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COMMONWEALTH OF MASSACHUSETTS Middlesex, ss SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT CA No. MICV2008-04641

---------------------------------------------JOHNSON GOLF MANAGEMENT INC. Plaintiff vs. TOWN OF DUXBURY, AND NORTH HILL ADVISORY COMMITTEE, CONSISTING OF MICHAEL DOOLIN, CHAIRMAN, SCOTT WHITCOMB, ROBERT M. MUSTARD, JR., MICHAEL MARLBOROUGH, ANTHONY FLOREANO, MICHAEL T. RUFO, THOMAS K. GARRITY, RICHARD MANNING, W. JAMES FORD, AND GORDAN CUSHING (EX OFFICIO), CALM GOLF, INC., CHARLES LANZETTA Defendant --------------------------------------------* * * * * * * * * * * * * * *

CONTINUED DEPOSITION OF: ROBERT TROY BRODY HARDOON PERKINS & KESTEN LLP One Exeter Plaza Boston, MA 02116 March 21, 2013 Commenced at 2:12 p.m. LESLIE A. D'EMILIA Court Reporter
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APPEARANCES: Representing the Plaintiff, Johnson Golf Management, Inc.: FOLLANSBEE & MCLEOD, LLP 536 Granite Street Braintree, MA 02169 BY: STEPHEN R. FOLLANSBEE, ESQ. (781) 848-1500 Representing the Defendants, Town of Duxbury, North Hill Advisory Committee consisting of Michael Doolin, Chairman, Scott Whitcomb, Robert M. Mustard, Jr., Michael Marlborough, Anthony Floreano, Michael T. Rufo, Thomas K. Garrity, Richard Manning, W. James Ford, and Gordon Cushing: BRODY HARDOON PERKINS & KESTEN LLP One Exeter Plaza Boston, MA 02116 BY: LEONARD KESTEN, ESQ. (617) 880-7100 Representing the Defendants, Town of Duxbury, North Hill Advisory Committee consisting of Michael Doolin, Chairman, Scott Whitcomb, Robert M. Mustard, Jr., Michael Marlborough, Anthony Floreano, Michael T. Rufo, Thomas K. Garrity, Richard Manning, W. James Ford, and Gordon Cushing: ANDERSON & KREIGER LLP One Canal Park, Suite 200 Cambridge, MA 02141 BY: ARTHUR KREIGER, ESQ. (617) 621-6500 Representing the Defendant, CALM Golf, Inc.: GEARY & ASSOCIATES 161 Summer Street Kingston, MA 02364 BY: E. DAVID EDGE, ESQ. (781) 585-0008

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Representing the Deponent, Robert Troy: PEABODY & ARNOLD LLP Federal Reserve Plaza 600 Atlantic Avenue Boston, MA 02210 BY: ALLEN N. DAVID, ESQ. (617) 951-2100 Also present: Douglas Johnson Jason Laramee

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INDEX Witness ROBERT TROY Direct Cross Cont. Direct Recross

By Mr. Kesten
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103

By Mr. Follansbee By Mr. Edge By Mr. Kreiger By Mr. David

EXHIBITS Number Page

NONE
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STIPULATION The witness shall read and sign the deposition transcript under the pains and penalties of perjury. ROBERT TROY, having been satisfactorily identified by the production of his driver's license and duly sworn by the Notary Public, testified under oath as follows: DIRECT EXAMINATION BY MR. KESTEN: Q. Mr. Troy, what have you done since your last deposition to prepare for this deposition? A. I testified at the Plymouth Superior Court. than that I didn't do anything. Q. Did you review any documents since your last deposition? A. No, no. Well I can't say I haven't reviewed Other

any -- looked at anything since the last deposition because I think that was in September, but I didn't review anything to prepare for this deposition. Q. A. Well what -- what -- but you did review things? Well if I -- for instance, I saw the transcript of the Plymouth Superior Court hearing. Q. A. Yeah. Okay.

I looked at that.

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Q.

What did you do to -- did you review anything to prepare you for the Plymouth Superior Court hearing?

A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q.

I think met with my lawyers once. Okay. But did you review anything?

No, I didn't review anything. You met with your lawyers when? Oh, I don't remember that. Before that hearing? Oh, yeah, before the hearing. Did you meet with them before this hearing? Just ten minutes this morning. Just this morning? Or this afternoon. And you looked at -This afternoon, not this morning. And you looked at no documents? No. Mr. Troy, you recall that you and Mr. MacDonald came up here to see me in November of 2010 -- 2011?

A. Q. A.

No. And we met in my office to discuss this case? I remember at some point. date was. I don't know what the

Q.

Okay.

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A.

I remember at one point -- I believe it was Mr. MacDonald and Ms. Sullivan and me.

Q.

Was that about this case, or was that about the DeLuca case?

A. Q.

I'm not sure. Do you remember discussing this case with me in my office at any time?

A.

I remember yes, at least -- there could have been a number of times.

Q. A. Q. A. Q. A.

How many? Between one and five. Were any of them one-on-one? I'm not sure. Who else was present at any of them? My memory is I believe when I was here I met with you and Richard MacDonald, Betsy Sullivan. Craig Jordan may have been at one of them. I think

Q.

I'm going -- is that one on March 13th or April 13th of 2012 that he was at, or was he at some other one?

A.

No, I'm thinking -- I thought you were talking about your office across the hall.

Q. A.

Which I was. My memory is that to the extent there were other

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people involved with it would be those three people. Q. So you have a memory that you and I met between one and five times in my office and some or all of those people were present at some of the meetings? are you talking -A. I don't have a clear memory of -- I believe there was one meeting with you and me and Richard MacDonald and Betsy Sullivan. that. I remember What

I think there were four people in the room

because there's only two chairs if I remember right, and then there was another meeting I think with you, me, Craig Jordan and Richard MacDonald. Q. A. What was discussed at those meetings? Issues relating to the case. discussions. Q. Do you recall meeting with me -- do you recall that you and I appeared at the Board of Selectmen in late 2011? A. I don't know the date, but I remember there was a meeting. I actually thought it was earlier in the I I don't remember the

year, but it could have been later in the year.

think it was -- I thought it was in January, but I don't know. Q. It could have been.

Would that be reflected in your time records?

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A. Q.

Whatever you've got, yeah. Would it be reflected in your time records? something you normally put down in your time records? Is that

A. Q. A. Q.

If we met at the selectmen's, yes. Yeah. Yes. -- as we did in the executive session, that would appear in your time records? If you attended a selectmen's meeting --

A. Q.

Yes. Now when was the first time you recall that I informed you that I thought you should -- you would have to be a witness in this case?

A.

It was a discussion about it, about the possibility of that at some point after you became involved.

Q. A. Q. A. Q. A.

When? I don't remember when. Was it on the telephone, in person? I don't remember. What did I say? I think you had said a number of times, but I think -- and I don't remember it except that you had said that you needed -- I think throughout any time the issue came up about you were going to need

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someone to tell the narrative. remember you saying. Q. A. Q. A. Q. A. Q. A. Q. A. When was the first time you -Oh, I have no idea.

That's what I

And was it in a one-on-one conversation with you? I don't know that either. And what did you say? I don't remember. Did you agree? No, I didn't agree. You disagreed? I don't know whether I agreed or disagreed, but I know I didn't agree.

Q.

So what other possibilities did you -- did you respond to me?

A.

I might have -- I might have said that, you know, I'd have to talk to town officials about it. That's

what I would think I would have said, but I don't know. Q. I don't remember.

So you don't actually remember any -- having any reaction?

A.

I think it was a very conjectural discussion that very first time that it was raised. It was

something that you needed somebody to tell the

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narrative.

You weren't sure who it was going to be, That's my memory.

and that I might be the person. Q. A. Q. That's your memory? Yes.

Do you remember us discussing Mr. MacDonald's first deposition at which you represented him and the problems that it caused for the case?

A.

I remember you -- you talking about Mr. MacDonald's deposition, yes.

Q. A.

What did I say? That it was not -- that you didn't -- based on that you didn't think he was going to be helpful.

Q. A.

Did you agree with me? I -- no, I didn't -- I think that Mr. MacDonald's deposition and I think the record of it showed that he was burden by the fact that he wasn't shown any documents, and he hadn't reviewed any documents prior to attending the deposition, and therefore he didn't remember anything. take on it. That's -- that was my

Q.

How come he hadn't reviewed any documents prior to his deposition?

A. Q.

I have no idea. Who prepared him?

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A.

I met him at the office of Mr. Follansbee beforehand.

Q. A. Q. A. Q. A. Q. A. Q. A.

Did you prepare him? To the extent he was prepared that was it. For how long did you meet with him? I don't remember, earlier that day. For how long? I have no idea. Did you show him anything? No. Did you discuss any of the facts with him? No. I assumed he was going to testify as to what he

remembered. Q. A. Q. Have you prepared witnesses for a deposition before? Have I prepared? Yeah. Before Mr. MacDonald's deposition had you

ever prepared witnesses for a deposition? A. Q. A. Q. A. To some extent, yes. You have? Yes. Sometimes yes, sometimes no, not always.

What do you mean not always? Not every time, no. I didn't sit down with people.

If different officials, you know, seem to have a good grasp on what, you know, their case was about I

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just let them testify. Q. So when did you ascertain that Mr. MacDonald had a good grasp before his deposition? A. As I ascertained as of the date of the deposition. When it took place my memory is that I think he said that, you know, he hadn't reviewed anything. Q. You never discussed his preparation for a deposition before the day of it? A. Q. A. No, not that I remember. How come? I assumed that Mr. MacDonald was going to testify as to, you know, what he did and what he remembered. Q. That was not the question. Did you believe -- did

you have some understanding Mr. MacDonald remembered everything before the day of the deposition so he didn't need to review anything? thought? A. I didn't know what he remembered. would remember what he did, yes. Q. So you determined it was not necessary to prepare him before the day of the deposition? A. We had agreed that -- if he had asked me I certainly would have, but we had agreed that we would meet prior to the deposition and we did. I assumed he Is that what you

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Q.

Did you ask him -- did you talk to him before the date of the deposition about whether he was ready?

A. Q.

I don't -- I don't remember that. Okay. So you must have been surprised at the

deposition? A. I was surprised at the format of the deposition. Generally depositions that I had done and attended the person conducting the deposition would show the witness a document and then on the basis of that document ask questions. Q. Were you surprised at Mr. MacDonald's lack of memory? A. Q. A. Q. Somewhat. And now that deposition happened when? I don't remember. Subsequent to the deposition did you -- had you ascertained Mr. MacDonald had reviewed documents after the deposition to help his memory? A. I think he said that he was going to do that. I

think at the end of the transcript, at end of the deposition I think the transcript reflects that I had suggested that the deposition be resumed after Mr. MacDonald reviewed documents. Q. Now -- okay. So when I told you -- so recall me
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saying that I saw a problem with MacDonald testifying at the trial and not at his deposition? A. Q. A. At what point are you speaking? Any point, Mr. Troy. I recall you had some concerns about Mr. MacDonald's ability to testify, yes. Q. And did you ascertain whether his ability had now improved because he reviewed documents? A. Q. A. I believe it had, yes. And on what basis did you believe that? Because I know he had reviewed documents. I knew

that throughout documents -- every document that came in to me or that I sent out I shared with Mr. MacDonald, and he would -- we would converse about them. So it was quite clear to me that

he -- he knew what was going on and was reviewing -Q. A. Q. Well he knew what was going on --- all the documents in the case. He knew what was going on before the deposition, didn't he? A. The same process --

Well I think that some period of time had elapsed between the events and when the deposition took place. I don't know. I can't account for that. You'd have to ask him

You'd have to talk to him.

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about that. Q. A. Q. A. I did. Right?

He'd be the person to -To what? To tell you what he remembered and what he didn't remember.

Q.

Well he said at the deposition what he didn't remember, but what you say is that you sent him every document?

