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Case 2:04-cv-08425 Document 227 Filed 08/12/10 74 Pages 1

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION - - HONORABLE VIRGINIA A. PHILLIPS, JUDGE PRESIDING - - LOG CABIN REPUBLICANS, ) ) Plaintiff, ) ) vs. ) ) UNITED STATES OF AMERICA, et al., ) ) Defendants. ) ___________________________________)

No. CV 04-8425-VAP(Ex) Pre-Trial Conference

REPORTER'S TRANSCRIPT OF PROCEEDINGS 14 Riverside, California 15 Monday, June 28, 2010 16 3:27 P.M. 17 18 19 20 21 22 23 24 25 THERESA A. LANZA, RPR, CSR Federal Official Court Reporter 3470 12th Street, Rm. 134 Riverside, California 92501 (951) 274-0844 WWW.THERESALANZA.COM

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1 APPEARANCES: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch BY: Paul G. Freeborne BY: Joshua E. Gardner BY: Ryan Bradley Parker BY: W. Scott Simpson 20 Massachusetts Avenue, NW Room 6108 Washington, DC 20001 202-353-0543 On Behalf of Defendants: WHITE & CASE BY: Dan Woods BY: Earle Miller BY: Aaron Kahn 633 West Fifth Street, Suite 1900 Los Angeles, California 213-620-7772 On Behalf of Plaintiff:

90071-2007

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I N D E X Page Proceedings........................................ 4

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Riverside, California; Monday, June 28, 2010; 3:27 P.M. -oOoTHE CLERK: Calling Calendar Item Number 14,

Case Number CV 04-8425-VAP(ex), Log Cabin Republicans versus United States of America, et al. Counsel, please state your appearances. MR. FREEBORNE: Paul Freeborne on behalf of the With me are my
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United States and Secretary Gates, Your Honor.

colleagues, Josh Gardner, Scott Simpson, Ryan Parker, and Major Patrick Grant. THE COURT: MR. WOODS: Good afternoon. Dan Woods from White & Case for With me are my colleagues,
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plaintiff, Log Cabin Republicans. Earle Miller and Aaron Kahn. THE COURT:

This matter is on the Court's calendar

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for a pretrial conference. And this matter is set to begin trial on July 13th? MR. WOODS: THE COURT: Yes, Your Honor. And we'll start trial that day, in the But as
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absence of the unforeseen happening in the meantime. far as I'm concerned, we'll start trial that day.

As I recall, there were some issues with counsel about -- and perhaps witnesses, but as I recall, it was mostly counsel -- about trial scheduling. So if we're not able to
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complete testimony in the four days of that week -- as I

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recall, one side or the other, or maybe both, had some scheduling problems the following week. continue the following week. Am I recalling correctly? MR. FREEBORNE: scheduling conflict. with my son. You are, Your Honor. It was my
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Otherwise, I could

I was scheduled to take a mission trip

I have arranged for a backup in the event that we

go long, if we go longer than four days; so that's been taken care of. The following week, though, is a family vacation that cannot be arranged around. THE COURT: So you're available for two weeks? Yes. With the note that I have a
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MR. FREEBORNE: backup plan in place. THE COURT:

Because what we could do is pick up -- we

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could go for four days, since it's a nonjury trial, and then pick another week if we're not able to finish in four days. MR. FREEBORNE: Your Honor, we note that we've asked But I
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for a bifurcation on the standing and then the merits.

think it might be more efficient for everyone just to push through, if we are going to go the full length. THE COURT: I think that it wouldn't be a problem And, certainly, one way or the other,

finishing in two weeks.

you should plan to go on that vacation. All right. Let's take up the motions in limine.
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I agree with the defense that the government's motions in limine violate my standing order in a couple of respects, although I've read them and I will consider them on the merits. My standing order limits the motions in limine not only in number, but in subject matter. Also, with perhaps one exception, the motions in limine for this court trial appear to me to be largely unnecessary in a court trial. They're not always unnecessary,
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but most of what's covered in these motions in limine appear to me to be unnecessary. Although, to a certain extent, even if they weren't called motions in limine, in some part they raise some issues that we probably ought to take care of in advance of trial. The motion that seems the least necessary is the motion with respect to the exhibits. And I think for the sake

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of expedition and in the interest of recycling the paper -- not recycling it for another use, but recycling it for the exhibits, because we'll be using them, of course, at trial to a certain extent -- I'll take up, first, the motion to exclude the use of the exhibits. What's supposed to happen is -- the way I usually proceed, as to the exhibits, would be to go through a joint exhibit list, and as to what ideally would be a very short number of disputed exhibits, talk about those with counsel at
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the pretrial conference. There should not be -- and I don't even really think there would be in this case, although I can't really tell for sure -- a very limited -- I can't even believe there would be any documents -Is there a joint exhibit list that has been prepared here? Did you file one? MR. FREEBORNE: Your Honor, we have, as you know, a
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broad-based challenge to the use of the facts or evidence in this case. That's one of the subjects of our motion in limine. THE COURT: motions in limine. MR. FREEBORNE: It is. But I just mention that in Well, that's common to all three of the
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that our understanding of the joint exhibit list is obviously to agree upon admissibility. We don't believe that facts or
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evidence outside of the legislative history of the statute are at all relevant in this case. We have offered to the other side to introduce the legislative history and agree upon what that consists of, but the other side has been unwilling to do that. They see a joint exhibit list as for identification purposes only. We don't see that the Court benefits from that. The Court
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As we understand it, it's for admissibility.

deserves to know what the parties agree should be admissible on the first day of trial.
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THE COURT:

Well, it should be both.

It's both for

identification and admissibility.

Because, especially with the

number of exhibits here, it would be chaos if I don't have a joint exhibit list. Even if you don't agree on a single exhibit as to relevance, you're still required to come up with a joint exhibit list and a set of notebooks for the witnesses and notebooks for the Court. We should all be operating under the
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same set of exhibits, whether or not you agree as to a single one that they will be admitted. There has to be a joint exhibit list. MR. FREEBORNE: with the other side. THE COURT: So that's why I would return to the To the
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Very well, Your Honor.

We'll work

parties the notebooks that have all of the exhibits.

extent that your motion is based on an overarching objection that there are no exhibits other than the legislative history, that objection is overruled. But as a practical matter, there That doesn't mean that you're
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must be a joint set of exhibits. stipulating to their admission.

I would be extremely disappointed if there are objections as to authenticity. MR. FREEBORNE: Your Honor, we do. And we can walk

through those objections with you. objections.

We have evidentiary
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But we still have broad-based issues that need to

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be resolved in this case. The proper nature of facial challenge. They seek to

introduce extrinsic evidence of subjective motivations on behalf of members of Congress, which we believe is inappropriate. THE COURT: That's properly raised in some of your
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other motions, and I intend to address those to a certain degree. To the extent that some of the exhibits contain those,

the best way, it seems to me, to deal with that issue is -most of those exhibits relate to the testimony of some of the experts. And I'm not sure I'm going to allow some of that expert testimony. I mean, what comes to my mind immediately
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when you say there's an objection to the testimony regarding the subjective intent of certain members of Congress, I agree with the government that for the most -- well, almost entirely, I think such testimony would be objectionable. And although the government didn't frame it this way, at least insofar as the motions in limine were concerned, there is the legislative privilege. I mean, I didn't see that in the
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motion in limine, but that's, to me, the privilege that would apply. So the way I conceive it is, an expert can take the witness stand and say -- I think the expert -- I really don't want to jump around; I really want to keep this focus for the
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moment, on the motion with respect to the exhibits.

But just

to give you an example -- maybe it was Professor Frank or -MR. FREEBORNE: Professor Frank will testify about

the history of homosexual service, as well as the enactment of "Don't Ask, Don't Tell." an animus theory. THE COURT: Maybe he's the one I had in mind. And his entire theory is based upon
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Because I remember reading in some of your exhibits on the experts -- I don't know if it's Exhibit 9 -- yes, it was Professor Frank. thinking of. So, for example, if he's testifying on direct, like any other expert, he can testify, Yes, this is what I was asked to do; this is the work I did; this is my research; here are my qualifications; these are the things I relied on, and so forth. The materials, the research, the third-party sources he consulted, et cetera, all of that is hearsay. come in on direct because it's hearsay. So it doesn't
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Right, it was his report.

That is what I'm

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He's entitled to say

what he relied on and to describe all of the research he did. But it's hearsay. It doesn't come in on direct. If you want to admit
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You can cross-examine about it.

it on direct -- you probably wouldn't -- but you can cross-examine on it to your heart's -- well, not necessarily to your heart's content, but you can cross-examine on it. doesn't come in. You can cross-examine on it, but it's It
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hearsay. It normally isn't even listed. It wouldn't be listed It can

on the exhibit list, because it's not going to come in.

be marked for identification on the exhibit list, but it's not going to be admitted. So it might appear on the exhibit list
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because it may be marked for identification, because you may want to cross-examine on it. Either side may want to

cross-examine on something an expert relied upon if they think it's good grounds for cross-examination. So the fact that something is identified on the exhibit list doesn't even mean it's going to be moved into evidence, much less that it's going to be admitted. But a joint exhibit list is crucial in any case, especially a case with a lot of exhibits, so that we don't have chaos at trial trying to keep straight what documents have been identified and what documents have been admitted. I didn't mean to jump ahead on the expert motion. But on the exhibit motion, to the extent that it's based on a broad objection to the use of any exhibits other than the legislative history, that motion is denied. Since I don't have a joint exhibit list and since it is a nonjury trial, I'm not going to try to rule in advance which ones would be admitted and which ones would not be, because I think some of that rule will become clear as I go through the other two motions.
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But, certainly, much of what the experts rely on is not admitted; it just forms the basis for their opinion. So

that motion is denied without prejudice to making individual objections to individual pieces of evidence. Now let's move to the other two motions. The motion in limine to exclude lay witnesses. The defendants are seeking to exclude the testimony of 12 lay witnesses. I think I have the breakdown correct. If
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I misstate it, I'm sure one or both sides will correct me. Eight of them are not listed either in initial disclosures or interrogatory responses, nor otherwise in discovery, according to the defense. The second basis for the motion is that this is a facial challenge; that is, this case represents a facial challenge; so all evidence on the merits beyond the statute itself and the legislative record should be excluded. And the
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defense argues that this applies especially to the testimony from the six former servicemembers who are to testify regarding the circumstances of their discharge under the policy, "Don't Ask, Don't Tell." The argument is that testimony regarding the application of the statute to any person is irrelevant, and, finally, that the testimony of all six of them would be cumulative. As to the three 30(b)(6) witnesses, the government
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argues that some of their testimony is the personal testimony of the witness rather than their testimony as an organizational representative and that their personal views are irrelevant; that is, their personal opinion about whether knowing that a -I think some of them were asked in their depositions -- and this is the testimony that the defense argues should be precluded -- whether knowing that a fellow servicemember was gay would affect the witness's working relationship with such person or would cause him personal concerns about privacy. In reading the transcript excerpts that were provided in connection with these two motions, the expert witness motion and the lay witness motion, it appears to me that what happened at times during the depositions is that questions were asked or testimony was volunteered or given in answer to a question that, either in the case of a 30(b)(6) witness, went beyond the designation, or, in the case of an expert witness, a question was asked of someone designated as an expert witness that went beyond the expert designation. Sometimes I think what was cited was really out of context. Sometimes it was clear to me that what was cited was
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really out of context and that witness probably wouldn't even be asked to testify to that at trial. To the extent that it would be elicited, the personal opinion of 30(b)(6) witnesses on a subject about whether knowing a fellow servicemember was gay and how it would affect
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their working relationship, that's irrelevant.

I agree.

I thought, though, from the context in which some of those quotes were cited, that -- well, I'll just leave it with I think that would be irrelevant. So the testimony, to the extent that the motion seeks to bar testimony that would seek a personal opinion from a witness who is designated to speak on behalf of an organization, that would be irrelevant. But, again, it's not
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really necessary to bring a motion in limine in a court trial on that, because it would probably be more efficient for me just to rule. Information regarding research and other postenactment developments -- again, this is just 30(b)(6) witnesses -- circumstances allowing -- I think the shorthand term was moral waivers -- and experiences of foreign militaries allowing -- I think what was called open service by gays and lesbian members. The government seeks a ruling that all of
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that is irrelevant and not admissible during the trial. So taking up these issues in, more or less, that order, the first one: Was the failure to identify the eight
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lay witnesses substantially justified or harmless under Rule 37(c)(1)? The defendants claim that they were denied the ability to depose these witnesses before trial because their names were not disclosed until May 17th and the addresses and
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phone numbers weren't provided until June 7th.

One of the

disputes between the parties is whether the general statement in the early disclosures that persons of that general class that is former servicemembers might be called to testify, the government's position is that that doesn't suffice, and, of course, there is a continuing duty to supplement the early disclosures. The plaintiff argues that it did not know it would call these witnesses until the Court put the parties on notice that it was inclined to adopt the Witt standard of review; and then, at that point, it immediately notified the government of its intent to call these witnesses and made them available for deposition. The opposition contains a proffer of each witness's testimony and points out that Rule 26 requires disclosure of the witnesses with knowledge of a party's claims that are known at the time of disclosure. So, in part, the issue comes down to, were the claims known at the time of disclosure or the Court's decision to apply the Witt standard? Does that change the claims?
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The Witt standard, of course, being that the government must advance an important government set of restrictions. "The policy must advance an important government

interest; the intrusion must significantly further that interest; and the intrusion must be necessary to further that
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interest." Is that enough to justify, in this case, the disclosure of the witnesses' identities? So the issue comes down to whether the plaintiff had reason to believe that these witnesses' testimony was necessary or relevant before the April 26th hearing, because that's when I first said that I was inclined to apply the Witt standard. The five factors that the Court is to consider in making this decision about allowing the witnesses to testify are: Was the disclosure substantially justified or harmless, the late disclosure? The defendant knew that the plaintiff was considering adducing this testimony, just in very general terms, since the early disclosures and the interrogatory responses, very general terms; and they only had the identities for about a month before trial, June 7th, and trial begins -- well, they had the identities slightly early, but only the contact information, names and phone numbers, about five weeks before trial. Is the surprise or prejudice curable? There are still two weeks left to depose them. have been available for deposition since May 20th. One fact that the plaintiff pointed out is that the defense had seven lawyers present at the 30(b)(6) depositions. The argument that the plaintiff is making as to this
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They

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point is that, I guess, given the detailed proffer of what their testimony is going to be and the relatively short depositions that would be needed, the depositions could be taken. There could also be some arrangements -- I mean, I
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could order, in terms of the schedule of the order of proof, that they could testify later in the trial, rather than at the beginning, to give the government more time to schedule their depositions. So I'm inclined to deny the motion as to those witnesses and allow their depositions to be taken. It doesn't seem to me that the depositions would be more than a couple of hours, two or three hours, so I think it's workable. There are three witnesses, Craig Engle, Jamie Ensley, and Martin Meekins, who submitted declarations in connection with the summary judgment motion issue on standing. It appears that there may no longer be an issue with respect to Mr. Meekins. Has that been worked out? MR. FREEBORNE: Your Honor, the Court has not ruled

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upon our request to depose Mr. Meekins. MR. WOODS: The issue was worked out, Your Honor, Because we've agreed that the

with respect to Mr. Engle.

document that he had authenticated in the declaration would be admissible without objection, we would not need to call him as
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a witness. THE COURT: Oh. In the motion papers, as to this

motion, I think the parties referred to this being worked out as to Mr. Meekins. MR. SIMPSON: No, Your Honor. I believe our motion
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said, particularly the reply -- I could refer to the Court to the footnote where this was covered -- it was worked out as to Mr. Engle, not Mr. Meekins. THE COURT: MR. WOODS: Not Mr. Meekins. The government and we agree on this,
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Your Honor, of all things. THE COURT: I'm sorry. So there's no issue as to Mr. Engle. MR. WOODS: Right.
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All right.

Then I have that name wrong.

And, Your Honor, our view was that you had already ruled about Mr. Meekins at our last hearing. of your order about standing. And that's part

Because that was one of the

issues the government raised at the last hearing, and you ruled at the time that the late disclosure, assuming it was late, of Mr. Meekins was not something that would preclude him from testifying. MR. FREEBORNE: Your Honor ruled on our motion to
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strike; never ruled on the request to depose Mr. Meekins. THE COURT: I thought I said that -- I'm sorry. I'll
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look back at the order again. I thought during the hearing that I resolved it by saying I would not allow that deposition to be taken. MR. FREEBORNE: A broader issue is whether you have I
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ruled on standing and whether there are triable issues.

think both of us believe that you have ruled that there are triable issues. THE COURT: standing. MR. FREEBORNE: Right. But it's susceptible to a
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On standing.

I issued an order on

variety of interpretations.

It's unclear whether you have

definitively ruled on standing or if you have found triable issues. THE COURT: Well, I guess the answer to that is, I If you wish to continue to challenge
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think there is standing.

it by challenging the witnesses on standing, I would allow you to do so, to cross-examine. issue. I can't say -- I mean, the motion that was brought was your motion, and you raised standing -- actually, I don't even think you raised standing; I think the Court raised it sua sponte. I can't remember now. That's not correct, Your Honor. I'm sorry. You did raise it, but
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But I think that's a very weak

MR. FREEBORNE: THE COURT: No.

you didn't raise it on the grounds that I raised it.

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MR. FREEBORNE:

That's also incorrect.

Our statement of uncontroverted facts said that -and that came in today -- they have not said when John Doe paid his dues to become a member of Log Cabin Republicans. And even if you look at the proposed findings of fact, they still refuse to say that. And they refuse to come
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forward with logs, which would seem to be a very simple exercise to substantiate Lieutenant Colonel Doe's standing in this case. THE COURT: And you said I was incorrect.
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I think that the accurate history is that, on that motion for summary judgment, what the defense did not raise and the Court raised sua sponte by sending out a tentative ruling shortly before the hearing was first scheduled was the issue of when both Lieutenant Colonel Doe and Mr. Nicholson became members. That was not an issue that either party had focused The Court raised it. Your Honor, with all due respect, But I don't know if we have to use We said that they haven't
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on, on the standing issue. MR. FREEBORNE: that's just not the case. up time now.

