Anda di halaman 1dari 214





4 Plaintiff,

5 vs. Case no. CV-2016-01346


JOHN DOES 1-3, and JANE DOES 1-3,

9 _______________________________________________


Taken on the 13th day of June, 2017
11 _______________________________________________


13 produced as a witness at the instance of The

14 Plaintiff, and duly sworn, was taken in the

15 above styled and numbered cause on June 13,

16 2017, from 9:00 a.m. to 4:05 p.m. at the

17 Woolworth Community Library, 100 E. Utah, Jal,

18 NM 88252 before Gina R. Hornbeck, Certified

19 Court Reporter No. 43 in and for the State of

20 New Mexico and Certified Court Reporter No.

21 2987 in and for the State of Texas, reported by

22 computerized stenotype, pursuant to the New

23 Mexico Rules of Civil Procedure (and the

24 provisions stated on the record or attached

25 therein).

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 A P P E A R A N C E S:






10 101 W. ADAMS AVE.
11 LOVINGTON, NM 88260

13 Videographer: Dusty Deen, Roswell, NM

Also Present: Dennis Maez



18 NM CCR #43, TX CCR #2987
2200 W. PIERCE ST.
20 8A
21 575-623-4462




GINA R. HORNBECK, CCR-RPR 575-623-4462


1 I N D E X


3 Examination by Mr. Fallick 04

Examination by Mr. Newell 206
4 Further Examination by Mr. Fallick 208

Reporter's Certificate.............. 211
Witness's Signature Page............ 214

Exhibit # Description Page Marked
1 E-mail 29
12 2 Documents Notebook 35
3 E-mail 39
13 4 E-mail 41
5 E-mail 42
14 6 E-mail 43
7 E-mail 47
15 8 E-mail 69
9 E-mail 75
16 10 Water Board Report 78
11 Letter 79
17 12 E-mail 83
13 Handwritten Note 91
18 14 E-mail 174
15 Letter 179
19 16 Letter 183
17 Letter 200






GINA R. HORNBECK, CCR-RPR 575-623-4462


1 MR. FALLICK: Dusty Deen is our

2 videographer and he's going to be videotaping

3 you, Mr. Gallagher.

4 And Gina Hornbeck is our court

5 reporter. She's going to be taking down what

6 you say.

7 This is Dennis Maez. He's my

8 investigator.

9 I'm Gregg Fallick.

10 You know Mike Newell.

11 And the witness is Robert Gallagher,

12 or Bob Gallagher.

13 Unless either of you have something

14 to say, then I'll get going.

15 THE REPORTER: Well, let me swear in

16 the witness.


18 Having been first duly sworn, (or

19 affirmed), testified as follows:



22 Q Sir, would you please say and spell

23 your full name?

24 A Robert M. Gallagher, R-O-B-E-R-T, M as

25 in Mark, Gallagher, G-A-L-L-A-G-H-E-R.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Q And is your middle name Mark?

2 A Yes.

3 Q Is that Mark with a K or Mark with a C?

4 A K.

5 Q What is your date of birth?

6 A 12-5-1955.

7 Q And what's your place of birth?

8 A Brooklyn, New York.

9 Q This proceeding is called a deposition.

10 I'm going to ask you questions to obtain

11 information related to this lawsuit filed

12 against the City of Jal and you under the New

13 Mexico Inspection of Public Records Act.

14 Do you understand that you're required

15 by law to answer the questions truthfully and

16 to the best of your ability?

17 A I do.

18 Q If you do not hear a question, say so

19 and I will repeat it.

20 Do you understand that?

21 A Yes.

22 Q If you do not understand a question,

23 say so and I will try to rephrase it in a way

24 you are able to understand.

25 Do you understand that?

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 A Yes.

2 Q If, in the course of the deposition,

3 you would like to state that an earlier answer

4 you gave was inaccurate or incomplete, simply

5 say so and you will be permitted to make a

6 statement about that for the record.

7 Do you understand that?

8 A Yes.

9 Q If your testimony is that you do not

10 know or do not remember the information

11 necessary to answer a question, please say so.

12 Do you understand that?

13 A Yes.

14 Q I will be using the word "IPRA," that

15 is spelled I-P-R-A, to refer to the New Mexico

16 Inspection of Public Records Act. When I ask

17 you a question about IPRA or otherwise refer to

18 IPRA, I am talking about the New Mexico

19 Inspection of Public Records Act.

20 Do you understand that?

21 A Yes.

22 Q You understand that our court reporter

23 is typing every word we say at this deposition,

24 right?