A. Q. A. Q.

Right. You'd done that before the deposition as well? That's true. Nothing changed. And yet at his deposition he

couldn't remember anything. A. Well subsequent to his deposition I believe he did review documents. My memory is that -- my memory is

he said he was going to. Q. A. Q. You remember he said he was going to? Yes. But my question is did you ever ascertain -- you and I were discussing he was going to testify at trial. Do you remember -- do you think that you told me he now remembers things? A. I don't know. I don't remember what -- you know, I

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don't remember the conversation in that detail.

I'm

not sure even it got to that point that we really discussed who would be the witnesses. Q. Okay. Now during any of these meetings in my

office -- well first of all, do you have a time frame for them? A. Q. A. Q. A. Q. No. When did they happen? Well after you became involved in the case. Did they happen before November of 2011? I don't know the dates. Did it happen before -- did we have a meeting before you and I met with the selectmen? MR. DAVID: MR. KESTEN: A. Q. I believe so. The first time? The only time.

I believe so.

(Mr. Kesten) And how many meetings did we have before we met with the selectmen?

A. Q. A. Q.

I'm just guessing, two or three. And those all would be on your time sheets; right? I assume they would. Well if you follow your custom and normal practice they would be; right?

A.

Hopefully they would be.

I would, you know, like to

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include everything that I did. Q. Now when you create the document, your time sheet, how do you -A. But I never said I created it. before. Q. A. Q. A. Q. A. We've discussed this

I never said I created time sheets.

So how do you -I keep time. Well how do you keep it? We've already talked about this. How do you keep it? Many times it is from a phone transmission in which I report to my office, you know, I've met with you and how long a period of time I met with you.

Q. A.

You report to whom? It would be different people, but generally it would be to the chief person in the office, Gail O'Neill.

Q. A. Q. A.

Okay. Yes.

Is she still there?

How long has she worked for you? I think you've asked me this before. remember exactly how long. I don't

Q. A.

How long? I want to say it's been a long time. least ten years I want to say. It's been at

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Q.

And you report to her, and she inputs it into a computer system?

A. Q.

Yes. Does she input the -- each event and the time it took?

A. Q. A. Q.

I don't know how she does that. You're seriously telling me you don't know? Yeah, I don't know. Have you seen those printouts which contains how long --

A. Q.

No, that's not the way it's done. I know the way you give it to the town, Mr. Troy. My question is back in your office --

A. Q. A. Q.

Right. -- do you see either on the computer or on paper -No. -- an event that says, "Meeting with Kesten, 2.5 hours"?

A.

No.

I report to her the various hours.

She then

does the bills.

Generally they're about every

month, and she presents me the bills, a draft. Q. But the information you provide her contains the time for each individual event, does it not? A. As best as I can do.
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Q.

So that exists somewhere in your office, that information, how much --

A. Q. A.

No, it doesn't. -- time each event took? No, because I explained this to you before. are two different formats. There

Some clients want an The others,

itemized bill, and that record exists. there is a bill that is generated.

I receive a

draft with a total amount of hours, and that's the way it was in Duxbury for 27 years. Q. How do you know that the total amount of hours is correct? A. Q. A. Because I rely on her ability to input the data. How does she do it? How does she input it? I think that she

She inputs it through a system.

assigns, you know, a value to correspondence and a value to telephone records and telephone calls, that type of thing. Q. But you assign the value to the meetings; right? You -A. The meetings I do, yes. meetings are. Q. A. Does she type that number in somewhere? I don't know how she does it. I tell her how long the

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Q.

Do you know what system -- what billing system you use? What the software is?

A.

It's some type of a -- it's some type of -- I believe it's some type of Microsoft system, but I don't know.

Q.

So you and I then met with the selectmen you think in the spring -- in early -- whatever -- I reviewed my records. matter. I know what they say, but it doesn't

We go to meet with the selectmen either

late '11 or early '12; right? A. Q. A. Right. What happened? My memory is that one of the selectman spoke for quite a long period of time, and there was some type of dialog -- my -- I don't remember you really saying almost anything until the very end maybe for five minutes. Q. A. Q. A. Q. A. What was the purpose of the meeting? That selectman had requested to meet with you. How had he done that? Through some type of a -- I believe a written memo. To whom? I don't know. You have all the documents, all the

email transmissions.

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Q.

I'm here today -- you're here today so we can ask you your memory.

A. Q. A. Q.

Right. Yes, I have read the transmissions. I don't remember, I'm sorry. And I've read the transmissions, and I've read the internal memoranda which I have now have about everybody's views about whether I should be allowed to address the selectmen or whether it should just be you.

A. Q. A. Q.

Okay. Have you seen -- do you remember that discussion? I don't remember, no. No, I don't.

Have any other defense counsel hired by an insurance company representing the Town of Duxbury ever been allowed to see the selectmen before this event?

A.

I don't know. practice.

I don't -- it certainly was not a

I believe actually as part of it I think

that the request was that all of the cases which were being handled by the insurance counsel be put on the agenda for a meeting, and I believe at this particular time there was a case being handled by -Q. A. John Davis. -- Pierce Davis, yes, and that person came and you

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came. Q. A.

In other words the selectmen --

This same meeting? No, not to the same meeting, but at different meetings.

Q. A. Q. A. Q.

Well it was at Chris Donato's request; right? Exactly. And you were against it, weren't you? I don't remember being for it or against it. You don't remember talking to Richard MacDonald about that request?

A. Q. A. Q.

I don't remember any conversation about it, no. So you had no input whatsoever? It was set up whatever it was. Of course it was. I don't --

The question is did you have any

input into the decision? A. Q. I don't remember. Did you express any opinions to either Richard MacDonald or any of the selectmen about Chris Donato's request to have another lawyer give them their perspective about Johnson Golf? A. Q. A. Q. I don't remember. As I say you have all the emails.

We know and so do you. I know, but I haven't looked at them. Okay. So you don't remember?

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A. Q.

I don't remember. You might have? input? You think you might have had some

A.

If you -MR. DAVID: Objection.

A.

Yeah, if you would want me to tell you about a document then I think I need to see it, otherwise I'm just speculating.

Q.

(Mr. Kesten) I'm not asking you about a document. I'm simply asking whether in your head right now you think you may have had input. Are you saying you

didn't, or you have no idea either way? A. Yeah, there were thousands of email transmissions and documents, and I don't remember, no. I don't

remember whether there was any input or what my input was. Q. Now at the meeting what did I say about the Johnson Golf case? A. Well one of the concerns that the selectmen had and that the town manager had and I had was the entire concern about whether or not the insurance company was going to come through and indemnify the town and whether or not you, as counsel paid by the insurance, had different interests than the town's

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interests particularly because the insurance company had issued a reservation of rights in which it said it was not going to indemnify the town, and that was a concern that was discussed at the meeting. As a

matter of fact my memory is one of the selectman asked you directly was the insurance company going to pay. Q. A. Q. A. Q. A. Who asked me? I believe that was Selectman Dahlen. What did I say? I don't remember. You don't remember? I do -- yeah, I think you said something along the lines that the town was going to have to -- you know, echoing with Bill McKenzie said that the town was going to have to bring its checkbook. Q. A. I said that? I don't know whether you said that or alluded to him. Q. I know that that was discussed about the --

Well my question is what do you -- are you telling me under oath -- are you telling us all under oath that I discussed and told them the insurance company's position on this?

A.

No, I'm telling you that that -- that issue was

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discussed.

It was part of the conversation. I don't remember.

don't know who said what. Q.

Well you just testified that Shawn Dahlen asked about it.

A.

Yes, Shawn Dahlen asked about that. part.

I remember that

Q. A.

Right.

And what did I say? You actually I mean my memory is

I don't know that he asked you. didn't -- you said very little.

that you spoke about six or seven minutes at the end. Q. A. Q. A. What did I say? I don't remember. You don't remember? No, I don't remember. could speculate. To the extent that I -- I

I believe -Don't speculate.

MR. DAVID: Q.

(Mr. Kesten) Do you remember anything about my views of the case, about anything I told them about my take on the case? Well first of all, do you recall

that I gave them my take on the case? A. Q. A. I think at the end you spoke about -And what did I say? -- the case and about settlement, and I think you

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had some, you know, range of settlement. Q. A. I had a range of settlement? What you thought the case, you know, would settle at. I think there was some discussion or I think

the selectmen wanted to know, you know, what was the range, but I -- beyond that -- beyond that I don't remember anything specific. Q. And what did you say? MR. KREIGER: record for a second? (Discussion off the record.) Q. (Mr. Kesten) At the conclusion of that meeting were we instructed to do anything or asked to do anything by any of the board members? A. I think that one of the members of the board said, "You two, you know, see if you can come together with some type of joint recommendation," or something along those lines. Q. A. Q. A. Q. And who was that member of the board? I think that might have been Mr. Dahlen. Dahlen? Dahlen. Okay. And Dahlen asked us to come up with a joint Can we just go off the

recommendation and come back; right?

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A.

I believe. MR. KESTEN: Now do you have the exhibits? I do. Is that the

MR. FOLLANSBEE: MR. KESTEN: memo? MR. FOLLANSBEE: MR. KREIGER: Q. A. (Mr. Kesten) December.

Exhibit 25.

No, the memo is 26.

What's the date on it? What's the date on it?

This is dated December 14, 2011. (Discussion off the record.)

Q. A.

(Mr. Kesten) You reviewed Exhibit 26. That's a memo that Shawn Dahlen.

What is it?

I believe that the

town manager asked -- told me that Shawn wanted a memo in which it explained what the town's defense was to the various issues that had been raised in the case. Q. Is this a memo written shortly after we had our meeting with the board, Mr. Troy? A. My memory -- I'd have to check my calendar. I think

that our memory -- our meeting was -- I thought it was in January of 2012. Q. I understand what you thought, but the memo says, "At a recent meeting of Duxbury Board of Selectmen and counsel evidence a substantial amount of

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misinformation" -A. No, that -- I don't think that referred to that meeting. Q. A. What did it refer to? I -- I think it referred to a meeting that had taken place in executive session. I'm actually not sure,

but I don't think it was the same meeting that you and I were at. Q. I will represent to you, Mr. Troy, that my time records and my email correspondence indicates that our meeting with the board was December 12th. MR. DAVID: Q. There's no question.

(Mr. Kesten) Now is it possible that this memo was written in response to what happened at our meeting with the board? MR. DAVID: Objection.

A.

I don't remember that being it, and I thought that your meeting was continued into January, but I don't know. I don't know the date of the meeting, but my

memory of that independently of when that was is that this memo had to do with an internal discussion that the board had in executive session. I think it

was a clash between Selectman Donato and perhaps Selectman Sullivan, and that Mr. Dahlen called the

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town manager and asked -- and I might have even spoken to Mr. Dahlen about it saying what he wanted -- he wanted a summary of what the town's positions were. He was relatively new to the board

and wanted a summary of what the town's positions were, and as I told you, I did not write that memo, although I did sign it and I did read it. Q. And you told me that you didn't provide any of the information -- any of the factual information -A. Q. A. No, I didn't. This was all done by your third-year associate? And -- he's not a third-year associate. lawyer. Q. He's an associate. Is he a partner at He was a

Troy Wall Associates? A. Q. A. Q. A. No, but he was a lawyer. So he's an associate; right? Right. And he was three years out of law school? I don't know how many years he was, but he certainly was a very competent lawyer, yes. Q. And he put facts in here about your communications with the Inspector General? A. That's correct.

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Q. A.

Which were inaccurate? I'd have to look at it to see whether they were inaccurate. From his vantage point and the

information that he had in the file they could well have been accurate. that. Q. A. Q. A. Q. Where is he? I don't know where he is. No idea? We went over this at the hearing in front -Well I was hoping that you might have run into him since. A. Q. A. It's been a while. You'd have to ask him about

No, I've not run into him since. His parents still live in Sandwich? I believe that he and his parents are life-long natives of the town. there. I believe they've always lived

Q.