We cited Biodiversity.

established that the time of membership -THE COURT: You don't recall getting the tentative

ruling that raised this? MR. FREEBORNE: It certainly raised it, but what we
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would say is that we raised it in our papers squarely.

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THE COURT:

But not on the timing issue. We did on the timing issue. We cited

MR. FREEBORNE:

Biodiversity, and we made the very argument as it relates to John Doe and Mr. Nicholson. One point of confusion, as I pointed out in the summary judgment hearing, was that Judge Schiavelli, when he had this case, required them to identify a member by name; they could only proceed by a named member. some confusion. But, Your Honor, we did raise the issue as it related to Mr. Doe as well. THE COURT: All right.
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So that did interject

But the problem that I saw was that there wasn't a date specified within the year that the action was filed in connection with the evidence that was adduced by the plaintiff in opposition to the motion. MR. FREEBORNE: know if we -THE COURT: being correct on this. All right. So I would deny the motion insofar as the lay witnesses are concerned. I'm not persuaded by the arguments raised by the defense, and certainly not by the argument that their testimony
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And we raised that issue.

I don't

No.

Obviously, you're very intent on


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It's more important to move on.

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would be cumulative. The last of the lay witnesses, the proffer as to that, at least in the order in which the proffers were described in the motion, that's the only one whose testimony might be cumulative. Otherwise, I don't find the argument that their testimony would be cumulative to be persuasive. And balancing those five factors that I identified under the case law, I don't find that under Rule 37(c)(1) that their testimony should be excluded. MR. SIMPSON: Your Honor, could I just stick my neck
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out just for a moment here? THE COURT: I'm going to let both sides argue. Okay.
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MR. SIMPSON: THE COURT:

I just want to make sure I covered all of

the issues on the lay witnesses and finish by saying, as I've already stated on the record, just for purposes of keeping everyone focused on the issue as to the Witt standard. As to

the overarching objection about the irrelevance of all of this evidence, it seems to me that the plaintiff's evidence as to the lay witnesses would be relevant if it goes to, for example -- and this is not the only thing that the plaintiff is proffering it for -- but if it goes to the question of what evidence the legislative branch may have ignored during the legislative process, such as the Crittenden report, for
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example. So as to the six witnesses who would testify -- well, I think it's only five of those six -- as to the lay witnesses who would testify regarding the circumstances of their discharge, to show that the policy doesn't further its stated purposes, isn't there some relevance to this testimony as to that issue? In other words, it seems that the government is trying to have it both ways. The plaintiff has to prove, as
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the government states, that the policy does not further or advance any legitimate or important governmental objective. That's what the government keeps focusing on, that it's a facial challenge. So the plaintiff has to prove that it

doesn't further or advance any legitimate or important governmental objective. Yet, by this motion, all three of
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these motions, the defendants are attempting, really, to prevent the plaintiff from putting in any evidence that goes to this element of its case. So with that, do you wish to be heard? MR. SIMPSON: Yes. Thank you, Your Honor.
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Those non-30(b)(6) witnesses is what, from my understanding, we're addressing now. And I assume I should

address the failure to disclose as well, before going into the cumulativeness of the witnesses. THE COURT: Whichever order you prefer.
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MR. SIMPSON:

Thank you, Your Honor. The

I won't repeat what was said in the papers. Court is obviously very familiar with that.

But if I could

just submit, Your Honor, that apparently what the Court is envisioning is that we would conduct these depositions, if we choose to do so, between now and the start of trial; or the Court also said we could defer the testimony of those five or six individuals until the latter days of the trial. Apparently, the Court is thinking we could conduct some of them during the trial. We would submit, Your Honor, that all of that would be highly prejudicial to us in presenting our case and preparing for trial. Although, as plaintiff says, in -- I believe it was two of the 30(b)(6) depositions, there were seven attorneys present on the side of the defendants, three of those were Department of Defense attorneys, obviously who are there because they are in-house counsel and would not be involved in conducting depositions. I think the core of the problem here is that plaintiff did not disclose these individuals until after the close of discovery. And what they say, as the Court has said,
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is that they took care of their duty by simply saying in their initial disclosures that they may rely on the testimony of former servicemembers. But, obviously, that's not
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identification by name. What they say in their opposition to our motion in that regard is that, well, if we thought that wasn't sufficient, we should have told them so at that time. But then they say in the next breath that it wasn't until after the hearing in this case on April 27th that they decided to rely on individuals in that regard. So it seems to me that raising it in relation to the initial disclosures would have been fruitless if plaintiff itself had not decided to rely on those individuals until after April 26th; and they had not decided until later who those people were. And it's not true, Your Honor, that they told us immediately that they were going to do that. In fact, if I'm not mistaken, they did not tell us until May 17th, when they identified those individuals to us, that they had actually decided that, Yes, we are going to rely on the testimony of former servicemembers. tell us that immediately. THE COURT: May 17th; correct? MR. SIMPSON: names, Your Honor. This next point is -THE COURT: And then you got the contact information,
04:07 04:06 04:06 04:05

So they did not

I'm sorry.

I think they told you on

04:06

Correct.

On May 17th, they gave us the

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the phone numbers and the addresses, in early June. MR. SIMPSON: Correct, Your Honor.

This next point, I guess, is not determinative, but I think it makes the plaintiff's conduct here even more egregious. It was only after defendants pressed the plaintiff to have a pretrial meet and confer that LCR finally provided the names of those five witnesses. We took the initiative to

contact them on May 17th, saying, Look, we have to have a pretrial meet and confer. They initially resisted having that It was only after we pressed
04:07

meet and confer at that time.

them some more that finally they said, Okay, here's our list of witnesses. And, finally, at that point they gave us the names. And, presumably, if we had not pressed them at that time, they would have given us the names even later. And, obviously, as the Court has said, we are prejudiced because of the inability to depose those people before discovery cutoff. And not having done that, we are hamstrung in the ability to cross-examine those witnesses at trial. And we
04:08 04:07

would submit, Your Honor, that trying to depose those people at this point, particularly going into the first week of trial, would be highly prejudicial to our ability to try the case. In addition to what the Court has said from our papers, that's our argument on that issue, Your Honor.
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THE COURT:

All right. I could address now, as well, the issue When we talk about the cumulativeness

MR. SIMPSON: of the cumulativeness.

of presenting testimony of six former servicemembers, I would suggest, Your Honor, that the Court not focus on simply the cumulativeness. There are basically two areas here.
04:08

In relation to the former servicemembers, the presented testimony by the former servicemembers ties very much into the whole issue of presenting evidence in a facial challenge; and I think it goes beyond the overall issue on which the Court has already ruled, denying that aspect of the motion. The plaintiff has said repeatedly that this is a facial challenge. And we cited abundant case law to the Court
04:09 04:09

in our motion, in our papers, that on a facial challenge, the facts are irrelevant. For example, one court has said a facial challenge is made in a factual vacuum. What they are saying in a facial

challenge is, the party is challenging the statute on its face, implying that, aside from the facts, this statute is unconstitutional. However, the fact that they are now seeking to present testimony, the stories of these six individuals regarding the application of the statute to them, would seem to belie their assertion at the same time that this is a facial
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challenge. Either it is a facial challenge and it's in a factual vacuum, or if it's not a facial challenge, then, yes, you bring in evidence as to the application. But if it's a facial challenge to a statute, then the individual stories about its application are irrelevant, and letting that evidence in would be erroneous. Now we go to the cumulativeness part. Our assertion on that is that receiving six individual stories about the application of the statute would simply compound that error six times. And, finally, Your Honor, one other point on that: The fact that LCR here is relying on associational standing also belies their asserted need for this testimony about the application of the statute. One of the criteria for associational standing, according to the Supreme Court in the Hunt case, is, quote, "Neither the claim asserted, nor the relief requested, requires the participation of individual members in the lawsuit." If such testimony is not required, then it would seem that permitting it would be a waste of time. It would make
04:11 04:10 04:10 04:10

this trial not an efficient trial; it would bring in testimony, evidence, that is not required, that is not needed; and it would sully the record that presumably would go up on appeal with material that would be irrelevant and, again, cumulative.
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Your Honor, we would submit. THE COURT: Mr. Woods. MR. WOODS: Thank you, Your Honor.
04:11

All right.

I think, frankly, to begin with, the Court is being very generous with the government in allowing them to argue the merits of these motions in limine in light of the government's most recent violation of your rules about, this time, the number of motions in limine. We did present to you evidence that the government, in the meet and confer with us, had indicated that the government intended to pursue at least four motions in limine and told us exactly what they were. At least four motions All

04:12

in limine were then crammed into three motions in limine. of the three motions in limine have numerous categories and subparts that add up to far more than three.

04:12

So I think the

government is fortunate that you're even considering these. And that's especially true in light of the government's repeated violations of this Court's rules in the past. We did, as you saw, in our opposition to each of these three motions in limine, detail every prior violation of the local rules and this Court's rules by the government. And you will see, Your Honor, in the three reply briefs filed by the government, there's no response at all to our argument that they had initially thought about at least
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four motions in limine. all.

There's no response to that point at

And there's no response at all to our point that this was

just the latest of a series or a pattern of local rule violations by the government. But, turning to the merits, counsel really started by saying he wasn't going to repeat the arguments in the papers. But that's basically what he did. I don't think, Your Honor, that it is highly prejudicial to suggest that the United States of America take five depositions of lay witnesses that could be done in half a day each. The government may not have seven lawyers today at The government has The government has
04:13 04:13

the counsel table; they only have four.

eight lawyers on the caption of this case.

had the opportunity to conduct these depositions since May 20th, when we offered them that opportunity. The government gambled somehow that you would disagree with our position about this and elected not to take those depositions in the time that has passed since May 20th. And I think, again, the Court is being very reasonable and generous in allowing them to take the depositions now. And I think it's very hard for the government to complain that they are being treated unfairly when you are giving them yet another opportunity to conduct these depositions that they could have already finished if they had
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just applied themselves diligently since May 20th. The other arguments, Your Honor, that were made by counsel fail because of the Court's inclination to apply the Witt standard. If the Court is applying the Witt standard in this case, that standard specifies as follows: When the government
04:14

attempts to intrude upon the personal and private lives of homosexuals in a manner that implicates the rights identified in Lawrence, the government must advance an important government interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest. That's what the government is going to have to prove at this trial if the Court adopts the Witt standard. The testimony of these former servicemembers, Your Honor, is not introduced for any purpose other than to show that their discharges are representative examples of how the government is not meeting the Witt standard today or over the past several years. These five or six people, out of over 13,000 people who have been discharged pursuant to this unconstitutional law, are going to tell very different stories about what happened to them. And you saw that in the declarations that we filed. We filed them, in part, to show you that they were not
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cumulative, that some were men, some were women, some were of one branch, some were another branch, some were one rank, some were a different rank, and so on; and some were specifically told by their supervisors that their discharge had nothing to do with unit cohesion or troop morale, the stated purposes of the policy. So that's what this is about. It has nothing to do
04:16

with undermining or belying our facial challenge to the Constitution. We're not bringing cases on behalf of these five And they are all different and hardly
04:16

or six individuals. cumulative. THE COURT:

I'm not persuaded that it's cumulative. I think the number that you gave

That's not a concern to me.

in your papers, if I recall correctly, was 13,400 persons discharged; so five or six in what's going to be a relatively short case -- I don't think the testimony is going to take -I'm just not concerned about whether the testimony is cumulative. But in order for the testimony to be relevant in a facial challenge, it can't be testimony that is directed solely -- or it shouldn't be directed at all, but it can't be directed solely to showing how the policy, as applied to them, is unconstitutional. So it has to be relevant to showing how -- as I understand the argument that you made in the papers and the
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argument that you made just now, their testimony must, as I understand it, be directed to showing how the intrusion -- that is, in this case, the policy -- it goes to the issue of whether the policy significantly furthers the important government interests and whether the intrusion is necessary to further that interest. So it's a bit of a fine line. But the
04:17

testimony has to be considered in light of that. It's almost as though, if it was being tried to a jury, I would be instructing the jury they consider it only for those purposes, not to consider it in terms of the effect or the application of the policy on the individuals. MR. WOODS: Yes, Your Honor. Lots of the facial
04:18

challenge cases that we have cited to you do involve the presentation of evidence along the way about how that statute has worked in practice. THE COURT: One of the things that seems -04:18

But not to show that as applied, it's

unconstitutional; only to show that the plaintiff meets its burden of showing -- well, succeeding on a facial challenge. MR. WOODS: Right. And I know the government keeps
04:19

trying to bring up the fact that it's a facial challenge, which we have not disputed all along; but there is, of course, nothing at all improper about facial challenges. What we've seen in the facial challenges the more we study them, Your Honor, is that the ones that the government cites are the cases where the facial challenge is made

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immediately upon the enactment of the statute.

Immediately.

And the cases we're citing are cases where there's a longer-developed record. THE COURT: MR. WOODS: Slow down, please. Sorry.
04:19

What I was trying to say, Your Honor, was that some of the cases about facial challenges are cases where the facial challenge is made immediately. And those are the cases where

the facial challenge seldom works, because there's not enough record to show whether it's going to work or not. So the cases we're citing to you are cases where facial challenges have been upheld after trials with evidence. And those cases happened longer than the other cases; they happened at some point years after the enactment of the statute. And that's what this case is. THE COURT: All right.
04:20 04:19

Well, let's move to the motion with respect to the expert witnesses, where the government is seeking to bar the plaintiff's seven experts. The government characterizes the
04:20

testimony of these witnesses as testimony that the policy continues to have no rational basis today and argues that the testimony is inadmissible under Rules 402 and 702 -- that is, it's neither reliable nor relevant -- and then also argues, in the alternative, that if admissible, it should be limited under Rule 403 to one witness per topic, because otherwise it's

04:21

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cumulative. So the seven witnesses are Lawrence Korb -- I'll go through them quickly. each. I just have a couple of comments about

I have different concerns about each of them than are


04:21

necessarily raised in the papers. As to the motion insofar as it concerns Professor Korb, I don't think it's accurate, at least as I can glean from the expert's deposition testimony that was attached to the motion -- I don't think it's accurate to state that his primary opinion is that the policy is unconstitutional. really a mischaracterization of the transcript of the deposition. I think during the deposition he was asked that, and he gave his opinion, but I don't think that's the primary reason he's being called to testify. Also, though, keeping in mind, however, that under the federal rules, I don't think that opinion would be admissible. But an expert is allowed to state the ultimate But I don't think that's why he's being That's

04:22

04:22

opinion in the case. called to testify.

04:22

As to -- is it Nathan Frank? MR. WOODS: THE COURT: Nathaniel, Your Honor. Nathaniel. I typed it as "National."

And I knew that couldn't be right. Some parts of his opinions, I think, such as the -04:22

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what I would characterize as the anecdotal bits, would probably not be admissible. As I said earlier, and I don't want to be repetitive, an expert can testify as to the basis for his opinion if he's got -- and I believe he does have other -- I mean, I believe he's the expert who is trained as an historian -- he can testify about his analysis of the record. But the thing that I found most troubling about the basis for his opinion is what I believe -- it's been a long time since I looked at this issue, but what I believe is still called the legislator's privilege; that is -- and I'm trying to stay away from the word "sausage" here. But since a legislator
04:23 04:23

cannot be questioned about the reasons and the motivation for his or her vote on legislation, and there's a privilege to that effect, as I read some -- and I think some of the basis for Professor Frank's opinion is, I think, based on sort of privileged matter to that same effect. Perhaps not all of it.
04:24

But to the extent that he is opining that -- I know, for example, some of the material that's included in his report includes testimony that was given to Congress about either members of the military or former members of the military and others. That's testimony. That's, perhaps, one thing. But
04:25

his opinion is also based, I believe, on statements that were made during the hearings by members of Congress, such as Representative Dorman, that would go into his frame of mind;
04:25

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that is, Representative Dorman's.

That name stood out to me

just because he's -- well, he's no longer in Congress, but he's from this area, so it's a name I recognized. But I think there

were other members of Congress whose comments were reported too. So I think it's one thing to analyze and report and form an opinion based on the hearings and the testimony that was given without splitting hairs, but it's another thing to form an opinion that's based on the reasoning of the legislators, because that is privileged. So, to the extent
04:26 04:25

that his opinion is based on that, I don't think he could state those -- I don't know that necessarily invalidates all of his opinions, but I don't think he can testify about the reasoning of -- well, I'm hesitant to say that he can testify as to the reasoning of, insofar as the record reveals it. Aaron Belkin, most of the objections as to his testimony go to the weight, for example, regarding the conclusion that getting rid of the policy wouldn't harm military readiness. Most of those objections that were
04:27 04:27

expressed in the motion go to the weight, not the admissibility. I think his conclusion is based on a number of

subconclusions, including that the military suspended discharge proceedings of a large number of gay servicemen and women during the first Gulf War; and that supports his conclusion that getting rid of the policy wouldn't harm military
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readiness. So the objections to his opinion, again, would go to the weight and not admissibility. As to Robert MacCoun, if I'm pronouncing his name correctly, he's the law professor at Berkeley. two fields. I think he has I think
04:28

Is he also in the Public Policy School?

he's got two -MR. WOODS: THE COURT: He's a sociologist, Your Honor. Sociologist.
04:28

So his opinions are really more -- they're not really legal opinions, but he has various opinions that he offers regarding unit cohesion, task cohesion, and social cohesion. And, again, I think the criticisms of his opinions go to weight and not admissibility; that is, I don't think that they would rise to the level of a true Daubert challenge. I was just corrected in my last trial by somebody who actually knew Daubert. And it's Daubert. I'm now relieved to

04:29

know the real pronunciation. As to Professor Hillman at Hastings, I don't really understand what her methodology is. I think that is a Daubert
04:29

attack, and so I would ask the plaintiff's counsel to argue as to what methodology underlies her opinions. And then as to Professor Embser-Herbert, her qualifications are impressive, but the impact of the policy on women serving in the military -- I think the government makes a
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good point, that this is not an Equal Protection -- I mean, there's not an Equal Protection claim here, and so I'm hard-pressed to see how that testimony fits within the parameters of the issues raised in this case. Overall, I would say that given what is required under Rule 702, that is, if the specialized knowledge would assist the trier of fact to understand the evidence, I think all of the witnesses are qualified. I think the first requirement is satisfied. I'm a
04:30 04:30

little concerned, as I said, about Professor Frank's -- whether it's based on sufficient facts or data. But for the most part,

I don't think that's an issue with any of these witnesses, other than Professor Frank. As to Professor Hillman, I'm concerned as to the second requirement under 702, if the testimony is the product of reliable principles and methods. So with that, I would ask the plaintiff to address those concerns. Some of the other opinions that the government has objected to, some of the testimony may be admissible for one purpose here but not another. If a witness holds the opinion
04:31 04:31

that the United States should follow the example of another country, such as Canada, that's not admissible, except for a very limited -- it's not admissible. be admissible. Such an opinion would not
04:32

Because, as the Government points out very

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aptly, the issue here is not the wisdom of the policy. If the witness is relying on data of military readiness or the effect on unit cohesion or the other stated purposes of the policy, and they are relying on data from other forces, and the testimony is given in that framework, then it may be admissible. And then one last issue that was raised as to Hillman's testimony. Hillman is the Hastings professor.
04:32

Is she also testifying about a disparate impact on female service members? MR. FREEBORNE: THE COURT: All right. MR. GARDNER: Your Honor, if I may, can I address She is, Your Honor.
04:33

Then I think I've covered that.

some of the points you have raised, or would you prefer me to -THE COURT: You're Mr. Parker? Gardner. Gardner.
04:33

MR. GARDNER: THE COURT: All right.

