506-A form to you? 12:25:21
5 A. I have no idea. 12:25:29
6 Q. You mentioned the -- "he checked the media box." 12:25:30
7 A. Okay. So it must have been the form, then. 12:25:38
8 Q. There's a media box on the 4506 form that was 12:25:40
9 being used in January of 2011? 12:25:44
10 A. Say that again? 12:25:49
11 Q. There was a box, where you check off that you 12:25:50
12 are a member of the media in a 4506-A form in 12:25:53
13 January 2011? 12:26:01
14 A. Yes. 12:26:02
15 Q. Have you ever had any conversations with Matthew 12:26:03
16 Meisel? 12:26:06
17 A. No. 12:26:06
18 Q. Did you have any idea who Matthew Meisel was 12:26:07
19 when you received a request from him? 12:26:10
20 A. No. 12:26:13
21 Q. At any point in time, have you had any kind of 12:26:15
22 communication with Matthew Meisel? 12:26:20
23 A. No. 12:26:22
24 Q. Other than making reference to receiving a 12:26:22
25 4506-A? 12:26:25
44
1 at. 12:30:18
2 Q. I'm on page 92 now. 12:30:18
3 MR. TOMPKINS: So you were asking her if she 12:30:21
4 sent emails to Ms. Riley? 12:30:24
5 MR. DAVIS: Yeah. On the March 2, 2011, on 12:30:27
6 page 91, there's an email at the top. 12:30:32
7 MR. TOMPKINS: Because I couldn't tell if you 12:30:34
8 said to -- you may have mixed up the "to" and the "from." 12:30:36
9 So I just wanted to clarify for the record. 12:30:40
10 Q. (BY MR. DAVIS:) The question is: Did you send 12:30:42
11 that email of March 2, 2011, to Peggy Riley on page 91? 12:30:44
12 A. Yes. 12:30:51
13 Q. Then let's go forward to page 96. There's an 12:31:17
14 email which appears from yourself, Friday, March the 4th, 12:31:26
15 2011, at 8:33 a.m., where you say, "Happy Friday. Any 12:31:30
16 updates?" Did you send that email? 12:31:35
17 A. Yes. 12:31:42
18 Q. And then right above that Peggy Riley responds, 12:31:44
19 March 4, 2011, "Wendy - he is not media. It is just a 12:31:47
20 personal blog." 12:31:53
21 Do you recall receiving that email? 12:31:55
22 A. I don't recall receiving it. But apparently I 12:31:57
23 did because it's here. 12:32:00
24 Q. Did realizing that Matthew Meisel was not media 12:32:02
25 change the manner in which you processed the 4506-A 12:32:10
45
1 request that Mr. Meisel had submitted? 12:32:16
2 A. It would not have been expedited. 12:32:19
3 Q. And when you say "expedited," what kind of a 12:32:23
4 timeframe do you mean by "expedited"? 12:32:26
5 A. With media, we try to get it out within ten to 12:32:31
6 14 days. 12:32:37
7 Q. Is there any reason for that, that you know of? 12:32:40
8 A. I've never been told a reason, no. 12:32:43
9 Q. Let me show you what we've previously marked as 12:33:26
10 Exhibit 4. Do you know what this document is? 12:33:31
11 A. No. 12:33:46
12 Q. Do you recognize the access user ZKNLB? 12:33:48
13 A. Yeah. That is my IDRS, umm-hmm. 12:33:55
14 Q. It appears that if you go down to the bottom of 12:34:06
15 the first page, six entries up from the bottom -- the six 12:34:10
16 entries on the bottom, starting with 260240498 as an 12:34:21
17 employer identification number. Do you see that? 12:34:28
18 MR. TOMPKINS: Sixth from the bottom? 12:34:33
19 MR. DAVIS: Yes. 12:34:35
20 THE WITNESS: I see the "ZKNLB." The number on 12:34:36
21 the far left, the 26024, I'm not -- I'm not familiar with 12:34:38
22 that number. 12:34:43
23 Q. (BY MR. DAVIS:) Do you know -- 12:34:46
24 A. Oh, it's an EIN. Okay. 12:34:49
25 Q. Now, you're accessing the SEIN database here 12:34:51
56
1 and print. 13:03:25
2 MR. TOMPKINS: Are you talking about the copy 13:03:26
3 machine that she just referenced, or generally? 13:03:27
4 MR. DAVIS: Generally. 13:03:30
5 Q. (BY MR. DAVIS:) What do you understand a 13:03:31
6 watermark to be? 13:03:33
7 A. It's a light image or a dark image with the word 13:03:34
8 "Copy" on it or -- with copy machines, that's what I'm 13:03:38
9 thinking of, with watermarks. 13:03:43
10 Q. Do you know of an identifying number that's 13:03:45
11 referred to as a "watermark" which would identify who 13:03:48
12 causes a document to be printed? 13:03:51
13 A. In On-Line SEIN? 13:03:53
14 Q. Yeah. 13:03:55
15 A. That's what that diagonal number -- that's what 13:03:57
16 I was told. 13:04:00
17 Q. Okay. And is that generated automatically when 13:04:02
18 you, as a RAIVS clerk, seek to print information out of 13:04:07
19 On-Line SEIN? 13:04:18
20 A. Yeah. It's on every page. 13:04:20
21 Q. That's not something you voluntarily put in, 13:04:21
22 it's something that happens automatically, correct? 13:04:24
23 A. Correct. 13:04:27
24 Q. Is there any way that you know of that you can 13:04:28
25 redact that watermark -- 13:04:33
57
1 A. No. 13:04:35
2 Q. -- from a printed document? 13:04:35
3 A. No, not that I'm aware of. 13:04:37
4 Q. Have you ever redacted such a watermark from a 13:04:40
5 printed document that you've sent out or caused to be 13:04:43
6 sent out pursuant to a response to a 4506-A request? 13:04:47
7 A. No. 13:04:51
8 Q. Now, when you print a Schedule B before you do 13:04:57
9 the redaction process for the donors, and when you go 13:05:04
10 through that redaction process, do you do anything to 13:05:10
11 redact the watermark? 13:05:17
12 A. No. 13:05:19
13 Q. After you've redacted the names of the donors or 13:05:31
14 contributors, what happens to the watermark? 13:05:36
15 A. It should still be on the page. 13:05:43
16 Q. Now, we talked briefly about responses to media 13:05:47
17 requests with 4506-A requests or on media letterhead. 13:05:55
18 When you receive such a request, what is the 13:06:03
19 process -- from what you think is media, what is the 13:06:09
20 process that you go through? And let's put it to January 13:06:12
21 to March 2011. 13:06:16
22 A. You check for completeness on the 4506-A or in 13:06:21
23 the letterhead to make sure all the information is there. 13:06:26
24 And you contact the media specialist to verify if this 13:06:30
25 person qualifies for media. 13:06:37
58
1 Q. And do you print the documentation off the SEIN 13:06:43
2 database before there's a confirmation that this is a 13:06:48
3 media request or after? 13:06:53
4 A. It should be after. 13:06:55
5 Q. Do you ever print it before? 13:06:58
6 A. I don't believe I have. 13:07:00
7 Q. And why would you not print it before? 13:07:09
8 A. Why would you not print it before? Because 13:07:16
9 that's not the steps -- the procedure that you're 13:07:19
10 supposed to take. 13:07:24
11 Q. So basically, the request is not processed any 13:07:25
12 further until you get a response from the media person as 13:07:32
13 to whether or not you're dealing with someone in the 13:07:36
14 media? 13:07:38
15 A. I would say yes. 13:07:39
16 Q. Have you ever participated in any advocacy 13:07:55
17 groups that advocate same-sex marriage? 13:07:59
18 A. No. 13:08:03
19 Q. Nothing further. 13:08:15
20 MR. TOMPKINS: Do you need to take a break? 13:08:17
21 THE WITNESS: Yeah. I'd like to get up and walk 13:08:19
22 around a moment. 13:08:22
23 MR. TOMPKINS: Okay. 13:08:23
24 THE VIDEOGRAPHER: Going off record. The time 13:08:25
25 is 1:08. 13:08:27
61
1 Q. And what did that encompass? 13:16:19
2 A. Information that we're not supposed to be 13:16:22
3 sending out. And we can call the disclosure office if we 13:16:25
4 have questions. 13:16:30
5 Q. And did that information include a Schedule B? 13:16:32
6 A. I don't recall. 13:16:35
7 Q. What did you know about the Schedule B and 13:16:38
8 whether or not it should be disclosed? 13:16:41
9 A. From the one-on-one training that I had for EO. 13:16:44
10 Q. And that was with Mary Lou Andrews? 13:16:52
11 A. Mary Lou, yes. 13:16:57
12 Q. Did you have any -- were you going to ... 13:17:04
13 A. IRM. 13:17:05
14 Q. That was going to be my next question. 13:17:07
15 In addition to your one-on-one training, you 13:17:09
16 also had the IRM? 13:17:11
17 A. Correct. 13:17:14
18 Q. What was in the IRM? 13:17:14
19 A. Regarding the Schedule B? 13:17:16
20 Q. Yes. 13:17:17
21 A. That it was to be redacted. 13:17:18
22 Q. All of the Schedule B or certain portions? 13:17:23
23 A. Certain portions, yeah. 13:17:25
24 Q. And what were those portions? 13:17:29
25 A. The names. 13:17:31
62
1 Q. Did that include the addresses for the names? 13:17:34
2 A. Yes. Donor information, yes. 13:17:37
3 Q. What about the amounts? 13:17:40
4 A. The amounts could stay. 13:17:42
5 Q. If you had any questions about a 4506-A in 13:17:49
6 addition to the IRM and your co-RAIVS clerks, was there 13:17:54
7 anyone else you could consult with? 13:18:00
8 A. The analyst. 13:18:03
9 Q. And where was the analyst? 13:18:05
10 A. Where? 13:18:06
11 Q. Yes. 13:18:07
12 A. In our building. 13:18:07
13 Q. And how would you consult the analyst? 13:18:08
14 A. Either telephone, email, or in person. 13:18:12
15 Q. And do you know what division that analyst 13:18:15
16 worked in? 13:18:23
17 A. No. 13:18:23
18 Q. What division did you work in as a RAIVS clerk? 13:18:24
19 A. We were under W&I. 13:18:27
20 Q. Do you know what that stands for? 13:18:31
21 A. Wage and Investment. 13:18:32
22 Q. Were you an EO -- a part of EO, or is that 13:18:33
23 separate from W&I? 13:18:39
24 A. We were under accounting. The RAIVS unit is 13:18:42
25 under accounting. 13:18:45
66
1 the 2011 period? 13:23:16
2 A. No. Then she wouldn't be, no. 13:23:18
3 Q. And so the Susan was Susan Julian, who you 13:23:20
4 previously -- 13:23:23
5 A. Umm-hmm. 13:23:24
6 Q. -- testified about? 13:23:25
7 A. Yes. 13:23:26
8 Q. And approximately what percentage of the 4506-A 13:23:27
9 requests for EO 990s were you handling? 13:23:31
10 A. Majority of them. Can't give an exact 13:23:36
11 percentage. 13:23:39
12 Q. Is it over 90 percent? 13:23:39
13 A. I would say yes. 13:23:41
14 Q. And when you receive a request, a 4506-A, were 13:23:44
15 you looking for the number of tax years requested? 13:23:50
16 A. You're looking at all of it, really: The years 13:23:57
17 requested, which form they're looking for, be sure the 13:24:05
18 requester's information is complete. 13:24:12
19 Q. And so after you've looked at that, what would 13:24:17
20 you do next? 13:24:20
21 A. If it was media, then contact the media 13:24:23
22 specialist. 13:24:27
23 Q. If it wasn't media, what would you do? 13:24:31
24 A. If it was not media, then you would pull up the 13:24:34
25 EIN on the master file or IDRS. 13:24:38
69
1 Q. What if the document wasn't classified "amended 13:27:24
2 return"? 13:27:27
3 A. And you had two for the same year? 13:27:27
4 Q. Yes. 13:27:32
5 A. I most likely would print them both up to see 13:27:33
6 what was different about them. 13:27:36
7 Q. And so after you've printed them, the documents, 13:27:37
8 would you produce both copies of that return if there 13:27:42
9 were two copies? 13:27:45
10 A. To the requester? 13:27:47
11 Q. Yes. 13:27:48
12 A. It depends. If one had all the information on 13:27:49
13 it and one was lacking something, then you wouldn't need 13:27:54
14 to send both out. 13:27:57
15 Q. Is there a particular one that you would send 13:27:59
16 out? 13:28:02
17 A. You try to do the most recent one. 13:28:03
18 Q. So after you've printed them out, compared the 13:28:08
19 versions, what would you do after that? 13:28:11
20 A. If they're all ready to go, you would go in and 13:28:16
21 do your 3983(c) letter. 13:28:20
22 Q. But you would do anything to the 990? 13:28:22
23 A. If it needed to be redacted, yes. 13:28:25
24 Q. And so how would you do that? 13:28:28
25 A. If it had the Schedule B, then you would have to 13:28:30
70
1 remove the donors' names. 13:28:33
2 Q. How, physically, would you do that yourself? 13:28:37
3 A. Either black it out with a marker or cut it, cut 13:28:40
4 that out, that half of the page, and then make a copy. 13:28:46
5 Q. Now, would you ever -- strike that. 13:28:51
6 So after you've prepared the documents you've 13:28:59
7 made, the redactions, what would you do? 13:29:01
8 A. It would need to get to QR and be reviewed 13:29:03
9 after -- well, the letter. You have to do the letter. 13:29:08
10 Q. Would you do the -- and that's a 3983(c) letter? 13:29:11
11 A. Correct. 13:29:15
12 Q. Would you do that before or after QR? 13:29:15
13 A. Before. 13:29:19
14 Q. So you would input the letter, or the -- how did 13:29:20
15 you input the 3983(c) letter? 13:29:24
16 A. There's a tool that we use called the IAT, 13:29:27
17 I-A-T, which the letter format is in there. 13:29:32
18 Q. Are there various paragraphs for the letter? 13:29:37
19 A. Umm-hmm. There are paragraphs that you select 13:29:42
20 that would work for that request. There may be some that 13:29:45
21 is unavailable because it wasn't posted. You would use 13:29:52
22 an "unavailable" paragraph. Or if it was too old, 13:29:56
23 there's a "destroyed" paragraph. If you're sending it, 13:29:59
24 there's a paragraph that says, We've enclosed all the 13:30:03
25 ones that you've requested. 13:30:07
72
1 it to you personally, put it somewhere else in the RAIVS 13:31:19
2 unit? 13:31:23
3 A. Generally, yes, it's brought to us or placed on 13:31:23
4 our desk. 13:31:26
5 Q. So you'd either receive it in hand, or maybe 13:31:27
6 you're out at lunch and someone would put it on your 13:31:30
7 desk? 13:31:35
8 A. Correct. 13:31:36
9 Q. And then after that, you would -- would you put 13:31:36
10 it in an envelope? 13:31:39
11 A. Yes. 13:31:40
12 Q. And then it would go to the CRX? 13:31:43
13 A. Correct. 13:31:47
14 Q. And then you wouldn't see the 990 again? 13:31:48
15 A. Correct. 13:31:55
16 Q. Now, with the exception of this incident, was 13:31:57
17 there -- were you ever made aware of another time where 13:32:03
18 you failed to redact the Schedule B? 13:32:08
19 A. No. 13:32:12
20 Q. Were you aware of any other incident where this 13:32:14
21 occurred in the RAIVS unit by another clerk? 13:32:18
22 A. No. 13:32:21
23 Q. So this is the only incident that you are aware 13:32:22
24 of? 13:32:26
25 A. Yes. 13:32:26
73
1 Q. Now, you were shown Exhibit 6, a series of 13:32:31
2 emails between you and Peggy Riley? 13:32:36
3 A. Yes. 13:32:43
4 Q. Other than looking at these emails, do you have 13:32:44
5 any recollection of this email -- these email -- series 13:32:47
6 of email exchanges between January and March -- 13:32:52
7 A. No. 13:32:55
8 Q. -- of 2011? 13:32:55
9 You were asked about Mr. Meisel. And you do not 13:32:57
10 know who that is? 13:33:01
11 A. No. 13:33:02
12 Q. You've had no conversations about him? 13:33:03
13 A. No. 13:33:05
14 Q. Have you ever googled his name in the internet? 13:33:08
15 A. No. 13:33:11
16 Q. When you would receive a request on a 4506-A, 13:33:12
17 would you ever google the requester? 13:33:18
18 A. No. 13:33:20
19 Q. Would you ever look at the Schedule B to see if 13:33:24
20 you recognize any donors? 13:33:28
21 A. You have to look at the Schedule B when you're 13:33:30
22 redacting it. The names are there. You see it. 13:33:33
23 Q. But you're not looking to see the -- 13:33:37
24 A. I'm not looking to see if I recognize anybody's 13:33:38
25 name, no. 13:33:41
74
1 Q. Now, with regards to Mr. Meisel, do you know 13:33:42
2 anything about his sexual orientation? 13:33:45
3 A. No. 13:33:47
4 Q. His politics? 13:33:48
5 A. No. 13:33:49
6 Q. Now, if you were waiting to hear back from media 13:33:55
7 relations, what would you do with a file? 13:33:59
8 A. It would either be on my desk or the wall, you 13:34:06
9 know, the shelving units where we hold work. 13:34:11
10 Q. So once you heard back from media, then you 13:34:15
11 would process the request? 13:34:17
12 A. Correct. 13:34:19
13 Q. And you were asked about one or two requests. 13:34:23
14 You have no recollection of the request from Mr. Meisel? 13:34:27
15 A. Correct. 13:34:30
16 Q. Do you know anything -- you were asked about if 13:34:44
17 you know anything about the National Organization of 13:34:48
18 Marriage. Do you know any of its directors? 13:34:50
19 A. No. 13:34:53
20 Q. Any of its officers? 13:34:53
21 A. No. 13:34:55
22 Q. Do you know anything about its mission? 13:34:56
23 A. No. 13:34:57
24 Q. You were asked if you were a part of any sort of 13:34:58
25 advocacy efforts regarding marriage, same-sex marriage. 13:35:04
75
1 You said were you not? 13:35:10
2 A. Correct. 13:35:11
3 Q. Do you know anything about the Human Rights 13:35:13
4 Campaign? 13:35:16
5 A. No. 13:35:17
6 Q. Do you know any of its officers? 13:35:19
7 A. No. 13:35:21
8 Q. Directors? 13:35:22
9 A. No. 13:35:22
10 Q. Its president? 13:35:24
11 A. No. 13:35:25
12 Q. In addition to Mr. Meisel, there were certain 13:35:31
13 individuals that have been identified in this case as 13:35:36
14 being people that were associated with him. 13:35:42
15 Do you remember -- does the name Daniel Robinson 13:35:45
16 mean anything to you? 13:35:49
17 A. No. 13:35:50
18 Q. Michael Honigberg? 13:35:50
19 A. No. 13:35:52
20 Q. Daniel Heller? 13:35:53
21 A. No. 13:35:54
22 Q. Ben Tobin? 13:35:55
23 A. No. 13:35:56
24 Q. Matt Kiggins? 13:35:57
25 A. No. 13:36:00
90
1 Case: National Organization of Marriage v. USA
Case No.: 13-1225-JCC-IDD
2 Reporter: Michelle Mallonee
3 WITNESS CERTIFICATE
4 State of Utah )
ss.
5 County of Salt Lake )
I, Wendy Peters, HEREBY DECLARE: That I am the
6 witness referred to in the foregoing testimony; that I
have read the transcript and know the contents thereof;
7 that with these corrections I have noted this transcript
truly and accurately reflects my testimony.
8
9
10
11
12
13
14 __________________________
Wendy Peters
15
SUBSCRIBED and SWORN to at _____________________________,
16 _____________________, this _______ day of _____________,
2014.
17
18 __________________________
Notary Public
19
20
21
22
23
24
25
91
1 CERTIFICATE
2
State of Utah )
3 ss.
County of Salt Lake )
4
5
6 I hereby certify that the witness in the
foregoing proceeding was duly sworn to testify to the
7 truth, the whole truth, and nothing but the truth in the
within-entitled cause;
8
That said deposition was taken at the time
9 and place herein named;
10 That the deposition is a true record of the
witness' testimony;
11
That the testimony of said witness was
12 reported by me in stenotype and thereafter transcribed
into typewritten form;
13
I further certify that I am not of kin or
14 otherwise associated with any of the parties of said
cause of action, and that I am not interested in the
15 event thereof.
16
17
18
19
________________________________
20 Michelle Mallonee, RPR, CSR
Utah CSR #267114-7801
21 Expires May 31, 2014
22
23 (Signature not Waived)
24
25
Defendant
Exhibit
_____________
6
Defendant
Exhibit
_____________
7
Defendant
Exhibit
_____________
8
1
4 -o0o-
5
MARRIAGE, INC., )
Plaintiff, )
8 )
v. )
9 )
10 )
Defendant. )
11 _____________________________)
12
13 DEPOSITION OF
14 David Hamilton
15 Taken on Wednesday, January 29, 2014
16 at 8:00 a.m.
17
Ogden, Utah 84401
19
20
21
Glendale, CA 91203
23 (818) 551-7300
www.depo.com
24
FILE #A800C72
25
Defendant
Exhibit
_____________
9
2
1 APPEARANCES
2
3 FOR PLAINTIFF:
6 Telephone: (305) 482-8404
7
SHAWN SHEEHY, ESQ.
Telephone: (540) 341-8808
ssheehy@hvjlaw.com
12
Telephone: (317) 203-5599
16
17 FOR DEFENDANT:
19 P.O. Box 14198
20 Telephone: (202) 514-5885
21
22 CHRISTOPHER D. BELEN, ESQ.
23 P.O. Box 227
Telephone: (202) 307-2089
25 Email: christopher.d.belen@usdoj.gov
3
1 FOR THE IRS:
4 Telephone: (609) 575-4531
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
20
1 database?
2 A. About the same.
3 Q. Would Wendy Peters have been one of those
4 clerks?
5 A. I believe so.
6 Q. For -- do you know what the process would be
7 that a clerk would engage in, in the January-March time
8 period, 2011, to access return information in the SEIN
9 database?
10 A. They would --
11 Q. And I'd like you to just take me literally step
12 by step, if you would.
13 A. Do you want to go back as far as how their
14 permissions were allocated or granted?
15 Q. Umm-hmm, yes.
16 A. First step would be that the employee would
17 determine that they needed access to the online database.
18 They'd submit a Form 5081, which requested access. Their
19 manager would approve that. And further up the chain
20 would also approve that.
21 Once they were granted access, they would
22 receive a login and two passwords.
23 Q. Specific to that one request of access?
24 A. Yes.
25 MR. BELEN: I'm -- just to clarify, what did you
21
1 just ask, Mr. Davis?
2 MR. DAVIS: He said that after receiving
3 approval for access, they would receive a login and two
4 passwords. And I asked him if that login and those two
5 passwords were specific only to the access that they were
6 seeking at that time.
7 MR. BELEN: So one access to the database?
8 MR. DAVIS: Yes.
9 THE WITNESS: No. That would give them access
10 for as long as they needed it.
11 Q. (BY MR. DAVIS:) To a specific return
12 information or to the database in general?
13 A. To the database in general.
14 Q. I gotcha. And would they have the ability to
15 have access to both or to restricted, redacted, and
16 public information as well?
17 A. At that time, yes.
18 Q. In the January to the March 2011?
19 A. Yes.
20 Q. Has that changed?
21 A. Yes.
22 Q. When did it change?
23 A. That changed -- went into effect in May of 2012.
24 Q. And how did it change?
25 A. The RAIVS clerks no longer have access to the
33
1 A. The button -- one button -- either button took
2 you to the next screen, the summary screen.
3 Q. But conceivably if you wanted both, you could
4 click one, back up, and go back and click the other. Is
5 that correct?
6 A. You could.
7 Q. Okay. So now the clerk -- and again, we're in
8 the January-March 2011 time period. And just assume
9 we're there until I tell you differently, okay?
10 A. Okay.
11 Q. The clerk wants to print out information that
12 the clerk has accessed through this process. What's the
13 next step?
14 A. The next step is for -- well, once the clerk is
15 on the screen that displays the images one page at a
16 time, they hit a print button. And they're given a
17 choice of printing the whole return, a range of pages,
18 just the current page, and so on. And once the print
19 button is pressed, they're taken to another screen, which
20 shows the selected pages with an identifying number on
21 the page. And the pages are printed to a printer.
22 Q. Okay. Now, is there any kind of identifying
23 mark, watermark or whatever, that occurs at the time of
24 printing that would identify who it was that had
25 requested the printing?
34
1 A. Yes.
2 Q. Describe that process for me.
3 A. It's a long number -- I don't know how many
4 digits -- that appears diagonally on the page, on the
5 printed page. That number is stored in the database,
6 along with the user's name and the date of access.
7 Q. So the number you're referring to is
8 cross-referenced to a user?
9 A. Yes. And to a return.
10 Q. And when the document is printed, it appears
11 diagonally across the printed page?
12 A. Yes.
13 Q. Is there ever an instance where it is -- strike
14 that.
15 If the document is not printed but it is
16 accessed and reviewed, is there a watermark asserted
17 electronically in any way?
18 A. No. Well, the watermark number appears -- if
19 the clerk is just looking at the return images, the
20 watermark number appears horizontally at the top of the
21 page. And the program is set up so that it can be moved
22 so the clerk can see whatever is behind that watermark.
23 Q. Okay. Go ahead.
24 A. The number is assigned at that point. It's
25 never actually printed to a file or anything like that.
35
1 It appears on the printed output.
2 Q. Now, let's say the clerk accessed the page and
3 reviewed the screen, chose not to print, closed the
4 screen, and what have you.
5 Does that horizontal watermark remain as part of
6 the record?
7 A. That event is stored in our audit table, yes.
8 Q. Okay. So after the fact, you can go back and
9 look and see some -- a clerk accessed this information,
10 looked at it, chose not to print it, and closed out?
11 A. Yes.
12 Q. Is there a way of ascertaining from looking at
13 the database that has been accessed whether or not a
14 document has been printed?
15 A. At that time, no. You know what? Even today,
16 no.
17 Q. When a document is sent for printing in this
18 process that we've been talking about, is there -- or are
19 there -- I should say, is there a trail with respect to
20 the actual printing that would reflect who it was that
21 requested the printing? Maybe I'm not -- if that's not
22 clear, I'll rephrase.
23 A. There is. The printing event is recorded on our
24 application servers.
25 Q. And what kind of information is retained on the
36
1 application servers reflecting the printing event?
2 A. It would be the name of the printer, the user
3 name, and number of pages printed.
4 Q. Is there anything that --
5 A. And the time.
6 Q. And the time. That's what I was going to ask.
7 MR. BELEN: Do you need a break?
8 MR. DAVIS: We've got a couple of documents that
9 we're going to get to. Why don't we take, like, a
10 five-minute break?
11 (A break was taken from 9:16 a.m. to 9:27 a.m.)
12 (Exhibit-3 was marked for identification.)
13 Q. (BY MR. DAVIS:) Mr. Hamilton, I show you what I
14 have had marked as composite Exhibit 3, Deposition
15 Exhibit 3, which appear to be documents, Government
16 Produced 44, 45, and 46. I think it's 44, 45, and 46.
17 MR. TOMPKINS: That's correct.
18 Q. (BY MR. DAVIS:) Can you tell me if you can
19 identify these documents?
20 A. Yes, I can.
21 Q. What are these documents?
22 A. These are screen shots of part of an event log
23 from our application server.
24 Q. Do you know to what specific event these
25 documents relate?
37
1 A. Yes. They are -- let's see. I'll make sure.
2 They're all three print events, where it records when a
3 user printed a document.
4 Q. And the user is identified in the user line
5 here?
6 A. Yes, the Z-K-N-L-B.
7 Q. ZKNLB. What is the, I say, the preface --
8 A. The "SOIWORLD"?
9 Q. Yes.
10 A. That's the name of the domain.
11 Q. So ZKNLB would identify a specific user?
12 A. Right.
13 Q. Do you know who that user was?
14 A. Yes, I do.
15 Q. Who was that user?
16 A. Wendy Peters.
17 Q. And the time indication on here reflects what?
18 MR. BELEN: Are you asking on which page?
19 MR. DAVIS: On the first page, I'm sorry.
20 THE WITNESS: That indicates the time of the
21 event.
22 Q. (BY MR. DAVIS:) The time something was sent to
23 a printer?
24 A. Yes.
25 Q. And obviously, the date would indicate the
45
1 A. That refers to the tax year of the filing, yes.
2 Q. And what does the "12" signify?
3 A. December.
4 Q. Does that indicate that that was a calendar
5 year-end return?
6 A. It could. If the taxpayer fails to enter a tax
7 period at the top of the return, we use a default of 12.
8 We go by the tax form, the year, and a default of 12.
9 Q. Now, let's go to the top of page 2. And if you
10 look at the "Access User" column, that's ZKNLB.
11 A. Yes.
12 Q. And who do you know that to be?
13 A. That's Wendy Peters.
14 Q. And just walking through the top one on page 2.
15 What does this tell you that Wendy Peters did on
16 January 21, 2011 at 7:12:12?
17 A. It shows me that she accessed the return with
18 the return I.D. of 260240498, the EIN, and 2008/12 as the
19 tax period.
20 Q. Does it tell you that she did anything else? Is
21 there anything else that you can glean from this, other
22 than she accessed that return on that date and that time?
23 A. No.
24 Q. Is it possible for a clerk accessing a return
25 such as this to have multiple returns open on the same
68
1 Case: The National Organization of Marriage v. USA
Case No.: 13-1225-JCC-IDD
2 Reporter: Michelle Mallonee
3 WITNESS CERTIFICATE
4 State of Utah )
ss.
5 County of Salt Lake )
I, David Hamilton, HEREBY DECLARE: That I am the
6 witness referred to in the foregoing testimony; that I
have read the transcript and know the contents thereof;
7 that with these corrections I have noted this transcript
truly and accurately reflects my testimony.
8
9
10
11
12
13
__________________________
14 David Hamilton
15 SUBSCRIBED and SWORN to at _____________________________,
_____________________, this _______ day of _____________,
16 2014.
17
__________________________
18 Notary Public
19
20
21
22
23
24
25
69
1 CERTIFICATE
2
State of Utah )
3 ss.
4
5
8
witness' testimony;
11
13
15 event thereof.
16
17
18
19
________________________________
Utah CSR #267114-7801
22
23 (Signature not Waived)
24
25
1
4 -o0o-
5
MARRIAGE, INC., )
Plaintiff, )
8 )
v. )
9 )
10 )
Defendant. )
11 _____________________________)
12
13 30(b)(6) VIDEOTAPED DEPOSITION, VOLUME II
14 WITNESS: DAVID HAMILTON
15 Taken on Tuesday, March 11, 2014
16 at 10:57 a.m.
17
Ogden, Utah 84401
19
20
21
Glendale, CA 91203
23 (818) 551-7300
www.depo.com
24
FILE #A8027FA
25
Defendant
Exhibit
_____________
10
2
1 APPEARANCES
2
3 FOR PLAINTIFF:
6 Telephone: (305) 482-8404
7
SHAWN SHEEHY, ESQ.
Telephone: (540) 341-8808
ssheehy@hvjlaw.com
12
Telephone: (317) 203-5599
16
17 FOR DEFENDANT:
19 P.O. Box 14198
20 Telephone: (202) 514-5885
21
22 PHILIP M SCHREIBER, ESQ.
23 P.O. Box 14198
24 Telephone: (202) 514-6069
Email: philip.m.schreiber@usdoj.gov
25
3
1 FOR THE IRS:
4 Telephone: (609) 575-4531
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
4
1 I N D E X
WITNESS PAGE
2
DAVID HAMILTON
3
Examination by Mr. Davis 6
4
5
6
7
8
9
E X H I B I T S
10
11 EXHIBIT NO. DESCRIPTION PAGE
12 Exhibit 44 - Email Chain, GOV-PROD-0000601, 14
Dated 4/16/2012
13
Exhibit 45 - Email Chain, GOV-PROD-0000596, 25
14 Dated 3/8/2011
15 Exhibit 46 - User Listing, GOV-PROD-0002087 29
through 0002090 (Marked as Confidential)
16
Exhibit 47 - User Listing, GOV-PROD-0002115 31
17
Exhibit 48 - Email Chain, GOV-PROD-0000163 34
18 Dated 4/8/2012 and 4/6/2012
19 Exhibit 49 - Email Chain, GOV-PROD-0000145 35
through 0000146, Dated 4/5/2012
20
21 Dated 4/5/2012
Dated 4/13/2012
23
Exhibit 52 - Redacted Email, GOV-PROD-0001624, 44
24 Dated 4/15/2012
25
19
1 the On-Line SEIN program as part of your work duties. 11:20:05
2 That form is then approved by your manager and then 11:20:11
3 someone further up in TEGE. At that time, it was Sherry. 11:20:18
4 Q. It was Sherry? 11:20:23
5 A. Yes. 11:20:24
6 Q. So someone like Wendy Peters, first of all, 11:20:25
7 would report to, I believe it was someone by the name of 11:20:33
8 Ben Johanson. Is that correct? 11:20:37
9 A. I believe so. 11:20:40
10 Q. And -- but her qualifying for access to On-Line 11:20:41
11 SEIN would fall under Sherry Whitaker's areas of 11:20:49
12 responsibility. Is that correct? 11:20:55
13 A. Sherry would eventually have to approve, also. 11:20:57
14 Q. Your email of April 16, 2012, goes on to say, 11:21:22
15 "This issue could have occurred for any user, not just 11:21:26
16 those in RAIVS." And the reference on the email is "Hot 11:21:33
17 Issue." 11:21:36
18 A. Right. 11:21:38
19 Q. Do you recall what issue you're referring to 11:21:38
20 there? 11:21:41
21 A. I'm sure it was the NOM disclosure. 11:21:41
22 Q. Now, with regard to the online users that you're 11:22:10
23 referring to there in your email, do all of them have a 11:22:14
24 personal identification code that reflects or allows them 11:22:22
25 to access On-Line SEIN? 11:22:28
20
1 A. Yes. We use their employee I.D. number to 11:22:32
2 identify each individual employee. 11:22:38
3 Q. We'll see later on that there was a particular 11:22:43
4 lettered number, which identified Wendy Peters as having 11:22:47
5 accessed On-Line SEIN. 11:22:53
6 And my question is do all users that have the 11:22:56
7 capability of accessing On-Line SEIN have such a login 11:23:01
8 number assigned to them? 11:23:07
9 A. Yes. 11:23:08
10 Q. Yourself included? 11:23:10
11 A. Yes. 11:23:11
12 Q. And your two assistants as well? 11:23:13
13 A. Yes. 11:23:15
14 Q. And when you mentioned the TEGE users engaging 11:23:19
15 in examination activities, did that -- would that include 11:23:26
16 audit activities? 11:23:30
17 A. I don't know for sure. 11:23:32
18 Q. So just so I understand this, all online 11:23:45
19 users -- or all users of On-Line SEIN, whether RAIVS 11:23:49
20 clerks or not, with the exception of the three people 11:23:56
21 you've described, yourself and your two assistants, their 11:23:58
22 access would be found in an audit trail. Is that 11:24:03
23 correct? 11:24:06
24 A. That's correct. And if I or my two assistants 11:24:06
25 accessed the system, On-Line SEIN system, our access 11:24:10
21
1 would be recorded in the audit trail, too. 11:24:15
2 Q. Is there any way that you can think of that any 11:24:18
3 online user can access On-Line SEIN without leaving an 11:24:20
4 audit trail? 11:24:24
5 A. No. 11:24:26
6 Q. Can any online user, whether -- let's say 11:24:33
7 outside of the RAIVS unit for a second. Can any online 11:24:38
8 user print out documents that they've accessed on On-Line 11:24:44
9 SEIN? 11:24:47
10 A. Yes. 11:24:48
11 Q. When an online user accesses On-Line SEIN, it 11:24:59
12 also generates what we've previously discussed as a 11:25:09
13 systemically-generated watermark number. Is that 11:25:15
14 correct? 11:25:19
15 A. Yes. 11:25:19
16 Q. And that is an event-based occurrence. Is that 11:25:20
17 correct? 11:25:22
18 A. Yes. 11:25:23
19 Q. So if you, Mr. Hamilton, access On-Line SEIN 11:25:27
20 three times, you're going to get three different 11:25:31
21 watermark numbers. Is that correct? 11:25:34
22 MR. TOMPKINS: Objection. Are you referring to 11:25:35
23 the tax return or the program? 11:25:37
24 Q. (BY MR. DAVIS:) Tax return. 11:25:40
25 A. If it's the single tax return -- let's put it 11:25:45
22
1 this way: Each time you enter a new search criteria in 11:25:49
2 the program, then you're assigned a new watermark or a 11:25:56
3 tracking number. 11:25:59
4 Q. Okay. And I'll show you in a few minutes on 11:26:01
5 January 21, 2011, it appears that Wendy Peters, or 11:26:05
6 someone -- you know, Wendy Peters accessed On-Line SEIN 11:26:12
7 three times, two times with respect to the 2008 return 11:26:16
8 and one time with respect to a 2007 return. And I'll 11:26:22
9 show you if you need to see them. But that generated 11:26:27
10 three different watermark numbers. 11:26:29
11 A. Okay. 11:26:34
12 Q. Can you think of why accessing the 2008 return 11:26:35
13 twice on January 21, 2011, would generate two different 11:26:38
14 watermark numbers? 11:26:42
15 A. The only way it could happen is if she returned 11:26:47
16 to the search criteria screen and -- each time between 11:26:50
17 each of the three returns. 11:26:56
18 Q. What if there were two different 2008 returns? 11:26:58
19 In other words -- 11:27:01
20 A. Oh, sorry. Take that back. 11:27:02
21 Each new return that is viewed -- I'm sorry -- 11:27:05
22 gets a new watermark, no matter what the search criteria 11:27:08
23 is. 11:27:14
24 Q. So if there were -- for instance, if there were 11:27:14
25 a 2008 return and then an amended return for 2008 and she 11:27:17
23
1 were to access both of those, based on your understanding 11:27:21
2 of the system, would that generate two different 11:27:24
3 watermark numbers? 11:27:31
4 A. Yes. 11:27:34
5 Q. Can any online user of On-Line SEIN accessing 11:27:35
6 and printing return information do so without leaving an 11:27:45
7 audit trail? 11:27:52
8 A. No. 11:27:53
9 Q. Once a user has been authorized through this 11:28:09
10 process that you described to have access to On-Line 11:28:14
11 SEIN, is there any other procedures that such a user 11:28:18
12 needs to follow to secure further authorization every 11:28:27
13 time they access On-Line SEIN? 11:28:33
14 A. No. With the exception of keeping their 11:28:35
15 password current, no. 11:28:40
16 Q. What safeguards are you aware of that exist in 11:28:44
17 order to keep the passwords of On-Line SEIN users secure? 11:28:53
18 A. They -- well, the first password expires after, 11:29:03
19 I believe it's 60 days. So the users have to change 11:29:11
20 their password every 60 days. 11:29:21
21 The second password expires more infrequently. 11:29:25
22 I believe we're going for 120 days on that one. 11:29:30
23 Q. Okay. What is the first password? Is it -- 11:29:34
24 A. That password allows users access to the Citrix 11:29:37
25 environment, where users can access a number of different 11:29:40
24
1 programs written by SOI, based on what they've been 11:29:53
2 granted access to. 11:29:57
3 Q. Is that a different password? And I can tell 11:30:00
4 you from looking at the audit trail concerning the access 11:30:02
5 of the NOM tax return information back in 2011, Sherry -- 11:30:06
6 oh, excuse me, Wendy Peters used an identifier of ZKNLB. 11:30:13
7 So that's a different password you're talking about? 11:30:20
8 A. That's a user name. 11:30:24
9 Q. That's a user name? 11:30:25
10 A. That's her name. 11:30:26
11 Q. Okay. So when she has this password that she 11:30:28
12 uses to access the system and then goes into On-Line 11:30:30
13 SEIN, her user name is automatically posted to the 11:30:35
14 system? 11:30:39
15 A. Yes. 11:30:40
16 Q. And that's done automatically? 11:30:44
17 A. The audit trail record takes place when a user 11:30:47
18 views a return. 11:30:57
19 Q. And when is the user name -- how is the user 11:30:59
20 name assigned to an individual? 11:31:03
21 A. That ZKNLB? 11:31:07
22 Q. Umm-hmm. 11:31:09
23 A. That's something that the IRS gives out to every 11:31:10
24 employee. They each have a unique -- as far as I know -- 11:31:13
25 five-character number, combination of numbers and 11:31:17
25
1 letters. 11:31:24
2 Q. Now, when, say, Wendy Peters accesses On-Line 11:31:24
3 SEIN, is that number -- or is that user name 11:31:28
4 automatically posted by virtue of the computer? Or is it 11:31:31
5 something that she plugs in? 11:31:37
6 A. The computer program does that. 11:31:39
7 Q. Okay. So there's an association between her 11:31:41
8 password to get into the system and her user name? 11:31:46
9 A. Right. It recognizes the user name and -- well, 11:31:50
10 the user name of the person logging in. 11:31:53
11 MR. TOMPKINS: Are you talking about the first 11:31:55
12 login or the second login in your question? 11:31:57
13 MR. DAVIS: Well, actually, I'm taking about 11:31:59
14 both. 11:32:01
15 Q. (BY MR. DAVIS:) You have a first login, where 11:32:01
16 it's like any other computer. You log into it with a 11:32:03
17 password that you create and it changes periodically. 11:32:06
18 When you change that password, the computer 11:32:12
19 recognizes you still as associated with the user name? 11:32:16
20 A. Right. 11:32:20
21 Q. So -- and the user name then occurs, or gets 11:32:21
22 posted, when you access On-Line SEIN return information? 11:32:24
23 A. Right. 11:32:32
24 (Exhibit-45 was marked for identification.) 11:32:32
25 Q. (BY MR. DAVIS:) Let me show you what I'm having 11:33:18
61
1 Case: The National Organization for Marriage, Inc., v.
The United States of America, Internal Revenue Service
2 Case No.: 13-cv-1225-JCC/IDD
Reporter: Michelle Mallonee 12:50:16
3
WITNESS CERTIFICATE
4
State of Utah )
5 ss.
County of Salt Lake ) 12:50:16
6
7
8 I, David Hamilton, HEREBY DECLARE: That I am the
witness referred to in the foregoing testimony; that I
9 have read the transcript and know the contents thereof;
that with these corrections I have noted this transcript
10 truly and accurately reflects my testimony.
11
12
__________________________
13 David Hamilton
_____________________, this _______ day of _____________,
15 2014.
16
__________________________
17 Notary Public
18
19
20
21
22
23
24
25
62
1 CERTIFICATE
2
State of Utah )
3 ss.
4
5
within-entitled cause; 12:50:16
8
witness' testimony; 12:50:16
11
into typewritten form; 12:50:16
13
15 event thereof.
16
17
18
19
________________________________
Utah CSR #267114-7801 12:50:16
22
23
24
25
Defendant
Exhibit
_____________
11