But the last time you knew he lived in Rio de Janeiro?

A.

No.

I told you the last time I knew -- the last

time I knew and the last time I saw him was in Sandwich. Q. I told you that at the hearing. Was

And the question is where was he living then? he visiting for the holidays?

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A.

Oh, I don't know where he was living. came home for the holidays.

I believe he

Q. A.

Home from where? From -- he -- and I think you know this too, but if you need me to go through it I'll tell you. He met

a woman from Brazil, and they made the mistake of going back to Brazil for him to ask her father for permission to marry her, and when they came back to get married they were stopped at Charlotte, I believe, North Carolina, and he was locked in a room for a period of time, and the woman was locked in a different room, and when he was let out of the room he was told that she had been deported back to Brazil because of some technical infraction with the immigration law, and at some point they continued efforts through Congressmen and other officials to try to get her back up, and at some point I believe around sometime last July or August it appeared that those efforts were going to be futile, and he decided that he was going to make good on what he had intended to do and marry her, and he did marry her to the best of my knowledge, and when I did see him he did have a wedding ring on, and he told me he had gotten married.

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Q. A.

But did he move to Brazil? He -- oh, yes, he moved to Brazil in July of last year.

Q. A. Q. A.

July of 2000 -Twelve. And as far as you know he's still living in Brazil? No, I don't know where he was because at the Christmas -- after Christmas when I met him he had come up to the United States, and he was looking for jobs, and apparently the way that you get a job -- he learned this from experience in Brazil is that you -- the companies there don't hire -- I know for instance, one of the companies he was interested in was Halliburton, and Halliburton -- the Brazilian office has no authority to hire people, and so he -- and I know he was interviewing. He told me he

was interviewing in Miami and in Washington for positions, and I also know that he wrote me and said that he had been in Ohio, and I said to him, "When you come back, you know, give me a call," and I didn't hear from him. Q. A. Q. He wrote to you in what, an email? Email. So you have his email address?

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A. Q. A.

Oh, sure. Could you provide that to me? Well I would provide it to you as long as he consented to it. I don't want to be giving out

information that he doesn't want me to give to you. Q. That's fine. have to. We'll send you a subpoena, and you'll So you write the email to Dahlen,

Okay.

and you think that our meeting is after this? A. Q. A. I believe so. And you recall that Dahlen set it up? I believe so. I thought it was in January. That's I

fine, but maybe I'm wrong.

I really don't know.

just kind of remember that you were -- you were scheduled on for a certain time, and then you had a conflict, and you continued it. thought. Q. That's fine. If that's your memory that's what So after this That's what I

we're here to attest is your memory. meeting -A.

But that memo was written at the request of Mr. Dahlen. That memo was not written to refute

anything that you had said if that's what your question is. Q. I haven't asked you that question, although I'm
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relatively certain it was, but because of the time when I first saw it because it was two days after I met with the board and you disagreed with me, but that's fine. That's your memory, and the proof will

come out in the pudding the first week of -- the first or second week of April because there's minutes of this meeting. So Mr. Dahlen you recall

asked us to come up with a joint recommendation? A. I believe it was him. I think the board then was

Mr. Dahlen, Ms. -- Mrs. Sullivan and -- no, no, actually it may have been Mr. Witten. Q. No, it was Ted Flynn. helps your memory. I'll help you. See if that

We're working with your memory.

Do you recall that the board at that time was Mr. Donato, Mr. Flynn, and Mr. Dahlen? A. Okay. Then it was Mr. Flynn that ask -- that said

to come up with a -Q. That's the best of your memory? that or are you speculating? A. Yes. No, that refreshes my memory. If that was the Do you remember

board, and as you know the selectmen -- the board changed a lot and during those years it was difficult to remember who was on the board at any given time.

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Q. A. Q. A. Q.

Uh-huh. But I think you're correct. How I am correct? That it was Mr. Flynn, Mr. Dahlen, and Mr. Donato. And now in light of that memory do you now believe it wasn't Donato, but it was Flynn that asked us to come up with a joint recommendation?

A. Q. A.

No, I didn't say it was Donato.

I said it was --

I mean you said it was Dahlen before. Dahlen, right, yes. If it were -- yes, because he

was -- if I remember right I believe he was the chair. Q. A. So you remember it was chair that asked us? I remember -- I remember it was Mr. Flynn, and I think he was the chair, but I do remember it was him. Q. So what did you do to try to come up with a joint recommendation with me to the Board of Selectmen after that meeting? A. I don't, you know, specifically recall what was going on. Q. Do you recall that in December and January your office was working on preparing a motion for summary judgement?

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A. Q. A.

I do. And who was doing that work? Craig Jordan was doing that, but I was doing that, too.

Q. A. Q. A. Q.

And -We were working on it together. Who drafted the affidavit for Richard MacDonald? Craig Jordan would have done that. Did you -- how did he get the information to put into the affidavit?

A.

I don't know.

I assume he either based it on

previous affidavits of Mr. MacDonald or information that was in the file. with Mr. MacDonald. affidavit anyways. I don't know whether he spoke It was a draft

I don't know.

It never got to the point where

it was actually presented. Q. Did you have anything to do with drafting that affidavit? A. Q. A. Other than reading it, no. And did you find it to be accurate when you read it? Well the way that we did all affidavits was we would draft things based on what we believed to be correct in the file and based on all the materials, send it to the person, and then there was either a meeting

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or a discussion and the person corrected it. times there were corrections made.

Many

Many times the

person said it was fine and it was sent out for signature. Q. A. I'm asking you about this affidavit. But I don't know how far along in the pipeline that got. I don't know. The email transmissions would

tell that, whether it was actually sent to him and whether he actually reviewed it. Q. A. Q. A. Q. Do you recall sending it to me? Yes. How did you send it to me? I assume I emailed it to you. So in what form was it in by the time it was sent to me? Was it a draft based on what Mr. Jordan

believed to be -- you and Mr. Jordan believed to be true, or was it based on what Mr. MacDonald believed to be true? A. Well if it weren't signed -- the drafting is all preparatory before it's sent to the person for review. I don't think it ever got to the point

where it was sent to Mr. MacDonald for his -Q. So you -- so what you sent me was a version of Mr. MacDonald's memory that you and Mr. Jordan

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believed he had? A. No, it was a version of Mr. MacDonald's memory that was based on what the file said had actually happened, and it was also based on an earlier affidavit of Mr. MacDonald. some other affidavits. Q. A. Q. A. You know that to be true? Yes. Oh, yes. Mr. MacDonald had done

And which affidavit was it based on? Well one affidavit was an affidavit that was done at the beginning of the lawsuit. The only affidavit

that I actually did that I had sat down with Mr. MacDonald and Mr. Cushing for three or four hours at the town hall to do, and that was a significant affidavit, and that had facts in it about the -- as of -- well by that time that affidavit was filed the entire award had been made, so that brought it up to that point, which is frankly what the controversy in the case was about. So I -- you know, that affidavit is recorded now. Q. Do you recall having discussions with me about this draft affidavit of Richard MacDonald? A. Yes. You -- you -- I believe you told me or you

told recently -- I think maybe you told the court

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that you say -Q. A. Q. Told who? You told the court -No, no, I'm not asking what I said to the court. I'm asking about your memory. A. Q. My memory is -I have a clear memory of what I said to the court. I don't have to testify. A. My memory is on that issue -- on that issue as opposed to other issues that what you told the court is consistent with my memory is that you said that it was not a good idea given the fact that he hadn't remember anything in the deposition that he could not be rehabilitated and that it would be subject to question -- that it would hurt the motion, and I believed at that time that you were attempting to assist in the draft of the motion, and I accepted your advice. Q. So you now recall that I told you it would be a bad idea to have Mr. MacDonald sign this affidavit? A. Q. Right. Because it wasn't the truth. that? A. No, not because it wasn't true. There is nothing in Do you recall I said

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that affidavit that I know of that was not true, and in any event Mr. MacDonald certainly would have the opportunity to read the affidavit before he -- and instruct me as to anything that he felt was not true. That never happened. There was no

affidavit -- nothing that I know in that affidavit was not true. Q. A. Q. It was all true? I don't know that it's true. It's -You

What do you mean you don't know if it's true? just said it was true.

A.

No, I said there's nothing in the affidavit that I knew to be untrue. The person who signs the

affidavit is the person who reads the draft and makes the decision as to whether the draft is correct, and since you have my transmissions you'll see this was done repeatedly with everybody who was asked to sign affidavits. They were sent to them They made

ahead of time or they met with them. suggestions. drafted. Q. A. In most law offices, yes. Yes.

This is the way affidavits are

In most law offices this is the way they were

drafted.

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Q.

Yeah.

In most law offices people actually write

down what they actually remember as opposed to the lawyers telling them what they remember, but I understand. So you're saying that's what you did?

But this affidavit -A. No, no -MR. DAVID: question there? MR. KESTEN: question. question. I'm trying to make a Wait until he -- is there a

I'm trying to get an answer to the Now this -MR. DAVID: Put a question to him and

you'll get an answer. Q. (Mr. Kesten) This affidavit -- this draft affidavit was not that seen by Mr. MacDonald you say. something drafted by you and Craig Jordan. A. The affidavit was drafted by Craig Jordan. not draft that affidavit. Q. A. Q. A. You read it? It was based -- I read it, yes. You approved it? Well no, I didn't -- no, I didn't approve it. not a question of approving it. It's I did It was

I -- Craig Jordan

prepared it and the -- what was going to happen if


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it were not jettison because of your suggestion, it would have then gone to Mr. MacDonald. We would

have sat down with him, and he would have reviewed it, and he would have made any corrections. The

corrections would then be made, be sent back to him for signature, and it would be filed, but no affidavit is complete until the person reviews it and signs it and it's filed with the court. Q. A. Q. Are you done with that statement? Yes. Now the affidavit that you sent here you say prepared by Craig Jordan, approved -- you looked at it, and you thought there was nothing wrong with it? A. Q. Right. So as far as you were concerned it reflected the truth subject to Mr. MacDonald's review? A. Q. Right. And then I told you -- or I told you it would be a bad idea to have him sign that thing? A. Q. A. Q. A. That's what my memory is, yes. And you agreed? I followed your advice, yes. Did you agree with it? I took your advice. I felt that you were going to

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be the person who was going to be trying the case, and that if you felt it was not a good idea then I was acquiescent. Q. I didn't -- didn't challenge it.

Did you think it was a bad idea that he sign that affidavit?

A.

I think you made it a point that I didn't feel that it was my place to dispute. legitimate. I think your point is

I don't know whether it was a hundred

percent correct that Mr. MacDonald could not have reviewed any materials that he needed to review to confirm that it was consistent with his -- with what has transpired in the case and it primarily, you know, referenced to certain things that had happened. Q. It's a simple question, did you agree with me or not? A. I can't answer whether I agreed with or not. acquiesced. Q. A. Q. That's what my answer is. I

You acquiesced? Right. So the selectmen asked us to come up with a joint recommendation. the meeting? Did we give them different views at

A.

My memory of the meeting was, and I will say it

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again, that you had very little input at the meeting. was -Q. A. So who had the answer to it, you? No, it was almost all Mr. Donato in a lengthy statement, and then it was then a disagreement between Mr. Donato and me and I believe Mr. Dahlen, and I believe at the end of the meeting you then spoke. Q. Not a long period of time. I remember that. You were at the very end. My memory of it

Did you hear the question? question?

Could you read back the

A.

You asked about the meeting. (Previous question read back.)

Q.

Here's the question, did you and I disagree at that hearing? At that meeting with the Board of

Selectmen did you and I give them different views of the strengths and weaknesses of the case? the question. A. I believe to some extent. a difference, yes. Q. And it was after that that Mr. Flynn asked us to come up with a joint recommendation? A. Q. It was at that meeting. Right. To some extent there was That's

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A. Q.