I'm sorry. Go ahead.

MR. GARDNER:

Thank you, Your Honor.

I don't want to repeat what Mr. Simpson said, so I won't, but I do want to be clear that regardless of whatever standard of review you ultimately choose -- and to be clear, I think it's made clear in our papers -- the Witt standard simply
04:33

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is inapplicable in a facial challenge.

Witt itself says so.

But to the extent that this Court disagrees with that, the fact of the matter is, this is a facial challenge. And plaintiff has not cited a case where expert testimony is utilized to support a facial constitutional challenge to a statute. They simply have not. Remember, Your Honor, in Cleburne, there was a facial and as-applied challenge. The Supreme Court didn't consider
04:34

factual testimony in terms of invalidating the city ordinance in the facial challenge. In fact, Cleburne went one step
04:34

further and said, We are not going to resolve the facial constitutional challenge because those are disfavored, so we're going to look at the as-applied challenge. Lawrence, Your Honor, is also completely inapposite. In Lawrence, the Court looks to facts -- by the way, gleaned from amicus briefs, not discerned at a trial -- to determine whether or not the logical historical underpinnings of the Bowser decision should be overruled; in other words, should stare decisis be departed from, not whether or not the Texas ordinance that was criminalizing consensual private sex should or should not be held unconstitutional as a facial challenge. The fact of the matter is, facial challenges are not subject to fact-finding, period. to the contrary. We, on the other hand, have given multiple examples
04:35 04:34 04:34

And the plaintiff cannot give an example

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of where that is the case.

But even if we were to get away

from that basic principle, that you cannot consider evidence for a facial constitutional challenge, there are a host of other legal impediments to the consideration of this testimony. I know this Court alluded to the notion that testimony challenging the wisdom of Congress is inadmissible. We agree with that. But that is the purpose for which these
04:35

experts seek to offer testimony. And here's the proof of that, Your Honor: plaintiff's experts want to provide this Court is the following: There's no empirical evidence to support "Don't Foreign militaries do it, therefore the unit What
04:35

Ask, Don't Tell."

cohesion rationale that Congress considered has somehow been undermined. Unit cohesion, that argument is without merit.
04:36

But the fact of the matter is, Your Honor, in a facial constitutional challenge, the Court looks at the legislative history. in this case? And what does the legislative history say It's

And the plaintiff doesn't dispute this.

indisputable, frankly. Congress heard testimony about foreign militaries and weighed that testimony and ultimately reached a conclusion. Plaintiff wants to bring in expert testimony to challenge that conclusion to say, We understand Congress considered foreign militaries and ultimately decided, while that may be a relevant data point, it's not dispositive. Plaintiff's experts are
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going to come in and say, No, they are dispositive, and they show the lack of logic in Congress's determinations. Unit cohesion. Same example.

In fact, Dr. MacCoun, I think, is a particularly good example of this. There's no dispute now, as plaintiff
04:36

acknowledged in its reply brief to the motion in limine, that Dr. MacCoun, who offered Chapter 10 of the RAND report, was submitted to Congress. Chapter 10 dealt with, just like his

expert opinion, unit cohesion. Congress considered that RAND report, as well as all sorts of other testimony, and reached a judgment. Plaintiff
04:37

now wants to bring in expert testimony to challenge that judgment about unit cohesion. And the same thing is true with empirical evidence, Your Honor. Plaintiff wants to come in and say there was no
04:37

empirical evidence that Congress considered. One, factually, that's not true; two, we don't need an expert to say what Congress did or did not consider. legislative history says what Congress considered. The

And even
04:37

under a heightened scrutiny test, such as Goldman by the Supreme Court, scientific studies are not necessary, particularly in the context of the military, where the judiciary routinely defers to the wisdom and judgment of Congress. THE COURT: Well, you know, you cite Goldman in your

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papers several times, but Goldman -- and I'm trying to remember the exact wording the way you used it -- but Goldman was really quite narrowly focused on the lack of -- I'm trying to remember the exact wording of this holding, because I think you expanded it beyond that -- on the lack of factual record that was needed to analyze the dress code in the military. That's the Yamika case; right? MR. GARDNER: Your Honor. And there was a regulation by the Department of the Air Force. And what did the Supreme Court do in that case? looked at the plain language of that regulation. Justice Rehnquist, former-Chief Justice Rehnquist, said, You know what, I don't need expert testimony to say whether or not this is a good policy, a bad policy or whether this policy makes sense. We're going to look at the plain
04:38 04:38 04:38

That's the Yamika case.

That's right,

They

language of the regulation and make that determination. That's the exact analysis this Court should apply here. And I know that the plaintiff, in its supplemental brief, took the position that, Look, if you apply the Witt standard and you conclude that the government has the burden of proof, the government has not met that burden of proof, and they're entitled to summary judgment.
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I think the plaintiff and the defendants agree on one point, Your Honor. This is a legal conclusion. And to the

extent you conclude, and we would argue erroneously, that Witt somehow applies and that somehow that shifts the burden to the government, the government is not presenting evidence in this case, Your Honor. And we can be very clear about that.
04:39

The government is relying upon the statute and legislative history. So if you conclude that somehow the

government bears some burden in a facial constitutional challenge, I don't know why there would be a need to have a trial in this case. I think plaintiff has made that point in
04:39

its supplemental brief. With respect to the animus issue, I know the Court touched on the legislator privilege. that, Your Honor. I think it's broader than
04:39

The Court does not look at the motivations

of anyone associated with the legislation in a facial constitutional challenge. Instead, what it does is, it looks at the purposes that animate the statute. And the purposes that animate that And
04:40

statute are revealed by the plain language of the statute. this issue is largely off the table for much more basic reasons. Because Philips has already resolved this.

Because

Witt itself, in an as-applied context, said there are legitimate reasons for "Don't Ask, Don't Tell." And those
04:40

involve things such as sexual tension, privacy, and unit

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cohesion.

And regardless of the Lawrence decision, those

findings remain good law to this day. In fact, the First Circuit's decision in Cook makes that clear. Cook, a post-Lawrence case, considered Lawrence
04:40

and considered the unique context of the military and determined that "Don't Ask, Don't Tell" was facially constitutional. And it did that, it conducted that analysis,

Your Honor, by looking at the statute and legislative history. Even the case the plaintiff cites to, where their two experts testified, MacCoun and Korb, the Abel case, actually refutes this notion that expert testimony is relevant or important. In Abel, the Eastern District of New York didn't Rather, it did
04:41

even address the testimony of expert witnesses.

exactly what we are suggesting you should do in this case: Look at the legislative history, look at the text of the statute, and make a conclusion based upon that. Ultimately, the Eastern District did, and that decision was reversed by the Second Circuit, which has concluded that "Don't Ask, Don't Tell" is constitutional. In fact, Your Honor, the fact that different circuits have held, even in an as-applied basis, that "Don't Ask, Don't Tell" is constitutional should doom a facial constitutional challenge. Because, under Salerno, it reveals the fact that
04:41 04:41

there are constitutional applications. So I think that addresses many of the general
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relevance objections the government had under 702 and whether or not this is probative of anything. I do want to quickly address Dr. Korb's opinion. Dr. Korb's opinion in this case -- I asked him at his deposition, What is your opinion in this case? He answered that "Don't Ask, Don't Tell" is unconstitutional. And how do you get there, Dr. Korb? I get there because I don't see a rational basis for it. And if you look at Dr. Korb's report, that's all it purports to be. In fact, the whole back half of Dr. Korb's
04:42

report is nothing but a regurgitation of some of the other expert witnesses in this case's conclusions. For example, I believe beginning at Page 8, if you look at Dr. Korb's opinion, there's either no facts or data relied upon, or the facts and data that were relied upon consist of Dr. Frank's book and a New York Times article. I think in the section before that, he relies upon a Rachael Maddow interview. Even if this testimony were otherwise admissible under the first prong of 702, to the extent it could ever be helpful to the Court in a facial constitutional challenge, the reliability is facially inherently suspect. This Court has already addressed the disparate
04:43 04:43 04:42

And

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treatment claim from lesbian service members, and I won't rehash that. But I do want to focus a little bit more on Korb's reliability issue. Dr. Korb was asked repeatedly at his
04:43

deposition, Are you challenging the wisdom of Congress in its failure to consider certain issues? Are you challenging the

wisdom of Congress in its weighing of issues differently? And what did Dr. Korb say repeatedly, as we noted in our motion? Yes, I'm challenging the wisdom of Congress.
04:44

Now, I understand the plaintiff now wants to sort of recast these opinions, and say, No, he's not going to do that; that's not the purpose. But I think a fair and plain reading

of his expert report reveals exactly the opposite, that all of their expert witnesses at the end of the day want to challenge the congressional findings. And that is simply inappropriate.
04:44

I know this Court has considered the cumulativeness issue under 403. The only other point I wanted to raise briefly was Dr. Belkin's, quote, "revised report." As we mentioned in the motion, that revised opinion should be struck. That's an opinion related to privacy.
04:44

And just very quickly, per the pretrial schedule in this case, Dr. Belkin submitted an initial expert report on January 15th of this year. And there's no dispute whatsoever
04:45

that he didn't offer any opinions about privacy in that

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original report. The night before his deposition, as Dr. Belkin testified, counsel for LCR asked Dr. Belkin, Hey, Dr. Belkin, will you offer an opinion about privacy? So the next day at his deposition, my colleague, Mr. Freeborne, asked Dr. Belkin, What did you do to prepare for your deposition? Spoke to counsel. What did you speak about? Privacy. And that's where the privacy discussion came up. And then on March 24th, approximately three weeks later, Dr. Belkin now submits a revised report offering an opinion about privacy. This isn't a circumstance where Rule 26(e) applies. There is certainly no duty to supplement a report as, quote, "new facts become available." facts. Dr. Belkin presumably had these
04:45 04:45 04:45

In fact, Dr. Belkin testified at his deposition that

he's considered privacy issues before. Frankly, this last-ditch effort to offer what is essentially a rebuttal opinion is inappropriate and should be excluded under Rule 37. The fact that the government asked
04:46

Dr. Belkin questions about the issue is largely irrelevant, because, again, this is a violation of Rule 16 now and the pretrial order deadlines. Plaintiff has to show good cause as
04:46

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to why it has the opportunity to issue revised opinions. failed to meet that burden. Thank you, Your Honor. THE COURT: Mr. Woods. MR. WOODS: Thank you.

It's

04:46

Your Honor, I have several comments about

each of the individual experts, and then I want to talk about a larger subject when I'm finished with that. First, you asked about portions of the testimony of Professor Frank and the potential application of the legislator's privilege to that testimony. As we all know, that issue was not part of the government's motion in limine. been briefed. And so what I intend to do, Your Honor, between now and the date that we call Professor Frank, is to consider that issue very carefully. If we think that his testimony or parts
04:47 04:47

It was not briefed and has not

of it would be in violation of that privilege, we won't ask him those questions. If we, however, Your Honor, conclude that it would not violate that privilege, then we will supplement our briefing on this for you and provide you a brief about that. Because I seem to recall school prayer cases where the intent of the legislators was considered as part of the constitutional challenge to school prayer issues. But, as I said, we'll brief
04:47 04:47

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that later on. With respect to Ms. Embser-Herbert, the point here, Your Honor, is not that it's an Equal Protection claim. know it's not an Equal Protection claim. And while people, including her perhaps, use the term "disproportionate impact," it's not used in that sense. The
04:48

We

sense of it is that "Don't Ask, Don't Tell" doesn't further its stated policies because of the way it is impacting women instead of men. If the policy really was to further the
04:48

interests that it is supposedly furthering, you wouldn't see 40 percent of the discharges being women. We're not offering

it to support an Equal Protection claim; we're offering it to show that the policy doesn't accomplish its stated purposes. She is a sociologist who's testifying, from that viewpoint, on how the policy disproportionately impacts women and related subjects. In contrast, Elizabeth Hillman, Your Honor, who is a professor of law, is not testifying as a lawyer in this case; she's testifying as a historian, a military historian no less, whose particular emphasis is on military history and women. She was in the military herself. angle. And you asked about her methodology and whether it was clear enough. And, again, I would suggest to you that her
04:49 04:49 04:48

So her testimony is from that

report was perhaps briefer than some of the others and didn't

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explain it in as much detail as others.

But as a social

scientist, historian in particular, it's not a situation where you're going to find scientific experiments. She's going to

rely on the traditional things a historian, particularly with an emphasis on military history and issues about women in military issues, would testify. And, again, I think that's something that perhaps ought to be best taken up at the trial. If it doesn't qualify
04:49

once we lay a foundation, we can deal with it at that point, Your Honor. Similarly, counsel just asked about Professor Korb. And I have to say, I mean, I think his argument about Professor Korb doesn't do his stature the service it deserves. And this is a recognized member of our military defense organization from his career. THE COURT: Defense. MR. WOODS: Yes. And he's certainly not going to He is the former Assistant Secretary of
04:50 04:50

come here, Your Honor -- we aren't calling him to say any legal opinion or conclusion. more credit than that. With regards to Professor Belkin's revised report, we covered that, Your Honor, in the declaration of Ms. Feldman that we submitted with our opposition papers. What happened was, in the pre-deposition meeting, he
04:51

I hope counsel would give us a little

04:50

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was informed that he would likely be asked questions about privacy. And so he was. He was asked in his deposition if he He said, Yes, I'd be happy

would be supplementing his report. to. And he did.

And those are the facts before you now.


04:51

And, again, those are the facts we put to you in Ms. Feldman's declaration in opposition to the motion. The

government's reply papers did not contradict them at all. Once again, I think you hit on this before when you were saying that the government was trying to have it both ways. In other words, the government is trying to say that in
04:51

a facial challenge, all the Court can look at is the legislative history, and at the same time exclude all of our evidence, so therefore what could possibly be challenged? But I think we have briefed adequately, throughout all of the papers that we have filed leading up to this conference, the points that we have made throughout, which is that the position by the government is just plain wrong. We have many cases, Cleburne, Lawrence, and other facial challenge cases, where evidence was admitted after the enactment of the statute, both in terms of what people learned about the enactment of the statute after it was passed and how it was implemented in practice. We've got lots of cases in our
04:52 04:52

opposition to the summary judgment motion, in our pretrial memorandum of contentions of fact and law, and our proposed findings of fact and conclusions of law, and in our
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supplemental brief on Witt. Again, counsel for the government continues to cite to you cases that are not governing law in this circuit. mean, he cites Philips. I

And we have said over and over, and


04:53

you have said twice, that Philips is no longer a good law after Lawrence. He cites Cook. And the Cook case says many, many

times that it explicitly disagrees with the Witt case; And so it is not the law of this circuit. Witt is.
04:53

Once again, the Government is ignoring the controlling law in the circuit, which is the Witt case. And he mentions the Abel case in which two of our experts were qualified as experts. You know, once the Court allows evidence to come in on a facial challenge, it really shouldn't matter whether the evidence is from an individual who presents facts or whether it's from an expert who synthesizes many facts and makes these facts more useful and intelligently presented to the Court. So all of these arguments, I think, Your Honor, we have already covered. I do want to go back to one other thing, though, that Mr. Gardner said. I think, Your Honor, we're all waiting for a final definitive ruling on the government's motion for summary judgment on the merits and a final ruling as to whether the

04:53

04:53

04:54

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Witt standard does apply. THE COURT: The Witt standard does apply.

I have not issued a written ruling on it, and I had hoped to have it by today, but a ruling on the motion is going to go out this week. But the Witt standard, that part is done,
04:54

and the Witt standard is going to apply. MR. WOODS: Very well. Thank you.

And I think that's right, for all of the reasons we've briefed before. But I want to follow up on something Mr. Gardner just said. He said to you a moment ago, if I heard him correctly,
04:54

Your Honor, that if the Witt standard applies -THE COURT: Please slow down. I'm going to put a It won't be the
04:54

sign on the lectern for this trial, I can see. first time I've done that. MR. WOODS: THE COURT: Go ahead. MR. WOODS: Or the last.

And it's going to apply to both sides.

I should speak more slowly on this point,


04:55

because it's really important. If I understood what Mr. Gardner just said correctly, he said that if the Witt standard applies, and we know what that means, that means the Government has a burden to show certain things. He has just said, again, that the government

does not intend to present any evidence at this trial beyond

04:55

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the legislative history. I will remind you, Your Honor, you gave the government the opportunity to present evidence in your order requesting supplemental briefing about the application of the Witt standard and whether "Don't Ask, Don't Tell" survives in light of the Witt standard's application to this case. And the
04:55

government chose not to present any evidence in response to that invitation you gave to the government. Mr. Gardner just said, If the Witt standard applies and we're not going to produce any evidence, there may be no need for a trial. Your Honor, I think, for once, I happen to agree with Mr. Gardner. There is no need for a trial if that's the
04:56

government's position. Instead, you should grant summary judgment right now, right here, to us, sua sponte. Because once the Witt standard I read it already to you The government has to show
04:56

applies, we know what that means. once today. It's in your order.

certain things.