11128176.1
Alexandria Division
MARRIAGE, INC. )
)
Plaintiff, )
)
v. ) Civil Action No. 13-1225-J CC-IDD
)
THE UNITED STATES OF AMERICA, et al., )
)
Defendants. )
__________________________________________)
DEFENDANTS OBJECTIONS AND RESPONSES TO PLAINTIFFS
SECOND SET OF DISCOVERY REQUESTS
Pursuant to Local Rule 26(C) and Federal Rules of Civil Procedure 33, 34, and 36,
Defendant, the United States of America, through its undersigned counsel, provides the
following objections and responses to Plaintiffs second sets of interrogatories, requests for
admission, and requests for production of documents in the above-captioned action.
GENERAL OBJECTIONS AND OBJECTIONS TO
PLAINTIFFS GENERAL INSTRUCTIONS AND DEFINITIONS
1. Defendant objects to the definitions and instructions in Plaintiffs second set of
interrogatories, requests for admission, and requests for production to the extent that those
definitions and instructions purport to expand the duty of Defendant to respond to requests for
production, requests for admission, and interrogatories under the Federal Rules of Civil
Procedure.
2. Defendant objects to Plaintiffs requests and interrogatories to the extent they
seek information protected by the attorney-client privilege, protection for attorney work-product,
law enforcement investigative privilege or the deliberative process privilege.
Defendant
Exhibit
_____________
12