Right. After I'd expressed my views and you expressed your views?

A. Q.

Right.

Yes, I'm not disagreeing. Now so then we have the -- do you recall

Thank you.

me coming to your office with regard to a Barnstable County case in January of 2012? A. Q. Yes. Do you recall that at that time we talked about Johnson Golf for a bit? A. Q. A. Q. No. There was no discussion about Johnson Golf? I don't recall any discussion. Do you recall there was some hostility at the meeting? A. I recall that there was a -- some differences that you had with me about different legal issues, yes. Q. Do you recall that you at one point threatened to throw me out? A. Q. A. Q. A. No, that never happened. Well you didn't throw me out, but -Right. -- you threatened to throw me out? No.

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Q. A. Q.

No? No. Now do you recall me asking you a series of questions over the next -- in January and February about facts in the case?

A. Q. A. Q.

You could have.

I don't remember that.

You don't recall? No. So what were we doing to come up with a joint recommendation?

A.

I was working on the summary judgement and sending you, you know, drafts of that. As it were I was

hopeful that the summary judgement -- you wrote back that you thought the summary judgement -- that you liked it, although you never apparently moved forward on it. lapse. Q. A. No, we tried to stay ethical. Well I don't know about that. MR. DAVID: do that anymore. it. MR. KESTEN: MR. DAVID: I'm waiting for an answer. Ask another question. Don't do that anymore. Do not The town just apparently let it

If you have a question you can ask

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MR. KESTEN:

He's making remarks -- tell I can

your client to stop making remarks about me. lower myself to any level as you know. to take shots at me -MR. DAVID: in this. Q.

If he wants

Look, I'm not going to engage

Ask a question if you have one. The town let it lapse, yes.

(Mr. Kesten) Go ahead.

So we were working on a -A. Q. A. I was working and sending it to you, yes. Okay. You're saying what were we doing. you were doing. Q. My question is what were you doing to help us come up with a joint recommendation? A. Well I think the -- you were working on whatever you were doing in the case, and I was working on whatever I was doing on the case. I was trying to I don't know what

win the case, and I was sending you the documents that I was preparing, and at one point you said that you did not like the idea of including the affidavit, which I deleted, and you actually liked the final product, but it was never -Q. A. What's that got to do with my question? That's -- you asked what we were doing. That's --

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Q.

No.

What were we doing to come up with a joint That's the question.

recommendation? A.

If we won the case a joint recommendation was not necessary.

Q.

So you felt that there was no need to come up with a joint recommendation? You would just file your

third summary judgement and win? A. I thought that the summary judgement, and you agreed with me, had a very strong chance of being allow and resolve the conflicts. Q. Yes, I did.

So you decided that rather than come up with a joint recommendation you would just file a summary judgement and win the case?

A.

Well I did not reject coming up with any joint recommendation. I was simply hoping to win the case

in summary judgement, and then if that happened there was no need to recommend anything because we would have won the case. Q. Now do you recall -- what do you recall about how the March 13th meeting came about? A. The March 13th meeting at the senior center? My -- what I recall about that was that you had apparently agreed there was going to be a meeting set up in which Mr. Johnson wanted to in his own

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words give his settlement demand.

I transmitted The town

that information to the town manager.

manager was not happy about it, and I was not happy that you had set it up without my participation. also felt it was very irregular and is not consistent with the way I had received settlement demands in the past, and I said if they want to make a demand put it in writing. Q. A. And that's it? And so I -- and I -- at some point I believe the meeting was set up. I believe that I found a I

location, and you attended and I believe Mr. McKenzie -- or MacKinnon. Q. We'll get to that. We'll get to that. So that's

your memory of how it was set up. at the time? MR. DAVID:

Was I your lawyer

That question is off limits

under Judge Kaplan's ruling or order authorizing this deposition. MR. KESTEN: MR. DAVID: MR. KESTEN: MR. DAVID: How do you see that? I read his words. And what did he say? He says on Page 31,

"Mr. Kesten, I'm going to assume that you will only

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ask those questions that are truly relevant to the matters in dispute in this case which no longer involve the issue of whether if there was an attorney-client relationship." Q. (Mr. Kesten) So on March 13th -- strike that. Did

you -- wasn't it you that insisted that the meeting be held in Duxbury? A. I don't know that I insisted it be held in Duxbury. I know that we were in the middle of the Duxbury Town Meeting that -- that it was continuing on that day, so logistically I had to be in Duxbury. I -- it was not clear to me that the town manager was not going to attend the meeting, so I assumed he needed to be there. So I don't know whether I

insisted upon it or not, but it was the only location that made sense. Q. A. So who came to the meeting? I believe you and Mr. MacKinnon, Mr. Johnson, Mr. Laramee I believe, Mr. Follansbee. There might

have been another person, but I don't know, a Mr. Jordan, me, Ted Flynn. Q. A. Q. Anybody else? Was Mr. Cushing there?

Oh, yes, I'm sorry, Mr. Cushing was there. Who else from the town was there, if anyone?

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A.

I don't think anyone else was -- from the town, Mr. Cushing, Mr. Flynn.

Q.

And who decided who should be at this -- we're calling it a meeting on behalf of the town?

A.

I think -- I think the town manager may have done that. I don't know. I don't remember that.

Q.

Okay.

Who was working at your law firm in

March of 2012? A. Q. A. Who were -- who were the lawyers? Yeah. I believe Craig Jordan. Brian Wall, me. Q. I believe Eric McKenna,

Those were the lawyers. When I say there I mean the

Was McKenna there?

senior center on March 13th. A. Q. A. He could have been, but I don't remember. What happened at the meeting? Well the -- Mr. Follansbee began reading a statement, and I saw that there was something in writing and similar to what the format that I had assumed was the traditional format, and I had been told that it was going to be verbal rather than in that format, and I asked you, you know, "I thought you told me that there was not a written format." Q. And this happened when Follansbee was there?
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go chronologically. A. Oh, I don't know about the exact chronology. I know

that Mr. Follansbee started reading the -- I could see it was -- I think I asked how many pages it was, and it was like 28 or 30 pages long, and he was reading the document and -Q. A. Q. A. Q. A. He was? -- I think I said, you know -He was reading? -- "This is not what I was told --" He was reading? Yeah, I believe he was reading at that point, exactly. Q. Okay. So you saw him reading something which you

hadn't seen? A. Q. A. Right. He didn't hand it out before the meeting started? I don't know whether he handed it out or not. could have. Q. A. But you were there? Well I can't remember whether he handed it out. don't remember that. All I remember -- I do I He

remember he was reading a document that possibly he could have handed it out, and I just said that there

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was no need to read the document.

We could read.

We would read it, and that the meeting was pointless. Q. A. Q. A. And you threw him out? No, he was not thrown out. What did you -- okay. How did he happen to leave?

Well I said that there was no reason for him to read a document, and that unless there was something else the meeting was over. to him. We would read it and get back

Q.

Oh, so you offered him a chance to say something else if he wanted?

A.

I said, "Is there something else besides the document, reading the document?"

Q. A. Q.

You said that? That's my memory. And I take it he said, "No, there's nothing else." Did he respond?

A.

I don't remember.

All I remember is that I had the I thought that the We had town meeting

written settlement document.

mission had been accomplished.

that night, and I had things to do in preparation for the town meeting, and I certainly was not going to sit there and listen to somebody read something

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that I could read myself at a more convenient time. Q. So you said to him -- so you said to him, "Unless there's something else besides you reading this document the meeting is over." A. Q. A. Q. A. Q. A. Right, something to that effect. And they left? Yep, they left. Because they apparently had nothing else to say? I don't know that. You'd have to ask them that. I was there.

I don't have to ask them.

Well I don't know whether you know whether they had something else to say or not.

Q. A. Q. A. Q. A.

Well they were trying to say it? I don't remember that. I do. So does Mr. Flynn. So does Mr. Cushing.

That's fine. Now what happens after they leave? After they left we had a discussion once again about the issue that the selectmen had raised consistently and the town manager was particularly concerned about was whether or not the --

Q.

The town manager was expressing his concern about this?

A.

To me, yes.

About whether or not the insurance

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company was acting in the town's best interests and whether you were acting in the town's best interest. Q. A. Q. A. So this is what happened -And -What happened at the meeting? And so -- so at the meeting what happened was that I said to you that to remember that you as the insurance company attorney owed the town a fiduciary obligation. Q. A. Q. A. You reminded me of that? And there was discussion about that. Really. I did.

And that was the discussion about that?

There was a discussion about various issues, and at that point you then --

Q.

Hang on.

Let's stay on the fiduciary.

You are now

testifying under oath that at the meeting -A. Q. A. Q. Yes, I said --- you reminded me -Yes. -- that I had a fiduciary responsibility to the Town of Duxbury? A. Q. A. Yes, and Mr. MacKinnon, both. And you said that to Mr. MacKinnon? Yes, absolutely.

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Q. A.

That he had a fiduciary duty to the Town of Duxbury? That the insurance company -- as representatives of the insurance company --

Q. A.

Right. That the insurance company and you as representatives had a fiduciary obligation to the Town of Duxbury, yes.

Q.

What was the problem at that point that you identified with my fiduciary duty to the Town of Duxbury that you had to remind me?

A.

Well the problem was that up until this point the insurance company and you had been telling the town that it was going to have to pay any proceeds of settlement.

Q. A. Q. A.

I was telling the town that? Yes. When did I tell the town that? This was talked about at the hearing, the selectmen's meeting that we just spoke of. The

selectmen specifically asked you whether the insurance company was going to fund the settlement. Q. A. And I told them no; is that what you're saying? You -- there was some reference made to Mr. MacKinnon's statement that he had made earlier

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to the town manager and to me at town manager's office, and I believe it's documented somewhere that the town was going to have bring its checkbook. Q. A. Q. A. Q. A. Mr. MacKinnon was talking to the town about it? Right. Because that's his job? Right. Are you saying I said something about it? A reference was made in the discussion that you're asking about to that issue about whether the company was going to step up to the plate and indemnify the town. Q. Okay. So in this meeting you reminded me you're

saying -A. Q. Reminded you and Mr. MacKinnon. Hang on. about -A. There was nothing -- you and Mr. MacKinnon were sitting next to each other. Q. A. And Mr. Cushing? And maybe Mr. Cushing, but he was not pertinent to this particular issue. insurance company. Q. So you told us -- you looked in our direction and He didn't work with the Me. I'm concerned about me. I don't care

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said, "You have to remember that you" -- tell me exactly what you said. A. I don't know exactly what I said. I made a

reference to the fact that you as representatives of the insurance company owed the town a fiduciary duty. Q. A. And what did we say? And that we would -- and that we would expect you to do that. Q. A. Q. A. Q. Expect me to do what? To act in the best interest of the town and not -What had I done --- the insurance company. What had I done up to that point to even conclude that I was not acting in the best interest of the town, Mr. Troy? A. Well the concern was that the insurance company was not attempting to resolve the case with funds that the insurance company had. town to pay the bill. Q. So at this meeting you indicated that you wanted the insurance company to settle the case? A. There had been discussion throughout that the -- we expected the insurance company to step up to the It was looking to the

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plate. Q. A. To settle the case? And not -- and not to stand by the reservation of rights in which it was denying coverage. Q. A. Had you hired Mr. Larkin by then? Mr. MacDonald hired Mr. Larkin and whether it had been -- it was in that time frame, but I don't know exactly -- I don't know the exact date, but it was in that time frame. It was around that time frame,

maybe February or March, yes. Q. A. Before the meeting? It could have been. I don't know. I don't remember

the date it happened.

It could have been before.

It could have been after. Q. Mr. MacDonald hired Mr. Larkin? Mr. MacDonald hire Mr. Larkin? A. Mr. MacDonald interviewed Mr. Larkin in his office -Q. A. Q. A. Who brought him there? -- at least once, maybe twice. Who brought him there? I have no idea. bring him. Q. Well how did he connect to Mr. Larkin? I was there with him. I didn't How did

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A.