If the government does not intend to show And that's


04:56

that, then there is no need for a trial and we win. something I think that may be worthy of some further consideration. Thank you, Your Honor. THE COURT: All right.

MR. GARDNER:

Your Honor, may I add just one very

04:56

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quick point. Witt standard.

You've indicated that you're going to apply the

THE COURT: on the Witt standard.

I'm not going to hear any more argument I gave both sides the opportunity to
04:57

brief the Witt standard, and the government's brief didn't really address the Witt standard. You spent the first, I can't remember, four or five pages addressing whether the Court should issue a stay in this case, but you didn't address the Witt standard. And I have a

lot of attorneys waiting outside for my next matter, so I need to move on to finish up with your case. the motions. Is there a motion to exclude witnesses during testimony? MR. FREEBORNE: Yes, Your Honor. So no more argument on

04:57

04:57

Just to be clear, obviously experts would not be excluded, nor the party representative, but the fact witnesses would. And just to be clear, there can be no discussion with a

witness while they're on the stand. THE COURT: No discussion of the witness while... No discussion with the witness while
04:57

MR. FREEBORNE: he or she is on the stand. THE COURT:

Of course.

That's right.

So each side is responsible for making sure that your witnesses know to stay out of the courtroom during -- that
04:58

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doesn't include, of course, openings and closings, just testimony. And it doesn't apply to experts. Make sure your

witnesses know to remain outside of the courtroom during testimony. Then we have the issue of Mr. MacCoun. Is he to be considered unavailable because under the terms of his contract, he can't testify? MR. WOODS: trial subpoena. today. Your Honor, we have served him with a
04:58

We filed a proof of service of that subpoena


04:58

I continue to believe that he will not appear despite I imagine that we only recently served the

the subpoena.

subpoena, and it's possible that he may appear, but I tend to doubt it. THE COURT: MR. WOODS: He's the witness that works at RAND? He is working for RAND currently, yes.
04:59

He's a UC Berkeley professor by profession. THE COURT: But he takes the position that he can't

testify because of the terms of his consulting contract with RAND? MR. WOODS: THE COURT: videotaped? MR. WOODS: THE COURT: It was not, Your Honor. The government cited some authority to
04:59

Yes, Your Honor. All right. Well, was his deposition

04:59

the effect that it's preferable to have a witness testify in

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person than by deposition, which is true.

The thing that's not

clear to me is that a witness could be considered unavailable because, by the terms of a contractual obligation, he more or less declares himself unavailable. I've just never had that issue come up before. I'm not making light of it. And
05:00

The marshals are very, especially

in this district, completely overworked. I think I'm going to research that a little bit. I'm not persuaded that makes him unavailable, then it's just like any other witness, expert or no, if he doesn't obey a subpoena, then he'll receive another kind of invitation to appear. MR. WOODS: We will also research that, Your Honor,
05:00

If

and perhaps we could let Professor MacCoun know that he may get a different kind of invitation to appear. THE COURT: You know, a witness is a witness. I just
05:00

went through this with some other reluctant witnesses in the trial that I hope to finish tomorrow, so... There are no exemptions. exemption. But I'm just not sure whether it's a contractual obligation. I don't know why it would be. So one way or the Occupation is not an
05:01

other -- he may be riding in a different sort of vehicle than he's used to to appear. Any other witness issues that we're aware of?
05:01

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MR. WOODS: THE COURT:

No, Your Honor. All right.

Is either side going to use any equipment other than the equipment that's in the courtroom? For example, are you going to hook up your own computers to do PowerPoints, anything like that? MR. GARDNER: We do intend to use TrialDirector, Your As I understand it,
05:01

Honor, and we do intend to use realtime.

we can use the courtroom's facilities both to transmit documents through TrialDirector and using the E.L.M.O. And for
05:01

realtime, we will bring in our own laptops, if that's -THE COURT: Director"... MR. GARDNER: TrialDirector is one of the proprietary
05:02

That's fine.

When you say "Trial

software items that allows you to put up documents on the screen. It's a little more high tech than the E.L.M.O. It

allows you to blow up portions of documents, et cetera. THE COURT: I just wasn't familiar with it.

And your side? MR. WOODS: Your Honor. THE COURT: Just make sure to make an appointment I imagine we'll do something similar,
05:02

through Ms. Dillard to come in and get your equipment installed; and make sure, through the Court's IT person, that everything works smoothly, so that we're ready to go on the
05:02

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morning of. You should be able to set your things up -- I've always wanted to say this: Have your people talk to my people,

the Friday before trial and make sure everything is up and working. The courtroom should be available to you. Make sure your depositions are lodged with the Court, with the clerk before trial. Make sure that you comply with the local rule about redacting any personal identifying information, including social security numbers, home addresses, and telephone numbers of individual persons. I'll allow the parties to make a short opening statement, but keep in mind I've already read your memorandum of contentions of law and fact; but you're free to give a short opening statement at the beginning, if you'd like. MR. FREEBORNE: Your Honor, that presents some Obviously, the way we see this
05:03 05:03 05:02

particular difficulties for us.

case is, it presents legal issues; and I know Your Honor has a standing order which prohibits legal argument in the context of an opening statement. dispensed with. We would ask that opening statements be
05:04

The parties have been heard on these issues. I'm not so concerned in a court trial. I

THE COURT:

mean, as lawyers who practice regularly in front of me can tell to you, to their dismay I'll interrupt in a jury trial, even without objection from the other side, if I think it's
05:04

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argument. I agree with you in this case that it's hard to separate. So if you want to waive, you can waive. But if you

want to give a brief opening to set the stage, you can do so. But I am familiar, and I hope to be even more familiar by July 13th. So if you want to set the stage and If you want to waive,
05:04

give a brief opening, that's fine. that's fine.

A joint witness list is to be submitted. When I take up my other matter, Ms. Dillard will talk to you about the exhibit list and the exhibit notebooks and so forth. Then she'll return those to you. So, like I said, you can -- well, you know what I mean by recycling them, use them for these purposes. I will issue a written ruling on the motions in limine. And, like I said, I intend to have the ruling on the motion for summary judgment out this week. Anything further from either side? MR. FREEBORNE: Your Honor, when can we expect the
05:06 05:06 05:05

order on the motions in limine? THE COURT: week. MR. FREEBORNE: MR. WOODS: Thank you.
05:06

This week.

It's mostly done, so this

Nothing further, Your Honor.

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THE COURT:

All right.

Thank you very much.

(Proceedings concluded.)

CERTIFICATE

I hereby certify that pursuant to section 753, title 28, United States Code, the foregoing is a true and correct transcript of the stenographically recorded proceedings held in the aboveentitled matter and that the transcript page format is in conformance with the regulations of the Judicial Conference of the United States. _/S/ Theresa A. Lanza CSR, RPR Federal Official Court Reporter _________________ Date

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04-8425-VAP(ex [1] 4:4

6
6108 [1] - 2:15 633 [1] - 2:6

1
10 [2] - 43:7, 43:8 12 [1] - 12:8 13,000 [1] - 31:20 13,400 [1] - 32:14 13th [2] - 4:17, 62:6 14 [1] - 4:3 15th [1] - 48:24 16 [1] - 49:24 17th [5] - 14:25, 25:16, 25:21, 25:22, 26:9 1900 [1] - 2:7

7
702 [5] - 34:22, 39:6, 39:15, 47:1, 47:22 7th [2] - 15:1, 16:17

8
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9
9 [1] - 10:9 90071-2007 [1] - 2:7

2
20 [1] - 2:14 20001 [1] - 2:15 2010 [1] - 4:1 202-353-0543 [1] 2:16 20th [4] - 16:22, 30:15, 30:18, 31:1 213-620-7772 [1] 2:8 24th [1] - 49:12 26 [1] - 15:15 26(e [1] - 49:15 26th [2] - 16:6, 25:11 27th [1] - 25:6 28 [1] - 4:1

A
Aaron [3] - 2:6, 4:14, 37:16 Abel [3] - 46:10, 46:12, 54:12 ability [3] - 14:24, 26:20, 26:23 able [3] - 4:24, 5:17, 61:2 absence [1] - 4:20 abundant [1] - 27:14 accomplish [1] 51:13 according [2] 12:12, 28:17 accurate [3] - 20:11, 35:7, 35:9 acknowledged [1] 43:6 action [1] - 21:14 add [2] - 29:16, 56:25 addition [1] - 26:24 address [9] - 9:7, 23:23, 27:2, 39:17, 40:14, 46:13, 47:3, 57:6, 57:9 addressed [1] 47:25 addresses [4] 14:25, 26:1, 46:25, 61:10 addressing [2] 23:22, 57:8 adduced [1] - 21:15

3
30(b)(6 [6] - 12:25, 13:15, 13:24, 14:13, 16:24, 24:15 37 [1] - 49:22 37(c)(1 [2] - 14:22, 22:9 3:27 [1] - 4:1

4
4 [1] - 3:3 40 [1] - 51:11 402 [1] - 34:22 403 [2] - 34:25, 48:17

adducing [1] - 16:14 adequately [1] 53:14 admissibility [6] 7:15, 7:23, 8:2, 37:21, 38:3, 38:14 admissible [12] 7:24, 14:18, 17:25, 34:24, 35:18, 36:2, 39:20, 39:23, 39:24, 39:25, 40:6, 47:21 admission [1] - 8:20 admit [1] - 10:21 admitted [7] - 8:10, 11:5, 11:12, 11:16, 11:23, 12:2, 53:19 adopt [1] - 15:10 adopts [1] - 31:14 advance [7] - 6:14, 11:22, 15:22, 15:23, 23:11, 23:14, 31:9 affect [2] - 13:8, 13:25 afternoon [1] - 4:11 ago [1] - 55:11 agree [13] - 6:1, 7:15, 7:19, 7:24, 8:5, 8:9, 9:15, 14:1, 18:10, 42:7, 45:1, 56:12, 62:2 agreed [1] - 17:23 ahead [3] - 11:17, 40:20, 55:18 Air [1] - 44:11 al [1] - 4:5 allow [5] - 9:12, 17:10, 19:3, 19:16, 61:12 allowed [1] - 35:18 allowing [5] - 14:14, 14:16, 16:9, 29:6, 30:20 allows [3] - 54:14, 60:15, 60:17 alluded [1] - 42:5 almost [2] - 9:16, 33:8 alternative [1] 34:24 America [2] - 4:5, 30:9 amicus [1] - 41:16 analysis [3] - 36:7, 44:19, 46:7 analyze [2] - 37:6, 44:6 anecdotal [1] - 36:1 Angeles [1] - 2:7 angle [1] - 51:22 animate [2] - 45:19

animus [2] - 10:6, 45:13 answer [2] - 13:14, 19:14 answered [1] - 47:6 appeal [1] - 28:24 appear [8] - 6:8, 6:10, 11:5, 58:10, 58:12, 59:12, 59:15, 59:24 APPEARANCES [1] 2:1 appearances [1] 4:6 application [10] 12:22, 27:24, 28:4, 28:6, 28:10, 28:15, 33:11, 50:10, 56:4, 56:6 applications [1] 46:24 applied [7] - 31:1, 32:22, 33:16, 41:8, 41:13, 45:23, 46:21 applies [7] - 12:17, 45:4, 49:15, 55:12, 55:22, 56:9, 56:17 apply [12] - 9:22, 15:20, 16:7, 31:3, 44:19, 44:22, 55:1, 55:2, 55:6, 55:17, 57:1, 58:2 applying [1] - 31:5 appointment [1] 60:22 April [3] - 16:6, 25:6, 25:11 aptly [1] - 40:1 area [1] - 37:3 areas [1] - 27:6 argue [4] - 22:13, 29:6, 38:21, 45:3 argues [6] - 12:17, 13:1, 13:6, 15:8, 34:21, 34:23 argument [15] 12:21, 16:25, 21:3, 21:25, 22:6, 26:25, 29:25, 32:25, 33:1, 42:14, 52:12, 57:3, 57:11, 61:19, 62:1 arguments [4] 21:24, 30:6, 31:2, 54:19 arranged [2] - 5:7, 5:11 arrangements [1] 17:4 article [1] - 47:18 as-applied [4] - 41:8,

41:13, 45:23, 46:21 aside [1] - 27:20 aspect [1] - 27:11 asserted [2] - 28:14, 28:18 assertion [2] - 27:25, 28:9 assist [1] - 39:7 Assistant [1] - 52:16 associated [1] 45:16 associational [2] 28:13, 28:16 assume [1] - 23:22 assuming [1] - 18:20 attached [1] - 35:8 attack [1] - 38:21 attempting [1] 23:16 attempts [1] - 31:7 attorneys [3] - 24:15, 24:17, 57:10 authenticated [1] 17:24 authenticity [1] 8:22 authority [1] - 58:24 available [5] - 5:12, 15:12, 16:22, 49:17, 61:5 Avenue [1] - 2:14 aware [1] - 59:25

B
backup [2] - 5:7, 5:14 bad [1] - 44:16 balancing [1] - 22:8 bar [2] - 14:6, 34:18 based [13] - 7:9, 8:16, 8:25, 10:5, 11:18, 36:16, 36:23, 37:7, 37:9, 37:11, 37:21, 39:11, 46:16 basic [2] - 42:2, 45:21 basis [8] - 12:2, 12:13, 34:21, 36:4, 36:9, 36:15, 46:21, 47:9 bears [1] - 45:9 became [1] - 20:15 become [3] - 11:24, 20:4, 49:17 begin [2] - 4:17, 29:5 beginning [3] - 17:7, 47:15, 61:15 begins [1] - 16:17

Case Name/number

date

Behalf [2] - 2:3, 2:10 behalf [4] - 4:7, 9:4, 14:7, 32:9 belie [1] - 27:25 belies [1] - 28:14 Belkin [10] - 37:16, 48:23, 49:2, 49:3, 49:6, 49:13, 49:17, 49:18, 49:23 Belkin's [2] - 48:19, 52:22 belying [1] - 32:8 benefits [1] - 7:22 Berkeley [2] - 38:5, 58:16 best [2] - 9:9, 52:8 between [3] - 15:2, 24:6, 50:15 beyond [6] - 12:15, 13:15, 13:18, 27:10, 44:5, 55:25 bifurcation [1] - 5:19 Biodiversity [2] 20:20, 21:3 bit [3] - 33:6, 48:3, 59:8 bits [1] - 36:1 blow [1] - 60:17 book [1] - 47:18 Bowser [1] - 41:18 Bradley [1] - 2:13 branch [3] - 22:24, 32:2 Branch [1] - 2:12 breakdown [1] - 12:8 breath [1] - 25:5 brief [10] - 43:6, 44:22, 45:12, 50:22, 50:25, 54:1, 57:5, 62:4, 62:7 briefed [4] - 50:13, 50:14, 53:14, 55:9 briefer [1] - 51:25 briefing [2] - 50:22, 56:4 briefly [1] - 48:18 briefs [2] - 29:24, 41:16 bring [7] - 14:9, 28:3, 28:22, 33:20, 42:22, 43:12, 60:11 bringing [1] - 32:9 broad [3] - 7:9, 8:25, 11:19 broad-based [2] 7:9, 8:25 broader [2] - 19:4, 45:14 brought [1] - 19:19 burden [7] - 33:18,

44:24, 45:4, 45:9, 50:2, 55:23 BY [7] - 2:5, 2:5, 2:6, 2:12, 2:13, 2:13, 2:14

C
Cabin [3] - 4:4, 4:13, 20:4 Calendar [1] - 4:3 calendar [1] - 4:15 California [2] - 2:7, 4:1 Canada [1] - 39:23 cannot [4] - 5:11, 36:13, 41:23, 42:2 caption [1] - 30:13 care [3] - 5:9, 6:14, 24:23 career [1] - 52:15 carefully [1] - 50:17 Case [2] - 4:4, 4:12 CASE [1] - 2:4 case [52] - 7:3, 7:10, 7:17, 9:1, 11:13, 11:14, 12:14, 13:15, 13:16, 16:2, 20:9, 20:19, 21:7, 22:9, 23:18, 24:12, 25:6, 26:23, 27:14, 28:17, 30:13, 31:6, 32:16, 33:3, 34:15, 35:19, 39:4, 41:4, 42:1, 42:18, 44:7, 44:8, 44:12, 45:6, 45:11, 46:4, 46:9, 46:10, 46:14, 47:4, 47:5, 48:23, 51:18, 54:7, 54:8, 54:11, 54:12, 56:6, 57:9, 57:11, 61:18, 62:2 case's [1] - 47:14 cases [17] - 32:9, 33:13, 33:25, 34:2, 34:7, 34:8, 34:11, 34:13, 50:23, 53:18, 53:19, 53:22, 54:3 categories [1] 29:15 certain [7] - 6:12, 6:20, 9:7, 9:15, 48:6, 55:24, 56:19 certainly [6] - 5:23, 12:1, 20:24, 21:25, 49:16, 52:18 cetera [2] - 10:17, 60:17 challenge [45] - 7:9, 9:2, 12:14, 12:15,