8
19. Describe the origin of the words This is a copy of a live return from SMIPS that
is located on the top of Plaintiffs 2008 Schedule B (see, e.g., GOV-PROD 0000016), including
when the words were added to the document, by whom they were added, whether the words are
only visible on the printed document, and the significance and/or meaning of the words.
Response: Defendant incorporates its Objections dated February 24, 2014 in its response
to this interrogatory. Subject to these objections, Defendant states as follows: after a diligent and
reasonable search, Defendant is unable to describe the origin or meaning of the quoted words
above, but states that, historically, the quoted phrase was added to all returns printed or saved
from within the On-Line-SEIN system. With regard to the systems relevant to the disclosure that
occurred in this case, the phrase was added when the document was printed by Wendy Peters in
response to a Form 4506-A. It was not visible on OL-SEIN before the document was printed.
20. Describe the information provided in GOV-PROD-000706, including how and
why it was maintained.
to this interrogatory. Subject to these objections, Defendant states as follows: the document is an
ENMOD screen of the IDRS system. It shows a wide variety of information relating to Plaintiff,
too voluminous and burdensome to detail in response to this interrogatory. The IDRS system,
however, does not contain the names or addresses of any contributors reported on a paper filed
Form 990, Schedule B, like the Schedule B that was disclosed in this case. Importantly, for
purposes of Plaintiffs suit, it includes information indicating that on or around J anuary 31, 2011,
IRS employee Wendy Peters caused a 3983C letter to be created in response to a Form 4506-A.
See GOV-PROD-0000708. The second column shows the date of an action in IDRS, and the

9
third column identifies the IDRS number of the employee that took the action. The fourth
column is the comments section and was generally input by the person taking the action. The
fifth column shows additional information, for example a Z indicates that a correspondence
was sent out. For example, if a Form 990 is requested and available to send, the 3983C letter is
generated and is associated with the Form in the CRX letter area and mailed by the CRX clerks.
DEFENDANTS OBJECTIONS AND RESPONSES TO SPECIFIC REQUESTS FOR PRODUCTION
20. All audit trails from the Integrated Data Retrieval System, Statistics of Income
Exempt Organizations Return Image Network (SEIN) event logs with corresponding print
logs, if any, related to Plaintiffs return information for the years 2007, 2008, and 2009.
to this request. Subject to those objections, the United States responds that it has produced
responsive, relevant and non-privileged documents, and that it will supplement its production of
such documents to the extent additional responsive, relevant and non-privileged documents are
located, and in accordance with the Federal Rules of Civil Procedure or this districts Local
Rules.
21. All documents supporting your contention that (t) the IRS clerk did not produce
to Mr. Meisel a copy of Plaintiffs original 2008 Form 990, a tax return that included a Schedule
B that listed more donors than the Schedule B attached to Plaintiffs amended return. See
Governments Response to Plaintiffs Interrogatory 3.
to this request. Subject to those objections, the United States responds that it has produced all

11128176.1
As to objections,
Dated: March 12, 2014 KATHRYN KENEALLY
CHRISTOPHER D. BELEN
(202) 514-6069 (Mr. Schreiber)
(202) 514-5885 (Mr. Tompkins)
(202) 307-2089 (Mr. Belen)
Fax: 202 514-9868
- and
DANA J . BOENTE
ACTING UNITED STATES ATTORNEY
David Moskowitz
Telephone: (703) 299-3845
Fax: (703) 299-3983

I HEREBY CERTIFY that on March 12, 2014, I served the foregoing Objections and
Responses to Plaintiffs Second Set of Discovery Requests on counsel of record below by
electronic mail and by U.S. Mail addressed as follows:
J ason Brett Torchinsky
45 North Hill Drive
Suite 100
Warrenton, VA 20186
540-341-8808
Fax: 540-341-8809
Email: jtorchinsky@hvjlaw.com
PHILIP M. SCHREIBER
Trial Attorney, Tax Division
Defendant
Exhibit
_____________
13