Oh, you mean how did Mr. MacDonald get Mr. Larkin's name?

Q. A. Q. A.

Yeah. Is that the question? I gave it to him.

And what's your relationship with Mr. Larkin? I've known -- Mr. Follansbee and I and Mr. Larkin all went to law school together.

Q.

Have you used Mr. Larkin in other situations with your clients?

A. Q.

In some situations, yes, I believe, yeah, not many. Okay. So you told Mr. MacKinnon and I that we have

a fiduciary duty to the town, and then did you say, "That you need to step up -- that you, Mr. Kesten and the insurance company, need to step up and settle this case"? A. I don't know that I said anything to you specifically. Q. Towards me and Mr. -- did you tell Mr. MacKinnon that he needs to settle the case? A. There was discussion about that, about the insurance company needs to step up to the plate. that's my best memory of what -Q. Did you ask -- are you saying that at this meeting you advocating settling the case? I think

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A.

I don't recall what -- I don't recall any discussion specifically about settling the case. I recall that

the insurance company needed to step up to the plate if the case -- if the case were to be resolved, and incidentally I do remember now that Mr. Flynn also asked about the position about how much money it was going to be. There was some discussion about that

in Mr. MacKinnon's statement that the town was going to have to, you know, bring its checkbook was referred to. Q. Now what else was talked about, or what else happened at this meeting besides the discussions about the insurance company stepping up to the plate? A. Oh, you played a tape of the hearing before the selectmen. Q. A. How did that come about? I don't remember. in your machine. Q. I know, but how did that come about? Did I just You had it with you. You had it

say, "Now for something completely different," and turn on the tape recorder or turn on the player? A. Well it was obviously something you had planned. I

don't know what -- I don't know what your intentions

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were.

At some point I remember that the recorder

went on. Q. A. Q. What was the context? I don't remember. Do you remember that I was discussing -- informing the town officials of my views about some of the problems with the case? A. Q. A. It could have been. Do you remember -I don't remember that, but that -- it's not inconsistent with what could have happened. Q. What does that mean it's not inconsistent with what could have happened? A. Well I remember you -MR. DAVID: He said it's not inconsistent

with what could have happened. Q. A. (Mr. Kesten) I know. What does that mean?

Well it means that you were making some comments and you -- as part of those comments you turned the tape on. That's what you said. You did. I remember you

said, "This is going to be played to the jury," and I said, "Well I don't think it's admissible," and you insisted that it was, and of course the fact that you had brought this to the meeting in terms of

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the whole settlement meeting was of concern to me. Q. So you were concerned -- you distrusted me on March 13th? A. No, I felt that you were representing the insurance company's interest. Q. A. Against the town? I felt that and so did the town, and this has been mentioned at meetings with the town manager and the selectmen prior to this. Q. A. Right. Nobody trusted me? It was a question of

It wasn't a question of you.

when the insurance company is defending a case under a reservation of rights there is concern as to whether or not the company is acting in the best interest of the insurance company or the client. That's what the issue was. Q. So at this meeting as I'm showing this tape you questioned my motives? A. I don't know that. I don't remember. I don't

remember the -- I remember you showing the tape, and I believe that I said that I don't think the tape was admissible. Q. And do remember me showing it to Mr. Flynn specifically?

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A. Q.

I do, yes. I slid it over so he could look at it then, didn't I?

A. Q.

I don't remember that, no. And do you recall me saying that the concern is that the jury would see on the tape that what you're saying to the selectmen wasn't true?

A.

No, I don't recall saying that, but I -- if you did say that I certainly would reiterate that whatever I said to the selectmen was consistent with what I understood to be the truth at the time, and what I had been told by town officials repeatedly as you know since you have all the email transmissions.

Q.

The town officials told you consistently that Pamela Hagler had written the entire document with no input from you or anyone else, Mr. Troy?

A. Q. A.

That's not what the statement says. So what had town officials told you consistently? Town officials consistently said that the town had referred the document, the RFP document to a consultant, and this was said by Mr. Cushing. was said by the director of finance. It

It was sent to It

all of the selectmen and to the town manager.

was reaffirmed by Mr. Cushing after that tape was

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played in a document -Q. Who drafted the document? finished? A. Q. A. No. Go ahead. Mr. Cushing wrote a memorandum after -- after the date of that meeting in which he said that the consultant had been given the documents. Q. What was the question Mr. Donato asked you? MR. DAVID: A. Q. Objection. I'm sorry, were you

I don't remember that. (Mr. Kesten) He asked you who drafted this document. The consultant --

A.

I don't know that that's what -- I'd have to see what he asked. that. I don't know. I don't remember

Q.

Mr. Troy, was it your understanding on October 1, 2010 that Pam Hagler drafted the document?

A.

Everybody in the room knew how the document -- everyone had participated. Everyone had

been emailed everything about the document. Everybody knew exactly who -- what had been done, and they also knew as the final step had gone to a

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consultant, and when a consultant reviews a document then the consultant in my opinion has approved the document. Q. A. Q. A. Q. What's that got to do with my question? It has everything to do with your question. Who drafted it? Did she draft it?

It was not -- the consultant -Mr. Troy, the question is did she draft the document?

A.

When a consultant -- I don't know that I said that she drafted the document. MR. DAVID: Listen to his question. Did

you say she drafted the document? A. Q. I don't know -(Mr. Kesten) No, I didn't say did he say it. I

asked you whether you believed on October 4th of the year of your Lord, 2004, that she drafted the RFP? Did you believe it at the time, Mr. Troy? A. I would appreciate you -- you've consistently made this reference, "the year of my Lord". I would

respectfully suggest that you not raise any issues about my religious beliefs. Q. I'm referring to you. MR. DAVID: Not to him, not to him -Let's --

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A.

I think it's completely inappropriate, and I also think it's barred by the Code of Professional Responsibility.

Q.

It's barred by the Code of Professional Responsibility? MR. DAVID: Let's move on.

Q.

(Mr. Kesten) Fine. offensive.

I will -- if you find it I will not use

Nobody ever has before.

it around you. A. Q. You've done it repeatedly. I use it all the time. MR. EDGE: Can we agree that Hebrew God is

the same God as the Christian God so we can stop saying that they're not? MR. KESTEN: MR. EDGE: Did you get that?

What?

Can we all stipulate that the

Hebrew God and the Christian God are the same God so everyone will stop suggesting they're not? MR. KESTEN: Lord or God? MR. DAVID: MR. KESTEN: offensive I will stop. MR. DAVID: Can we stop -I'll stop. No, no, if it's No, I said Lord. Did I say

That's not a problem.

Thank you.

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Q.

(Mr. Kesten) 2004 -- 2010, October 4th, at that time did you believe that Pam Hagler had drafted the RFP?

A.

Did I believe -- no, I believe that Pam Hagler had reviewed --

Q. A. Q.

The answer is no? Had reviewed the RFP -That's not the question. That's not the question. You weren't asked that. Did you believe on

October 4, 2010 or at any time in your life that Pam Hagler drafted that RFP? A. Everybody in the room knew exactly how the RFP had been drafted. Q. Mr. Troy, it's a simple question, and you don't want to say no; right? A. Q. A. I already said no. You did not believe that she drafted it? I did not believe that she drafted it. that she reviewed it and -Q. Okay. And Mr. Donato asked you, "Who drafted the I believe

request for the proposal?" A. He could have. I don't know. Let me see.

Mr. Donato said, "Who drafted the request for proposal," yes. Q. That was the question; correct?

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A. Q.

Correct. All right. Can I have that back? And what you said So what

was, "We have the information here.

happened was that the company designed the RFP completely. A. Q. A. Q. A. There was no input here."

Well that's only a portion of what I said. What did you say? Well you have it there. So -Why don't you hand it to me, and I'll read you for the record so it's accurate.

Q.

I understand what you said, nobody at the town hall --

A.

So it's accurately -- let's have the whole statement so it's accurate.

Q. A.

Knock yourself out.

So read it in. I will tell

"I can tell you I don't know the name.

you this because I think a lot of what we do here in the town is not fully appreciated. We've been doing

procurements here in Duxbury -- as a matter of fact Scott Lambiase has been doing them, and we have done them perfectly without a hitch. anything about it. I haven't heard

In this particular case it

was" -- and that refers to Mr. Lambiase had taken

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over procurements.

"In this particular case it was

decided that the matter was so specialized that we actually went outside of town hall and hired a procurement company. Do you know the name of it?" I

Mr. Cushing says, "Not at the top of my head."

said, "I know they're in Plymouth to design those. There's been much said about there was some kind of conspiracy or something at town hall. The honest

answer is that town hall had nothing to do with the entire procurement document. It was sent out to a

vendor who had expertise as we understood it in the field of golf course procurements, and I believe, I don't remember, it was a woman." "Uhm-hmm." Mr. Cushing says,

Mr. Troy says, "It was a woman who has a We have the information here.

company in Plymouth.

So what happened was that the -- that the company designed the RFP completely. There was no input

here in town hall except that I added as I do in all when it came in the language which we used to procure the town in the procurement process" -- to protect them, sorry -- "in the procurement process that we reserve the right to reject all bidders if it's determined to be in the best interest of the Town of Duxbury. Other than that it went out just

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as it was prepared which we ironically used in rejecting the first set of procurement. someone provide that to the board? Could Could you So as you

Sure.

get that," and Mr. Cushing said he could.

see I did not say in this answer that the RFP was drafted completely. Q. A. I said it was designed.

Did you believe it was designed? I believe that when you send a draft document to a specialist, and the specialist reviews it and approves it, that in that particular circumstance that expertise, the procurement expertise, they own it, and that person could be legally responsible for any problems with respect to the procurement, yes, I do.

Q. A. Q. A.

What the hell does that got to do with anything? It is -- well it is -That she legally owns it? She didn't design it?

It has everything to do with the fact and the reason why the town sought to have the RFP reviewed by the procurement expert.

Q. A. Q.

For what? Because of the need for expertise. What does that got to do with any of the questions you've been asked?

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MR. DAVID: A. Q. A. It is --

Objection.

(Mr. Kesten) Did she design it? If the RFP had been sent to a consultant and the consultant reviewed it and made either changes or no changes, that final document is what -- is the reason why you hire a procurement expert, and I believe that that had been done, and as you pointed out on the front page of the Duxbury Clipper, no one had ever told me otherwise even though I had persistently been referring to the consultant.

Q. A.

What are you talking about? I'm talking about your quotation in the Duxbury Clipper.

Q.

You want to start talking about the Clipper? not talking about the Clipper.

I'm

A. Q. A.

No, no, I'm just saying that you affirmed -Affirmed what? -- that all the town officials never gave me any information inconsistent with that particular characterization that I made.

Q.

What are you talking about? design it?

Mr. Troy, did she

A.

I said she did, yes.

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Q. A.

She designed it? In my -- I know now that she did not, but did I know then she did, yes, I believe that she had reviewed and Mr. Cushing said two days later in a memorandum that she had done exactly that.

Q. A. Q. A. Q. A. Q.

That she reviewed it? That she reviewed it, right. He did say that? Right. Yeah. Right. I am asking you whether she designed it. totally different thing. us -It's a

Are you trying to tell

A. Q.

What I'm trying to tell you is -Wait for my question. Are you trying to tell

us -- are you telling us that in the mind of Robert Troy saying that the procurement expert had designed the entire RFP is intended to convey that she had looked at something that we had written, and by we I mean you, Cushing, the North Hill Advisory Committee, Betsy Sullivan, Richard MacDonald and John Madden had written and put together and she reviewed it and approved it

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that equates to she designed it completely? A. No. The -- what the procurement expert had done I

believed at that time had looked at the RFP that was prepared, the draft by Gordon Cushing, she had reviewed it. I believe she had approved it, and as

a result of that in my opinion she had brought professional expertise to the table -- yes, I use the term design. I believe that a professional

approval of the document is equivalent to a design. Q. A. Thank you. Certainly everybody understood that other people had been part of the product that went to her. Q. Yeah. It's awful funny, though, that Cushing in his

memo says in response to the question of who drafted it he says, "We did." MR. DAVID: Q. There's no question.