25 A Yes.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Q And she will be preparing a written

2 transcript of everything we say.

3 Do you understand that?

4 A Yes.

5 Q Our court reporter only can take down

6 one person speaking at a time and she only can

7 take down verbal responses. So please wait

8 until a question is finished before you answer

9 and please answer verbally.

10 Do you understand that instruction?

11 A Yes.

12 Q You also understand that our

13 videographer is making a video record of your

14 testimony at this deposition, right?

15 A Yes.

16 Q Do you understand that you're legally

17 obligated to tell the truth in this deposition?

18 A Yes.

19 Q Exactly the same as if you were sitting

20 on a witness stand in Judge Clingman's

21 courtroom with the judge listening.

22 Do you understand that?

23 A Yes.

24 Q In fact, this testimony is for use in

25 court so Judge Clingman can make a decision at

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 the end of the case based on the true facts.

2 Do you understand that?

3 A Yes.

4 Q Do you also understand that since your

5 testimony today is sworn, that it is subject to

6 penalty of perjury?

7 A Yes.

8 Q Do you intend to tell the truth, the

9 whole truth, and nothing but the truth in your

10 deposition?

11 A Yes.

12 Q Are you under the influence of any

13 medication today that would affect your ability

14 to understand and answer questions?

15 A No.

16 Q Are you under the influence of any

17 other substance that would affect your ability

18 to understand and answer questions today?

19 A No.

20 Q Is there anything else that would

21 prevent you from understanding and answering

22 questions today?

23 A No.

24 Q Have you testified at a deposition

25 before?

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 A Yes.

2 Q How many times have you done that?

3 A I'm not sure.

4 Q More than a few?

5 A More than a few.

6 Q Have you ever testified under oath at

7 any other proceedings other than depositions?

8 A Yes.

9 Q What kind of proceedings?

10 A Civil proceedings in court.

11 Q Mike Newell is sitting next to you

12 today, right?

13 A Yes.

14 Q Mr. Newell is your attorney in this

15 case?

16 A Mr. Newell represents the City of Jal

17 in this case.

18 Q Does he also represent you personally?

19 A I don't have a personal attorney.

20 Q So I can tell you that the record

21 reflects that Mr. Newell is your attorney, and

22 maybe he can comment about that.

23 MR. NEWELL: Yeah, for all of you.

24 You were sued in this lawsuit individually, so

25 I've entered my appearance. So -- in

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 connection with your duties as city manager of

2 Jal, I'm representing you in this matter.


4 Q (BY MR. FALLICK) Did you review the

5 documents Mr. Newell filed on your behalf with

6 the Court before he filed them?

7 A Yes.

8 Q Did you authorize Mr. Newell to file

9 those documents on your behalf?

10 A Yes.

11 Q Did you make sure those documents were

12 accurate before you authorized Mr. Newell to

13 file them?

14 A Yes.

15 Q One of the documents Mr. Newell filed

16 on your behalf and on behalf of the City of Jal

17 is the answer he filed on December 15, 2016, to

18 the complaint.

19 Do you remember that?

20 A Not offhand, no.

21 Q Let me show you both, actually, the

22 answer and the complaint, and let me see if

23 that refreshes your recollection.

24 So, first, I'm handing you the answer

25 that was filed in the Court on December 15th,

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 2016, and ask if you remember that and if

2 that's one of the documents you reviewed?

3 MR. NEWELL: Counsel, do you have

4 documents? Do you have more than one set of

5 the documents?

6 MR. FALLICK: I have -- not -- you

7 can take a look at that, that's mine, the

8 complaint. I don't have extras of the --

9 besides looking over his shoulder, of the

10 complaint and the answer.

11 THE WITNESS: I had not reviewed

12 this, no.

13 Q (BY MR. FALLICK) You had not reviewed

14 that?

15 A No.

16 Q Do you know who authorized Mr. Newell

17 to sign that and who reviewed it?

18 A Sure. I would have authorized

19 Mr. Newell to sign it. I just didn't review

20 it.

21 Q So how did you determine whether this

22 was accurate to authorize Mr. Newell to sign it

23 if you didn't review it?

24 A I told them to download all the e-mails

25 on my -- on my -- on the server and send them

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 to Mr. Newell. And Mr. Newell is the attorney

2 representing the City, and I figured that what

3 he was filing was accurate.