Defendant
Exhibit
_____________
14
CONFIDENTIAL
Brian Brown March 14, 2014
202-220-4158 www.hendersonlegalservices.com
Henderson Legal Services, Inc.
1
*** C O N F I D E N T I A L ***
I N THE UNI TED STATES DI STRI CT COURT
FOR THE EASTERN DI STRI CT OF VI RGI NI A
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
:
THE NATI ONAL ORGANI ZATI ON FOR :
MARRI AGE, I NC. , :
:
Pl ai nt i f f , :
:
v. : Case No.
: 13- 1225- J CC- I DD
THE UNI TED STATES OF AMERI CA, :
et al . , :
:
Def endant s. :
:
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Deposi t i on of BRI AN BROWN, a wi t ness her ei n, at
t he of f i ces of U. S. Depar t ment of J ust i ce, Tax
Di vi si on, 555 Four t h St r eet , N. W. , Washi ngt on, D. C. ,
commenci ng at 9: 46 a. m. on Fr i day, Mar ch 14, 2014,
and t he pr oceedi ngs bei ng t aken down by st enot ype and
t r anscr i bed by Cat her i ne B. Cr ump, a Not ar y Publ i c i n
and f or t he Di st r i ct of Col umbi a.
Defendant
Exhibit
_____________
15
CONFIDENTIAL
2
1
APPEARANCES:
2
On behal f of t he Pl ai nt i f f :
3
WI LLI AM E. DAVI S, ESQ.
Fol ey & Lar dner
4
2 S. Bi scayne Boul evar d, Sui t e 1900
Mi ami , Fl or i da 33131
5
( 305) 482- 8404
wdavi s@f ol ey. com
6
J ASON BRETT TORCHI NSKY, ESQ.
7
Hol t zman, Vogel , J osef i ak, PLLC
45 Nor t h Hi l l Dr i ve, Sui t e 100
8
War r ent on, Vi r gi ni a 20186
( 540) 341- 8808
9
j t or chi nsky@hvj l aw. com
10
NOEL J OHNSON, ESQ.
Act Ri ght Legal Foundat i on
11
12
On behal f of t he Def endant s:
13
PHI LI P M. SCHREI BER, ESQ.
BENJ AMI N L. TOMPKI NS, ESQ.
14
U. S. Depar t ment of J ust i ce
Tax Di vi si on
15
P. O. Box 14198
Washi ngt on, D. C. 20044
16
( 202) 514- 6069
phi l i p. m. schr ei ber @usdoj . gov
17
18
19
20
21
22
CONFIDENTIAL
80
1
basi cal l y. I ' msummar i zi ng, but you can r ead i t i f
2
you want .
3
The f i r st bul l et poi nt i n t he r esponse says
4
l ost donat i ons, $50, 000. I j ust want t o cl ar i f y t hat
5
t hat ' s t he same cl ai mf or damages t hat you' ve
6
wi t hdr awn i n t hi s case.
7
A. Yeah. We've withdrawn the $50,000
8
because we -- it doesn't mean that there weren't lost
9
donations. It means that we don't want to open up
10
the donors to the same sort of intimidation and
11
harassment that this lawsuit is all about. So we
12
have decided to withdraw that.
13
Q. Okay. That ' s al l I ' maski ng, t hat you
14
deci ded t o wi t hdr aw i t .
15
A. Okay.
16
[Exhibit No. 123 was marked
17
for identification.]
18
BY MR. SCHREI BER:
19
Q. Mr . Br own, I ' ve handed you what t he
20
cour t r epor t er has mar ked as Exhi bi t 123. I t ' s
21
Pl ai nt i f f ' s Suppl ement al Response t o Def endant ' s
22
Fi r st Set of Request s f or Pr oduct i on of Document s,
CONFIDENTIAL
81
1
I nt er r ogat or i es, and Request s f or Admi ssi on t o
2
Pl ai nt i f f . I t ' s dat ed on t he back Febr uar y 12, 2014.
3
Do you see t hat , si r , on page 4?
4
A. Yes.
5
Q. Thi s document suppl ement s t he
6
I nt er r ogat or y No. 5 r esponse t hat we j ust l ooked at a
7
hal f - mi nut e ago.
8
A. Yes.
9
Q. I do want t o wal k t hr ough t hi s one wi t h
10
you, si r , so I under st and t he uni ver se of damages
11
t hat NOM i s seeki ng i n t hi s case.
12
The second par agr aph st ar t s wi t h: " Regar di ng
13
t he r emai ni ng act ual damages, Pl ai nt i f f cal cul at es
14
i t s yet - known act ual damages as f ol l ows. "
15
Ther e ar e t wo bul l et s. The f i r st one says:
16
" Cost s and r easonabl e at t or neys f ee r egar di ng t he
17
Kar ger compl ai nt , $12, 500. "
18
Can you descr i be f or me what t he Kar ger
19
compl ai nt i s and how i t r el at es t o your damages i n
20
t hi s case?
21
A. The Karger complaint was a complaint by
22
Fred Karger to the California Fair Political
CONFIDENTIAL
82
1
Practices Commission in which he alleged that we had
2
somehow broke the law in campaign contributions in
3
California. That complaint was based upon and
4
included in the complaint was the unredacted 990
5
which was the basis of the complaint.
6
Q. Okay. And wher e does t he $12, 500 come
7
f r om?
8
A. With the fees that we paid to attorneys
9
to -- I'm sorry -- the fees what we paid to attorneys
10
in order to deal with the complaint.
11
Q. Ot her t han t he f ees t hat have been
12
al l eged her e, ar e t her e any ot her f ees r el at ed t o t he
13
Kar ger compl ai nt t hat you ar e seeki ng i n t hi s case?
14
A. No.
15
Q. The second bul l et i s cost s and
16
r easonabl e at t or neys f ees f r omt he unaut hor i zed
17
di scl osur e, $46, 086. 37, whi ch may be br oken down as
18
f ol l ows: $43, 470. 09 i n l egal f ees and expenses pai d
19
t o Act Ri ght Legal Foundat i on and $2, 616. 28 i n
20
expenses pai d t o J ohn C. East man.
21
The $43, 000 and change i n l egal f ees and
22
expenses, can you pl ease t el l me what t hose f ees and
CONFIDENTIAL
83
1
expenses wer e f or and how t hey r el at e t o t he
2
di scl osur e?
3
A. There was a lot of work that had to be
4
done, obviously, in trying to find out how this
5
occurred, and that work, that's what these fees and
6
the invoices in the back represent, the work that was
7
done by ActRight Legal in order to find out how did
8
this happen.
9
Q. And t he expenses pai d t o Mr . East man - -
10
I guess i t ' s Dr . East man. Ri ght ?
11
A. Correct.
12
Q. Dr . East man.
13
A. I believe that is for travel related to
14
answering the same question.
15
Q. What t r avel di d he have t hat r el at ed t o
16
t he di scl osur e t hat occur r ed i n t hi s case?
17
A. I'm not aware of the specifics of this.
18
As I said, I believe it's travel, but I know that he
19
-- I know that there was travel. I don't know
20
exactly what it was, but he was involved in the same
21
effort to try and find out what had occurred.
22
Q. The f i nal par agr aph begi ns on page 2:
CONFIDENTIAL
84
1
" Regar di ng t he i nvoi ce pr ovi ded f r omAct Ri ght Legal
2
Foundat i on, por t i ons of t he i nvoi ces not at t r i but abl e
3
t o t he damages sought her e have been r edact ed and
4
not ed on Pl ai nt i f f ' s pr i vi l eged l og. I n l i ght of
5
t hese r edact i ons, Pl ai nt i f f pr ovi des a char t bel ow
6
det ai l i ng t he speci f i c f ees and cost s sought f r om
7
each i nvoi ce. "
8
Thi s i s a l i t t l e uncl ear t o me. So I guess
9
I ' maski ng you t he por t i ons of t he i nvoi ces not
10
at t r i but abl e t o damages sought her e, does t hat mean
11
t hey ar e not sought i n t hi s case or t hey ar e not
12
sought as par t of act ual damages as par t of t he
13
compl ai nt ? I guess I ' mhopi ng you can cl ar i f y what
14
t hat means.
15
A. I believe the invoices include what had
16
-- they have many different items that include other
17
legal work that's totally unrelated to the case. So
18
instead of providing you invoices with confidential
19
information on other work that's being done, this
20
only includes the work that's specific to the release
21
of the unredacted 990.
22
MR. SCHREI BER: I ' msor r y. Can you r ead back
CONFIDENTIAL
85
1
t he l ast answer .
2
You may have mi sspoken. I j ust want t o
3
cl ar i f y.
4
[ Wher eupon, t he r equest ed t est i mony was r ead
5
back by t he cour t r epor t er . ]
6
BY MR. SCHREI BER:
7
Q. You sai d " unr el at ed t o t hi s case" , Mr .
8
Br own. I ' mcur i ous i f you know what t hey ar e r el at ed
9
t o t hen.
10
A. I'm right now trying to answer to the
11
best of my knowledge based on prior invoices that
12
I've seen from ActRight Legal. These specific
13
invoices, right now, I can't answer what they are and
14
I don't remember them, but typically, the invoices
15
may have -- over the course of a month, there may be
16
many items that we are dealing with.
17
So based on that, I'm inferring that that's
18
the case with these invoices, but that may not be the
19
case.
20
Q. Wer e t her e ot her l egal mat t er s t hat
21
Act Ri ght was r epr esent i ng NOM i n?
22
A. Yes.
CONFIDENTIAL
86
1
Q. Appr oxi mat el y how many ot her mat t er s was
2
Act Ri ght r epr esent i ng NOM i n?
3
A. There's the -- again, we have multiple
4
-- during this period, I don't know for certain, but
5
in general, there are multiple campaign, as I said,
6
finance complaints that occurred. ActRight Legal
7
represents us in those and also litigation.
8
Q. Li t i gat i on unr el at ed t o t hi s case?
9
A. Correct.
10
11
12
BY MR. SCHREI BER:
13
Q. Mr . Br own, I ' mhandi ng you what ' s been
14
mar ked as Exhi bi t 124 by t he cour t r epor t er . They
15
ar e Bat es st amped by your counsel NOM 1633 t hr ough, I
16
bel i eve, 1649. I s t hat accur at e at t he end? Pl ease
17
doubl e check me, pl ease.
18
A. Yes.
19
MR. SCHREI BER: Can you t ake a second and
20
r evi ew t hese pages of document s. I t ' s a compi l at i on
21
of a number of t hi ngs.
22
MR. DAVI S: And t hi s i s Exhi bi t 124?
CONFIDENTIAL
87
1
MR. TOMPKI NS: Yes, 124.
2
[ Wi t ness per uses exhi bi t . ]
3
THE WI TNESS: Okay.
4
BY MR. SCHREI BER:
5
Q. Do you r ecogni ze any of t hese document s,
6
Mr . Br own?
7
A. I have not looked over these documents.
8
Q. I t mi ght hel p i f you l ook at what ' s
9
Bat es st amped NOM 1643. I t appear s t o be an i nvoi ce
10
f r omDr . East man. Do you have t hat ?
11
A. Yes.
12
Q. Have you ever seen t hi s i nvoi ce bef or e
13
f r omMr . East man?
14
A. No.
15
Q. Wer e you awar e t hat t hi s i nvoi ce i s
16
i ncl uded i n what you ar e cl ai mi ng as expenses and
17
damages i n t hi s case?
18
A. Yes.
19
Q. Do you know how t he $26, 000 - - excuse me
20
- - t he $2600 i s r el at ed t o NOM' s act ual damages i n
21
t hi s case?
22
A. Again, I believe this was for travel
CONFIDENTIAL
88
1
related to investigating how the 990 disclosure
2
occurred. I don't know specifically what each of
3
these are for, no.
4
Q. I t appear s t o be gener al l y one t r i p i n
5
t he begi nni ng of J une of 2013. Do you r ecal l why
6
Dr . East man came t o D. C. f r omLos Angel es t hat f i r st
7
week of J une l ast year ?
8
A. I don't.
9
Q. Di d he t est i f y on t he Hi l l at t hat t i me?
10
A. Now that you mention it, I believe he
11
did.
12
Q. Do you r ecal l what he was t est i f yi ng
13
about ?
14
A. This was the testimony over the IRS
15
investigation.
16
Q. Of NOM' s di scl osur e or whi ch
17
i nvest i gat i on?
18
A. Well, I believe it was -- it could have
19
been -- I don't actually remember whether it was the
20
-- which committee it was in. It was a committee
21
looking into the -- he was testifying on what had
22
occurred in the release of NOM's 990.
CONFIDENTIAL
89
1
I can't remember. I think -- I don't know
2
what the title of the committee hearing was.
3
Q. Thi s i s t he hear i ng wher e i ndi vi dual s i n
4
t he gal l er y appl auded some of hi s t est i mony. Does
5
t hat r i ng a bel l or r ef r esh your r ecol l ect i on at al l ?
6
A. Yes, it does.
7
Q. Can you pl ease descr i be f or me how hi s
8
t est i mony i s r el at ed t o your cl ai mf or act ual damages
9
i n t hi s case? He was t est i f yi ng t o Congr ess about
10
t he di scl osur e. Ri ght ?
11
A. Correct.
12
Q. So how does t hat r el at e t o damages t hat
13
you i ncur r ed as a r esul t of t hi s di scl osur e i n t hi s
14
case?
15
A. Well, again, I don't know enough to
16
answer the question.
17
Q. Ther e i s a t axi cab r ecei pt on May 30t h
18
t hat seems t o be di sj oi nt ed f r omt he r est of t he
19
t r i p. Do you have any i dea what t hat was f or ?
20
A. No.
21
Q. He changed hi s f l i ght , hi s r et ur n
22
f l i ght , t o st op i n Denver . Do you know why
CONFIDENTIAL
90
1
Dr . East man di d t hat ?
2
A. I do not.
3
Q. Do you know how t hat r el at es t o your
4
cl ai mf or damages i n t hi s case?
5
A. I do not.
6
7
8
MR. SCHREI BER: Mr . Br own, I ' mhandi ng you
9
what has been mar ked as Exhi bi t 125. I t ' s been Bat es
10
st amped NOM 01793 t hr ough 1798, t he ver y back of t he
11
l ast page.
12
MR. TOMPKI NS: Your s don' t have number s on
13
t hem.
14
MR. SCHREI BER: Okay. So of f t he r ecor d,
15
pl ease.
16
[ Di scussi on hel d of f t he r ecor d. ]
17
BY MR. SCHREI BER:
18
Q. Mr . Br own, pl ease conf i r mt hat t hat ' s
19
t he scope of t he Bat es r ange, 1793 t hr ough 98 on t he
20
ver y back page.
21
A. Correct.
22
Q. Ar e t hese expenses r el at ed t o Lexi sNexi s
CONFIDENTIAL
95
1
Q. Mr . Br own, I ' ve handed you what has been
2
mar ked as Exhi bi t 127. Thi s i s Bat es st amped NOM
3
3700 t hr ough NOM 3702, i f you' l l conf i r mt hat f or me,
4
si r , when you get a chance.
5
A. Correct.
6
Q. Now, my under st andi ng of t hi s document
7
i s t hat t hese ar e t he i nvoi ces, and pl ease conf i r m
8
t hi s, i f you know, t hat t hese ar e i nvoi ces t hat
9
appr oxi mat e t he 25 - - excuse me - - t he 12, 500 i n
10
l egal expenses t hat NOM i s cl ai mi ng as act ual damages
11
i n t hi s case.
12
A. Correct.
13
Q. Okay. I f you l ook at t he dat e on t he
14
f ar l ef t - hand col umn, i t appear s t o st ar t on J une 12,
15
2012 and r un t hr ough J une 29, 2012.
16
A. Correct.
17
Q. I f you t ake a second j ust t o r evi ew t he
18
descr i pt i on, i t appear s t o me t hat t he ef f or t i n t he
19
descr i pt i on was wi t h r egar ds t o r emovi ng t he Schedul e
20
B i nf or mat i on f r omt he FPPC by some manner .
21
A. Well, I think that the overall purpose
22
of defending us against the complaint was to have the
CONFIDENTIAL
96
1
complaint dismissed, not simply to remove.
2
Obviously, we wanted confidential information
3
removed, but the overall purpose was to have this
4
dismissed and Karger's complaint was based upon the
5
990, much of it.
6
Q. Okay. I s i t your under st andi ng t hat
7
t hese f our pages const i t ut e your compl et e cl ai mf or
8
act ual damages as i t r el at es t o Fr ed Kar ger ' s
9
compl ai nt t o t he FPPC?
10
A. Yes.
11
12
13
BY MR. SCHREI BER:
14
Q. Do you need a br eak, Mr . Br own?
15
A. No.
16
Q. I ' mhandi ng you what ' s been mar ked by
17
t he cour t r epor t er as Exhi bi t 128. Thi s i s a l ar ge
18
document , Bat es st amped NOM 01654 t hr ough NOM 01790.
19
Do you see t hat , Mr . Br own?
20
A. Yes.
21
Q. These appear t o be r edact ed i nvoi ces
22
f r omAct Ri ght Legal Ser vi ces; i s t hat accur at e?
CONFIDENTIAL
97
1
A. That's correct.
2
Q. Do you have an under st andi ng as t o what
3
t hese pages r epr esent or what t hese i nvoi ces
4
r epr esent ?
5
A. Work related to the 990 disclosure.
6
Q. I s i t l egal wor k r el at ed t o t he 990
7
di scl osur e or ot her t ype of wor k?
8
A. Research. It looks like any type of
9
work, legal research. Yes, legal work.
10
Q. Do you know why some i nf or mat i on was
11
r edact ed and why some i nf or mat i on was l ef t
12
unr edact ed?
13
A. It looks like attorney-client privilege.
14
Q. I s i t your under st andi ng t hat t he
15
r edact ed i nf or mat i on - - wel l , do you have an
16
under st andi ng as t o whet her t he r edact ed i nf or mat i on
17
r el at es t o t hi s l awsui t ?
18
A. I don't.
19
Q. I s i t your under st andi ng or do you have
20
an under st andi ng as t o whet her t he unr edact ed
21
i nf or mat i on r el at es t o your cl ai mf or act ual damages
22
i n t hi s l awsui t ?
CONFIDENTIAL
98
1
A. Yes. The unredacted looks like that is
2
part of the actual damages for this lawsuit.
3
Q. Do you have an under st andi ng as t o who
4
- - some of t hese ar e cl ear l y empl oyees of Act Ri ght
5
Legal Ser vi ces. Do you have an under st andi ng as t o
6
who BAB i s?
7
A. Yes. Barry Bostrom.
8
Q. And was he t he gener al counsel of
9
Act Ri ght at t he t i me?
10
A. Correct.
11
Q. And KLP, i s t hat Kayl an Phi l l i ps?
12
A. Yes.
13
Q. ZSK, i s t hat Zachar y Kest er ?
14
A. Correct.
15
Q. J AV, who i s t hat ? Do you know?
16
A. Joe Vander Horst.
17
Q. And i s he an at t or ney at Act Ri ght or
18
some ot her empl oyee?
19
A. Yes. He's an attorney.
20
Q. On t he f i r st page, on 1654, i t says
21
" Cal l J osi ah Neel ey" . Do you know who J osi ah Neel ey
22
i s?
CONFIDENTIAL
99
1
A. Yes. I do know who Josiah Neeley is.
2
Q. And who i s t hat ?
3
A. He was formerly at another law firm, the
4
law firm of Jim Bopp, and that law firm had handled
5
the Maine case.
6
Q. That was an at t or ney at t he Bopp l aw
7
f i r m?
8
A. Correct.
9
Q. Then a f ew l i nes down, i t says r evi se
10
dr af t r el ease and pr epar e r epl y t o Fr ank. Do you
11
know who Fr ank i s?
12
A. Yes. That is Frank Schubert.
13
Q. Who i s Fr ank Schuber t ?
14
A. He works for the National Organization
15
for Marriage.
16
Q. He' s an empl oyee?
17
A. No, he's not a independent contractor.
18
Q. And does he wor k at t he Schuber t
19
Communi cat i ons - - I ' msor r y. I ' mgoi ng t o but cher
20
i t . Wher e does he wor k?
21
A. At Mission Public Affairs.
22
Q. I s i t a publ i c r el at i ons f i r m?
CONFIDENTIAL
100
1
A. Public affairs, yes.
2
Q. What ' s t he di f f er ence bet ween publ i c
3
af f ai r s and publ i c r el at i ons i n your mi nd?
4
A. He helps with both public relations and
5
with campaign or overall management of any campaign
6
we may be involved in.
7
Q. What was t he pur pose of i nvol vi ng Fr ank
8
Schuber t i n pr epar i ng a pr ess r el ease?
9
A. Well, we wanted to keep the public
10
knowledgeable about what was going on, and I don't
11
know for this specific date, but Frank would have
12
been involved in drafting the press release.
13
Q. I have a pr el i mi nar y quest i on f i r st ,
14
whi ch I shoul d have asked you a f ew mi nut es ago. I f
15
you woul d go back t o t he i nt er r ogat or y r esponses t hat
16
you wer e shown, t he one wi t h t he char t .
17
MR. DAVI S: The suppl ement al ?
18
MR. SCHREI BER: The suppl ement al .
19
BY MR. SCHREI BER:
20
Q. Do you know - - sor r y. I ' l l l et you get
21
t her e.
22
These i nvoi ces, t hi s hundr ed and some- odd- page
CONFIDENTIAL
101
1
document t hat cont ai n unr edact ed and r edact ed f ees
2
and some descr i pt i on of l egal wor k and maybe nonl egal
3
wor k, I j ust want t o have an under st andi ng. The
4
$43, 470 t hat you' r e cl ai mi ng as act ual damages, does
5
t hat come f r omt hi s document , Exhi bi t 128?
6
A. The big document, yes. That's my
7
understanding.
8
Q. Does i t come f r omt he - - does i t come
9
whol l y f r omt he unr edact ed mat er i al or does i t al so
10
come f r omt he r edact ed mat er i al t oo?
11
A. I don't know the answer to that.
12
Q. But your under st andi ng i s t hat t he
13
$43, 470 i s whol l y i ncl uded i n some f or mor anot her i n
14
Exhi bi t 128?
15
A. Actually, I'm not sure about that
16
either. I don't know if there is any other invoice
17
packet or if this is the only thing. Is this the
18
only one?
19
Q. I bel i eve t hi s i s t he onl y t hi ng t hat
20
was pr oduced ot her t han t he st uf f r el at ed t o t he
21
Kar ger compl ai nt whi ch I showed you bef or e.
22
A. Yes. Then it looks like this includes
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1
all of the 43,000.
2
Q. Okay. I f you want t o t ake your t i me
3
wi t h t he document , pl ease f eel f r ee.
4
A. Well, I don't know that I want to go
5
through and try and add it up, because we'll be
6
sitting here a while.
7
Q. I s i t your under st andi ng, t hough, si r ,
8
t hat t he $43, 000 as not ed i n t he suppl ement al
9
r esponse t o I nt er r ogat or y No. 5, t hat t hat number
10
does not i ncl ude at t or ney f ees as par t of t hi s
11
l awsui t ?
12
A. Correct. That is my understanding.
13
Q. On page 1663 - - t hat ' s t he Bat es st amp
14
number , Mr . Br own - - at t he ver y bot t om, Kayl an
15
Phi l l i ps i s ent er i ng descr i pt i on t hat says: Fi nd
16
2007 990 wi t h i dent i f yi ng mar ks. E- mai l l egal t eam
17
r egar di ng same. Cont i nue sear chi ng f i l es. E- mai l
18
updat e.
19
Ar e you awar e of whet her t he 2007 For m990 was
20
ever f ound by anybody wi t h t he same i dent i f yi ng
21
wat er mar ks t hat wer e on t he Amended 2008 For m990?
22
A. It was not.
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Q. Ar e t hese expenses somet hi ng t hat you
2
ar e seeki ng as damages i n t hi s case?
3
A. I'm trying to see if there is any
4
relation to the total requested for John Eastman, but
5
I imagine that's not the case.
6
Q. That ' s her e.
7
A. Okay. I don't know what this page
8
signifies, if it's -- oh.
9
Q. I n any event , i t seems l i ke t hey' r e al l
10
r edact ed. I haven' t seen anyt hi ng unr edact ed
11
r el at i ng t o r ei mbur sabl e expenses, t hat t ot al ,
12
anyt hi ng i n t hat amount . Pl ease, i f you l ook t hr ough
13
i t and see somet hi ng t hat does, l et me know.
14
15
THE WI TNESS: I t l ooks t o me l i ke t hi s i s
16
somehow connect ed wi t h an i nvoi ce t hat was pai d and
17
wi t hi n t hat i nvoi ce ar e r ei mbur sabl e expenses t hat
18
wer e i t emi zed, but ar e not l i st ed her e or l i st ed i n
19
t he or i gi nal i nvoi ce. That ' s what i t l ooks l i ke.
20
BY MR. SCHREI BER:
21
Q. I f you t ur n, si r , t o - - Mr . Br own, I
22
guess we shoul d consul t wi t h counsel , but i f you' r e
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1
wi l l i ng t o gi ve us a copy of what t hose expenses
2
si gni f y, t hen we woul d l i ke t o see t hat , consi der i ng
3
t hey' r e par t of t he cl ai mf or damages i n t hi s case.
4
MR. DAVI S: We' l l consul t and i f t her e' s a
5
separ at e br eakout , we' l l pr ovi de i t i f t hey ar e par t
6
of our damages.
7
MR. SCHREI BER: Okay, because r i ght now,
8
you' r e cl ai mi ng t hem, I t hi nk, as par t of t he
9
damages.
10
MR. TOMPKI NS: I t l ooks l i ke t hey' r e l i st ed
11
on t he cost s on t he l i t t l e char t .
12
MR. DAVI S: Noel , woul d you make a not e of
13
t hat .
14
MR. J OHNSON: Yes.
15
MR. SCHREI BER: I f you l ook at pages st ar t i ng
16
ar ound 1690 and cont i nui ng on f or about t he next f ew
17
pages, say t he next f our or f i ve pages, i f you' l l
18
t ake a moment and r evi ew t hemqui ckl y.
19
20
THE WI TNESS: Yes.
21
BY MR. SCHREI BER:
22
Q. I s i t f ai r t o say, si r , t hat many of
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1
t hese i t ems r el at e t o f i l i ng of FOI A r equest s?
2
A. Correct.
3
Q. I s i t your under st andi ng t hat ' s r el at ed
4
t o a f i l i ng of FOI A r equest s f or t he I nt er nal Revenue