(Mr. Kesten) Did you notice that Cushing said that in his memo on the 13th, "We drafted it," the people at town hall, and that she reviewed it, whereas when you were asked who drafted it you said she designed it fully and the only input -- by the way, Mr. Troy, your memory is that you put in the phrase -- what did you say here -- the only input you had, "The language that we needed to protect the town in the

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procurement process and we reserve the right to reject all bidders." it? That's the language you put

Is that what you said? MR. DAVID: Objection. You can answer.

A. Q. A. Q. A. Q. A. Q.

I didn't say that's the only language that I put in. (Mr. Kesten) Did you say you put in that language? I said I did, yes. You put that language into this document? I had recommended that that language be put in, yes. When was that? At some point during the process. Isn't that language -- hasn't that language been in every RFP every issued by the Town of Duxbury?

A.

No, it was not.

There was a -- there was an

instance when it had not been. Q. Now you also put in other language -- you also suggested other language into this RFP; right? A. You've used the right term. in there. I put nothing. I didn't put anything

I made suggestions that

were sent to Mr. Cushing and all of the people on the email. Q. A. Mr. Cushing in return -He physically put it in. He did not put

Then put it.

No, excuse me, he did not put it in. all of them in.

He put some of them in.

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Q.

So Mr. Troy, we have the tape that I tell -- I tell Mr. Flynn that I think that you're not being truthful, and I take it you disagree?

A. Q. A. Q.

No, I don't think you said that, no. What did I say? No, no, I don't remember what you said. So were you concerned -- were you happy that I was showing him the video?

A. Q.

I didn't -- I don't think the tape is material. Were you happy that I was showing Mr. Flynn the video?

A. Q. A. Q.

I don't think I was happy or unhappy. You weren't unhappy? I don't remember being happy or unhappy. What do you remember your reaction was to me showing Mr. Flynn this video and my comments about it?

A.

I don't remember any reaction. remember.

I just don't

Q. A. Q. A. Q.

How long did this meeting last? An hour and a half. When's the next time you and I spoke? When's -- I'm sorry? When's the next time you and I spoke after this meeting?

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A. Q. A. Q.

I don't know that. About? I don't remember.

I don't remember.

Do you remember that you and I spoke prior to April 4th?

A. Q. A.

I believe after the meeting on March -Thirteen. -- 13th that I received a deposition notice that was dated the 14th. MR. DAVID: began at 2:12. MR. KESTEN: I'm happy to take this The fact that Mr. Troy Okay. It is now 3:45. We

transcript to the court. won't answer -MR. DAVID: to do that.

No, no, you're going to have

The time is up. No, it's not up. You had 90 minutes. Your client has not answered I

MR. KESTEN: MR. DAVID: MR. KESTEN: questions.

He's rambled on forever about stuff.

will not be limited. MR. DAVID: MR. KESTEN: then walk out. We -Then you better walk out,

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MR. DAVID: MR. KESTEN: MR. DAVID: MR. KESTEN: MR. DAVID:

Mr. Follansbee has 30 minutes. No, I'm not finished. I think you are. No, I'm not. We're not going to have this You're done.

discussion back and forth. MR. KESTEN: MR. DAVID:

No, I'm not. If Mr. Follansbee wants to ask

questions we have 30 minutes. MR. KESTEN: MR. DAVID: No, I'm not. If you don't want to ask

questions now then I suppose you could forfeit that, but Mr. Kesten is done. MR. KESTEN: Your client has been The man

completely unresponsive and you know it. has not answered questions. with his answers.

He's carried on forever

You have chosen to allow it, and

now claiming that he can run out the time by running his mouth. He did not answer my questions, so I

want to finish this deposition as opposed to wasting the court's time with something this silly. It's a

silliness on your part because you know it's true, that he has not been answering the questions. MR. DAVID: This deposition was limited to

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questions involving the facts of this case.

Most of

what I heard involved your arguing with him over what he told you and you told him. what you want to ask. Now fine, that's

You had 90 minutes of it, but His answers to the extent

your questions rambled.

he could understand them I think were responsive. You're done. MR. KESTEN: MR. DAVID: ask any questions? MR. FOLLANSBEE: MR. DAVID: I have questions. Then let's -I'm done? Does Mr. Follansbee want to

Okay.

MR. FOLLANSBEE:

But I -- you're reading

evidently from Judge Kaplan's order. MR. DAVID: 30 minutes. MR. FOLLANSBEE: anything? MR. DAVID: MR. EDGE: talking about. No. I don't even know what we're Was David Edge allotted I am. You were allotted

There was an order? Yeah, it was an order. That's

MR. DAVID: why we're here. MR. KESTEN:

It was a verbal order after

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they chickened out on the evidentiary hearing on that -MR. DAVID: Let's -All right.

MR. FOLLANSBEE: MR. KREIGER:

I'll just note my objection

to the position being taken by Mr. David. MR. KESTEN: Monday. We'll be back. We'll do it

Can you come Monday morning at nine, Allen? MR. DAVID: We have a pretrial at 9:00 on

Monday morning. MR. KESTEN: Yeah. Can you come? That

way we'll all be there and the judge will be there, and I can address my motion to compel for sanctions. MR. DAVID: Monday morning. MR. KESTEN: All right. Well we'll find I don't think I can make it on

a -- well when can you make it because I have only got tomorrow and Monday before the trial. MR. DAVID: I would like a transcript

because you're saying that the answers are incomplete and rambling and non-responsive. MR. KESTEN: listening. MR. DAVID: And I want a transcript. I'm Well you were here. You were

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not going to have a hearing on this without a transcript. MR. KESTEN: Good point. All right.

We'll get you a transcript. Monday?

How about a week from Can you come

This trial may be postponed.

April 1st? MR. DAVID: Right now I don't know. I

don't have my calendar with me. MR. KESTEN: All right. I'll work with

you on getting a date so we know when, but I will ask for sanctions for this because you've been here and you've listened to this. transcript. We'll get the

I understand what you want

professionally with the motion, but you've listened to this man ramble on -MR. DAVID: And what I've heard was

consistent and responsive to the questions you were asking. Now you have 30 minutes. MR. FOLLANSBEE: MR. DAVID: You have a stop watch?

I do. Turn it on. It is 3:49.

MR. FOLLANSBEE: MR. DAVID:

Okay.

CROSS EXAMINATION MR. FOLLANSBEE:


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Q.

Mr. Troy, do you remember appearing before Judge Herman Smith on January 27, 2009 in the Middlesex Superior Court on an argument about us trying to get an injunction on the case?

A. Q.

Vaguely. And do you remember telling the judge that the town hired a consultant -MR. DAVID: Can we take a break and maybe

you move up here so we can do this -MR. FOLLANSBEE: MR. DAVID: Sure. Okay.

Go ahead.

(Discussion off the record.) MR. FOLLANSBEE: Before we count my

minutes I just wanted the record to reflect that the witness had been testifying from an exhibit which was a transcript. It was No. 13. MR. DAVID: MR. EDGE: Okay. Just to clarify that's the one I wanted to just give the number.

he was talking -- that's the minute notes that we're talking about? MR. FOLLANSBEE: MR. EDGE: Q. Okay. Yes. Thank you.

(Mr. Follansbee) Now Attorney Troy, I had just asked

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you about the hearing before Judge Smith on January 27, 2009 and do you remember appearing at that injunction hearing representing the Town of Duxbury? A. Q. I do. And do you remember telling Judge Smith that the town had hired a consultant to do the RFP because they wanted to open it up to people other than people running municipal golf courses? A. Q. No, I don't -- I need to see the -Okay. I'm going to show the witness -- it's Page 22

of the transcript, and it's Exhibit No. 12 of the deposition. A. Q. A. Q. A. Q. No. 22 is the one on your left.

You said it's on Page 22? Yes. Oh, okay. I think if you look at Line 17 to -Yeah, okay. I see that.

And so you told the judge that the town had hired a consultant to do this RFP; correct?

A.

I said the town -- well one of the -- I said the town hired a consultant to do this because they wanted to open it up to people other than people running municipal golf courses, yes, I said that.

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Q.

And then you went on to say, "That's why they talk about comparable business experience". Correct?

A.

It says, "And for that reason that's why they talk about comparable business experience."

Q. A. Q.

Who is the they that you were referring to? I don't know. Well didn't you insert the expression comparable business enterprise or comparable business experience in the RFP?

A. Q.

No, I did not.

I suggested language.

You got a draft of the RFP, and then you sent a draft back with your own handwriting on it which --

A. Q. A. Q.

I did. -- is Exhibit No. 1 of this deposition; correct? Yes. And in your handwriting on the draft that you sent back to Mr. Cushing you wrote the words comparable business enterprise; correct?

A. Q.

I did.

That's correct.

And you wrote it in multiple locations within the document; correct?

A. Q.

Yes. So the origin of the expression comparable business enterprise was you; correct?
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A. Q.

Well the person who drafted those words is me, yes. Okay. So when you were telling Judge Smith that

that's why they talk about comparable business experience what you meant to say was that's why I suggest comparable business experience; correct? MR. KREIGER: MR. DAVID: A. I don't know that -MR. KREIGER: phrase stays accurate. enterprise I think -MR. FOLLANSBEE: the -MR. KREIGER: experience? MR. FOLLANSBEE: experience. MR. KREIGER: objection. A. Well actually the transcript says enterprise and experience within two sentences of each other. I Okay. Then I withdraw the The transcript says The transcript says Yes, but he can -- in I just want to make sure the Comparable business Objection.

Objection.

guess I would have to say that the precision that you are expecting in a verbal oral argument would -- is inconsistent with what I'm able to

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deliver, so I frankly am not sure what -- what the word they meant. Q. I don't know.

(Mr. Follansbee) Well you were well aware that the expression comparable business enterprise was something that was a very contentious matter in this litigation as well as in the RFP; correct?

A.

I'm aware of that now. aware of it then.

I don't know that I was

Q.

Well you drafted the answers to the questions from the bidders in October of 2008, didn't you?

A. Q.

I could have. Well I suggest your billing records indicate that you did that, and you testified to that.

A. Q.

All right. And one of the questions was, "What does the expression comparable business experience mean"; correct?

A.

I think so. remember.

That's just my memory.

I don't

Q.

And the answer that was provided was no answer; it's self-evident; correct?

A. Q.

I don't remember. Did you ever tell Gordon Cushing that he better stay with the program or his job would be in danger

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regarding this litigation? A. Q. No, never. Did you hear him testify to that affect at the hearing down in Plymouth Superior Court? A. Q. I don't remember him saying that, no. Now in the draft of the award letter in January of 2009, you drafted the document; correct? A. Q. A. I drafted -- in January 2009? Yes. I drafted at the town manager's request a letter which reflected his discussion that he had made. Q. And that was what I referred to as the award letter to CALM Golf; correct? A. If that's the way you want to refer to it that's fine. Q. And that's Exhibit No. 4 at this deposition; correct? A. Q. A. Q. A. Q. A. At this deposition? Yes. That's -- in other words Exhibit No. 4 is -It says 6-28-12 on it.

It's already marked.

The exhibit number is what I'm referring to. Oh, it says B and it says four. Okay. Yes. This is it.
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Q.

That's it.