19:15, 23:13, 27:10, 27:14, 27:15, 27:17, 27:19, 28:1, 28:2, 28:3, 28:5, 32:8, 32:20, 33:13, 33:18, 33:20, 33:25, 34:8, 34:9, 38:15, 41:1, 41:3, 41:5, 41:8, 41:10, 41:12, 41:13, 41:21, 42:3, 42:16, 42:22, 43:12, 45:10, 45:17, 46:23, 47:23, 48:14, 50:25, 53:11, 53:19, 54:15 challenged [1] 53:13 challenges [5] 33:22, 33:23, 34:7, 34:12, 41:22 challenging [6] 19:16, 27:19, 42:6, 48:5, 48:6, 48:9 change [1] - 15:20 chaos [2] - 8:3, 11:15 Chapter [1] - 43:7 chapter [1] - 43:8 characterize [1] 36:1 characterizes [1] 34:19 Chief [1] - 44:14 choose [2] - 24:6, 40:24 chose [1] - 56:7 Circuit [1] - 46:18 circuit [3] - 54:3, 54:9, 54:11 Circuit's [1] - 46:3 circuits [1] - 46:20 circumstance [1] 49:15 circumstances [3] 12:19, 14:14, 23:4 cite [2] - 43:25, 54:2 cited [9] - 13:19, 13:20, 14:3, 20:20, 21:2, 27:14, 33:13, 41:4, 58:24 cites [4] - 33:25, 46:9, 54:4, 54:7 citing [2] - 34:2, 34:11 city [1] - 41:9 Civil [1] - 2:12 claim [7] - 14:23, 28:18, 39:2, 48:1, 51:3, 51:4, 51:12 claims [3] - 15:16, 15:18, 15:20

class [1] - 15:3 clear [11] - 11:24, 13:20, 40:23, 40:24, 40:25, 45:6, 46:4, 51:24, 57:16, 57:18, 59:2 Cleburne [3] - 41:7, 41:10, 53:18 CLERK [1] - 4:3 clerk [1] - 61:7 close [1] - 24:22 closings [1] - 58:1 code [1] - 44:6 cohesion [11] - 32:5, 38:12, 40:3, 42:13, 42:14, 43:3, 43:9, 43:13, 46:1 colleague [1] - 49:5 colleagues [2] - 4:9, 4:13 Colonel [2] - 20:8, 20:15 comments [3] - 35:3, 37:4, 50:6 common [1] - 7:11 complain [1] - 30:23 complete [1] - 4:25 completely [2] 41:14, 59:7 comply [1] - 61:8 compound [1] 28:11 computers [1] - 60:6 conceive [1] - 9:23 concern [1] - 32:13 concerned [7] - 4:21, 9:19, 21:23, 32:17, 39:10, 39:14, 61:22 concerns [4] - 13:9, 35:4, 35:6, 39:18 conclude [4] - 44:23, 45:3, 45:8, 50:20 concluded [1] 46:19 conclusion [8] 37:18, 37:21, 37:24, 42:21, 42:23, 45:2, 46:16, 52:20 conclusions [2] 47:14, 53:25 conduct [5] - 24:5, 24:9, 26:4, 30:14, 30:24 conducted [1] - 46:7 conducting [1] 24:19 confer [4] - 26:7, 26:10, 26:11, 29:11 conference [3] 4:16, 7:1, 53:16

conflict [1] - 5:6 confusion [2] - 21:5, 21:9 Congress [18] - 9:4, 9:15, 36:20, 36:24, 37:2, 37:4, 42:6, 42:13, 42:20, 42:23, 43:8, 43:16, 43:18, 43:19, 43:24, 48:5, 48:7, 48:9 congress [1] - 43:10 Congress's [1] 43:2 congressional [1] 48:15 connection [3] 13:11, 17:15, 21:15 consensual [1] 41:20 consider [9] - 6:3, 16:8, 33:9, 33:10, 41:8, 42:2, 43:18, 48:6, 50:16 consideration [2] 42:4, 56:22 considered [13] 33:7, 42:13, 42:23, 43:10, 43:16, 43:19, 46:4, 46:5, 48:16, 49:19, 50:24, 58:6, 59:2 considering [2] 16:13, 29:17 consist [1] - 47:18 consists [1] - 7:19 Constitution [1] 32:9 constitutional [13] 41:5, 41:12, 42:3, 42:16, 45:9, 45:17, 46:7, 46:19, 46:22, 46:24, 47:23, 50:24 consulted [1] - 10:17 consulting [1] 58:18 contact [3] - 16:18, 25:25, 26:9 contain [1] - 9:8 contains [1] - 15:14 content [1] - 10:24 contentions [2] 53:24, 61:14 context [7] - 13:20, 13:21, 14:2, 43:22, 45:23, 46:5, 61:19 continue [3] - 5:3, 19:15, 58:10 continues [2] 34:21, 54:2 continuing [1] - 15:6

Case Name/number

date

contract [2] - 58:7, 58:18 contractual [2] 59:3, 59:21 contradict [1] - 53:7 contrary [1] - 41:24 contrast [1] - 51:17 controlling [1] 54:11 Cook [3] - 46:3, 54:7 cook [1] - 46:4 core [1] - 24:20 correct [7] - 12:8, 12:9, 19:23, 21:20, 25:21, 25:22, 26:2 corrected [1] - 38:16 correctly [5] - 5:4, 32:14, 38:5, 55:11, 55:21 counsel [14] - 4:6, 4:22, 4:24, 6:25, 24:18, 30:5, 30:12, 31:3, 38:21, 49:3, 49:8, 52:11, 52:20, 54:2 country [1] - 39:23 couple [3] - 6:2, 17:12, 35:3 course [6] - 6:19, 15:6, 15:21, 33:21, 57:23, 58:1 COURT [60] - 4:11, 4:15, 4:19, 5:12, 5:15, 5:22, 7:11, 8:1, 8:14, 9:6, 10:7, 18:2, 18:9, 18:12, 18:25, 19:8, 19:14, 19:24, 20:10, 20:22, 21:1, 21:12, 21:19, 22:13, 22:15, 23:25, 25:20, 25:25, 27:1, 29:2, 32:12, 33:16, 34:4, 34:16, 35:23, 38:9, 40:12, 40:17, 40:19, 43:25, 50:4, 52:16, 55:2, 55:13, 55:17, 56:24, 57:3, 57:20, 57:23, 58:14, 58:17, 58:21, 58:24, 59:16, 60:2, 60:12, 60:18, 60:22, 61:22, 62:22 Court [44] - 7:22, 7:23, 8:8, 15:9, 16:8, 17:20, 18:6, 19:21, 20:13, 20:17, 24:3, 24:4, 24:7, 24:9, 24:22, 26:16, 26:24, 27:5, 27:11, 27:14, 28:17, 29:5, 30:19, 31:5, 31:14, 41:2,

41:8, 41:15, 42:5, 42:10, 42:16, 43:21, 44:12, 44:19, 45:13, 45:15, 47:23, 47:25, 48:16, 53:11, 54:14, 54:18, 57:8, 61:6 court [5] - 6:8, 6:9, 14:9, 27:17, 61:22 Court's [6] - 4:15, 15:19, 29:19, 29:22, 31:3, 60:24 courtroom [4] 57:25, 58:3, 60:4, 61:5 courtroom's [1] 60:9 covered [6] - 6:10, 18:7, 22:15, 40:12, 52:23, 54:20 Craig [1] - 17:14 crammed [1] - 29:14 credit [1] - 52:21 criminalizing [1] 41:20 criteria [1] - 28:16 criticisms [1] - 38:13 Crittenden [1] 22:25 cross [9] - 10:21, 10:23, 10:24, 10:25, 11:7, 11:8, 11:9, 19:17, 26:20 cross-examination [1] - 11:9 cross-examine [8] 10:21, 10:23, 10:24, 10:25, 11:7, 11:8, 19:17, 26:20 crucial [1] - 11:13 cumulative [10] 12:24, 22:1, 22:5, 22:7, 28:25, 32:1, 32:11, 32:12, 32:18, 35:1 cumulativeness [6] 23:24, 27:3, 27:6, 28:8, 48:16 curable [1] - 16:20 cutoff [1] - 26:18 CV [1] - 4:4

D
Dan [2] - 2:5, 4:12 data [6] - 39:11, 40:2, 40:4, 42:25, 47:16, 47:17 date [2] - 21:14, 50:16

Daubert [4] - 38:15, 38:17, 38:20 days [5] - 4:25, 5:8, 5:16, 5:17, 24:8 DC [1] - 2:15 deadlines [1] - 49:25 deal [2] - 9:9, 52:9 dealt [1] - 43:8 decided [5] - 25:7, 25:10, 25:11, 25:17, 42:24 decision [6] - 15:19, 16:9, 41:18, 46:1, 46:3, 46:18 decisis [1] - 41:19 declaration [3] 17:24, 52:23, 53:6 declarations [2] 17:15, 31:24 declares [1] - 59:4 defendant [1] - 16:13 Defendants [1] 2:10 defendants [6] 12:7, 14:23, 23:16, 24:16, 26:6, 45:1 defense [8] - 6:1, 12:12, 12:17, 13:6, 16:24, 20:12, 21:25, 52:14 Defense [2] - 24:17, 52:17 defer [1] - 24:7 defers [1] - 43:23 definitive [1] - 54:24 definitively [1] 19:12 degree [1] - 9:8 denied [3] - 11:20, 12:3, 14:23 deny [2] - 17:9, 21:22 denying [1] - 27:11 departed [1] - 41:19 DEPARTMENT [1] 2:11 Department [2] 24:17, 44:10 depose [6] - 14:24, 16:21, 17:21, 18:24, 26:17, 26:21 deposition [16] 15:13, 16:22, 19:3, 35:8, 35:12, 35:13, 47:5, 48:5, 49:2, 49:5, 49:7, 49:18, 52:25, 53:2, 58:21, 59:1 depositions [17] 13:5, 13:13, 16:24, 17:3, 17:8, 17:10,

17:11, 24:5, 24:15, 24:19, 30:10, 30:14, 30:18, 30:21, 30:25, 61:6 describe [1] - 10:19 described [1] - 22:4 deserves [2] - 7:24, 52:13 designated [2] 13:17, 14:7 designation [2] 13:16, 13:18 despite [1] - 58:10 detail [2] - 29:21, 52:1 detailed [1] - 17:1 determination [1] 44:18 determinations [1] 43:2 determinative [1] 26:3 determine [1] - 41:16 determined [1] 46:6 developed [1] - 34:3 developments [1] 14:13 different [7] - 31:22, 32:3, 32:10, 35:4, 46:20, 59:15, 59:23 differently [1] - 48:7 difficulties [1] 61:17 diligently [1] - 31:1 Dillard [2] - 60:23, 62:10 direct [4] - 10:12, 10:18, 10:20, 10:22 directed [4] - 32:20, 32:21, 32:22, 33:2 Director".. [1] 60:13 disagree [1] - 30:17 disagrees [2] - 41:2, 54:8 disappointed [1] 8:21 discerned [1] - 41:16 discharge [4] 12:19, 23:5, 32:4, 37:22 discharged [2] 31:21, 32:15 discharges [2] 31:17, 51:11 disclose [2] - 23:23, 24:21 disclosed [1] - 14:25 disclosure [7] -

15:15, 15:17, 15:19, 16:3, 16:11, 16:12, 18:20 disclosures [6] 12:11, 15:3, 15:7, 16:15, 24:24, 25:9 discovery [3] 12:12, 24:22, 26:18 discussion [4] 49:11, 57:18, 57:20, 57:21 disfavored [1] 41:12 dismay [1] - 61:24 disparate [2] - 40:9, 47:25 dispensed [1] 61:21 dispositive [2] 42:25, 43:1 disproportionate [1] - 51:6 disproportionately [1] - 51:15 dispute [3] - 42:18, 43:5, 48:24 disputed [2] - 6:25, 33:21 disputes [1] - 15:2 District [2] - 46:12, 46:17 district [1] - 59:7 ditch [1] - 49:20 Division [1] - 2:12 document [1] - 17:24 documents [6] - 7:5, 11:15, 11:16, 60:10, 60:15, 60:17 doe [1] - 21:11 Doe [3] - 20:3, 20:15, 21:4 Doe's [1] - 20:8 done [5] - 26:19, 30:10, 55:5, 55:15, 62:22 doom [1] - 46:22 Dorman [1] - 36:25 Dorman's [1] - 37:1 doubt [1] - 58:13 down [4] - 15:18, 16:4, 34:4, 55:13 Dr [21] - 43:4, 43:7, 47:3, 47:4, 47:8, 47:11, 47:12, 47:16, 47:18, 48:4, 48:8, 48:19, 48:23, 49:2, 49:3, 49:6, 49:13, 49:17, 49:18, 49:23 dress [1] - 44:6 due [1] - 20:18

Case Name/number

date

dues [1] - 20:4 during [11] - 13:13, 14:18, 19:2, 22:24, 24:10, 35:13, 36:24, 37:24, 57:13, 57:25, 58:3 duty [3] - 15:6, 24:23, 49:16

E
E.L.M.O [2] - 60:10, 60:16 Earle [2] - 2:5, 4:14 early [5] - 15:3, 15:6, 16:15, 16:18, 26:1 Eastern [2] - 46:12, 46:17 effect [5] - 33:10, 36:15, 36:17, 40:3, 58:25 efficient [3] - 5:20, 14:10, 28:22 effort [1] - 49:20 egregious [1] - 26:5 eight [3] - 12:10, 14:20, 30:13 either [9] - 11:7, 12:10, 13:15, 20:16, 28:2, 36:20, 47:16, 60:3, 62:19 elected [1] - 30:17 element [1] - 23:18 elicited [1] - 13:23 Elizabeth [1] - 51:17 Embser [2] - 38:23, 51:2 Embser-Herbert [2] 38:23, 51:2 emphasis [2] 51:20, 52:5 empirical [3] - 42:11, 43:14, 43:16 enactment [5] - 10:4, 34:1, 34:14, 53:20, 53:21 end [1] - 48:14 Engle [4] - 17:14, 17:23, 18:8, 18:14 Ensley [1] - 17:14 entire [1] - 10:5 entirely [1] - 9:16 entitled [2] - 10:18, 44:25 envisioning [1] 24:5 Equal [5] - 39:1, 39:2, 51:3, 51:4, 51:12

equipment [3] - 60:3, 60:4, 60:23 erroneous [1] - 28:7 erroneously [1] 45:3 error [1] - 28:11 especially [5] - 8:2, 11:14, 12:17, 29:18, 59:6 essentially [1] 49:21 established [1] 20:21 et [3] - 4:5, 10:17, 60:17 event [1] - 5:7 evidence [32] - 7:9, 7:16, 9:3, 11:12, 12:4, 12:15, 21:15, 22:20, 22:24, 23:17, 27:9, 28:4, 28:7, 28:23, 29:10, 33:14, 34:12, 39:7, 42:2, 42:11, 43:14, 43:16, 45:5, 53:13, 53:19, 54:14, 54:16, 55:25, 56:3, 56:7, 56:10 evidentiary [1] - 8:24 exact [3] - 44:2, 44:4, 44:19 exactly [3] - 29:13, 46:14, 48:13 examination [1] 11:9 examine [8] - 10:21, 10:23, 10:24, 10:25, 11:7, 11:8, 19:17, 26:20 example [13] - 10:2, 10:12, 22:22, 23:1, 27:17, 36:19, 37:17, 39:22, 41:23, 43:3, 43:5, 47:15, 60:5 examples [2] 31:17, 41:25 except [1] - 39:23 exception [1] - 6:7 excerpts [1] - 13:10 exclude [5] - 6:20, 12:6, 12:7, 53:12, 57:13 excluded [4] - 12:16, 22:10, 49:22, 57:17 exemption [1] 59:20 exemptions [1] 59:19 exercise [1] - 20:8 Exhibit [1] - 10:9 exhibit [17] - 6:24,

7:6, 7:14, 7:21, 8:4, 8:5, 8:7, 8:11, 11:3, 11:4, 11:5, 11:11, 11:13, 11:18, 11:21, 62:11 exhibits [16] - 6:16, 6:19, 6:21, 6:23, 6:25, 8:3, 8:9, 8:15, 8:17, 8:19, 9:8, 9:10, 10:1, 10:8, 11:14, 11:19 expanded [1] - 44:4 expect [1] - 62:20 expedition [1] - 6:17 experiences [1] 14:15 experiments [1] 52:3 expert [28] - 9:13, 9:23, 9:24, 10:13, 11:8, 11:17, 13:11, 13:16, 13:17, 13:18, 34:18, 35:18, 36:4, 36:6, 41:4, 42:22, 43:9, 43:12, 43:18, 44:15, 46:11, 46:13, 47:14, 48:13, 48:14, 48:23, 54:17, 59:10 expert's [1] - 35:8 experts [13] - 9:11, 10:9, 12:1, 34:19, 42:8, 42:10, 42:25, 46:10, 50:7, 54:13, 57:16, 58:2 explain [1] - 52:1 explicitly [1] - 54:8 expressed [1] 37:20 extent [12] - 6:12, 6:20, 8:16, 9:8, 11:18, 13:23, 14:5, 36:18, 37:10, 41:2, 45:3, 47:22 extremely [1] - 8:21 extrinsic [1] - 9:3

F
face [1] - 27:19 facial [42] - 9:2, 12:14, 23:13, 27:9, 27:14, 27:15, 27:17, 27:18, 27:25, 28:2, 28:3, 28:5, 32:8, 32:20, 33:12, 33:18, 33:20, 33:22, 33:23, 33:25, 34:7, 34:9, 34:12, 41:1, 41:3, 41:5, 41:7, 41:10, 41:11, 41:21, 41:22,

42:3, 42:16, 45:9, 45:16, 46:22, 47:23, 53:11, 53:19, 54:15 facially [2] - 46:6, 47:24 facilities [1] - 60:9 fact [25] - 11:10, 16:23, 20:6, 25:15, 27:22, 28:13, 33:20, 39:7, 41:3, 41:10, 41:22, 41:23, 42:15, 43:4, 46:3, 46:20, 46:23, 47:12, 49:18, 49:22, 53:24, 53:25, 57:17, 61:14 fact-finding [1] 41:23 factors [2] - 16:8, 22:8 facts [16] - 7:9, 7:15, 20:2, 27:16, 27:20, 39:11, 41:15, 47:16, 47:17, 49:17, 49:18, 53:4, 53:5, 54:16, 54:17, 54:18 factual [4] - 27:18, 28:2, 41:9, 44:5 factually [1] - 43:17 fail [1] - 31:3 failed [1] - 50:2 failure [3] - 14:20, 23:23, 48:6 fair [1] - 48:12 familiar [4] - 24:3, 60:18, 62:5, 62:6 family [1] - 5:10 far [2] - 4:21, 29:16 Federal [1] - 2:12 federal [1] - 35:17 Feldman [1] - 52:23 Feldman's [1] - 53:6 fellow [2] - 13:7, 13:25 female [1] - 40:10 fields [1] - 38:6 Fifth [1] - 2:6 file [1] - 7:7 filed [6] - 21:14, 29:24, 31:24, 31:25, 53:15, 58:9 final [2] - 54:23, 54:25 finally [5] - 12:23, 26:7, 26:12, 26:13, 28:12 findings [4] - 20:5, 46:2, 48:15, 53:25 fine [4] - 33:6, 60:12, 62:7, 62:8 finish [4] - 5:17,