5
Ser vi ce or TI GTA?
6
A. Correct.
7
Q. I s i t your under st andi ng t hat t hat i s
8
r el at ed t o - - wel l , l et me f l i p t he quest i on. How
9
ar e t hose r el at ed t o t he di scl osur e t hat occur r ed i n
10
t hi s case?
11
A. Because the FOIA request was directly
12
because of the release of the 990 and the cause of
13
finding out what had occurred.
14
Q. How many FOI A r equest s, t o your
15
knowl edge, di d Act Ri ght or any Act Ri ght
16
r epr esent at i ve submi t t o t he I RS or TI GTA?
17
A. I believe five.
18
Q. Fi ve FOI A r equest s?
19
A. Correct.
20
Q. And you sai d ear l i er , t her e ar e al so
21
Pr i vacy Act r equest s?
22
A. I believe one.
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Q. Okay. One Pr i vacy Act r equest ?
2
A. One Privacy Act request.
3
Q. I t ' s my under st andi ng t hat some of t hose
4
FOI A r equest s wer e al so appeal ed by NOM.
5
A. Correct.
6
Q. I t ' s your under st andi ng t hat or your
7
cont ent i on t hat each of t hose FOI A r equest s,
8
i ncl udi ng t he appeal and t he Pr i vacy Act r equest ,
9
t hat t hey wer e al l necessar y and di r ect l y r el at ed t o
10
t he di scl osur e t hat happened i n t hi s case?
11
A. Yes.
12
Q. Can you j ust descr i be f or me why?
13
A. Because the only way for us to determine
14
how this had occurred and to get some redress was to
15
use the channels that were available to us, and
16
that's what we attempted to do, which was to use the
17
FOIA request. That was the step before any lawsuit
18
was filed and, obviously, we had to keep trying
19
different methods of FOIA requests because we didn't
20
really learn anything.
21
Q. What wer e you hopi ng t o l ear n f r omt he
22
FOI A r equest s?
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1
A. We were hoping to find out what requests
2
there were for the 990, what information may have
3
changed hands between folks within the IRS and
4
someone outside of the IRS and, ultimately, determine
5
who or how many people were involved in releasing the
6
990.
7
Q. I f you woul d t ur n t o t hi s document
8
st ar t i ng on Bat es St amp 1753, i f you t ake a second
9
and r evi ew t he i nf or mat i on on t hat page, pl ease.
10
11
THE WI TNESS: Yes. I have r evi ewed i t .
12
BY MR. SCHREI BER:
13
Q. A number of t hese appear t o be i n
14
r el at i on t o communi cat i ons bet ween Act Ri ght and
15
congr essi onal st af f er s; i s t hat a f ai r
16
char act er i zat i on?
17
A. I think they actually deal with --
18
Q. The commi t t ee?
19
A. NOM's relationship and communications
20
with the committee, not direct communication with
21
ActRight.
22
Q. Do you know why Act Ri ght - - I ' msor r y.
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1
Go ahead and f i ni sh.
2
A. I think there's research on the
3
background and it looks like it's both. There is a
4
call from Brian -- I mean it includes Brian Duggan.
5
Q. Who i s Br i an Duggan?
6
A. He's our government affairs director.
7
So he is the point person on Capitol Hill for NOM.
8
Q. He l i ai ses wi t h peopl e on t he Hi l l ?
9
A. Correct.
10
Q. Can you t el l me how t hese - - I ' msor r y.
11
Let me back up and ask you, you say t hi s r el at es t o
12
NOM' s i nt er act i ons wi t h congr essi onal commi t t ees or
13
Senat e st af f er s. I see a r ef er ence t o a Senat e
14
st af f er . Can you t el l me how NOM' s r el at i onshi p or
15
why NOM - - l et me back up and ask an i nt el l i gent
16
quest i on.
17
Can you t el l me why Act Ri ght was bi l l i ng NOM
18
f or st uf f t hat NOM seemed t o be doi ng i n r el at i on t o
19
congr essi onal commi t t ees or wi t h congr essi onal
20
st af f er s?
21
A. What I mean is they are advising us and
22
helping us in researching and reviewing and
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1
interactions between NOM and the congressional
2
committee. When it says research background of IRS
3
leak, I think they're looking over a statement to be
4
made to the congressional Ways and Means Committee.
5
That's reviewing the statement to make sure that it's
6
accurate, that it follows along with what we may have
7
learned through the legal research.
8
So I don't want to put too fine a point on it,
9
but that's different than ActRight directly --
10
Q. I under st and t he di st i nct i on. I j ust
11
want ed you t o cl ar i f y f or my under st andi ng. I
12
appr eci at e i t .
13
How di d t he i nt er act i ons bet ween NOM and
14
congr essi onal commi t t ees or congr essi onal st af f er s,
15
how di d t hat r el at e t o di scl osur e of t he t ax r et ur n
16
i n t he case?
17
A. It's directly related because the fact
18
that we weren't getting answers from TIGTA, we had to
19
move to try and find out what we could from Congress
20
and, therefore, congressional hearings, committees,
21
all of that is an attempt for us to get to the bottom
22
of the who, why, when, where, and how of the release.
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1
Q. And - -
2
MR. TORCHI NSKY: Can we t ake j ust l i ke a
3
t hr ee- mi nut e br eak r eal qui ck? I want t o r ai se
4
somet hi ng wi t h hi m.
5
MR. SCHREI BER: Can I ask a f ew mor e
6
quest i ons on t hi s t opi c?
7
MR. TORCHI NSKY: Sur e.
8
MR. SCHREI BER: Mr . Br own - - I ' msor r y. Can
9
you r ead back t he l ast answer , pl ease.
10
[ Wher eupon, t he r equest ed t est i mony was r ead
11
back by t he cour t r epor t er . ]
12
BY MR. SCHREI BER:
13
Q. I guess we' l l see i n a l i t t l e bi t , but
14
i s i t your under st andi ng t hat i nf or mat i on f r om
15
Congr ess or congr essi onal st af f er s, t hat t hey
16
coul dn' t pr ovi de you what you wer e l ooki ng f or
17
because of t he f eder al st at ut e t hat pr ot ect ed t he
18
di scl osur e of t ax i nf or mat i on?
19
A. It's not clear to me that that
20
interpretation is the correct interpretation.
21
Q. At l east t hat was what t hey t ol d you?
22
A. All congressional? No. No. There was
CONFIDENTIAL
112
1
-- definitely, it is not the case that there was
2
uniform agreement that the interpretation -- that
3
Congress was unable to provide us anything beyond
4
what TIGTA had provided us. That definitely is not.
5
Maybe there is one E-mail that says that, but that
6
was not the unform view of all that we spoke to on
7
the Hill.
8
Q. What i nf or mat i on di d you get f r om
9
Congr ess or f r omcongr essi onal st af f er s wi t h r egar d
10
t o t he di scl osur e?
11
A. By saying information, what we were
12
calling for and, number one, trying to do was to --
13
again, we had been talking about the disclosure for
14
so long and getting no answers that the idea wasn't
15
that we would simply go to them and they would give
16
us information. The idea was let's talk to them and
17
let them know what's happened and see what can be
18
done.
19
So that was the purpose of the communications,
20
to see what could be done to get to the truth about
21
this and what I -- therefore, it wasn't as if we were
22
being handed information by staff or Congress. It
CONFIDENTIAL
113
1
was were asking for any means by which we could get
2
to the truth of this.
3
Q. Di d anyone at NOM ever r ecei ve any
4
i nf or mat i on f r omCongr ess or congr essi onal st af f er s
5
r el at i ng t o t he TI GTA Repor t of I nvest i gat i on?
6
A. I'm not aware. Any information other
7
than information we already had from other sources?
8
Q. Wel l , what was t he i nf or mat i on you had
9
f r omot her sour ces?
10
A. We were in direct communication with
11
TIGTA, obviously. We had the responsibilities from
12
TIGTA -- the responses from the FOIA requests which
13
claimed that they learned about the investigation.
14
So, obviously, there were discussions that went over,
15
you know, that --
16
Q. I nvol ved t he di scl osur e?
17
A. Involved the disclosure, yeah. But I'm
18
not aware of information we received directly from
19
members of Congress or staff that was sort of outside
20
what we had already known.
21
Q. Di d - -
22
A. That wasn't in a public setting like in
CONFIDENTIAL
114
1
the hearings. You're asking me about direct
2
communications?
3
Q. Yes.
4
A. The hearings, I believe, are -- that's a
5
separate issue.
6
Q. What hear i ngs ar e you r ef er r i ng t o? I ' m
7
awar e of a f ew, but whi ch ones ar e you r ef er r i ng t o?
8
A. I believe both Ways and Means and --
9
oh --
10
Q. Gover nment Over si ght ?
11
A. Yeah, Government Oversight. In both
12
instances. I can't remember which, but I do believe
13
that there was information that came out out of those
14
hearings.
15
Again, I'm not a hundred percent sure it came
16
out of those hearings as far as names of individuals
17
that I hadn't heard before.
18
Q. Li ke who?
19
A. I'm not a hundred percent sure where
20
Matthew Meisel's name came from, but I believe it may
21
have been mentioned in those hearings. I'm not sure.
22
Q. Was t he f i r st t i me you hear d t hat name
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115
1
f r oman El i ana J ohnson " Nat i onal Revi ew Onl i ne"
2
ar t i cl e about t he di scl osur e?
3
A. It may be.
4
Q. But not bef or e t hen?
5
A. I don't remember when I first heard the
6
name, but it wasn't in some sort of private
7
conversation where someone ws saying, Hey, we know
8
this. It was a public sort of document either from
9
the hearing or from that "National Review" article.
10
MR. SCHREI BER: Okay.
11
MR. TORCHI NSKY: Can we t ake t hat br eak?
12
MR. SCHREI BER: Yeah. Sur e.
13
[ Recess. ]
14
BY MR. SCHREI BER:
15
Q. Mr . Br own, l ooki ng at t hese i nvoi ces, i s
16
t her e a way we can di st i ngui sh bet ween l egal wor k as
17
par t of br i ngi ng t hi s l awsui t wher e we woul d consi der
18
at t or ney f ees as par t of t he l awsui t and l egal wor k
19
and ot her wor k i n t hese i nvoi ces t hat ar e act ual
20
damages as descr i bed i n I nt er r ogat or y Response No. 5?
21
A. Well, it seems to me that they're pretty
22
well itemized.
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116
1
Q. I under st and t hat t hey' r e i t emi zed. I
2
guess t he quest i on i s some of i t cl ear l y i s r el at ed
3
t o t hi s l awsui t and some of i t i s not r el at ed t o t he
4
l awsui t .
5
A. What would be an example of something
6
relating to the lawsuit.
7
Q. Wel l , l et me ask you t hi s quest i on, I
8
guess: Any i nf or mat i on t hat you r ecei ved back f r om
9
TI GTA or t he I RS pur suant t o your FOI A r equest , i n
10
f act , even t he f act t hat you di dn' t get what you
11
woul d cal l a f ul l r esponse t o t hose FOI A r equest s,
12
t hose ar e f act s t hat you used as par t of your l awsui t
13
i n t hi s case; i s t hat accur at e?
14
A. The fact that we didn't get many facts?
15
Q. Yeah. Usi ng t hat t o suppor t your cl ai m
16
t hat t hi s was an i nt ent i onal di scl osur e.
17
A. Yes. But at the time of those
18
responses, there was no determination to even have a
19
lawsuit.
20
Q. So I guess my quest i on i s when you go
21
bef or e t he j udge i n 10 weeks, 12 weeks f or t r i al and
22
say, J udge, we' r e ent i t l ed t o our damages i n t hi s
CONFIDENTIAL
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1
case and because we' r e t he pr evai l i ng par t y - - l egal
2
t er m- - we ar e ent i t l ed t o our at t or ney f ees, how
3
does t he j udge know what i s an at t or neys f ee ver sus
4
an act ual damage?
5
A. Well, it seems clear to me from most of
6
this. I still haven't found something that doesn't
7
seem separate from litigation as part of this case
8
and dealing with trying to get to without a lawsuit
9
the truth about how this was disclosed.
10
Q. To your knowl edge, si r , do you know
11
whet her i t ' s based on, t hat di st i nct i on i s based on,
12
t he t i mi ng of t hese i nvoi ces or t he subj ect mat t er of
13
t hese i nvoi ces?
14
A. Well, I think it's based on the subject
15
matter, but there could be -- timing could play a
16
role in it also. Obviously, if there was no lawsuit,
17
that could, you know, play a role in determining
18
whether it was a part, but it looks to me just from
19
subject headings that it's pretty clear that all of
20
the subject headings have to do with TIGTA appeal.
21
You brought up the committee. I'm just not finding
22
that. I mean, it may be here, but I'm not finding
CONFIDENTIAL
118
1
anything that relates directly to the lawsuit.
2
Q. I n t hi s case?
3
A. In this case.
4
Q. So l i ke dr af t i ng a compl ai nt ,
5
r esear chi ng j ur i sdi ct i on and venue, t hose t ypes of
6
t hi ngs i n your vi ew woul d pr obabl y be cal l ed an
7
at t or neys f ee?
8
A. What were the examples you just gave?
9
Q. Resear chi ng j ur i sdi ct i on, r esear chi ng
10
venue, dr af t i ng a compl ai nt , t hi ngs of t hat nat ur e.
11
A. Those would be under the attorneys fees.
12
Q. And not as an act ual damage?
13
A. Correct.
14
Q. I f you l ook at 1656, on Apr i l 3r d, t her e
15
appear t o be a coupl e of ent r i es t owar ds t he bot t om
16
t hat r el at e t o a pot ent i al l awsui t r el at i ng t o t he
17
r el ease of Schedul e B. Do you know whet her t hose
18
t ypes of ent r i es r el at e t o t he compl ai nt t hat
19
ul t i mat el y was f i l ed i n t hi s case?
20
A. It may have been used, but it also could
21
just be preliminary research before there's any, you
22
know, movement towards the lawsuit or before a
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1
determination has been made to have a lawsuit.
2
Again, just from looking at this, it looks like there
3
was research regarding potential lawsuits and
4
analyzing this.
5
So, again, you found one example that could
6
be. So could you find something like that in here?
7
Yeah, but it seems to me still from reading this the
8
overwhelming -- that could potentially be seen as
9
questionable, but the overwhelming majority of the
10
subject matter headings are not on attorney fees for
11
this case.
12
Q. Can you l ook at 1774, pl ease? I ' mgoi ng
13
t o poi nt you t o anot her exampl e i f t hat ' s okay. On
14
8- 17- 13, t hi s i s non- at t or ney wor k. Who i s K. L. ? Do
15
you know who K. L. i s?
16
A. I think it looks to me like they just
17
left the "P" off KLP for Kaylan Phillips.
18
Q. But i t ' s under t he cat egor y of
19
non- at t or ney hour s. That ' s why I ' mpoi nt i ng t hat
20
out .
21
A. That's one I don't know.
22
Q. I t says anal yze t he mot i on t o di smi ss.
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1
Excuse me. That ' s not what i t says. I t says anal yze
2
t he MTD i n t he Nor Cal case. I s t hat somet hi ng t hat
3
shoul d be i n t hi s i nvoi ce?
4
A. I don't know. I don't know.
5
Q. Do you know what t he Nor Cal case i s?
6
A. Actually, I don't.
7
Q. On 1783, on November 29, 2013 - -
8
A. I think that's because this is
9
non-attorney hours; therefore, they're not under
10
attorneys fees.
11
Q. Wel l , you sai d t hat none of t hi s i s
12
under at t or neys f ees; t hi s i s al l wi t h r egar d t o
13
act ual damages?
14
A. Right, but again, I'm surmising outside
15
of my expertise, but it looks like the logic here is
16
that these are non-attorney hours and wouldn't be
17
included in any attorney fees related to the case.
18
Q. Do you know what Cr ew v. DOJ i s, t hat
19
l awsui t ?
20
A. No.
21
Q. Do you know why t her e ar e i t ems - - do
22
you know - - wi t hdr awn.
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1
CERTI FI CATE OF NOTARY PUBLI C
2
3
I , CATHERI NE B. CRUMP, t he of f i cer bef or e
4
whomt he f or egoi ng deposi t i on was t aken, do her eby
5
t est i f y t hat t he wi t ness whose t est i mony appear s i n
6
t he f or egoi ng deposi t i on was dul y swor n by me; t hat
7
t he t est i mony of sai d wi t ness was t aken by me
8
st enogr aphi cal l y and t her eaf t er r educed t o
9
t ypewr i t i ng under my di r ect i on; t hat sai d deposi t i on
10
i s a t r ue r ecor d of t he t est i mony gi ven by sai d
11
wi t ness; t hat I amnei t her counsel f or , r el at ed t o,
12
nor empl oyed by any of t he par t i es t o t he act i on i n
13
whi ch t hi s deposi t i on was t aken; and f ur t her , t hat I
14
amnot a r el at i ve or empl oyee of any at t or ney or
15
counsel empl oyed by t he par t i es her et o nor
16
f i nanci al l y or ot her wi se i nt er est ed i n t he out come of
17
t he act i on.
18
______________________________
19
CATHERI NE B. CRUMP
20
Not ar y Publ i c i n and f or t he
21
Di st r i ct of Col umbi a
22
My Commi ssi on Expi r es: Oct ober 31, 2017
1
3 ALEXANDRIA DIVISION
4 -o0o-
5
MARRIAGE, INC., )
Plaintiff, )
8 )
v. )
9 )
10 )
Defendant. )
11 _____________________________)
12
13 30(b)(6) VIDEOTAPED DEPOSITION, VOLUME III
14 WITNESS: SHERRY WHITAKER
15 Taken on Tuesday, March 11, 2014
16 at 12:56 p.m.
17
Ogden, Utah 84401
19
20
21
Glendale, CA 91203
23 (818) 551-7300
www.depo.com
24
FILE #A8027FA
25
Defendant
Exhibit
_____________
16
2
1 APPEARANCES
2
3 FOR PLAINTIFF:
6 Telephone: (305) 482-8404
7
SHAWN SHEEHY, ESQ.
Telephone: (540) 341-8808
ssheehy@hvjlaw.com
12
Telephone: (317) 203-5599
16
17 FOR DEFENDANT:
19 P.O. Box 14198
20 Telephone: (202) 514-5885
21
22 PHILIP M SCHREIBER, ESQ.
23 P.O. Box 14198
24 Telephone: (202) 514-6069
Email: philip.m.schreiber@usdoj.gov
25
3
1 FOR THE IRS:
4 Telephone: (609) 575-4531
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
4
1 I N D E X
WITNESS PAGE
2
SHERRY WHITAKER
3
Examination by Mr. Torchinsky 5
4
5
6
7 E X H I B I T S
8
EXHIBIT NO. DESCRIPTION PAGE
9
Exhibit 61 - Defendant's Objections and Responses 37
10 to Plaintiff's First Discovery Requests
11 Exhibit 62 - Email Chain, Gov-PROD-0002292 41
Dated 4/15/2012
12
13 Dated 4/13/2012
Dated 4/13/2012
15
16 Dated 4/13/2102
17 Exhibit 66 - Email Chain, GOV-PROD-0002317, 55
0000139, 0000163
18
19 through 0002318, Dated 4/16/2012
Dated 4/16/2012
21
Exhibit 69 - Meeting Request, GOV-PROD-0002137 64
22
Exhibit 70 - IRS Unauthorized Access, 70
23 Attempted Access or Inspection of
Taxpayer Records (UNAX) Program Policy,
24 Guidance and Requirements 10.5.5,
GOV-PROD-0002490 through 0002491
25
88
1 taken very seriously. People have actually lost their 15:21:30
2 job because of violation to UNAX. 15:21:35
3 Q. Now, are you aware of any -- or do you have any 15:21:39
4 indication that Wendy Peters didn't understand the 15:21:42
5 importance of keeping certain taxpayer information 15:21:44
6 confidential? 15:21:47
7 A. No. Wendy was an exceptionally (sic) employee, 15:21:49
8 very thorough, very conscientious of her work. 15:21:54
9 Q. Do you have any indication that she didn't 15:21:59
10 understand that a Schedule B, if it was produced to a 15:22:02
11 requester, was supposed to be redacted? 15:22:05
12 A. She understood the process. And she followed 15:22:08
13 the process. As indicated, we only have one record of 15:22:11
14 RAIVS providing an undiscl- -- a Schedule B from two 15:22:17
15 thousand -- November 2010 to current. 15:22:22
16 Q. And if there would have been a record of that, 15:22:25
17 would that have been something a manager would have 15:22:27
18 written in a review? 15:22:31
19 A. Yes. 15:22:33
20 Q. Would there have been additional steps taken if 15:22:34
21 a disclosure had occurred? 15:22:36
22 A. Yes. 15:22:39
23 Q. And what would those steps have been? 15:22:39
24 A. Any time we have a disclosure that takes place, 15:22:42
25 we take it serious. And we immediately research the case 15:22:45
92
1 Case: National Organization of Marriage v. United States
of America
2 Case No.: 13-cv-1225-JCC/IDD
Reporter: Michelle Mallonee
3
WITNESS CERTIFICATE
4
State of Utah )
5 ss.
6
7
8
9
10
11
12 I, Sherry Whitaker, HEREBY DECLARE: That I am the
witness referred to in the foregoing testimony; that I
13 have read the transcript and know the contents thereof;
that with these corrections I have noted this transcript 1
14 truly and accurately reflects my testimony.
15
16
__________________________
17 Sherry Whitaker
_____________________, this _______ day of _____________,
19 2014.
20
__________________________
21 Notary Public
22
23
24
25
93
1 CERTIFICATE
2
State of Utah )
3 ss.
4
5
8
witness' testimony;
11
13
15 event thereof.
16
17
18
19
________________________________
Utah CSR #267114-7801 15:27:05
22
23
24
25
Defendant
Exhibit
_____________
17
FRED KARGER, MARCH 12, 2014
Huntington Court Reporters & Transcription, Inc. 1
301 N. Lake Avenue, Suite 150, Pasadena, CA 91101 1-800-586-2988
1 UNITED STATES DISTRICT COURT
2 FOR THE
3 EASTERN DISTRICT OF VIRGINIA
4
5 THE NATIONAL ORGANIZATION FOR )
MARRIAGE, INC., )
6 )
Plaintiffs, )
7 ) Civil Action No.:
vs. ) 13-1225-JCC-IDD
8 )
9 )
Defendants. )
10 )
__________________________________)
11
12 CONFIDENTIAL TRANSCRIPT
13 THE DEPOSITION OF FRED KARGER, taken on behalf
14 of Defendants, at 300 North Los Angeles, Suite 7211,
15 Los Angeles, California 90012, at 1:37 P.M., Wednesday,
16 March 12, 2014, before HILDA GUTIERREZ, CSR No. 12714, RPR,
17 pursuant to Notice.
18
19 * * *
20
21
22
23
24
25
Defendant
Exhibit
_____________
18
1 APPEARANCES OF COUNSEL:
2 For the Plaintiff:
3 CHAPMAN UNIVERSITY
BY: JOHN C. EASTMAN
4 One University Drive
Orange, California 92866
5 (714) 628-2587
jeastman@chapman.edu
6
BY: KAYLAN L. PHILLIPS
8 209 West Main Street
Plainfield, Indiana, 46168
9 (317) 203-5599
10
11 For the Defendants:
12 U.S. DEPARTMENT OF JUSTICE
BY: BENJAMIN L. TOMPKINS
13 Tax Division
P.O. Box 14198
(202) 514-5885
15 benjamin.l.tompkins@usdoj.gov
16
17 For the Deponent:
18 THE SUTTON LAW FIRM
BY: BRADLEY W. HERTZ
19 22647 Ventura Boulevard, Suite 301
Los Angeles, California 91364
20 (818) 593-2949
bhertz@campaignlawyers.com
21
22
23
24
25
1 I N D E X
2 WITNESS EXAMINATION PAGE
3 FRED KARGER BY MR. TOMPKINS 8
4 BY MR. EASTMAN 77
5 BY MR. TOMPKINS 161
6
7
8
9 EXHIBITS
10 DEFENDANTS' DESCRIPTION PAGE
11 71 Cover letter and subpoena sent to Cary 21
Davidson from the U.S. Department of
12 Justice. Dated January 24, 2014.
13 72 Act Right Legal Foundation letter to 23
Fred Karger. Dated November 1, 2013.
14
15 73 Two Fred Karger cover letter to Philip 24
Schreiber. One dated February 16, 2014
16 and another dated February 19, 2014.
Bates stamped Karger 1 and Karger 326.
17
18 74 Form 4506-A. Bates stamped Government 36
Production 1593 and 1596.
19
20 75 Form 4506-A. Karger 4 and 5. 38