And in the award letter it indicates

that CALM Golf was currently operating a golf course. Do you know what golf course CALM Golf was

operating? A. Q. No. Did anybody ever tell you that CALM Golf was operating a golf course? A. Q. A. Yes. Who told you that? This was based -- this document I drafted based on the evaluations and on my notes from the meeting that was held between Mr. Cushing, me, and the town manager in January, and Mr. Cushing had said that. Q. So Mr. Cushing told you that CALM Golf was operating the Rockland golf course; is that it? A. I don't know what golf course it was. My memory too

is that one of the evaluations says -- they might have said that they were operating two golf courses. I don't know. There was something in the

evaluations, too. Q. But aside from the evaluations the award letter indicates that Mr. MacDonald had reviewed the proposals as well; correct? A. Yes.

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Q.

And both you and Mr. MacDonald and Mr. Cushing had been made aware from my client, Mr. Johnson, that the Rockland golf course was being operated by another company owned by Mr. Lanzetta, which was then in bankruptcy; correct?

A.

Somehow there had been a communication I believe from Mr. Johnson to Mr. Cushing.

Q. A.

And the communication had been -That said that what you just said. was -That there

Q.

And it was more specific.

It said that there was a

company called CP&L and that that company was owned by Mr. Lanzetta and it was in bankruptcy. that all made clear to the town? A. I think it was, although that was made clear outside of the procurement process. Q. So if you got information outside the procurement procedure, you'd disregard it; is that what you're saying? A. I don't think legally you're suppose to accept information outside of the procurement process. I Wasn't

think you're suppose to look at the findings of the evaluators, and to the extent that if you considered, you know, emails of competing people,

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you would be dealing with a lot of hearsay and things that are not part of the process. Q. Did -- did they pro -- didn't the RFP ask for contact information for the other golf courses that people were running? A. Q. I don't remember that. Didn't the RFP specifically say for any golf course you're running give us a contact person there so we can get in touch with them? A. Q. It could have. And would that be illegal under your view of the procurement laws to then call those folks and say, "Hey, is this guy really running that golf course"? A. Q. Well I assume that the evaluators could check that. Would it be the evaluator, or would it be the chief procurement officer? A. It could have been -- I don't know. I'd have to

look this up I mean, but I think that it could be the chief procurement officer I assume. know the answer to be honest with you. I don't I'd have to

look it up, but I don't know the answer, but it could. Q. Why -- why did the town rescind the award to Attorney Edge's client, CALM Golf, in
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October of 2010? A. Well I think I've already testified about the process that the board had relieved the town or appeared to be about to relieve the town of the injunction which was keeping Johnson Golf running the premises and at that time the town manager said, "Let's have people from CALM Golf in," and the meeting was set up, and they came in, and he was very dissatisfied with their response and concerned about their ability to run the course, and then instructed me to make an inquiry with the Inspector General whether we could re-bid it. Q. And was he more concerned in October of 2010, meaning Mr. MacDonald, then he was in January of 2009 when I sent you a letter and you forwarded it to him in which it said CALM Golf didn't have any equipment, and they only had a 169 bucks in the bank? A. I can't answer that. answer that. Q. Well was it a concern to you when you received my letter of January 16, 2009 where I told you that CALM Golf wasn't running Rockland. The company that CALM only I don't -- he would have to

was running Rockland was in bankruptcy.

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had a 169 bucks in the bank. any golf course. had no equipment. A.

They weren't running

They had no experience, and they Did that concern you? I wasn't

It wasn't a matter of concerning me. making any decisions.

Q. A.

Well -The letter that you refer to, if I'm correct, and I'm not sure -- I'm not even sure I remember that particular letter.

Q. A. Q.

I'll help you. All right. It's Exhibit No. 11. MR. DAVID: How am I doing on time? You're doing fine.

A.

All right.

This letter you have you say you had met

with Mr. MacDonald and his staff earlier in the morning before you even sent this letter apparently. So you said you left him a handwritten note. this letter. I got

As soon as I received it I then sent

it back to Mr. MacDonald and Mr. Cushing. Q. Well it must have been quite shocking to find out that everything in Mr. MacDonald's letter from the day before was being contradicted by the letter that I sent. A. Wasn't that a concern to you? I

I sent it to Mr. MacDonald and Mr. Cushing.

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believe I spoke with each of them, but this is just my memory because I do remember it came about immediately after the award. Q. A. And did you -I was instructed to then communicate, take this information and bring it to Mr. Edge's attention and get some type of rebuttal. Q. And as far as rebuttal, there was no rebuttal saying that CALM Golf was managing some other golf course, was there? A. Q. I honestly don't remember the rebuttal. Was any -- did you get any financial statements from CALM that said, "Wait a minute, we have a lot more than a $169 in the bank"? A. My memory is that Mr. Cushing looked into this issue, and he had some feedback to the town manager, and that Mr. Edge, I believe he sent something in writing which was then sent back to the town manager. Q. Well then a couple of weeks later Judge Smith issues his injunction decision, and you received it. received it, and then you indicated in your deposition earlier that you submitted a writing to the selectmen with regard to the February 2nd I

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decision of Judge Smith.

Have you turned that

letter over to successor counsel? A. Q. All my documents were turned over. And do you know what you said in that letter that you -- when you sent it to the selectmen about the injunction being issued? A. Q. A. Q. Are you saying the February 2nd? Yes. I don't remember anything happening on February 2nd. February 2, 2009 Judge Smith issued an injunction giving my client control of the golf course and in joining the town from awarding to CALM Golf. You

indicated earlier in your deposition that shortly thereafter you submitted a letter to the selectmen giving your analysis of that decision, and I just want to know, have you turned that analysis and that letter over to successor counsel? A. Well I turned everything over. There was -- after

Judge Smith issued the injunction I believe -- and I don't have the records -- there was an executive session convened at some point, and I also forwarded a copy of Judge Smith's order to the selectmen and to the town manager. Q. And Judge Smith's --

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A.

And I also -- I also wrote a letter at some point in February or March that said that the -- that Judge Smith had made, you know, findings suggesting that the award was in error.

Q.

And his findings were pretty specific about the shortcomings that CALM Golf had; correct? MR. EDGE: Objection.

A.

Well the findings were mixed, but they were not -- yes, they were not kind to CALM Golf.

Q.

And it alerted everybody to the fact that CALM Golf's financial statements, No. 1, were not audited, and No. 2, showed they had no equipment or assets; correct?

A.

Well I don't know that it -- it alerted everybody to that fact that the court had made these findings.

Q.

But it also quoted from CALM Golf's proposal and said even CALM Golf says, "Our statements are not audited, and we only have a $169 in total assets." Didn't he put that right in his decision?

A.

I remember the thing about the $169.

I don't

remember the other aspect, but I'm not saying it's not true. Q. I just don't remember.

And you indicated that the -- at least with some members of the Board of Selectmen there was anger

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and resentment towards Johnson Golf for having filed the lawsuit. Did anybody ever explain to you what

the source of their anger and resentment was? A. In the executive session and in any communications with the board at that time, the board that existed at that time -Q. A. Yes. -- the board felt that the town had done the correct thing. Q. And was that based upon the fact that an outside consultant had done the drafting of the document? A. I don't think so. I think it was based on the

selectmen's own understanding of what the facts were as they had seen the documents. Q. And -- but the documents they had seen were all misrepresentations of fact, weren't they, because the award letter of Mr. MacDonald says that CALM Golf was running a golf course, and they weren't, and his award letter says CALM has sufficient financial assets, and they had none; isn't that correct? A. The selectmen saw all of the documents, the pleadings. My practice was then and was until the

end to send to town hall everything that was sent to

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me about a case and everything that I sent out, and the selectmen appeared to be fully aware during executive session about, you know, the respective positions of the parties. Yes, they certainly

understood that afterwards there was some information that suggested that everything that had been represented by CALM Golf might not be accurate. They did understand that, but they, you know, at least in what they told me instructed me to -- because this settlement proposal was discussed with them. They instructed me to continue in the

defense of the town manager's decision. Q. And what did -- did you give any input as to what you thought would happen? A. Well the first question was -- the entire focus of the town at this time was on the issue of the injunction. That's all they were concerned about at They were not looking down the

the initial stages.

road to what might ultimately happen, and their concern was that they felt that the injunction was erroneous, and they felt that the board should not be telling them who can run their golf course. Q. A. Pretty arrogant don't you think? Well this is --

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MR. DAVID:

Objection. Objection. Objection.

MR. KREIGER: MR. KESTEN: A.

I don't have any -- what the selectmen directed me to do was to -- and asked me about initially was, "What about the injunction," and I advised them that given the -- and you know this because I communicated with you during this time, that the best thing to do given the fact that it was January or February, let's live with the injunction. Let's work with Johnson to make it work, and then see whether we can win the case through some dispositive motion. terms of our -That's what the strategy was in

Q.

And the they that were very upset and thought that they should be able to pick who they wanted to run their own golf course would be the three members of the selectmen?

A. Q.

Yes. And that would be Mrs. Sullivan, Mr. Martecchini, and Mr. Witten; correct? elected in 2009. If it helps Mr. Donato got

A.

Yes. time.

No, I know he was not on the board at that It was those three individuals and the town

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manager. Q. A. Q. Mr. MacDonald? Yes. And the -- as far as the drafting of the RFP, some of the input in the RFP involved a golf practice facility to be built, and that was the input from Mrs. Sullivan who wanted that as part of the RFP; correct? A. Well that never appeared in the RFP, so I wouldn't call it an input, but it -Q. A. Q. A. Well it is in the RFP, isn't it? No, no, not in the final RFP. No, I mean in the early drafting of the RFP. Oh, yeah, in the early drafting my memory is that Mrs. Sullivan and Mr. Martecchini were involved in that issue. Q. A. But they -Or they both were on the same side. remember. Q. But at least one or both of them wanted the practice facility as part of it -A. Q. A. Yes. -- and that's why -Yes. I don't I can't remember who was on which side.

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Q.

-- that language appeared in the draft of the RFP that you marked up?

A.

Yes, because that had been discussed before the RFP was even drafted in that format. I think that had

been discussed with the North Hill Committee because they had been holding meetings throughout the year including up until the night before the meeting -- the first meeting I had and the only meeting I had with Mr. MacDonald and Mr. Cushing at town hall in September. Q. And at least in one draft of the RFP, and I'll represent to you that Exhibit No. 1 includes that language -A. Q. Right. No, I'm not disagreeing.

In fact, Paragraph -- Item No. 7 is the practice facility requirement.

A. Q.

Yep. That was the input from at least one or both Mr. Martecchini and Mrs. Sullivan; correct?

A.

I believe so, yes. MR. FOLLANSBEE: left? MR. DAVID: You have about six minutes. I'll give my six minutes Do I still have any time

MR. FOLLANSBEE:

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to Attorney Kesten. MR. KREIGER: I have a question, what time

do you have that we started the deposition? COURT REPORTER: MR. FOLLANSBEE: give -MR. DAVID: it works. I don't think that's the way 2:12. Whatever time left I'll

Under the order Mr. Kesten has You have 30 minutes, and as

90 minutes.

Judge Kaplan said, "So we got two more hours at the outside of Mr. Troy's deposition." So I think that

if you want to use your 30 minutes, you have five minutes to go. MR. KESTEN: me to use it? MR. DAVID: intent. I don't think that was the You have 90. So you're not But you're not going to allow

He has 30 minutes. MR. KESTEN:

I don't care.

going to allow -- you are going to insist on walking out rather than we spend ten or fifteen minutes to finish? MR. DAVID: I think that Mr. Follansbee

should use up his time. MR. FOLLANSBEE: Well with all due

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respect, and I appreciate your input on what Judge Kaplan wrote. this case. We're shortly going to trying

I'd like to finish today, and I tried to

ask my questions as fast -MR. DAVID: have -MR. FOLLANSBEE: MR. DAVID: As fast as I could -I think just finish. You

I understand. -- to be within the

MR. FOLLANSBEE: two-hour window, and I -MR. KESTEN:

Are you done? I'm done, yeah. I would like -- I

MR. FOLLANSBEE: MR. KESTEN:

Okay.

would like to ask you to give me ten or fifteen minutes, and I will finish so we don't have to have this silly fight with the judge. MR. DAVID: MR. KESTEN: Can I talk to my client? Of course.