22:16, 57:11, 59:18 finished [2] - 30:25, 50:8 finishing [1] - 5:23 first [12] - 6:20, 7:25, 14:20, 16:7, 20:14, 26:22, 37:24, 39:9, 47:22, 50:9, 55:15, 57:7 First [1] - 46:3 fits [1] - 39:3 five [11] - 16:8, 16:19, 22:8, 23:3, 24:7, 26:8, 30:10, 31:20, 32:9, 32:15, 57:7 focus [3] - 9:25, 27:5, 48:3 focused [3] - 20:16, 22:18, 44:3 focusing [1] - 23:12 follow [2] - 39:22, 55:10 following [4] - 5:2, 5:3, 5:10, 42:11 follows [1] - 31:6 footnote [1] - 18:7 Force [1] - 44:11 forces [1] - 40:5 foreign [4] - 14:15, 42:12, 42:20, 42:23 form [2] - 37:7, 37:9 former [11] - 12:18, 15:4, 24:25, 25:18, 27:4, 27:7, 27:8, 31:15, 36:21, 44:14, 52:16 former-Chief [1] 44:14 forms [1] - 12:2 forth [2] - 10:15, 62:12 fortunate [1] - 29:17 forward [1] - 20:7 foundation [1] - 52:9 four [9] - 4:25, 5:8, 5:16, 5:17, 29:12, 29:13, 30:1, 30:12, 57:7 frame [2] - 9:18, 36:25 framework [1] - 40:5 Frank [7] - 10:2, 10:3, 10:10, 35:21, 39:13, 50:10, 50:16 Frank's [3] - 36:16, 39:10, 47:18 frankly [3] - 29:5, 42:19, 49:20 free [1] - 61:14

Case Name/number

date

Freeborne [3] - 2:12, 4:7, 49:6 FREEBORNE [25] 4:7, 5:5, 5:13, 5:18, 7:8, 7:13, 8:12, 8:23, 10:3, 17:20, 18:23, 19:4, 19:10, 19:23, 20:1, 20:18, 20:24, 21:2, 21:17, 40:11, 57:15, 57:21, 61:16, 62:20, 62:24 Friday [1] - 61:4 front [1] - 61:23 fruitless [1] - 25:9 full [1] - 5:21 furthering [1] - 51:10 furthers [1] - 33:4

G
gambled [1] - 30:16 GARDNER [7] 40:14, 40:18, 40:21, 44:8, 56:25, 60:7, 60:14 Gardner [9] - 2:13, 4:9, 40:18, 40:19, 54:22, 55:10, 55:21, 56:9, 56:13 Gates [1] - 4:8 gay [3] - 13:8, 13:25, 37:23 gays [1] - 14:16 general [5] - 15:2, 15:3, 16:14, 16:15, 46:25 generous [2] - 29:6, 30:20 given [8] - 13:14, 17:1, 26:15, 36:20, 37:8, 39:5, 40:5, 41:25 glean [1] - 35:8 gleaned [1] - 41:15 Goldman [4] - 43:20, 43:25, 44:1, 44:2 governing [1] - 54:3 Government [3] 39:25, 54:10, 55:23 government [57] 9:16, 9:18, 12:25, 14:17, 15:11, 15:22, 15:23, 17:7, 18:10, 18:19, 23:8, 23:10, 23:12, 29:6, 29:10, 29:12, 29:17, 29:22, 29:24, 30:4, 30:11, 30:12, 30:13, 30:16, 30:22, 31:6, 31:9,

31:10, 31:13, 31:18, 33:4, 33:19, 33:24, 34:18, 34:19, 38:25, 39:19, 44:23, 44:24, 45:5, 45:7, 45:9, 47:1, 49:22, 53:9, 53:10, 53:17, 54:2, 55:24, 56:3, 56:7, 56:8, 56:18, 56:19, 58:24 government's [9] 6:1, 15:5, 29:7, 29:18, 50:13, 53:7, 54:24, 56:14, 57:5 governmental [2] 23:11, 23:15 Grant [1] - 4:10 grant [1] - 56:15 grounds [2] - 11:9, 19:25 guess [3] - 17:1, 19:14, 26:3 Gulf [1] - 37:24

H
hairs [1] - 37:8 half [2] - 30:10, 47:12 hamstrung [1] 26:19 hand [1] - 41:25 happy [1] - 53:3 hard [3] - 30:22, 39:3, 62:2 hard-pressed [1] 39:3 hardly [1] - 32:10 harm [2] - 37:18, 37:25 harmless [2] - 14:21, 16:12 Hastings [2] - 38:19, 40:8 hear [1] - 57:3 heard [4] - 23:19, 42:20, 55:11, 61:21 hearing [7] - 16:6, 18:17, 18:19, 19:2, 20:14, 21:6, 25:6 hearings [2] - 36:24, 37:7 hearsay [4] - 10:17, 10:18, 10:20, 11:1 heart's [2] - 10:23, 10:24 heightened [1] 43:20 held [2] - 41:21, 46:21

helpful [1] - 47:23 Herbert [2] - 38:23, 51:2 herself [1] - 51:21 hesitant [1] - 37:14 high [1] - 60:16 highly [3] - 24:12, 26:23, 30:8 Hillman [4] - 38:19, 39:14, 40:8, 51:17 Hillman's [1] - 40:8 himself [1] - 59:4 historian [5] - 36:6, 51:19, 52:2, 52:4 historical [1] - 41:17 history [16] - 7:16, 7:19, 8:17, 10:4, 11:20, 20:11, 42:17, 43:19, 45:8, 46:8, 46:15, 51:20, 52:5, 53:12, 56:1 hit [1] - 53:8 holding [1] - 44:4 holds [1] - 39:21 home [1] - 61:10 homosexual [1] 10:4 homosexuals [1] 31:8 Honor [81] - 4:8, 4:18, 5:5, 5:18, 7:8, 8:12, 8:23, 17:20, 17:22, 18:5, 18:11, 18:16, 18:23, 19:23, 20:18, 21:10, 22:11, 23:20, 24:1, 24:4, 24:11, 25:13, 25:23, 26:2, 26:21, 26:25, 27:5, 28:12, 29:1, 29:4, 29:23, 30:8, 31:2, 31:16, 33:12, 33:24, 34:6, 35:22, 38:8, 40:11, 40:14, 40:21, 41:7, 41:14, 42:9, 42:15, 43:15, 44:9, 45:2, 45:6, 45:15, 46:8, 46:20, 50:3, 50:6, 50:15, 50:20, 51:3, 51:17, 52:10, 52:19, 52:23, 54:19, 54:23, 55:12, 56:2, 56:12, 56:23, 56:25, 57:15, 58:8, 58:20, 58:23, 59:13, 60:1, 60:8, 60:21, 61:16, 61:18, 62:20, 62:25 hook [1] - 60:5 hope [3] - 52:20, 59:18, 62:5

hoped [1] - 55:4 host [1] - 42:3 hours [2] - 17:12 house [1] - 24:18 Hunt [1] - 28:17

I
ideally [1] - 6:24 identification [5] 7:21, 8:2, 11:4, 11:6, 25:1 identified [5] - 11:10, 11:16, 22:8, 25:16, 31:8 identify [2] - 14:20, 21:7 identifying [1] - 61:9 identities [3] - 16:3, 16:16, 16:18 ignored [1] - 22:24 ignoring [1] - 54:10 imagine [2] - 58:11, 60:20 immediately [7] 9:13, 15:11, 25:14, 25:19, 34:1, 34:8 impact [3] - 38:24, 40:9, 51:6 impacting [1] - 51:8 impacts [1] - 51:15 impediments [1] 42:4 implemented [1] 53:22 implicates [1] - 31:8 implying [1] - 27:20 important [9] 15:22, 15:23, 21:20, 23:11, 23:14, 31:9, 33:4, 46:12, 55:20 impressive [1] 38:24 improper [1] - 33:22 in-house [1] - 24:18 inability [1] - 26:17 inadmissible [2] 34:22, 42:6 inapplicable [1] 41:1 inapposite [1] 41:14 inappropriate [3] 9:5, 48:15, 49:21 inclination [1] - 31:3 inclined [3] - 15:10, 16:7, 17:9 include [1] - 58:1 included [1] - 36:19

includes [1] - 36:20 including [3] - 37:22, 51:5, 61:9 incorrect [2] - 20:1, 20:10 indicated [2] - 29:11, 57:1 indisputable [1] 42:19 individual [8] - 12:3, 12:4, 28:6, 28:10, 28:19, 50:7, 54:16, 61:11 individuals [8] 24:8, 24:21, 25:7, 25:10, 25:16, 27:23, 32:10, 33:11 information [4] 14:12, 16:18, 25:25, 61:9 informed [1] - 53:1 inherently [1] - 47:24 initial [4] - 12:10, 24:24, 25:9, 48:23 initiative [1] - 26:8 insofar [4] - 9:19, 21:22, 35:6, 37:15 installed [1] - 60:24 instead [3] - 45:18, 51:9, 56:15 instructing [1] - 33:9 intelligently [1] 54:18 intend [7] - 9:7, 50:15, 55:25, 56:19, 60:7, 60:8, 62:17 intended [1] - 29:12 intent [4] - 9:15, 15:12, 21:19, 50:23 interest [8] - 6:17, 15:24, 15:25, 16:1, 31:10, 31:11, 31:12, 33:6 interests [2] - 33:5, 51:10 interject [1] - 21:8 interpretations [1] 19:11 interrogatory [2] 12:11, 16:15 interrupt [1] - 61:24 interview [1] - 47:20 introduce [2] - 7:18, 9:3 introduced [1] 31:16 intrude [1] - 31:7 intrusion [6] - 15:24, 15:25, 31:10, 31:11, 33:2, 33:5

Case Name/number

date

invalidates [1] 37:12 invalidating [1] 41:9 invitation [3] - 56:8, 59:11, 59:15 involve [2] - 33:13, 45:25 involved [1] - 24:18 irrelevance [1] 22:19 irrelevant [10] 12:22, 13:3, 14:1, 14:4, 14:8, 14:18, 27:16, 28:6, 28:25, 49:23 issue [39] - 9:9, 15:18, 16:4, 17:16, 17:17, 17:22, 18:14, 19:4, 19:18, 20:14, 20:16, 20:17, 21:1, 21:2, 21:10, 21:17, 22:18, 23:7, 26:25, 27:2, 27:9, 27:10, 33:3, 36:10, 39:12, 40:1, 40:7, 45:13, 45:21, 48:4, 48:17, 49:23, 50:1, 50:12, 50:17, 57:8, 58:5, 59:5, 62:15 issued [2] - 19:8, 55:3 issues [19] - 4:22, 6:13, 8:25, 14:19, 18:19, 19:5, 19:7, 19:13, 22:16, 39:4, 48:6, 48:7, 49:19, 50:25, 52:5, 52:6, 59:25, 61:18, 61:21 IT [1] - 60:24 Item [1] - 4:3 items [1] - 60:15 itself [4] - 12:16, 25:10, 41:1, 45:23

43:11, 43:13, 43:23, 44:25, 53:23, 54:25, 56:15, 62:18 judiciary [1] - 43:23 July [2] - 4:17, 62:6 jump [2] - 9:25, 11:17 June [4] - 4:1, 15:1, 16:17, 26:1 jury [3] - 33:9, 61:24 Justice [2] - 44:14 JUSTICE [1] - 2:11 justified [2] - 14:21, 16:11 justify [1] - 16:2

K
Kahn [2] - 2:6, 4:14 keep [3] - 9:25, 11:15, 61:13 keeping [2] - 22:17, 35:16 keeps [2] - 23:12, 33:19 kind [2] - 59:11, 59:15 knowing [3] - 13:4, 13:7, 13:25 knowledge [2] 15:16, 39:6 known [2] - 15:16, 15:19 Korb [8] - 35:2, 35:7, 46:10, 47:8, 48:4, 48:8, 52:11, 52:13 Korb's [6] - 47:3, 47:4, 47:11, 47:12, 47:16, 48:3

L
lack [3] - 43:2, 44:3, 44:5 language [3] - 44:13, 44:18, 45:20 laptops [1] - 60:11 large [1] - 37:23 largely [3] - 6:8, 45:21, 49:23 larger [1] - 50:8 last [7] - 18:17, 18:19, 22:2, 38:16, 40:7, 49:20, 55:16 last-ditch [1] - 49:20 late [3] - 16:12, 18:20 latest [1] - 30:3 latter [1] - 24:8

J
Jamie [1] - 17:14 January [1] - 48:24 John [2] - 20:3, 21:4 joint [11] - 6:23, 7:6, 7:14, 7:21, 8:4, 8:6, 8:11, 8:19, 11:13, 11:21, 62:9 Josh [1] - 4:9 Joshua [1] - 2:13 Judge [1] - 21:6 judgment [11] 17:16, 20:12, 21:6,

law [13] - 22:9, 27:14, 31:21, 38:5, 46:2, 51:18, 53:24, 53:25, 54:3, 54:5, 54:9, 54:11, 61:14 Lawrence [9] - 31:9, 35:2, 41:14, 41:15, 46:1, 46:4, 53:18, 54:6 lawsuit [1] - 28:19 lawyer [1] - 51:18 lawyers [4] - 16:24, 30:11, 30:13, 61:23 lay [11] - 12:6, 12:8, 13:12, 14:21, 21:22, 22:2, 22:16, 22:21, 23:3, 30:10, 52:9 LCR [3] - 26:7, 28:13, 49:3 leading [1] - 53:15 learned [1] - 53:20 least [7] - 6:15, 9:19, 22:3, 29:12, 29:13, 29:25, 35:7 leave [1] - 14:3 lectern [1] - 55:14 left [1] - 16:21 legal [6] - 38:11, 42:4, 45:2, 52:19, 61:18, 61:19 legislation [2] 36:14, 45:16 legislative [16] 7:16, 7:19, 8:17, 9:20, 11:20, 12:16, 22:24, 22:25, 42:17, 43:19, 45:8, 46:8, 46:15, 53:12, 56:1 legislator [2] - 36:12, 45:14 legislator's [2] 36:11, 50:11 legislators [2] 37:10, 50:24 legitimate [3] 23:11, 23:14, 45:24 length [1] - 5:21 lesbian [2] - 14:17, 48:1 less [4] - 11:12, 14:19, 51:19, 59:4 letting [1] - 28:7 level [1] - 38:15 Lieutenant [2] - 20:8, 20:15 light [5] - 29:7, 29:18, 33:7, 56:6, 59:6 likely [1] - 53:1 limine [24] - 5:25,

6:2, 6:5, 6:8, 6:10, 6:13, 7:10, 7:12, 9:19, 9:21, 12:6, 14:9, 29:7, 29:9, 29:12, 29:14, 29:15, 29:21, 30:1, 43:6, 50:13, 62:16, 62:21 limited [3] - 7:4, 34:24, 39:24 limits [1] - 6:5 line [1] - 33:6 list [16] - 6:24, 7:6, 7:14, 7:21, 8:4, 8:7, 8:11, 11:3, 11:4, 11:5, 11:11, 11:13, 11:21, 26:12, 62:9, 62:11 listed [3] - 11:2, 12:10 lives [1] - 31:7 local [3] - 29:22, 30:3, 61:8 lodged [1] - 61:6 Log [3] - 4:4, 4:13, 20:4 logic [1] - 43:2 logical [1] - 41:17 logs [1] - 20:7 longer-developed [1] - 34:3 look [10] - 19:1, 20:5, 41:13, 44:17, 45:15, 46:15, 47:11, 47:16, 53:11 Look [2] - 26:9, 44:22 looked [2] - 36:10, 44:13 looking [1] - 46:8 looks [3] - 41:15, 42:16, 45:18 Los [1] - 2:7

M
MacCoun [6] - 38:4, 43:4, 43:7, 46:10, 58:5, 59:14 Maddow [1] - 47:20 Major [1] - 4:10 manner [1] - 31:8 March [1] - 49:12 marked [2] - 11:4, 11:6 marshals [1] - 59:6 Martin [1] - 17:15 Massachusetts [1] 2:14 material [2] - 28:25, 36:19

materials [1] - 10:16 matter [11] - 4:15, 4:17, 6:6, 8:18, 36:17, 41:3, 41:22, 42:15, 54:15, 57:10, 62:10 mean [13] - 8:19, 9:13, 9:20, 11:11, 11:17, 17:4, 19:19, 36:5, 39:1, 52:12, 54:4, 61:23, 62:14 means [3] - 55:23, 56:17 meantime [1] - 4:20 Meekins [9] - 17:15, 17:18, 17:21, 18:4, 18:8, 18:9, 18:17, 18:21, 18:24 meet [5] - 26:7, 26:10, 26:11, 29:11, 50:2 meeting [2] - 31:18, 52:25 meets [1] - 33:17 member [4] - 20:4, 21:7, 21:8, 52:14 members [11] - 9:4, 9:15, 14:17, 20:16, 28:19, 36:21, 36:24, 37:4, 40:10, 48:1 membership [1] 20:21 memorandum [2] 53:24, 61:13 men [2] - 32:1, 51:9 mention [1] - 7:13 mentioned [1] 48:20 mentions [1] - 54:12 merit [1] - 42:14 merits [6] - 5:19, 6:4, 12:15, 29:7, 30:5, 54:25 met [1] - 44:24 methodology [3] 38:20, 38:22, 51:23 methods [1] - 39:16 might [4] - 5:20, 11:5, 15:4, 22:5 militaries [4] - 14:15, 42:12, 42:20, 42:24 military [16] - 36:21, 37:19, 37:22, 37:25, 38:25, 40:2, 43:22, 44:6, 46:5, 51:19, 51:20, 51:21, 52:5, 52:6, 52:14 Miller [2] - 2:5, 4:14 mind [5] - 9:13, 10:7, 35:16, 36:25, 61:13 mischaracterizatio