21 76 Email dated 4-21-2009. Subject: 990 39
stuff. Date: 4-21-2009. From: Leif
22 Strickland. Karger 89.
23 77 Series of letters produced by Mr. Karger. 41
Marked Karger 17 to 20, 22 to 27, 29,
24 31, 33, 35, 37.
25 78 Form 990, Return of Organization Exempt 44
from Income Tax. Karger 71 through 87.
1 complaint is filed, you are allowed to file a supplemental
2 complaint if more evidence is gathered. I may have done
3 that with the Maine campaign. I don't recall.
4 Q. I was just asking about California.
5 A. California, I definitely did. My original
6 complaint was just citing Mitt Romney's 10,000-dollar
7 contribution which had not been reported on NOM's campaign
8 reports for 2008. And then, about a month later, I filed a
9 supplemental complaint with ten other donors that had not
10 been reported during the Prop. 8 campaign.
11 Q. But you had not done anything with regard to NOM
12 prior to 2012?
13 MR. HERTZ: Objection. Vague and ambiguous as to the
14 "not done" anything.
15 Q. BY MR. TOMPKINS: Not filed a complaint with the
16 California Fair Political Practices Commission.
17 A. Correct. Against NOM, I have not.
18 Q. Had you filed a complaint against the Mormon
19 church?
20 A. Yes.
21 Q. Did that implicate NOM?
22 A. There are definite connections to NOM in that
23 complaint. But I don't believe I named them. I just named
24 The Church of Jesus Christ of Latter Day Saints as one of
25 the offending party.
1 Q. Do you recall that?
2 A. Yes, I do.
3 Q. Do you know where you received those documents?
4 A. I don't.
5 Q. So you have no recollection?
6 A. No recollection. I did request those documents
7 because, as I mentioned earlier, it was before NOM was
8 filing its tax returns or at least making them public. And
9 so I was making requests of the IRS. And I may have
10 printed them because on the eve of the hearing in Agusta,
11 Maine, they released those two years. And so maybe I --
12 maybe I was able to get them off their web site. I just
13 don't recall where they came from.
14 Q. Do you know what the relationship is between NOM
15 and The National Organization for Marriage Educational
16 Fund?
17 A. Yes. I -- just another way of fund-raising
18 without making it tax deductible by having a (c)(3).
19 Q. Have you ever filed a complaint against the
20 educational fund?
21 A. No.
22 Q. Draw your attention to Request Number 3 on the
23 subpoena, which is Exhibit 71.
24 There is a listing of certain individuals.
25 Do you have communications with the Human Rights
1 Campaign?
2 MR. HERTZ: Objection. Vague and ambiguous. Do you
3 mean a printout of e-mails or -- or a record of written
4 communications?
5 MR. TOMPKINS: Yes. Documents. That's what was
6 called for in Number 3.
7 THE WITNESS: I received occasional e-mails from them,
8 news release or alerts.
9 Q. BY MR. TOMPKINS: But nothing related to -- or
10 strike that.
11 Did you commun -- when you filed your complaint in
12 California against NOM, did you consult with the HRC?
13 A. No.
14 Q. Did HRC encourage you to file your complaint in
15 California?
16 A. No.
17 Q. When I say your complaint in California, I am
18 referencing the 2012 complaint.
19 A. I had no communication with HRC, to my knowledge,
20 on that.
21 Q. And what about Joseph Solmonese, the next name
22 listed?
23 A. No. Not specifically on the -- he and I e-mailed
24 in the past, but not specifically on this.
25 Q. Not the -- not the filing of the complaint against
1 A. Do not know that name.
2 Q. Robert Koenig?
4 Q. Ian Grady?
6 Q. Do you know good as you dot org?
7 A. Yes.
8 Q. What is that?
9 A. I believe that's Jeremy Hooper's blog.
10 Q. And he -- you testified earlier you didn't consult
11 with him?
12 A. I did not.
13 Q. About filing your complaint in California, for the
14 record.
15 Chris Geidner?
16 A. I know Chris.
17 Q. How do you know him?
18 A. He was with Metro Weekly, I believe, in
19 Washington, D.C., and now he is with BuzzFeed as a
20 journalist.
21 Q. Does he have a specialty?
22 A. LGBT rights and politics.
23 Q. Have you spoken to Matthew Meisel?
24 A. No.
25 Q. Do you know who that is?
1 A. I do not.
2 Q. You wouldn't have consulted him --
3 A. I would not.
4 Q. -- about filing your complaint in California?
5 A. No, I did not.
6 Q. Have you ever spoken with any -- or met anyone in
7 person from The National Organization for Marriage?
8 A. Yes.
9 Q. Who have you met?
10 A. Now John Eastman. I've Maggie Gallagher. Brian
11 Brown. Chris from Rhode Island.
12 Q. He's not going to be able to provide you with the
13 answers.
14 A. He can't help.
15 Q. If you don't remember, you don't remember.
16 A. I can't remember all the names. And then the
17 young man who was in the terrible accident who was the
18 communications director. I met him briefly when I went to
19 pick up a tax, tried to pick up a tax filing. But that
20 hierarchy and the other board members. I think that's it.
21 Q. Before today, you met Mr. Eastman?
22 A. Tom Peters. That was the name.
23 Q. That was the communications director you
24 mentioned?
25 A. Yes.
1 Q. BY MR. TOMPKINS: Have you ever seen this
2 document?
3 A. Yes.
4 Q. It's, for the record, Government Production 1593,
5 1596.
6 It's a Form 4506-A.
7 Have you ever filed one of these with the IRS?
8 A. Yes.
9 Q. In connection with what organization?
10 A. The National Organization For Marriage and The
11 National Organization for Marriage Educational Fund.
12 Q. Any other organizations?
13 A. I do not believe so.
14 Q. When was the first time you filed one of these
15 forms?
16 A. I would say 2009 is my guess.
17 Q. And do you recall approximately how many you
18 filed?
19 A. I don't recall. I may have just filed one or two.
20 I was -- I did receive notice after the first filing or two
21 that there was no record of such an organization from the
22 IRS, so then I filed a second or possibly third. But I
23 included those in my subpoena file.
24 Q. Those are the -- the responses you received from
25 the IRS?
1 A. Yes. And I think I also included my 4506-A.
2 Q. Show you what I marked as Exhibit 75. Karger 4
3 and 5.
4
5 (Exhibit 75 was marked for identification.)
6
7 Q. BY MR. TOMPKINS: Are these the two documents you
8 were referring to?
9 A. Yes.
10 Q. So you're requesting the returns from '07 to '09
11 for NOM and then the Educational Fund?
12 A. Yes.
13 Q. National Organization For Marriage, Inc.?
14 A. Yes.
15 Q. And did you get any copies or returns back?
16 A. I am not sure. I don't know if this was the
17 complaint or request, rather, that triggered the letters
18 that they don't exist, or if this did get me a copy of that
19 return that I submitted my second batch to the Department
20 of Justice.
21 Q. And that was the two 2009 returns that we talked
22 about earlier?
23 A. Yes.
24 Q. Did you ever get a copy of a return with an
25 unredacted Schedule B on it from the IRS?
1 A. Never. No.
2 Q. In response to your Form 4506-A, the IRS didn't
3 disclose an unredacted copy of NOM's tax return?
4 A. Correct. They did not.
5 Q. Either 2007, 2008, or 2009?
6 A. No. They did not.
7 Q. Show you what I marked as Exhibit 76.
8
10
11 MR. TOMPKINS: For your benefit, Mr. Hertz, we're just
12 numbering everything consecutively with our deposition.
13 That's why we're as high up.
14 MR. HERTZ: I gathered as much.
15 Q. BY MR. TOMPKINS: Do you recognize this e-mail?
16 A. Yes.
17 Q. It's marked number Karger 89.
18 And who is Leif Strickland?
19 A. A friend of mine.
20 Q. Where does he live?
21 A. In Los Angeles.
22 Q. What does he do?
23 A. He is a web guy as well.
24 Q. And why were you e-mailing or why was he sending
25 you this e-mail?
1 A. I don't recall.
2 Q. You don't recall that?
3 A. I don't recall.
4 Q. In connection with these 3983-C letters, did you
5 receive an unredacted 990 for The National Organization for
6 Marriage --
7 A. No.
8 Q. -- with Schedule B unredacted?
9 A. No, I did not.
10 Q. So for both of these letters, June 10th and
11 September 17, 2009, that's the case?
12 A. Yes.
13 Q. Show you what I've marked as Exhibit 78.
14
16
17 Q. BY MR. TOMPKINS: This is Karger 71 through Karger
18 87. It's a 990 for The National Organization for Marriage
19 for 2007.
20 Do you recall this document?
21 A. Yes.
22 Q. Do you know where you got this document?
23 A. I do not recall.
24 Q. In order to refresh your recollection, these
25 markings you see, "This is a copy of a live return from
1 A. May have.
2 Q. You don't recall any of these -- what was
3 submitted to the IRS?
4 A. No, I don't.
5 Q. Did you ever talk to the IRS about that
6 information?
7 A. I don't believe so.
8 Q. When you were deciding to file your complaint, did
9 you talk to anyone at the White House?
10 MR. HERTZ: Objection. Vague and ambiguous.
11 Do you mean the FPPC complaint?
12 MR. TOMPKINS: Yes. The California complaint in 2009.
13 THE WITNESS: No.
14 Q. BY MR. TOMPKINS: Did you talk to anyone at the --
15 with the United States?
16 A. No.
17 Q. Why did you file your complaint, the California
18 complaint related to NOM.
19 A. I had seen their dishonesty, their bigotry, their
20 hatred, their questionable reporting practices before. And
21 it appeared that they were doing it again, and it was a big
22 news item when it broke, with the Mitt Romney 10,000-dollar
23 contribution included.
24 And I very quickly filed my complaint with our
25 state Ethics Commission here because I believed that
1 there was a violation. They had not reported the Romney
2 10,000-dollar contribution which came just three weeks
3 prior to the election in 2008.
4 Q. When you say election, you mean the presidential
5 election?
6 A. The Proposition 8 election.
7 Q. The Proposition A election.
8 A. Which coincided with the presidential election.
9 Q. Let me show you what's marked as 81.
10
12
13 Q. BY MR. TOMPKINS: This is -- you had sticky notes
14 in your documents, and we took those and photocopied them
15 and numbered them. So you have the original FPPC complaint
16 and then there was a supplemental complaint?
17 A. Yes.
18 Q. And that's Karger 167 through 205.
19 And so you filed -- the original complaint focused
20 on the donation for Governor Romney through Free and Strong
21 America?
22 A. Yes.
23 Q. And if you look on Karger 168, the first paragraph
24 under the heading. Do you see that?
25 A. Yes.
1 Q. You reference "unsealed documents by a federal
2 judge."
3 What are you referring to?
4 A. At that point, this was -- the news about Mitt
5 Romney's 10,000-dollar contribution was just three days
6 after a judge in the federal lawsuit that NOM filed against
7 Maine had released four exhibits, which were widely
8 publicized, including all of their campaign strategy,
9 memos, and got tremendous amount of attention. And then
10 three days later, when this 10,000-Romney contribution came
11 out as a result of their tax returns that were released,
12 that I assumed, I found out incorrectly, that that was part
13 of the unsealed records from the federal lawsuit in Maine.
14 Q. When you say tax returns, you are referring to tax
15 return, the 2008 return?
16 A. Yes.
17 Q. You're not referring to another tax return?
18 A. No. Correct.
19 Q. So when you filed the complaint, you thought this
20 document, the unredacted 2008 schedule -- or with the
21 Schedule B unredacted 2008 Form 990 was from that
22 unsealing?
23 A. Yes.
24 Q. Do you now have -- know something different?
25 A. Yes.
1 Q. What do you know?
2 A. I know that it was not from those. Those were
3 four separate unsealed documents. This was coincidentally
4 around the very same period, but it was from apparently
5 illegally obtained IRS tax returns of NOM.
6 Q. Do you know how they were obtained? You said
7 "illegally obtained."
8 A. Just what I have read. They were retained by
9 someone who had requested them. And so I heard the IRS
10 testify it was an inadvertent mistake from the IRS.
11 Q. Did you -- how did you learn about the tax return,
12 the 2008 unredacted Form 990?
13 A. I assume I -- I read it like everyone else, either
14 in the Huffington Post or one of the dozen other web sites
15 it was published on.
16 Q. So you don't remember where?
17 A. I don't remember exactly. I was campaigning for
18 the president at the time and was very busy and in
19 California. But I do remember reading about it. It became
20 a very big news story very quickly.
21 Q. How long were you campaigning for president?
22 A. Two and a half years.
23 Q. When did you stop campaigning?
24 A. June 29, 2012.
25 Q. And when you -- we went through some names. But
1 when you filed this complaint, were you notified of the
2 unredacted Schedule B from anyone at the IRS?
3 A. No.
4 Q. And I am talking about when you learned, March --
5 late March, early April 2012. Did you -- were you notified
6 by the IRS about this document?
7 A. No.
8 Q. Were you notified by someone named Matthew Meisel?
9 A. No.
10 Q. Anyone at HRC?
11 A. No.
12 Q. Anyone -- strike that.
13 Anyone named Kevin Nix?
14 A. No.
15 Q. Anyone at the Huffington Post?
16 A. No.
17 Q. Anyone at the United States of America, meaning
18 employed with the federal government?
19 A. No.
20 Q. Member of Congress?
21 A. No.
22 Q. So you took information that was out there but you
23 found on the internet and then filed your complaint?
24 A. Yes.
25 Q. With regard to Exhibit 2 to your original
1 complaint, is that an Alabama document?
2 A. Which page?
3 Q. 169 and goes up -- over to 170.
4 A. It appears to be.
5 Q. Do you know where you got this document?
6 A. I don't.
7 Q. But it wasn't from the IRS?
8 A. No.
9 Q. So that was a publicly available document, this
10 web site you reference?
11 A. Yes. Any number of web sites had this posted.
12 Q. The Alabama PAC link?
13 A. Yes.
14 Q. So that referenced that donation?
15 A. Yes.
16 Q. And then what was the nature of your complaint?
17 Why did you reference Exhibit 3? It's a report with the
18 California Secretary of State.
19 A. Exhibit 3? I think that's -- it's actually -- I
20 didn't have that printout. I just have the link.
21 Q. I was just asking why would you reference that.
22 A. Because I was showing that this was contribution
23 received three weeks before an election, which NOM had been
24 the primary conduit to pass money to the "Yes on Prop. 8"
25 campaign by Governor Romney, and they had not reported
1 that.
2 Q. So you allege that that was a violation of
3 California law?
4 A. Yes. It was to show the contribution was made and
5 also not reported.
6 Q. Now you didn't need Exhibit 1 to make that
7 argument?
8 MR. HERTZ: Objection to the term whether he needed it
9 as vague and ambiguous.
10 Q. BY MR. TOMPKINS: Because you could have
11 referenced Exhibit 2 and then cross-referenced that with
12 Exhibit 3.
13 A. I am confused. Exhibit 2?
14 MR. EASTMAN: Objection as to form. Leading.
15 THE WITNESS: I see. That is the NOM contribution.
16 I just felt all three exhibits were relevant to
17 my complaint. One showed just contribution of his PAC with
18 a Belmont, Massachusetts address. And then it showed -- I
19 am not familiar with Alabama reporting forms, but that is
20 their expenditures. It looks like a separate form. And
21 then, three, that it was not reported to the Secretary of
22 State in California.
23 Q. BY MR. TOMPKINS: But that information was
24 publicly available --
25 A. Absolutely.
1 Q. -- on the Alabama web site?
2 MR. EASTMAN: Objection as to form.
3 THE WITNESS: Yes. It was publicly available, and
4 these are the links that I, now that I look at it, was able
5 to get that form from. The first one is from NOM Exposed.
6 They had published that. I cut and pasted it in the
7 release.
8 Q. BY MR. TOMPKINS: What was the second complaint,
9 the supplemental FPPC complaint?
10 A. After I looked at the full list of donor names to
11 NOM in 2008, we took the names that NOM had reported during
12 the Proposition 8 campaign and those that hadn't. And in
13 addition to Mitt Romney, we found ten other contributions
14 that we allege were not reported to the Proposition 8
15 campaign expenditures by NOM. And so that was the meat in
16 the second or supplemental, rather, complaint.
17 Q. Two of those were already publicly available,
18 those individuals?
19 A. Yes. They had reported partial contributions but
20 not full contributions.
21 Q. And -- and was there a -- strike that.
22 You include a sworn complaint form for the
23 supplemental complaint?
24 A. Yes.
25 Q. Was that supposed to be included with the first
1 one?
2 MR. HERTZ: Objection to the term "supposed to" as
3 vague and ambiguous, meaning legally required or did
4 Mr. Karger intend to.
5 Q. BY MR. TOMPKINS: Why did you include it with your
6 supplemental when you hadn't included it with the original
7 complaint?
8 A. I am not sure if I did include a sworn complaint
9 with the original complaint. That was done very quickly.
10 It might have taken more time with the supplemental,
11 putting more evidence together. But I imagine I filed
12 that. That might not have just been a copy included in
13 this -- in the hard copy I had that I ran the copy from.
14 Q. In filing the supplemental complaint, did you
15 consult with the IRS in that filing?
16 A. No, I did not.
17 Q. Anyone employed by the United States?
18 A. No.
19 Q. Matthew Meisel?
20 A. No.
21 Q. Kevin Nix?
22 A. No.
23 Q. HRC?
24 A. No.
1 A. Correct.
2 Q. And you filed your complaint because you thought
3 NOM had violated California law?
4 A. Yes.
5 Q. And you filed your complaint without consulting
6 anyone at the IRS?
7 A. Correct.
8 Q. Anyone named Wendy Peters?
9 A. No contact.
10 Q. Matthew Meisel?
11 A. No. No contact.
12 Q. Kevin Nix?
13 A. No contact on this.
14 Q. Anyone at HRC?
15 A. No contact.
17 A. No.
18 Q. So you did this under your own free will?
19 A. Yes.
20 Q. Based on information that you found in the public
21 domain?
22 A. Yes.
23 MR. TOMPKINS: I have no further questions.
24 MR. EASTMAN: My turn.
25
1 Q. All right. And are you aware that the Schedule B
2 is not a part of the public document 990 form?
3 A. No.
4 Q. Let's go back and look at Exhibit 106.
5 Do you see at the top of the first page, where it
6 says 2008 and under there it says, "Open to Public
7 Inspection"?
8 A. Yes.
9 Q. All right. Let's flip through to the first
10 schedule.
11 Look at Schedule A on page 3859.
12 A. Yes.
13 Q. You see under 2008, "Open To Public Inspection"?
14 A. Yes.
15 Q. Okay. Now let's flip to Schedule B, page 3863.
16 A. Yes.
17 Q. You see that there is no stamp there saying, "Open
18 To Public Inspection."
19 A. Yes.
20 Q. All right. And is it -- is it your claim that you
21 are unaware that the Schedule B is a confidential part of
22 the tax return?
23 MR. HERTZ: Objection. Asked and answered.
24 MR. TOMPKINS: Objection.
25 Q. BY MR. EASTMAN: Have you ever become aware that
1 that.
2 THE WITNESS: Doesn't appear to be.
3 Q. BY MR. TOMPKINS: You never -- when you were
4 talking -- asked you about HRC before, Fred Sainz, did you
5 ever have -- ask him or consult with him when you were
6 filing your California complaint?
7 A. No.
8 Q. You were shown a letter from Act Right to you
9 dated October 16, 2012 as Exhibit 108.
10 Do you recall that?
11 A. Yes.
12 Q. Did you ever -- were you ever prosecuted for your
13 actions against NOM?
14 A. No.
15 Q. Were you ever contacted by any investigators?
16 A. No.
17 Q. You were shown a political -- or a profile in
18 Mother Jones Magazine from 2010?
19 A. Yes.
20 Q. This was before you filed your complaint against
21 NOM in California?
22 A. Yes.
23 Q. You were shown a document, an e-mail exchange
24 related to HRC and Maine, the Maine investigation. Do you
25 recall that?
1 A. Yes.
2 Q. It was 97. There is a sentence that said "you
3 would hope that HRC would acknowledge you." You see that?
4 A. Yes.
5 Q. Did you have anything to do with HRC's publication
6 of the NOM 2008 Form 990?
7 A. No, I did not.
8 Q. So that wasn't related to that?
9 A. No. This was just when they referenced the Maine
10 complaint which is where I thought originally the IRS tax
11 return came from; just to please include my name as the
12 person responsible for the investigation.
13 Q. And you were also shown an affidavit of a Joseph
14 Bernatche. That was 107.
15 A. Yes.
16 Q. Are you aware of any findings that NOM donors
17 would be harassed by any Maine court?
18 MR. EASTMAN: Objection. Calls for speculation.
19 THE WITNESS: Can you repeat the question.
20 Q. BY MR. TOMPKINS: Are you aware of any findings
21 that NOM's donors would be harassed if their identities
22 were disclosed by any Maine court?
23 MR. EASTMAN: Objection. Vague.
24 THE WITNESS: No.
25 Q. BY MR. TOMPKINS: Are you aware of any finding by
1 STATE OF CALIFORNIA )
) ss.
2 COUNTY OF LOS ANGELES )
3
4 I, the undersigned, hereby declare that I am the
5 witness in the within matter, that I have read the
6 foregoing deposition and know the contents thereof, and I
7 declare that the same is true of my own knowledge except as
8 to those matters which are therein stated upon my
9 information and belief, and as to those matters, I believe
10 them to be true.
11 I declare under penalty of perjury that the
12 foregoing is true and correct.
13 Executed on the ________ day of ______________,
14 2014, at ________________________, California.
15
16
17
18 ____________________________
FRED KARGER
19
20
21
22
23
24
25
1 STATE OF CALIFORNIA )
) ss.
2 COUNTY OF LOS ANGELES )
3
4 I, HILDA GUTIERREZ, CSR No. 12714, RPR, do hereby
5 certify:
6 That prior to being examined, the witness named in
7 the foregoing deposition, FRED KARGER, was by me duly sworn
8 to testify the truth, the whole truth, and nothing but the
9 truth;
10 That said deposition was taken before me at the time
11 and place therein set forth and was taken down by me in
12 shorthand and thereafter was transcribed into typewriting
13 under my direction and supervision, and I hereby certify
14 the foregoing transcript is a full, true and correct
15 transcript of my shorthand notes so taken.
16 I further certify that I am neither counsel for nor
17 related to any party to said action, nor in any way
18 interested in the outcome thereof.
19 IN WITNESS WHEREOF, I have hereunto subscribed my
20 name this 24th day of March, 2014.
21
22
____________________________
23 HILDA GUTIERREZ
24
25
Defendant
Exhibit
_____________
19
Defendant
Exhibit
_____________
20