(Brief break.) MR. DAVID: MR. KESTEN: You have ten minutes. Ready, go.

CONTINUED DIRECT EXAMINATION BY MR. KESTEN: Q. What was the next communication -- the next time you

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and I spoke after March 13th? A. The next time we spoke I believe after the deposition notice came there was emails, and we had a communication -- a telephone communication about the deposition that was scheduled for me, for my deposition. Q. We had a telephone conference between March -- after March 13th about your deposition? A. Q. A. Yes. When was that? I believe it was -- it was during the period of time when you and I emailed back and forth and during I believe the first three or four days of the week of March -- I can't remember the date, 19th. Q. A. Q. Who called who? I think we exchanged calls. Did we talk? called who? A. Q. A. Q. A. Right. Oh, I don't remember that. When we spoken -- when we spoken who

What phone were you on? I don't remember that either. What is the universal phones you could have been on? We've already gone through this. It could have been

any of the phones that I have access to.

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Q. A.

What phones do you have access to? Well I have my own phones. I have phones -- I don't I had

know how many cell phones I had at the time. office phones. Q. A. Mr. Troy, you had multiple cell phones?

It might have been two at -- I was switching at around this time.

Q. A.

What was your number? I don't know. I know my number now, but I don't

remember what my number was then. Q. A. What's your number now? 508 -- why don't I write it down. I don't want

people -- it's posted on the internet. Q. It's posted on the internet? MR. DAVID: No, no, this is personal If it becomes relevant

identifier information. we'll -Q.

(Mr. Kesten) Just give me the phone number. it down. MR. DAVID: Write it down. What did we

Write

Q.

(Mr. Kesten) Write it down.

talk -- what was the substance of that conversation? A. Just that the deposition had been noticed. That

the -- that I wanted to talk to the town manager

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about whether it was in the best interest of the town and contemporaneous with this we had some conversation about attorney-client privilege and waiving it and whether that was in the best interest of the town. Q. A. That's all you remember about that conversation? No. That was the beginning of the conversation, and

afterwards I said well in the event that you expressed it, I probably would have to be deposed or would be deposed, and I said that in the event my best memory -(Discussion off the record.) A. That my best memory was that I said that if you were right and the deposition did go ahead I would need a lot of preparation. Q. When's the next time you and I spoke -- well wait a minute, strike that. A. What did I say?

I don't remember anything specific other than just we would see what would happen, but if -- in the event that I did need to prepare that that would happen, something to that effect. I don't remember

it because I frankly assumed you were going to do that. Q. When's the next time you and I spoke?

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A. Q. A.

Oh, I don't -- I don't remember after that. Do you have -I don't have a memory of all the times we spoke. spoke a number of times. We

Q.

After that conversation you just described you and I spoke on the telephone. The next time --

A.

I think there was another conversation that you -- you had something about the date was different and that you were going somewhere or something to that effect.

Q. A.

What date -I don't even know whether it was the date that was scheduled wasn't going to happen or -- I don't remember and I don't know whether we -- we were communicating by telephone and by email, so I can't remember.

Q.

Do you believe -- do you have a memory that there were further telephone conversations between you and I between the one you described sometime on March 19th or thereafter and our meeting on April 4th? Do you have a memory of other telephone

conversations? A. I don't know whether there were or were not. can't say one way or the other. I

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Q.

Who -- how was that meeting of April 4th set up? Whose idea was it?

A.

Isn't this what you -- didn't we already -- you asked about this? You already asked this question.

Q. A. Q.

What was -- whose idea was the meeting of April 4th? We already had this conversation. Whose idea was the meeting of April 4th? MR. DAVID: out of here. Just answer it and we can get

A.

I don't -- whose idea was it?

I think that

Mr. Follansbee and you had talked, and that you had talked to me, and that I had set up the meeting. Are you saying -Q. A. Q. A. Q. A. Q. A. April 4th in the Mural Room. Oh, in the Mural Room? Yeah. Okay. April 4th, I'm sorry. Yeah. You were thinking about March -Yeah, I'm sorry. saying. Q. A. Okay. April 4th. Whose idea was it? Oh, okay. I get what you're

That was -- I know that the town wanted to make

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progress towards mediation, and I don't know whether the town manager told me to set it up or I think that I might have set it up. Q. A. Whose idea was it? I think that the town manager wanted to get the mediation process started. mediation. Q. A. Q. A mediation meeting? Yeah, that was what it was intended to be. Did you find some documents, some new documents that you hadn't given me before prior to this meeting? A. I found just another set of -- instead of one RFP and one management agreement I found a second set of each, and I gave you those, yes. Q. A. Q. A. Q. A. Q. A. Who found them? I found them. You found them yourself? Yes. You looked? Yes. Where did you find them? I was getting the materials together. The North It was intended to be a

Hill file had thousands and thousands of pages. Q. The question is where did you find them?

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A.

Where did I find them? office.

I assume I found them in my

Q.

Do you remember? Where were they? looked at before?

What do you mean in your office? Were they in some file you hadn't

A.

On, I don't remember.

I don't remember.

I have

many, many file cabinets.

I don't remember where I

found them or whether I had looked for them before. I don't remember any of that now. Q. Well you recall I had asked you on a number of occasions for all the draft RFPs; right? recall that? A. No, you had never -- no, as a matter of fact what you had asked for and Deborah Ecker had asked and my memory is correct on that, and we gave her everything that you asked for, all the pleadings. Q. A. Q. A. Q. Okay. You gave her? Do you

And there's an email transmission about that, too. About the pleadings, correct. Everything that you asked for you were given. So I never asked for this? ever asked you for RFPs? Nobody in my office had

A. Q.

Anything that you asked for you were given. Had you received a request for production of

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documents from the plaintiff prior to April 4, 2012 requesting all the draft RFPs? A. As you know there was never any request for any documents. case. Q. A. Q. A. Right. It was a public record. I take it back. There was no written discovery in the

No, and it was not a public record. I take it back. There was a Freedom of Information, which is a federal statute request applicable to the towns.

Q. A.

So -And there might have been a public records one, too, but for the most part all of the documents were done through Freedom of Information.

Q.

And did you as part of that response to that request, did you search for draft RFPs?

A.

No, the town manager was fully aware of the issue of --

Q. A. Q. A. Q. A.

That's not the question. Well no, the answer is that the town manager -Did you search for, that's the question. No, I didn't search for anything. Thank you. So you -That's the --

That was his decision.

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Q. A. Q. A.

But you drafted the response to the request -No, you're being -Let me rephrase the --- very imprecise here. different requests. that -There were a number of

If you have a specific one

Q. A.

Did you draft the responses? No, not necessarily. whether I did or not. I don't know. I don't know

There were a number of them,

and I don't know whether I drafted them or whether -- many of them I don't think there was any response. Q. To the extent there were responses did you draft them? A. Q. To the what? To the extent there were responses made by the Town of Duxbury did you draft them? A. I don't know that. that. Q. Did you and I have any further communications between April 4th and April 13th? A. I don't know that either. I think there was an You have I could have, but I don't know

email transmission, but I don't remember. them. You have whatever there was.
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So if you're

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asking me -- you have all the documents.

You're

asking me to remember as to things that you have a written summary of. Q. A. Q. So do you. I don't have them with me. Neither do I. Now did you -- did we have any

further telephone conversations between April 4th and April 13th? A. Yes. We had -- we had some and I'm not sure how

many, but they included conversations on April 10th or 11th. They were either conversations -- there

was definitely phone conversation, but there was also email transmissions in which you were looking for the documents. Q. A. Q. A. I'm not asking about email transmissions. Well I don't remember the difference. You don't remember the difference? No, I don't remember what communications were by email and which were by telephone. Q. Do you remember any telephone communications between April 4th and April 13th -A. Q. A. Yes, I remember. -- between you and me? On April 13th you were looking -- you called me and

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you wanted to know when I was bringing the documents. Q. A. Q. A. Q. A. Q. A. We talked? Yes. On April 13th? Yes. You were in your office? No, I wasn't in my office. Where were you? I was here. We've already -- this is -- we've I was at the

already gone through this before, too.

Fed Ex in Government Center getting these printed and -Q. A. Q. A. You spoke to me? Yes, and I said -On your cell phone? I said that I was -- I don't know what phone I was on. Q. A. Well you on the Fed Ex? I don't remember which telephone. been Craig Jordan. telephone. It could have

It could have been his

I don't remember, but I have a memory

that I said I was making the copies, and I was bringing them over.

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Q. A.

Okay.

And you spoke to me? I

Well maybe I left a message here at your office.

don't know whether I left an email or whatever -- I mean not a -- a telephone message, but yes, we called on the telephone. Q. A. Mr. Troy, I am asking whether you spoke to me? I don't remember whether I spoke to you. I don't

remember any of the conversations because they were not important enough to record. routine conversations. Q. A. So there were conversations? Yes. My memory is that there was a conversation in They were just

which I said I was having the copies made, and I would be there, you know, later in the day. Q. A. Q. So you now remember you spoke to me? I believe I spoke to you, yes. Okay. And what happened when you and Mr. Jordan

came here? A. We had put the boxes of the copies on the front desk and the receptionist said, "Mr. Kesten wants to see you," and we were brought into this room. Q. A. Q. And what happened? You sat down -First of all, let me just back up. They were

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brought to this room by who? A. Q. A. Q. A. Q. A. Oh, I don't remember who. Was it you and Mr. Jordan or somebody else? I don't remember. Okay. I doubt it was me, but --

And then what happens?

I have no memory. And then what happens? And then you -- you turned the baseball game -- it was opening day. I remember that, and you said, You turned the TV

"We're going to watch the game."

on, and you started talking about various questions that you had and back and forth, and it was a lengthy discussion for a long period of time about different questions in which you said, "You know, what about this and what about that?" computer. You had your I

That's what I remember back and forth.

was attempting to answer them, and you'd ask more questions, and I gave you more answers, and you then at some point well into the meeting, hours later, it was like a switch. Q. A. Q. A. Hours? Like hours, yes. The meeting went for hours.

Was the meeting -- did the game end? We remember being outside here at about 6:30.

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Q. A.

We remember? Yeah, yes. We remember because I called with Craig

my partner, and he remembers the call, too, Brian Wall. Q. A. Q. A. You called? Yes. On your cell phone? I don't know. MR. DAVID: Okay. It is 4:36. It's

fifteen minutes rather than ten, so we're done. MR. KESTEN: what you need to do? MR. DAVID: We need to leave. You're going to -- okay. Do

(Deposition concluded at 4:36 p.m.)

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C E R T I F I C A T E

I, the undersigned, ROBERT TROY, do hereby certify that I have read the foregoing deposition, taken on 21st, March, 2013, and that to the best of my knowledge, said deposition is true and accurate (with the exception of the following corrections listed below): Page Line Correction

Signed:___________________________

Date:___________________________

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COMMONWEALTH OF MASSACHUSETTS I, Leslie D'Emilia, a Court Reporter and Notary Public in and for the Commonwealth of Massachusetts, do hereby certify that the foregoing deposition was taken before me on the 21st day of March 2013; That the witness named in the deposition, prior to being examined, was by me first duly sworn; That said deposition was taken before me at the time and place herein set forth, and was taken down by me in shorthand and thereafter transcribed into typewriting under my direction and supervision; That said deposition is a true record of the testimony given by the witness and of all objections made at the time of examination. I further certify that I am neither counsel for nor related to any party to said action, nor in any way interested in the outcome thereof. IN WITNESS WHEREOF I have subscribed my name and affixed my seal on this 21st day of March 2013.

________________________ Leslie D'Emilia Notary Public Massachusetts My Commission Expires: February 18, 2016

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