Case Name/number

date

n [1] - 35:11 mission [1] - 5:6 misstate [1] - 12:9 mistaken [1] - 25:15 moment [3] - 10:1, 22:12, 55:11 Monday [1] - 4:1 month [1] - 16:16 moral [1] - 14:15 morale [1] - 32:5 morning [1] - 61:1 most [8] - 6:10, 9:10, 9:16, 29:8, 36:8, 37:16, 37:19, 39:11 mostly [2] - 4:23, 62:22 motion [47] - 6:15, 6:16, 6:20, 7:10, 8:16, 9:21, 10:1, 11:17, 11:18, 11:20, 12:3, 12:6, 12:13, 13:11, 13:12, 14:5, 14:9, 17:9, 17:16, 18:2, 18:3, 18:5, 18:23, 19:19, 19:20, 20:12, 21:16, 21:22, 22:4, 23:15, 25:2, 27:12, 27:15, 34:17, 35:6, 35:9, 37:20, 43:6, 48:9, 48:20, 50:13, 53:6, 53:23, 54:24, 55:4, 57:13, 62:18 motions [24] - 5:25, 6:2, 6:5, 6:7, 6:10, 6:13, 7:12, 9:7, 9:19, 11:25, 12:5, 13:11, 23:16, 29:7, 29:9, 29:12, 29:13, 29:14, 29:15, 29:21, 30:1, 57:12, 62:15, 62:21 motivation [1] 36:13 motivations [2] - 9:3, 45:15 move [4] - 12:5, 21:20, 34:17, 57:11 moved [1] - 11:11 MR [64] - 4:7, 4:12, 4:18, 5:5, 5:13, 5:18, 7:8, 7:13, 8:12, 8:23, 10:3, 17:20, 17:22, 18:5, 18:10, 18:15, 18:23, 19:4, 19:10, 19:23, 20:1, 20:18, 20:24, 21:2, 21:17, 22:11, 22:14, 23:20, 24:1, 25:22, 26:2, 27:2, 29:4, 33:12, 33:19, 34:5, 35:22, 38:8, 40:11, 40:14,

40:18, 40:21, 44:8, 50:6, 52:18, 55:7, 55:16, 55:19, 56:25, 57:15, 57:21, 58:8, 58:15, 58:20, 58:23, 59:13, 60:1, 60:7, 60:14, 60:20, 61:16, 62:20, 62:24, 62:25 multiple [1] - 41:25 must [9] - 8:19, 15:22, 15:23, 15:24, 15:25, 31:9, 31:10, 31:11, 33:1

N
name [6] - 18:12, 21:7, 25:1, 37:1, 37:3, 38:4 named [1] - 21:8 names [6] - 14:25, 16:19, 25:23, 26:8, 26:13, 26:15 narrowly [1] - 44:3 Nathan [1] - 35:21 Nathaniel [2] - 35:22, 35:23 National [1] - 35:23 nature [1] - 9:2 necessarily [3] 10:23, 35:5, 37:12 necessary [7] - 6:15, 14:9, 15:25, 16:5, 31:11, 33:5, 43:21 neck [1] - 22:11 need [10] - 8:25, 17:25, 28:14, 43:17, 44:15, 45:10, 56:11, 56:13, 56:20, 57:10 needed [3] - 17:3, 28:23, 44:5 never [2] - 18:24, 59:5 New [2] - 46:12, 47:18 new [1] - 49:17 next [5] - 25:5, 25:24, 26:3, 49:5, 57:10 Nicholson [2] 20:15, 21:4 night [1] - 49:2 non-30(b)(6 [1] 23:21 nonjury [2] - 5:16, 11:22 normally [1] - 11:2 note [2] - 5:13, 5:18 notebooks [4] - 8:7,

8:8, 8:15, 62:11 noted [1] - 48:8 nothing [5] - 32:4, 32:7, 33:22, 47:13, 62:25 notice [1] - 15:9 notified [1] - 15:11 notion [2] - 42:5, 46:11 Number [2] - 4:3, 4:4 number [7] - 6:6, 6:25, 8:3, 29:9, 32:13, 37:21, 37:23 numbers [5] - 15:1, 16:19, 26:1, 61:10 numerous [1] 29:15 NW [1] - 2:14

O
obey [1] - 59:10 objected [1] - 39:20 objection [7] - 8:16, 8:18, 9:14, 11:19, 17:25, 22:19, 61:25 objectionable [1] 9:17 objections [8] - 8:22, 8:24, 8:25, 12:4, 37:16, 37:19, 38:2, 47:1 objective [2] - 23:11, 23:15 obligation [2] - 59:3, 59:22 obviously [8] - 7:14, 21:19, 24:3, 24:17, 24:25, 26:16, 57:16, 61:17 occupation [1] 59:19 OF [1] - 2:11 offer [4] - 42:8, 48:25, 49:4, 49:20 offered [3] - 7:18, 30:15, 43:7 offering [3] - 49:13, 51:11, 51:12 offers [1] - 38:11 once [7] - 52:9, 53:8, 54:10, 54:14, 56:12, 56:16, 56:18 one [32] - 5:1, 5:23, 6:7, 7:7, 7:10, 8:10, 10:7, 12:9, 14:20, 15:1, 16:23, 18:18, 21:5, 22:4, 27:17, 28:12, 28:16, 32:2,

33:15, 34:25, 36:22, 37:6, 39:20, 40:7, 41:10, 43:17, 45:1, 54:21, 56:25, 59:22, 60:14 ones [3] - 11:23, 33:24 oOo [1] - 4:2 open [1] - 14:16 opening [6] - 61:12, 61:15, 61:20, 62:4, 62:7 openings [1] - 58:1 operating [1] - 8:8 opining [1] - 36:18 opinion [29] - 12:2, 13:4, 13:24, 14:6, 35:10, 35:14, 35:17, 35:19, 36:4, 36:9, 36:16, 36:23, 37:7, 37:9, 37:11, 38:2, 39:21, 39:24, 43:9, 47:3, 47:4, 47:5, 47:16, 48:20, 48:21, 49:4, 49:14, 49:21, 52:20 opinions [11] 35:25, 37:13, 38:10, 38:11, 38:13, 38:22, 39:19, 48:11, 48:25, 50:1 opportunity [6] 30:14, 30:15, 30:24, 50:1, 56:3, 57:4 opposite [1] - 48:13 opposition [7] 15:14, 21:16, 25:2, 29:20, 52:24, 53:6, 53:23 order [16] - 6:2, 6:5, 14:20, 17:5, 18:18, 19:1, 19:8, 22:3, 23:25, 32:19, 49:25, 56:3, 56:18, 61:19, 62:21 ordinance [2] - 41:9, 41:20 organization [2] 14:8, 52:15 organizational [1] 13:2 original [1] - 49:1 otherwise [5] - 5:2, 12:11, 22:6, 34:25, 47:21 ought [2] - 6:14, 52:8 outside [3] - 7:16, 57:10, 58:3 overall [2] - 27:10, 39:5

overarching [2] 8:16, 22:19 overruled [2] - 8:18, 41:18 overworked [1] 59:7 own [2] - 60:5, 60:11

P
P.M [1] - 4:1 Page [2] - 3:2, 47:15 pages [1] - 57:8 paid [1] - 20:3 paper [1] - 6:17 papers [14] - 18:2, 20:25, 24:2, 26:25, 27:15, 30:6, 32:14, 32:25, 35:5, 40:25, 44:1, 52:24, 53:7, 53:15 parameters [1] - 39:4 Parker [3] - 2:13, 4:9, 40:17 part [9] - 6:13, 15:18, 18:17, 28:8, 31:25, 39:11, 50:12, 50:24, 55:5 participation [1] 28:19 particular [3] 51:20, 52:2, 61:17 particularly [5] 18:6, 26:22, 43:4, 43:22, 52:4 parties [7] - 7:24, 8:15, 15:2, 15:9, 18:3, 61:12, 61:21 parts [2] - 35:25, 50:17 party [4] - 10:16, 20:16, 27:19, 57:17 party's [1] - 15:16 passed [2] - 30:18, 53:21 past [2] - 29:19, 31:19 Patrick [1] - 4:10 pattern [1] - 30:3 paul [1] - 2:12 Paul [1] - 4:7 people [9] - 25:12, 26:17, 26:21, 31:20, 51:5, 53:20, 61:3 per [2] - 34:25, 48:22 percent [1] - 51:11 perhaps [8] - 4:23, 6:7, 36:17, 36:22, 51:5, 51:25, 52:7,

Case Name/number

date

59:14 period [1] - 41:23 permitting [1] 28:21 person [4] - 12:22, 13:9, 59:1, 60:24 personal [8] - 13:1, 13:3, 13:4, 13:9, 13:23, 14:6, 31:7, 61:9 persons [3] - 15:3, 32:14, 61:11 persuaded [3] 21:24, 32:12, 59:9 persuasive [1] - 22:7 Philips [3] - 45:22, 54:4, 54:5 phone [3] - 15:1, 16:19, 26:1 pick [2] - 5:15, 5:17 pieces [1] - 12:4 place [1] - 5:14 plain [5] - 44:13, 44:17, 45:20, 48:12, 53:17 plaintiff [31] - 4:13, 15:8, 16:4, 16:13, 16:23, 16:25, 21:15, 22:22, 23:9, 23:13, 23:17, 24:14, 24:21, 25:9, 26:6, 27:13, 33:17, 39:17, 41:4, 41:23, 42:18, 42:22, 43:5, 43:11, 43:15, 44:21, 45:1, 45:11, 46:9, 48:10, 49:25 Plaintiff [1] - 2:3 plaintiff's [6] - 22:20, 26:4, 34:19, 38:21, 42:10, 42:25 plan [2] - 5:14, 5:24 point [20] - 15:11, 17:1, 21:5, 25:24, 26:3, 26:13, 26:22, 28:12, 30:1, 30:2, 34:14, 39:1, 42:25, 45:2, 45:11, 48:18, 51:2, 52:9, 55:19, 57:1 pointed [2] - 16:23, 21:5 points [4] - 15:15, 39:25, 40:15, 53:16 policies [1] - 51:8 Policy [1] - 38:6 policy [22] - 12:19, 15:23, 23:5, 23:10, 32:6, 32:22, 33:3, 33:4, 33:11, 34:20, 35:10, 37:18, 37:25,

38:24, 40:1, 40:4, 44:16, 44:17, 51:9, 51:13, 51:15 portions [2] - 50:9, 60:17 position [6] - 15:5, 30:17, 44:22, 53:17, 56:14, 58:17 possible [1] - 58:12 possibly [1] - 53:13 post [1] - 46:4 post-Lawrence [1] 46:4 postenactment [1] 14:13 potential [1] - 50:10 PowerPoints [1] 60:6 practical [1] - 8:18 practice [3] - 33:15, 53:22, 61:23 prayer [2] - 50:23, 50:25 pre [1] - 52:25 pre-deposition [1] 52:25 preclude [1] - 18:21 precluded [1] - 13:7 prefer [2] - 23:25, 40:15 preferable [1] 58:25 prejudice [2] - 12:3, 16:20 prejudiced [1] 26:17 prejudicial [3] 24:12, 26:23, 30:9 prepare [1] - 49:6 prepared [1] - 7:6 preparing [1] - 24:13 present [7] - 16:24, 24:16, 27:23, 29:10, 55:25, 56:3, 56:7 presentation [1] 33:14 presented [2] - 27:8, 54:18 presenting [4] 24:12, 27:4, 27:9, 45:5 presents [3] - 54:16, 61:16, 61:18 pressed [4] - 26:6, 26:11, 26:14, 39:3 presumably [3] 26:14, 28:24, 49:17 pretrial [7] - 4:16, 7:1, 26:7, 26:10, 48:22, 49:25, 53:23

prevent [1] - 23:17 primary [2] - 35:10, 35:14 principle [1] - 42:2 principles [1] - 39:16 privacy [10] - 13:9, 45:25, 48:21, 48:25, 49:4, 49:10, 49:11, 49:14, 49:19, 53:2 private [2] - 31:7, 41:20 privilege [8] - 9:20, 9:21, 36:11, 36:14, 45:14, 50:11, 50:18, 50:21 privileged [2] 36:17, 37:10 probative [1] - 47:2 problem [3] - 5:22, 21:13, 24:20 problems [1] - 5:2 proceed [2] - 6:23, 21:8 proceedings [1] 37:23 Proceedings........... ............................ [1] 3:3 process [1] - 22:25 produce [1] - 56:10 product [1] - 39:15 profession [1] 58:16 Professor [15] - 10:2, 10:10, 35:7, 36:16, 38:19, 38:23, 39:10, 39:13, 39:14, 50:10, 50:16, 52:11, 52:13, 52:22, 59:14 professor [5] - 10:3, 38:5, 40:8, 51:18, 58:16 proffer [3] - 15:14, 17:1, 22:2 proffering [1] - 22:23 proffers [1] - 22:3 Programs [1] - 2:12 prohibits [1] - 61:19 prong [1] - 47:22 pronouncing [1] 38:4 pronunciation [1] 38:18 proof [5] - 17:5, 42:9, 44:24, 44:25, 58:9 proper [1] - 9:2 properly [1] - 9:6 proposed [2] - 20:5, 53:24 proprietary [1] -

60:14 Protection [5] - 39:1, 39:2, 51:3, 51:4, 51:12 prove [3] - 23:9, 23:13, 31:13 provide [2] - 42:10, 50:22 provided [3] - 13:10, 15:1, 26:7 Public [1] - 38:6 purports [1] - 47:12 purpose [4] - 31:16, 39:21, 42:7, 48:12 purposes [10] - 7:22, 22:17, 23:6, 32:5, 33:10, 40:4, 45:18, 45:19, 51:13, 62:14 pursuant [1] - 31:21 pursue [1] - 29:12 push [1] - 5:20 put [4] - 15:9, 53:5, 55:13, 60:15 putting [1] - 23:17

Q
qualifications [2] 10:15, 38:24 qualified [2] - 39:8, 54:13 qualify [1] - 52:8 questioned [1] 36:13 questions [4] 13:13, 49:23, 50:19, 53:1 quick [1] - 57:1 quickly [3] - 35:3, 47:3, 48:22 quite [1] - 44:3 quote [3] - 28:17, 48:19, 49:16 quotes [1] - 14:3

R
Rachael [1] - 47:20 raise [6] - 6:13, 19:24, 19:25, 20:12, 21:10, 48:18 raised [17] - 9:6, 18:19, 19:20, 19:21, 19:25, 20:13, 20:17, 20:23, 20:24, 20:25, 21:17, 21:24, 35:5, 39:4, 40:7, 40:15 raising [1] - 25:8 RAND [5] - 43:7,

43:10, 58:14, 58:15, 58:19 rank [2] - 32:2, 32:3 rather [3] - 13:2, 17:6, 46:13 rational [2] - 34:21, 47:9 rationale [1] - 42:13 reached [2] - 42:21, 43:11 read [4] - 6:3, 36:15, 56:17, 61:13 readiness [3] 37:19, 38:1, 40:3 reading [3] - 10:8, 13:10, 48:12 ready [1] - 60:25 real [1] - 38:18 really [18] - 7:2, 7:3, 9:24, 9:25, 13:19, 13:21, 14:9, 23:16, 30:5, 35:11, 38:10, 38:19, 44:2, 51:9, 54:15, 55:20, 57:6 realtime [2] - 60:8, 60:11 reason [2] - 16:5, 35:15 reasonable [1] 30:20 reasoning [3] - 37:9, 37:13, 37:15 reasons [4] - 36:13, 45:22, 45:24, 55:8 rebuttal [1] - 49:21 recalling [1] - 5:4 recast [1] - 48:11 receive [1] - 59:11 receiving [1] - 28:9 recent [1] - 29:8 recently [1] - 58:11 recognized [2] 37:3, 52:14 record [8] - 12:16, 22:17, 28:24, 34:3, 34:10, 36:7, 37:15, 44:5 recycling [4] - 6:17, 6:18, 62:14 redacting [1] - 61:9 refer [1] - 18:6 referred [1] - 18:3 refuse [2] - 20:6 refutes [1] - 46:11 regard [2] - 25:3, 25:7 regarding [8] - 9:14, 12:18, 12:21, 14:12, 23:4, 27:24, 37:17, 38:12

Case Name/number

date

regardless [2] 40:23, 46:1 regards [1] - 52:22 regularly [1] - 61:23 regulation [3] 44:10, 44:13, 44:18 regurgitation [1] 47:13 rehash [1] - 48:2 Rehnquist [2] 44:14 relate [1] - 9:10 related [3] - 21:10, 48:21, 51:16 relates [1] - 21:3 relation [2] - 25:8, 27:7 relationship [2] 13:8, 14:1 relatively [2] - 17:2, 32:15 relevance [3] - 8:6, 23:6, 47:1 relevant [8] - 7:17, 16:6, 22:21, 32:19, 32:24, 34:23, 42:24, 46:11 reliability [2] - 47:24, 48:4 reliable [2] - 34:23, 39:16 relied [5] - 10:15, 10:19, 11:8, 47:17 relief [1] - 28:18 relies [1] - 47:19 relieved [1] - 38:17 reluctant [1] - 59:17 rely [6] - 12:1, 24:24, 25:7, 25:10, 25:17, 52:4 relying [4] - 28:13, 40:2, 40:4, 45:7 remain [2] - 46:2, 58:3 remember [6] - 10:8, 19:22, 41:7, 44:1, 44:3, 57:7 remind [1] - 56:2 repeat [3] - 24:2, 30:6, 40:22 repeated [1] - 29:19 repeatedly [3] 27:13, 48:4, 48:8 repetitive [1] - 36:3 reply [4] - 18:6, 29:23, 43:6, 53:7 report [17] - 10:10, 22:25, 36:19, 37:6, 43:7, 43:10, 47:11, 47:13, 48:13, 48:19,

48:23, 49:1, 49:13, 49:16, 51:25, 52:22, 53:3 reported [1] - 37:4 representative [3] 13:3, 31:17, 57:17 Representative [2] 36:25, 37:1 represents [1] 12:14 Republicans [3] 4:4, 4:13, 20:4 request [2] - 17:21, 18:24 requested [1] - 28:18 requesting [1] - 56:4 required [5] - 8:6, 21:7, 28:20, 28:23, 39:5 requirement [2] 39:9, 39:15 requires [2] - 15:15, 28:18 research [6] - 10:14, 10:16, 10:19, 14:12, 59:8, 59:13 resisted [1] - 26:10 resolve [1] - 41:11 resolved [3] - 9:1, 19:2, 45:22 respect [8] - 6:16, 10:1, 17:18, 17:23, 20:18, 34:17, 45:13, 51:2 respects [1] - 6:3 response [4] - 29:24, 30:1, 30:2, 56:7 responses [2] 12:11, 16:15 responsible [1] 57:24 restrictions [1] 15:23 return [2] - 8:14, 62:12 revealed [1] - 45:20 reveals [3] - 37:15, 46:23, 48:13 reversed [1] - 46:18 review [2] - 15:10, 40:24 revised [5] - 48:19, 48:20, 49:13, 50:1, 52:22 rid [2] - 37:18, 37:25 riding [1] - 59:23 rights [1] - 31:8 rise [1] - 38:15 Riverside [1] - 4:1 Robert [1] - 38:4

room [1] - 2:15 routinely [1] - 43:23 rule [5] - 11:22, 11:24, 14:11, 30:3, 61:8 Rule [8] - 14:22, 15:15, 22:9, 34:25, 39:6, 49:15, 49:22, 49:24 ruled [9] - 17:20, 18:17, 18:19, 18:23, 18:24, 19:5, 19:6, 19:12, 27:11 Rules [1] - 34:22 rules [5] - 29:8, 29:19, 29:22, 35:17 ruling [9] - 14:17, 20:13, 20:23, 54:24, 54:25, 55:3, 55:4, 62:15, 62:17 Ryan [2] - 2:13, 4:9