Defendant
Exhibit
_____________
21
Case 1:13-cv-01225-JCC-IDD Document 68-22 Filed 04/28/14 Page 107 of 138 PageID#
1000
1001
1002
1003
1004
1005
1006
1007
1008
1009
1010
1011
1012
1013
1014
1015
1016
1017
1018
1019
1020
1021
1022
1023
1024
1025
1026
1027
1028
1029
1030
1031
Defendant
Exhibit
_____________
22
ALEXANDRIA DIVISION
MARRIAGE, INC.,
Plaintiff,
v.
Defendant.
)
)
)
)
)
)
)
)
)
)
)
PLAINTIFFS RESPONSES TO DEFENDANTS SECOND SET OF REQUESTS FOR
ADMISSION AND INTERROGATORIES TO PLAINTIFF
Plaintiff, The National Organization For Marriage, Inc., by counsel, pursuant to Rules 33
and 36 of the Federal Rules of Civil Procedure, and Local Civil Rule 26, hereby provides its
responses toDefendant, the United States of America, Internal Revenue Services Second Set of
Requests or Admission and Interrogatories to Plaintiff dated February 7, 2014 (Defendants
SecondDiscovery Requests).
GENERAL OBJECTIONS
Plaintiff incorporates by reference its general objections dated February 25, 2014.
I. SPECIFIC OBJECTIONS AND RESPONSES TO INTERROGATORIES
Please state the total amount of donations to NOM from electronic or online sources
including but not limited to click-through links or links in e-mails, tweets, Facebook posts, and
blog poststhat referenced the disclosure or your prospective or actual lawsuit against the
United States for wrongful inspections and/or disclosure.
Objections: Plaintiff incorporates by reference its objections dated February 25, 2014.
1
Defendant
Exhibit
_____________
23
(1) $14,485 was raised through electronic or online sources that exclusively referenced
the disclosure or the prospective or actual lawsuit against the United States for wrongful
inspectionsand/or disclosure.
(2) $12,370 was raised through electronic or online sources that prominently referenced
the disclosure or the prospective or actual lawsuit against the United States for wrongful
inspectionsand/or disclosure, among several other topics in the communication.
(3) $26,468 was raised through electronic or online sources that referenced the disclosure
or the prospective or actual lawsuit against the United States for wrongful inspections and/or
disclosurein a single sentence in a communication focusing on other topics.
(4) $5,150 was raised through electronic or online sources by other organizations that
referenced the disclosure or the prospective or actual lawsuit against the United States for
wrongful inspections and/or disclosureto an unknown degree.
Please state the total amount of donations to NOM as a result of the disclosure or your
prospective or actual lawsuit against the United States for wrongful inspection and/or
disclosure.
Specifically, Plaintiff reiterates that it is not within its power or control to know the motive
behind any specific donation and Plaintiff does not accept earmarked donations. Therefore it is
impossible for Plaintiff to know the total amount of donations given as a result of the disclosure
of the prospective or actual lawsuit as opposed to any other reason.
Response: In light of its objections, Plaintiff makes no response.
If you do not provide an unqualified admission in response to the requests for
admission below, separately for each request for admission, state all facts and identify all
persons with knowledge and documents that support your response.
2
Response: Plaintiff contends that this request seeks documents that are wholly irrelevant to any
partys claim or defense. Nevertheless, plaintiff has provided an unqualified response to
Requests for Admission 18-31, below.
III. REQUESTS FOR ADMISSION
Please admit that you have information or documents in your possession, custody or
subject to your control that relate to your ability to track the number, source, date, or amount
of donations to NOM from electronic or online sources, including but not limited to click-
through links or links in e-mails, tweets, Facebook posts, and blog posts.
Please admit that you have information or documents in your possession, custody or
subject to your control that relate to your ability to track the number, source, date, and amount
of donations to NOM from electronic or online sources, including but not limited to click-
through links or links in e-mails, tweets, Facebook posts, and blog posts.
You previously admitted United States RFAs 16 and 17. Please admit that NOM
received at least $12,500 in aggregate donations from electronic or online sources
blog posts that referenced the disclosure or your prospective or actual lawsuit against the
received at least $46,086.37 in aggregate donations from electronic or online sources
3
received at least $58,586.37 in aggregate donations from electronic or online sources
1
received at least $75,000 in aggregate donations from electronic or online sources
Please admit that NOM received at least $58,586.37 in donations as a result of the
disclosure, including but not limited to as a result of publicity about the disclosure or the
prospective or actual lawsuit for wrongful inspection and/or disclosure.
Response: In light of its objections, including objections on the grounds of relevancy, Plaintiff
1
Request 22 duplicated in original requests.
4
Plaintiff cannot answer this request. It is not within plaintiffs control to know the motive
behind a specific donation to it. Further, Plaintiff does not accept earmarked donations.
Please admit that, after you learned of the disclosure, NOM received at least
$58,586.37 in aggregate donations from donors who had never donated to NOM before March
30, 2012.
Please admit that, after you learned of the disclosure, NOM received at least
$58,586.37 in aggregate donations from donors who had previously donated to NOM but did
so after March 30, 2012 in a dollar amount (or in multiple dollar amounts) greater that they
had in any prior calendar year.
Please admit that NOM received at least $12,500 in donations as a result of the
Please admit that, after you learned of the disclosure, NOM received at least $12,500 in
aggregate donations from donors who had never donated to NOM before March 30, 2012.
5
Please admit that, after you learned of the disclosure, NOM received at least $12,500
in aggregate donations from donors who had previously donated to NOM but did so after
March 30, 2012 in a dollar amount (or in multiple dollar amounts) greater that they had in
any prior calendar year.
Please admit that NOM received at least $75,000 in donations as a result of the
Please admit that, after you learned of the disclosure, NOM received at least $75,000 in
aggregate donations from donors who had never donated to NOM before March 30, 2012.
Please admit that, after you learned of the disclosure, NOM received at least $75,000
in aggregate donations from donors who had previously donated to NOM but did so after
March 30, 2012 in a dollar amount (or in multiple dollar amounts) greater that they had in
any prior calendar year.
6
I declare under penalty of perjury that the foregoing is true and correct to the best of my
knowledge.
Executed on March 1, 2014
___________________________________
Brian S. Brown
President, National Organization for Marriage, Inc.
1