4 Q So there's nobody else besides you who

5 would have authorized Mr. Newell to file that?

6 A No.

7 Q You would be the person?

8 A I would be.

9 Q Do you remember a Motion for Protective

10 Order being filed on December 30th, 2016?

11 A Yes.

12 Q Do you know whether you reviewed that

13 before it was filed?

14 MR. NEWELL: I'll object to the

15 extent this asks for attorney-client

16 communication.

17 MR. FALLICK: I don't believe that

18 authorizing something to be filed, which is not

19 confidential because we filed with the Court,

20 is a confidential communication.

21 MR. NEWELL: Yeah. I think you're

22 asking him if he reviewed something that may or

23 may not have come from me, and I think that is

24 communication.

25 MR. FALLICK: So are you instructing

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 him not to answer? Because my understanding is

2 that if a witness is adopting something,

3 they're saying, "Yes, my lawyer should sign

4 this," it's going to be filed publicly, that

5 they're authorizing that to happen, that that's

6 not privileged because they don't intend the

7 document to be confidential and they intend it

8 to be filed on their behalf.

9 MR. NEWELL: It would be my position

10 that communications are confidential, and I

11 think this goes to the heart of attorney-client

12 communications and tactics and strategy and

13 everything that are at the heart of a case.

14 So, you know, we -- we independently

15 have Rule 11 obligations. So if you believe

16 something is inaccurate or hasn't been stated

17 correctly in the pleading that I signed, I

18 think the obligation under Rule 11 is the

19 person that affixed his signature to that

20 particular pleading.

21 So I think it would be better

22 resolved on a Rule 11 motion. That's what I

23 think the proper protocol would be to some --

24 asking him about some document that I signed.

25 MR. FALLICK: Well, my view is I'm

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 allowed to get the answer of whether he's

2 author -- whether he's reviewed this and

3 authorized you to sign it.

4 If you're instructing him not to

5 answer, I'll ask the judge about it later.

6 MR. NEWELL: Well, here would be my

7 position: I would say if you want to ask him

8 if he authorized me to sign it, then -- then

9 that's fair game. If you're asking him what he

10 may or may not have received from me to review,

11 then I think that's attorney-client

12 communication.

13 So that's where I would split that

14 hair.

15 Q (BY MR. FALLICK) Let me take it one

16 step at a time.

17 This is your December 30, 2016, Motion

18 for Protective Order.

19 Did you authorize Mr. Newell to file

20 that document on your behalf?

21 A Yes.

22 Q Did you review it before you authorized

23 Mr. Newell to --

24 MR. NEWELL: I want to object to

25 that question because it -- to me, it impacts

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 the attorney-client communications.

2 MR. FALLICK: Are you instructing

3 him not to answer it?

4 MR. NEWELL: Yeah, I'll instruct him

5 not to answer.

6 MR. FALLICK: Let me go off the

7 record just a minute.

8 (Brief recess in the deposition.)

9 MR. FALLICK: Back on the record.


11 Q (BY MR. FALLICK) We had a hearing on

12 the Motion for Protective Order on May 30th,

13 2017.

14 Did you know that?

15 A Yes.

16 Q There's an audio recording of that

17 hearing.

18 Did you listen to that?

19 A No.

20 Q Mr. Newell told Judge Clingman that you

21 and the City of Jal already had given me all

22 the documents requested in my IPRA letter.

23 Did you know that Mr. Newell said that

24 to Judge Clingman?

25 A Yes.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Q Did you authorize Mr. Newell to tell

2 that to Judge Clingman?

3 MR. NEWELL: Objection, asks for

4 attorney-client communication.

5 MR. FALLICK: Well, the question is:

6 Was it intended to be confidential? And if he

7 authorized you to say it to the judge, it's not

8 intended to be confidential. If he authorized

9 you to tell it to me, it's not intended to be

10 confidential.

11 MR. NEWELL: You know what? Until

12 instructed otherwise, any communications that

13 Mr. Gallagher and I have had we're going to

14 claim attorney-client communication for. And

15 once it's waived, it's lost, as you know. So I

16 don't think I have any choice but to take a --

17 a position.

18 MR. FALLICK: Well, I'll make a

19 record with a specific question instruction,

20 and I'll write down the page and line number.

21 MR. NEWELL: I think that's fine.

22 And for the purpose -- if we're going to have

23 several of these, if the court reporter has a

24 way of, like, marking 'em in the transcript or

25 something like that that makes them easier to

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 find, I have no problems with that. If you

2 want to put 'em in bold or whatever it would

3 be, if Mr. Fallick doesn't have a problem with

4 that.