S
sake [1] - 6:16 Salerno [1] - 46:23 satisfied [1] - 39:9 sausage [1] - 36:12 saw [3] - 21:13, 29:20, 31:24 schedule [3] - 17:5, 17:7, 48:22 scheduled [2] - 5:6, 20:14 scheduling [3] 4:24, 5:2, 5:6 Schiavelli [1] - 21:6 school [2] - 50:23, 50:25 School [1] - 38:6 scientific [2] - 43:21, 52:3 scientist [1] - 52:2 Scott [2] - 2:14, 4:9 screen [1] - 60:16 scrutiny [1] - 43:20 second [2] - 12:13, 39:15 Second [1] - 46:18 Secretary [2] - 4:8, 52:16 section [1] - 47:19 security [1] - 61:10 see [9] - 7:21, 7:22, 9:20, 29:23, 39:3, 47:9, 51:10, 55:14, 61:17 seek [3] - 9:2, 14:6, 42:8

seeking [3] - 12:7, 27:22, 34:18 seeks [2] - 14:5, 14:17 seem [5] - 17:11, 20:7, 27:24, 28:20, 50:23 seldom [1] - 34:9 sending [1] - 20:13 sense [3] - 44:17, 51:6, 51:7 separate [1] - 62:3 series [1] - 30:3 served [2] - 58:8, 58:11 service [6] - 10:4, 14:16, 40:10, 48:1, 52:13, 58:9 servicemember [2] 13:7, 13:25 servicemembers [8] - 12:18, 15:4, 24:25, 25:18, 27:4, 27:7, 27:8, 31:15 servicemen [1] 37:23 serving [1] - 38:25 set [8] - 4:17, 8:7, 8:9, 8:19, 15:22, 61:2, 62:4, 62:6 seven [5] - 16:24, 24:15, 30:11, 34:19, 35:2 several [3] - 31:19, 44:1, 50:6 sex [1] - 41:20 sexual [1] - 45:25 shifts [1] - 45:4 short [5] - 6:24, 17:2, 32:16, 61:12, 61:14 shorthand [1] 14:14 shortly [1] - 20:14 show [12] - 23:5, 31:17, 31:25, 33:16, 33:17, 34:10, 43:2, 49:25, 51:13, 55:23, 56:18, 56:19 showing [4] - 32:22, 32:24, 33:2, 33:18 side [11] - 5:1, 7:18, 7:20, 8:13, 11:7, 24:16, 57:24, 60:3, 60:19, 61:25, 62:19 sides [4] - 12:9, 22:13, 55:17, 57:4 sign [1] - 55:14 significantly [3] 15:24, 31:10, 33:4 similar [1] - 60:20

similarly [1] - 52:11 simple [1] - 20:7 simply [6] - 24:23, 27:5, 28:11, 40:25, 41:6, 48:15 SIMPSON [8] - 18:5, 22:11, 22:14, 23:20, 24:1, 25:22, 26:2, 27:2 Simpson [3] - 2:14, 4:9, 40:22 single [2] - 8:5, 8:9 situation [1] - 52:2 six [12] - 12:18, 12:23, 23:2, 23:3, 24:8, 27:4, 27:23, 28:9, 28:11, 31:20, 32:10, 32:15 slightly [1] - 16:18 slow [2] - 34:4, 55:13 slowly [1] - 55:19 smoothly [1] - 60:25 so.. [1] - 59:18 social [3] - 38:12, 52:1, 61:10 sociologist [3] 38:8, 38:9, 51:14 software [1] - 60:15 solely [2] - 32:21, 32:22 someone [1] - 13:17 sometimes [2] 13:19, 13:20 son [1] - 5:7 sorry [6] - 18:13, 18:25, 19:24, 25:20, 34:5, 40:19 sort [3] - 36:16, 48:10, 59:23 sorts [1] - 43:11 sources [1] - 10:16 specialized [1] - 39:6 specifically [1] 32:3 specified [1] - 21:14 specifies [1] - 31:6 spent [1] - 57:7 splitting [1] - 37:8 sponte [3] - 19:22, 20:13, 56:16 squarely [1] - 20:25 stage [2] - 62:4, 62:6 stand [3] - 9:24, 57:19, 57:22 standard [27] 15:10, 15:20, 15:21, 16:7, 22:18, 31:4, 31:5, 31:6, 31:14, 31:18, 40:24, 40:25, 44:23, 55:1, 55:2,

Case Name/number

date

10

55:5, 55:6, 55:12, 55:22, 56:5, 56:9, 56:16, 57:2, 57:4, 57:5, 57:6, 57:9 standard's [1] - 56:6 standing [18] - 5:19, 6:2, 6:5, 17:16, 18:18, 19:5, 19:8, 19:9, 19:12, 19:15, 19:16, 19:20, 19:21, 20:8, 20:17, 28:13, 28:16, 61:19 stare [1] - 41:19 start [3] - 4:19, 4:21, 24:6 started [1] - 30:5 state [4] - 4:6, 35:9, 35:18, 37:11 statement [5] - 15:2, 20:2, 61:13, 61:15, 61:20 statements [2] 36:23, 61:20 STATES [1] - 2:11 States [4] - 4:5, 4:8, 30:9, 39:22 states [1] - 23:10 stature [1] - 52:13 statute [21] - 7:16, 12:15, 12:22, 27:19, 27:20, 27:24, 28:5, 28:10, 28:15, 33:14, 34:1, 34:15, 41:6, 45:7, 45:19, 45:20, 46:8, 46:16, 53:20, 53:21 stay [3] - 36:12, 57:8, 57:25 step [1] - 41:10 stick [1] - 22:11 still [5] - 8:6, 8:25, 16:21, 20:6, 36:10 stipulating [1] - 8:20 stood [1] - 37:1 stories [4] - 27:23, 28:6, 28:10, 31:22 straight [1] - 11:15 Street [1] - 2:6 strike [1] - 18:24 struck [1] - 48:21 studies [1] - 43:21 study [1] - 33:24 sua [3] - 19:22, 20:13, 56:16 subconclusions [1] - 37:22 subject [4] - 6:6, 13:24, 41:22, 50:8 subjective [2] - 9:3, 9:15

subjects [2] - 7:10, 51:16 submit [4] - 24:4, 24:11, 26:21, 29:1 submits [1] - 49:13 submitted [5] 17:15, 43:8, 48:23, 52:24, 62:9 subparts [1] - 29:16 subpoena [5] - 58:9, 58:11, 58:12, 59:11 substantially [2] 14:21, 16:11 substantiate [1] 20:8 succeeding [1] 33:18 suffice [1] - 15:5 sufficient [2] - 25:4, 39:11 suggest [3] - 27:5, 30:9, 51:24 suggesting [1] 46:14 Suite [1] - 2:7 sully [1] - 28:24 summary [8] - 17:16, 20:12, 21:6, 44:25, 53:23, 54:24, 56:15, 62:18 supervisors [1] 32:4 supplement [3] 15:6, 49:16, 50:21 supplemental [4] 44:21, 45:12, 54:1, 56:4 supplementing [1] 53:3 support [3] - 41:5, 42:11, 51:12 supports [1] - 37:24 supposed [1] - 6:22 supposedly [1] 51:10 Supreme [4] - 28:17, 41:8, 43:21, 44:12 surprise [1] - 16:20 survives [1] - 56:5 susceptible [1] 19:10 suspect [1] - 47:24 suspended [1] 37:22 synthesizes [1] 54:17

T
table [2] - 30:12, 45:21 task [1] - 38:12 tech [1] - 60:16 telephone [1] - 61:10 tend [1] - 58:12 tension [1] - 45:25 tentative [2] - 20:13, 20:22 term [2] - 14:15, 51:5 terms [9] - 16:14, 16:16, 17:5, 33:10, 41:9, 53:20, 58:7, 58:18, 59:3 test [1] - 43:20 testified [3] - 46:10, 49:3, 49:18 testify [19] - 10:3, 10:13, 12:18, 13:22, 15:4, 16:9, 17:6, 23:2, 23:4, 35:15, 35:20, 36:4, 36:7, 37:13, 37:14, 52:6, 58:7, 58:18, 58:25 testifying [6] - 10:12, 18:22, 40:9, 51:14, 51:18, 51:19 testimony [75] 4:25, 9:10, 9:13, 9:14, 9:17, 12:7, 12:17, 12:21, 12:23, 13:1, 13:2, 13:6, 13:14, 14:5, 14:6, 15:15, 16:5, 16:14, 17:2, 21:25, 22:4, 22:7, 22:10, 23:6, 24:7, 24:24, 25:18, 27:4, 27:8, 27:23, 28:14, 28:20, 28:22, 31:15, 32:16, 32:17, 32:19, 32:20, 33:1, 33:7, 34:20, 34:22, 35:8, 36:20, 36:22, 37:7, 37:17, 39:3, 39:15, 39:20, 40:5, 40:8, 41:4, 41:9, 42:4, 42:6, 42:8, 42:20, 42:21, 42:22, 43:11, 43:12, 44:15, 46:11, 46:13, 47:21, 50:9, 50:11, 50:17, 51:21, 57:14, 58:2, 58:4 Texas [1] - 41:19 text [1] - 46:15 THE [61] - 4:3, 4:11, 4:15, 4:19, 5:12, 5:15, 5:22, 7:11, 8:1, 8:14,

9:6, 10:7, 18:2, 18:9, 18:12, 18:25, 19:8, 19:14, 19:24, 20:10, 20:22, 21:1, 21:12, 21:19, 22:13, 22:15, 23:25, 25:20, 25:25, 27:1, 29:2, 32:12, 33:16, 34:4, 34:16, 35:23, 38:9, 40:12, 40:17, 40:19, 43:25, 50:4, 52:16, 55:2, 55:13, 55:17, 56:24, 57:3, 57:20, 57:23, 58:14, 58:17, 58:21, 58:24, 59:16, 60:2, 60:12, 60:18, 60:22, 61:22, 62:22 themselves [1] 31:1 theory [2] - 10:5, 10:6 therefore [2] - 42:12, 53:13 thinking [2] - 10:11, 24:9 third [1] - 10:16 third-party [1] 10:16 three [12] - 7:11, 12:25, 17:12, 17:14, 23:15, 24:16, 29:14, 29:15, 29:16, 29:21, 29:23, 49:12 throughout [2] 53:14, 53:16 ties [1] - 27:8 timing [2] - 21:1, 21:2 today [7] - 20:3, 30:11, 31:18, 34:21, 55:4, 56:18, 58:10 tomorrow [1] - 59:18 took [3] - 24:23, 26:8, 44:22 topic [1] - 34:25 touched [1] - 45:14 traditional [1] - 52:4 trained [1] - 36:6 transcript [2] 13:10, 35:11 transmit [1] - 60:9 treated [1] - 30:23 treatment [1] - 48:1 triable [3] - 19:5, 19:7, 19:12 trial [44] - 4:17, 4:19, 4:21, 4:24, 5:16, 6:8, 6:9, 6:14, 6:19, 7:25, 11:15, 11:22, 13:22, 14:9, 14:18, 14:24,

16:17, 16:19, 17:6, 24:6, 24:8, 24:10, 24:13, 26:20, 26:22, 28:22, 31:14, 38:16, 41:16, 45:11, 52:8, 55:14, 55:25, 56:11, 56:13, 56:20, 58:9, 59:18, 61:4, 61:7, 61:22, 61:24 Trial [1] - 60:12 TrialDirector [3] 60:7, 60:10, 60:14 trials [1] - 34:12 tried [1] - 33:8 trier [1] - 39:7 trip [1] - 5:6 troop [1] - 32:5 troubling [1] - 36:8 true [6] - 25:13, 29:18, 38:15, 43:14, 43:17, 59:1 try [2] - 11:22, 26:23 trying [10] - 11:15, 23:9, 26:21, 33:20, 34:6, 36:11, 44:1, 44:3, 53:9, 53:10 turning [1] - 30:5 twice [1] - 54:5 two [14] - 5:12, 5:23, 11:25, 12:5, 13:11, 16:21, 17:12, 24:15, 27:6, 38:6, 38:7, 43:17, 46:9, 54:12 typed [1] - 35:23

U
UC [1] - 58:16 ultimate [1] - 35:18 ultimately [4] 40:24, 42:21, 42:24, 46:17 unavailable [4] 58:6, 59:2, 59:4, 59:9 unclear [1] - 19:11 unconstitutional [7] - 27:21, 31:21, 32:23, 33:17, 35:10, 41:21, 47:7 uncontroverted [1] 20:2 under [17] - 8:8, 12:19, 14:21, 22:9, 34:22, 34:24, 35:16, 39:6, 39:15, 43:20, 46:23, 47:1, 47:22, 48:17, 49:22, 58:6 underlies [1] - 38:22 undermined [1] -

Case Name/number

date

11

42:14 undermining [1] 32:8 underpinnings [1] 41:17 understood [1] 55:21 unfairly [1] - 30:23 unforeseen [1] 4:20 unique [1] - 46:5 unit [9] - 32:5, 38:12, 40:3, 42:12, 42:14, 43:3, 43:9, 43:13, 45:25 United [4] - 4:5, 4:8, 30:9, 39:22 uNITED [1] - 2:11 unnecessary [3] 6:9, 6:11 unwilling [1] - 7:20 up [21] - 5:15, 5:25, 6:20, 8:6, 14:19, 20:20, 28:24, 29:16, 33:20, 49:11, 52:8, 53:15, 55:10, 57:11, 59:5, 60:5, 60:15, 60:17, 61:2, 61:4, 62:10 upheld [1] - 34:12 useful [1] - 54:18 utilized [1] - 41:5

W
waiting [2] - 54:23, 57:10 waive [3] - 62:3, 62:7 waivers [1] - 14:15 walk [1] - 8:23 wants [4] - 42:22, 43:12, 43:15, 48:10 War [1] - 37:24 Washington [1] 2:15 waste [1] - 28:21 ways [2] - 23:9, 53:10 weak [1] - 19:17 week [10] - 4:25, 5:2, 5:3, 5:10, 5:17, 26:22, 55:5, 62:18, 62:22, 62:23 weeks [5] - 5:12, 5:23, 16:19, 16:21, 49:12 weighed [1] - 42:21 weighing [1] - 48:7 weight [4] - 37:17, 37:20, 38:3, 38:14 West [1] - 2:6 whatsoever [1] 48:24 whichever [1] 23:25 while.. [1] - 57:20 White [1] - 4:12 WHITE [1] - 2:4 whole [2] - 27:9, 47:12 win [1] - 56:20 wisdom [6] - 40:1, 42:6, 43:23, 48:5, 48:7, 48:9 wish [2] - 19:15, 23:19 witness [24] - 9:24, 13:2, 13:11, 13:12, 13:15, 13:16, 13:17, 13:21, 14:7, 18:1, 34:25, 39:21, 40:2, 57:19, 57:20, 57:21, 58:14, 58:25, 59:2, 59:10, 59:16, 59:25, 62:9 witness's [2] - 13:8, 15:14 witnesses [41] 4:23, 8:7, 12:6, 12:8, 12:25, 13:24, 14:14, 14:21, 14:24, 15:9, 15:12, 15:16, 16:9,

V
vacation [2] - 5:10, 5:24 vacuum [2] - 27:18, 28:3 variety [1] - 19:11 various [1] - 38:11 vehicle [1] - 59:23 versus [1] - 4:4 videotaped [1] 58:22 view [1] - 18:16 viewpoint [1] - 51:15 views [1] - 13:3 violate [2] - 6:2, 50:21 violation [4] - 29:8, 29:21, 49:24, 50:18 violations [2] 29:19, 30:4 volunteered [1] 13:14 vote [1] - 36:14

17:10, 17:14, 19:16, 21:23, 22:2, 22:16, 22:21, 23:2, 23:3, 23:21, 23:24, 26:8, 26:13, 26:20, 30:10, 34:18, 34:20, 35:2, 39:8, 39:12, 46:13, 47:14, 48:14, 57:13, 57:17, 57:25, 58:3, 59:17 witnesses' [2] - 16:3, 16:5 Witt [33] - 15:10, 15:20, 15:21, 16:7, 22:18, 31:4, 31:5, 31:14, 31:18, 40:25, 41:1, 44:23, 45:3, 45:23, 54:1, 54:8, 54:9, 54:11, 55:1, 55:2, 55:5, 55:6, 55:12, 55:22, 56:5, 56:6, 56:9, 56:16, 57:2, 57:4, 57:5, 57:6, 57:9 women [8] - 32:1, 37:23, 38:25, 51:8, 51:11, 51:15, 51:20, 52:5 WOODS [24] - 4:12, 4:18, 17:22, 18:10, 18:15, 29:4, 33:12, 33:19, 34:5, 35:22, 38:8, 50:6, 52:18, 55:7, 55:16, 55:19, 58:8, 58:15, 58:20, 58:23, 59:13, 60:1, 60:20, 62:25 Woods [4] - 2:5, 4:12, 29:3, 50:5 word [1] - 36:12 wording [2] - 44:2, 44:4 words [3] - 23:8, 41:18, 53:10 workable [1] - 17:13 works [3] - 34:9, 58:14, 60:25 worthy [1] - 56:21 written [2] - 55:3, 62:15

47:18

Y
Yamika [2] - 44:7, 44:8 year [2] - 21:14, 48:24 years [2] - 31:19, 34:14 York [2] - 46:12,

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