ALEXANDRIA DIVISION

MARRIAGE, INC.,
Plaintiff,
v.
Defendant.
)
)
)
)
)
)
)
)
)
)
)
PLAINTIFFS SUPPLEMENTAL RESPONSE TO DEFENDANTS SECOND SET OF
REQUESTS FOR ADMISSION AND INTERROGATORIES TO PLAINTIFF
PlaintiII, The National Organization For Marriage, Inc., by counsel, pursuant to Rules 33
and 36 oI the Federal Rules oI Civil Procedure, and Local Civil Rule 26, hereby provides this
supplement to its March 11, 2014 Responses to DeIendant, the United States oI America,
Internal Revenue Service`s Second Set oI Requests For Admission and Interrogatories to
PlaintiII dated February 7, 2014 ('DeIendant`s Second Discovery Requests).
GENERAL OBJECTIONS
PlaintiII incorporates by reIerence its general objections dated February 25, 2014.
I. SPECIFIC OBJECTIONS AND RESPONSES TO INTERROGATORIES
Please state the total amount of donations to NOM as a result of the disclosure or your
prospective or actual lawsuit against the United States for wrongful inspection and/or
disclosure.
Objections: PlaintiII incorporates by reIerence its objections dated February 25, 2014.
SpeciIically, PlaintiII reiterates that it is not within its power or control to know the motive
behind any speciIic donation and PlaintiII does not accept earmarked donations. ThereIore it is
Defendant
Exhibit
_____________
24
2

impossible Ior PlaintiII to know the total amount oI donations given as a result oI the disclosure
oI the prospective or actual lawsuit as opposed to any other reason.
Response: Subject to and without waiving its objections, PlaintiII responds as Iollows:
In light oI DeIendant`s request Ior more inIormation dated March 18, 2014, and in a
showing oI good Iaith, PlaintiII supplements its Response to this Interrogatory.
PlaintiII continues to maintain that a response to DeIendant`s request Ior a total amount
oI donations 'as a result oI the disclosure is not possible to ascertain due to the Iact that it is
outside oI PlaintiII`s knowledge or ability to discern why a donor gave or which portion oI a
donation was intended Ior a particular cause. Nevertheless, PlaintiII will provide, subject to its
previously-stated objections, a copy oI the direct mailings that mentioned the disclosure or
NOM`s prospective or actual lawsuit against the IRS. Additionally, PlaintiII provides the
Iollowing inIormation:
(1) $25,888 was raised through one direct mailing that reIerenced the disclosure or the
prospective or actual lawsuit against the United States Ior wrongIul inspections and/or disclosure
on less than two pages oI a nine-page document that Iocuses on numerous other topics involving
PlaintiII`s mission.
prospective or actual lawsuit against the United States Ior wrongIul inspections and/or
disclosure, among other topics involving PlaintiII`s mission.
prospective or actual lawsuit against the United States Ior wrongIul inspections and/or disclosure
on less than two pages oI a Iive-page document that Iocuses on numerous other topics involving
PlaintiII`s mission.
3
Dated April 2, 2014
Jason Torchinsky (Va. 47481)
Holtzman, Vogel, JoseIiak, PLLC
Warrenton, VA 20186
(540) 341-8808 (telephone)
(540) 341-8809 (Iax)
jtorchinskyhvjlaw.com
ssheehyhvjlaw.com
John C. Eastman (Cal. 193726)*
Center Ior Constitutional Jurisprudence
c/o Chapman University School oI Law
Orange, CA 92866
(877) 855-3330 x2 (telephone)
(714) 844-4817 (Iax)
jeastmanchapman.edu
casochapman.edu

Cleta Mitchell, oI counsel
(D.C. 433386)*
William E. Davis, oI counsel
(D.C. 280057)*
Mathew D. Gutierrez, oI counsel
(Fla. 0094014)*
Noel H. Johnson (Wisc. 1068004)*
(317) 203-5599 (telephone)
(888) 815-5641 (Iax)
cmitchellIoley.com
wdavisIoley.com
mgutierrezIoley.com
njohnsonactrightlegal.org

Cleta Mi Mi Mi Mii Mi Mi Mi Mi Mi Mii Mi Mi Mi Mi Mi MMii Mi Mii Mi Mi Mi Mii MMi Mi Miii Mii Mi Mi Mi Mi MMi MMMMMMMi MMMMMMMi Mi MMMMMMMMMM tttttc ttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt hell, oooI oooooo couns ns ns ns ns ns ns nss ns ns nns ns ns ns nsss ns nnns nnss ns ns ns ns nsss ns ns nss ns ns ns nss nsssss nss ns ns nsss ns n el
(D.C. 43 43 43 43 43 43 43 43 43 43 43 43 43 4443 4443 44443 44443 43 4444444444443 43 43 43 44444443 43 4443 4443 443 4443 43 443333333 33333333333333333333333333333333333333333333333333333333333333333 86)*
I declare under penalty oI perjury that the Ioregoing is true and correct to the best oI my
knowledge.
Executed on April 1, 2014

Brian S. Brown
President, National Organization Ior Marriage, Inc.

I hereby certiIy that on April 2, 2014, I served the Ioregoing PlaintiII`s Supplemental
Response to DeIendant`s Second Set oI Requests Ior Production oI Documents, Interrogatories,
and Requests Ior Admission to PlaintiII on counsel oI record by email and FedEx:

Philip Schreiber
Benjamin Tompkins
US Department oI Justice - Tax Division
555 4
th
Street, NW
Philip.Schreiberusdoj.gov
Benjamin.Tompkinsusdoj.gov
Christopher.D.Belenusdoj.gov
David Moskowitz
U.S. Attorney`s OIIice
2100 Jamieson Avenue
david.moskowitzusdoj.gov


Defendant
Exhibit
_____________
25

invoice no: invoice date
1208496153 31-aug-12
billingperiod01-aug-12- 31-aug-12
account number
159rbn
invoice to:
actright legal services, inc.
plainfield in 46168-1117
itemization of lexisnexis & related charges
account summary by client
client
bcc
daf
family pac
firm
gillenwater
mn sports fishing
nom- compliance
nom990/nomkarger
nom-me-f
nom-me-s
nom-990
pmw
sports fishing
voter title
account total:
contract use transactional use
gross
amount adjustment
net
amount
over the
cap
outside
contract
total
before tax tax
total
charges
- - $ 0.00 - - $ 0.00 - $ 0.00
$ 761.00 ($ 748.72) $ 12.28 - - $ 12.28 - $ 12.28
$ 1,406.00 ($ 1,383.29) $ 22.71 - - $ 22.71 - $ 22.71
$ 152.00 ($ 149.56) $ 2.44 - - $ 2.44 - $ 2.44
$ 773.00 ($ 760.52) $ 12.48 - - $ 12.48 - $ 12.48
$ 676.00 ($ 665.09) $ 10.91 - - $ 10.91 - $ 10.91
$ 15.00 ($ 14.76) $ 0.24 - - $ 0.24 - $ 0.24
$ 1,024.00 ($ 1,007.47) $ 16.53 - - $ 16.53 - $ 16.53
$ 342.00 ($ 336.48) $ 5.52 - - $ 5.52 - $ 5.52
$ 674.00 ($ 663.11) $ 10.89 - $ 105.00 $ 115.89 - $ 115.89
$ 399.00 ($ 392.55) $ 6.45 - - $ 6.45 - $ 6.45
$ 79.00 ($ 77.73) $ 1.27 - - $ 1.27 - $ 1.27
$ 2,147.00 ($ 2,112.32) $ 34.68 - - $ 34.68 - $ 34.68
$ 285.00 ($ 280.40) $ 4.60 - - $ 4.60 - $ 4.60
$ 8,733.00 ($ 8,592.00) $ 141.00 $ 0.00 $ 105.00 $ 246.00 $ 0.00 $ 246.00
0-6
LexisNexisPowerInvoice - https://www.lexisnexis.com/PowerInvoice/citeListDetail.do?buttonClick...
10 of 28 1/17/2014 8:45 AM

1305484486 31-may-13
billingperiod01-may-13- 31-may-13
account number
159rbn
invoice to:
client
family pac
nom990
nom-ny
office
true thevote
true vote
7428 - true thevote
account total:
gross
amount adjustment
net
amount
over the
cap
outside
contract
total
before tax tax
total
charges
$ 1,590.00 ($ 1,455.01) $ 134.99 - - $ 134.99 - $ 134.99
$ 655.00 ($ 599.40) $ 55.60 - - $ 55.60 - $ 55.60
$ 83.00 ($ 75.96) $ 7.04 - - $ 7.04 - $ 7.04
$ 38.00 ($ 34.77) $ 3.23 - - $ 3.23 - $ 3.23
$ 589.00 ($ 539.00) $ 50.00 - - $ 50.00 - $ 50.00
$ 108.00 ($ 98.83) $ 9.17 - - $ 9.17 - $ 9.17
$ 247.00 ($ 226.03) $ 20.97 - - $ 20.97 - $ 20.97
$ 3,310.00 ($ 3,029.00) $ 281.00 $ 0.00 $ 0.00 $ 281.00 $ 0.00 $ 281.00
0-6
LexisNexisPowerInvoice - https://www.lexisnexis.com/PowerInvoice/invoiceReport.do?buttonClic...
9 of 19 1/17/2014 8:50 AM

1309482576 30-sep-13
billingperiod01-sep-13- 30-sep-13
account number
159rbn
invoice to:
client
acfw
family pac
firm
gifts of grace
murray/wilkins
nom990
nom-990
ofc
truethevote
ttv
7428 - truethevote
account total:
gross
amount adjustment
net
amount
over the
cap
outside
contract
total
before tax tax
total
charges
$ 1,597.00 ($ 1,544.09) $ 52.91 - - $ 52.91 - $ 52.91
$ 285.00 ($ 275.55) $ 9.45 - - $ 9.45 - $ 9.45
$ 93.00 ($ 89.92) $ 3.08 - - $ 3.08 - $ 3.08
$ 2,028.60 ($ 1,961.40) $ 67.20 - - $ 67.20 - $ 67.20
$ 906.00 ($ 875.98) $ 30.02 - - $ 30.02 - $ 30.02
$ 437.00 ($ 422.51) $ 14.49 - - $ 14.49 - $ 14.49
$ 722.00 ($ 698.09) $ 23.91 - - $ 23.91 - $ 23.91
$ 110.00 ($ 106.35) $ 3.65 - - $ 3.65 - $ 3.65
$ 2,170.00 ($ 2,098.12) $ 71.88 - - $ 71.88 - $ 71.88
$ 114.00 ($ 110.22) $ 3.78 - - $ 3.78 - $ 3.78
$ 19.00 ($ 18.37) $ 0.63 - - $ 0.63 - $ 0.63
$ 8,481.60 ($ 8,200.60) $ 281.00 $ 0.00 $ 0.00 $ 281.00 $ 0.00 $ 281.00
0-7
13 of 29 1/17/2014 8:57 AM

1310480759 31-oct-13
billingperiod01-oct-13- 31-oct-13
account number
159rbn
invoice to:
client
cgi
firm
murray/wilkins
nom990
nom-cal
nom-general
nom-990
nom990
office
sycamore
true thevote
ttv
7428 - true thevote
account total:
gross
amount adjustment
net
amount
over the
cap
outside
contract
total
before tax tax
total
charges
$ 33.00 ($ 31.75) $ 1.25 - - $ 1.25 - $ 1.25
$ 57.00 ($ 54.83) $ 2.17 - - $ 2.17 - $ 2.17
$ 2,789.20 ($ 2,683.12) $ 106.08 - - $ 106.08 - $ 106.08
$ 19.00 ($ 18.27) $ 0.73 - - $ 0.73 - $ 0.73
$ 19.00 ($ 18.28) $ 0.72 - - $ 0.72 - $ 0.72
$ 45.00 ($ 43.28) $ 1.72 - - $ 1.72 - $ 1.72
$ 57.00 ($ 54.83) $ 2.17 - - $ 2.17 - $ 2.17
$ 89.00 ($ 85.62) $ 3.38 - - $ 3.38 - $ 3.38
- - $ 0.00 - - $ 0.00 - $ 0.00
$ 15.00 ($ 14.43) $ 0.57 - - $ 0.57 - $ 0.57
$ 2,498.00 ($ 2,403.01) $ 94.99 - - $ 94.99 - $ 94.99
$ 114.00 ($ 109.66) $ 4.34 - - $ 4.34 - $ 4.34
$ 1,654.00 ($ 1,591.12) $ 62.88 - $ 80.00 $ 142.88 - $ 142.88
$ 7,389.20 ($ 7,108.20) $ 281.00 $ 0.00 $ 80.00 $ 361.00 $ 0.00 $ 361.00
0-6
9 of 26 1/17/2014 8:59 AM

1311480254 30-nov-13
billingperiod01-nov-13- 30-nov-13
account number
159rbn
invoice to:
client
family pac
firm
murray/wilkins
nom990
nom-hack
true thevote
ttv
7428 - true thevote
account total:
gross
amount adjustment
net
amount
over the
cap
outside
contract
total
before tax tax
total
charges
$ 76.00 ($ 73.92) $ 2.08 - - $ 2.08 - $ 2.08
$ 114.00 ($ 110.88) $ 3.12 - - $ 3.12 - $ 3.12
$ 4,285.30 ($ 4,168.02) $ 117.28 - - $ 117.28 - $ 117.28
$ 437.00 ($ 425.04) $ 11.96 - - $ 11.96 - $ 11.96
$ 209.00 ($ 203.28) $ 5.72 - - $ 5.72 - $ 5.72
$ 2,770.00 ($ 2,694.18) $ 75.82 - - $ 75.82 - $ 75.82
$ 1,349.00 ($ 1,312.06) $ 36.94 - - $ 36.94 - $ 36.94
$ 1,026.00 ($ 997.92) $ 28.08 - - $ 28.08 - $ 28.08
$ 10,266.30 ($ 9,985.30) $ 281.00 $ 0.00 $ 0.00 $ 281.00 $ 0.00 $ 281.00
0-7
10 of 27 1/17/2014 9:00 AM

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