5 MR. FALLICK: Let's go off the

6 record and we'll ask Gina about that.

7 (Brief recess in the deposition.)

8 MR. FALLICK: Going back on the

9 record.

10 Is that okay.

11 MR. NEWELL: Yes.

12 MR. FALLICK: So if you could make

13 note of the line when I ask my next question

14 and then I'll tell you when to stop and I'll

15 write down those -- the pages and lines.

16 Q (BY MR. FALLICK) Mr. Gallagher, did

17 you authorize Mr. Newell to tell Judge Clingman

18 that you and the City had produced all of the

19 documents responsive to my IPRA letter?

20 MR. NEWELL: Objection,

21 attorney-client instruction.

22 MR. FALLICK: Do you instruct the

23 witness not to answer that question?

24 MR. NEWELL: Yes.

25 Q (BY MR. FALLICK) Is it true,

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Mr. Gallagher, that you and the City of Jal

2 have produced all of the documents responsive

3 to my IPRA letter?

4 A Jenny Clark -- Jenny Edwards is the

5 custodian of the records and she would make

6 that determination. And I have been told by

7 her that, yes, we have.

8 Q Did Jenny Edwards rely on you for any

9 of the information that it's a complete

10 production?

11 A Yes.

12 Q What did she rely on you for?

13 A Access to my computer to be able to

14 download all the e-mails, and then e-mails that

15 I sent her, as well.

16 Q What about the documents from an oil

17 company in the area that are referenced in the

18 IPRA request? Is that something that you knew

19 about or that Jenny Edwards knew about?

20 A I'm not sure what documents you're

21 talking about.

22 Q All right. We'll get back to that.

23 The documents that you and the City of

24 Jal gave me in response to my IPRA letter were

25 numbered City 000001 through City 003492.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Did you know that?

2 A Yes.

3 Q Is that a complete set of everything

4 that was produced to me by you and the City of

5 Jal?

6 A The custodian of public -- of the

7 public records would have to answer that.

8 MR. NEWELL: Let's go off the record

9 just for a minute because I want to share

10 something with you that may shape this.

11 (Brief recess in the deposition.)

12 Q (BY MR. FALLICK) You're aware,

13 Mr. Gallagher, that Mr. Newell told Judge

14 Clingman that the documents that are marked

15 City 000001 through 00034292 are a complete set

16 of all the documents responsive to my IPRA

17 request, right?

18 A Yes.

19 Q Did you know that to be true?

20 A That Mr. Newell told the Judge that?

21 Q Yes.

22 A Yes.

23 Q Do you know that it's true that those

24 3,492 documents are a complete set of the

25 documents responsive to my IPRA letter?

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 A Mrs. Edwards tells me they are and

2 she's the inspect -- she is the custodian of

3 public records.

4 Q She tells you they are. And how would

5 she know that they are? Do you know -- do you

6 understand that?

7 A She would read the request. Just like

8 any other normal request, she would read the

9 request, make sure she responded to the

10 request.

11 Q And what did she know about the oil

12 company documents?

13 A I don't know what she knew about 'em.

14 Q How do we know -- how would she know

15 that the oil company documents are complete?

16 A I'm not sure. You'd have to ask her.

17 Q Wouldn't she have to get that

18 information from someone?

19 A I don't -- I don't know. I -- I never

20 had possession of the oil field documents, so I

21 don't know what would be complete and what

22 wouldn't be complete.

23 Q So when Mr. Newell made that

24 representation to the Court, the only thing you

25 know about it is that he would be relying on

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Jenny Edwards?

2 A And that I trust Mr. Newell to have

3 gone through the full IPRA request and -- and

4 respond to it.

5 Q I guess what I'm getting at:

6 Mr. Newell can only know what the client tells

7 him and he can only produce what the client

8 gives him. So he's relying on a client when he

9 says to the Court, "This is everything."

10 So what I'm trying to get at is: What

11 do you know about how he would know the answer

12 to that question?

13 A I believe that Jenny Edwards would have

14 told him and I -- if he would have asked me, I

15 would have told him the same thing.

16 Q And you would have told him you were

17 relying on Jenny Edwards for the Jal documents,

18 correct?

19 A Correct.

20 Q What would you have told him you were

21 relying on for the oil company documents?

22 MR. NEWELL: Object to the form of

23 the question. It would be an attorney-client

24 communication when you ask him what he would

25 have told me.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 MR. FALLICK: I'm asking him what

2 you would be relying on --

3 MR. NEWELL: That's a different

4 question.

5 MR. FALLICK: -- when you --

6 Yeah. So let me start over.

7 Q (BY MR. FALLICK) You're aware that

8 Mr. Newell told the Court those 3,492 documents

9 were everything responsive to my IPRA letter,

10 and you're confident that that was accurate and

11 that Mr. Newell had the information he needed

12 to make that representation.

13 So what I want to know is: What do

14 you know about the basis for saying all of the

15 oil company documents have been produced?

16 A Only that Mr. Newell told me that he

17 was delivered a cardboard box full of documents

18 that Mr. Ellison said that he had one time

19 brought into my office and shown me. And Mr.

20 Ellison said that that doc -- that box was the

21 same contents that was in my office.

22 Q So Mr. Newell is relying on Mr. Ellison

23 for that information?

24 A In as much as those were the same ones

25 that he offered to give to the City, yes.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 MR. FALLICK: These five binders

2 that are sitting on the table have hard copies

3 of the 3,492 pages you and the City of Jal

4 produced that are numbered City 000001 through

5 City 003492. I do not intend to make these

6 3,492 pages an exhibit to the deposition to

7 avoid the waste of money and paper that would

8 require.

9 Is that agreeable to the defendants,

10 Mr. Newell?

11 MR. NEWELL: Yes, but I would say if

12 you're going to ask him questions about the

13 specific documents, I think for the purpose of

14 the deposition today, we have sufficient copies

15 so that everybody can be looking at a copy. So

16 I'd ask you to reference the Bates stamp page

17 number so -- so we can follow along.

18 Is that fair enough?

19 MR. FALLICK: Yes. And if it's

20 something we're going to use extensively, I

21 probably will mark it. Otherwise, I'll just

22 rely on we all have the documents, they're all

23 numbered, we can always point to them.

24 MR. NEWELL: I think collectively we

25 have three sets of hard copies. So you, myself

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 and the witness can have one if we need to

2 refer to 'em.

3 MR. FALLICK: Great. Thank you.

4 Q (BY MR. FALLICK) Mr. Gallagher, does

5 IPRA impose legal obligations upon you as Jal

6 city manager?

7 A Yes.

8 Q Do you respect your legal duty under

9 the New Mexico State law to fulfill those

10 obligations?

11 A Absolutely.

12 Q Do you understand that state law

13 prohibits governmental officials from asking

14 whether [sic] an IPRA request or is acting on

15 behalf of an undisclosed principal?

16 A No.

17 Q So you didn't understand that the New

18 Mexico Supreme Court in a case called San Juan

19 said that that's not a proper inquiry for a

20 governmental official who's an undisclosed

21 principal? You didn't know that?

22 A No.

23 MR. FALLICK: That's going to be

24 ambiguous, that answer. We've got a double

25 negative in there.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 MR. NEWELL: Well, we may have.

2 MR. FALLICK: I'm going to start it

3 over.

4 MR. NEWELL: Yeah, but -- okay.

5 THE WITNESS: I'm sorry.

6 MR. NEWELL: No, this is a lawyer

7 thing. I usually catch 'em. I didn't catch

8 this one. Go ahead -- he's going to ask --

9 he's going rephrase the question and ask it

10 again. Okay?

11 MR. FALLICK: You don't have to

12 apologize. It was not a good question. So I'm

13 going to start again.

14 Q (BY MR. FALLICK) Did you know that it

15 was a violation of your legal obligations under

16 IPRA, under the Supreme Court San Juan case to

17 inquire about who an undisclosed principal is

18 underlying an IPRA request?

19 A No.

20 Q Do you handle IPRA requests differently

21 based on the identity of the requester?

22 A No.

23 Q Do you handle IPRA requests differently

24 based on your opinion about the motive of the

25 requester?

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 A No.

2 Q You know that within the last year

3 you've received an IPRA letter from me, right?

4 A Yes.

5 Q You received other IPRA letters, as

6 well, correct?

7 A About other subject matters, yes, sir.

8 Q You received one from a lawyer by the

9 name of Crutchfield?

10 A Yes.

11 Q You received one from a councilwoman,

12 Melody Beckham?

13 A Yes.

14 Q Did you, in your communications about

15 those different IPRA requests, treat them

16 differently?

17 A I think in Ms. Beckham's case that she

18 said that she would not need all the documents,

19 that she would pull her IPRA request. So

20 that's the only way we would have treated that

21 one differently.

22 Q Did you make different kind of comments

23 about different people's IPRA's requests,

24 criticizing some, not criticizing others?

25 A To who?

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Q To your colleagues in e-mails.

2 A I don't recall.

3 Q The longstanding declared public policy

4 of the State as defined by the legislature and

5 signed into law by the Governor regarding IPRA

6 requests is as follows: "Recognizing that a

7 representative government is dependent upon

8 informed electorate, the intent of the

9 legislature in enacting Inspection of Public

10 Records Act is to ensure and is declared to be

11 the public policy of this state that all

12 persons are entitled to the greatest possible

13 information regarding the affairs of government

14 and the official acts of public officers and

15 employees.

16 "It is further the intent of the

17 legislature and is declared to be the public

18 policy of this state that to provide persons

19 with such information is an essential function

20 of a representative government, an integral

21 part of the routine duties of public officers

22 and employees."

23 Were you aware of that?

24 A Yes.

25 Q Do you respect that public policy?

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 A Absolutely.

2 Q My October 13, 2016, IPRA letter

3 requests all of your e-mails from January 1,

4 2014, through the date of production, right?

5 A Yes.

6 Q My IPRA letter also requests all

7 e-mails of councilors Melody Beckham, Jim

8 Ellison, Mike Ward, JoAn Chesser, and Lisa

9 Johnson for the same time period, right?

10 A I believe so.

11 Q You considered those requests to be

12 absolutely ridiculous, didn't you?

13 A I don't recall my thought process.

14 Q Do you remember saying in a public

15 meeting that you considered the request to be

16 absolutely ridiculous?

17 A I don't. Could have.

18 Q The requests for e-mails goes all the

19 way back to when you started as the city

20 manager of Jal, correct?

21 A That's correct.

22 Q Until recently, you liked to send a lot

23 of e-mails, didn't you?

24 A I don't -- I don't think my e-mail

25 habit has changed one way or the other.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Q Do you remember saying anything about

2 that at a public meeting?

3 A Probably said something to the effect

4 of, "I'll send a lot less e-mails."

5 Q Before you said that, did you have a

6 habit of sending a lot of e-mails?

7 A I send e-mails, I respond to e-mails,

8 and send e-mails when I need to. It

9 wouldn't -- it wouldn't impact me.

10 Q The councilors issued a lot of e-mails,

11 too, didn't they?

12 A No. The councilors don't receive a

13 whole bunch of e-mails. In a small town,

14 that's not really necessary.

15 Q Just give me one second. I want to put

16 my hands on something.

17 I'm going to mark as Gallagher

18 Exhibit 1 an e-mail from Melody Beckham dated

19 June 7, 2016, and it's marked as City 000481,

20 and ask you if you recognize that.

21 MR. FALLICK: And, actually, I do

22 have a copy of this for you, Mr. Newell.

23 MR. NEWELL: Okay. Thank you.

24 (Exhibit Number 1 marked for

25 identification.)

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Q (BY MR. FALLICK) Once you've had a

2 chance to look at it, let me know if you

3 recognize that.

4 A (Witness reviewing document.)

5 Yes, I do recognize it.

6 Q Now, that is from -- it shows on the

7 e-mail that it's from Melody Beckman to Jenny

8 Edwards. But below that, it says "all," and

9 then it says what it says.

10 Does that mean that this -- even

11 though this e-mail shows it being to Jenny

12 Edwards, was that sent to you and all the

13 council members?

14 A I don't recall. I do recall reading

15 it. I don't recall if Jenny gave it to me or

16 if it was sent to all.

17 Q Is it a normal kind of way that the

18 e-mail system works where a printout would only

19 show it going to one person, but that there's a

20 distribution list and it goes to a lot of other

21 people?

22 A The cc's and the bcc's, so...

23 Q So is that the only way that something

24 that is addressed to one person as the "to"

25 would actually be distributed to a lot of

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 people, or is there more than one way?

2 A That's the only way I would know.

3 Q Well, look at that e-mail. And my

4 reading of the e-mail is that Melody Beckham is

5 saying she was receiving too many e-mails that

6 were city council e-mails and information in

7 her personal account, so she set up a new

8 account just for city e-mails and information.

9 Is that the way you read it?

10 A No. I read it the other way.

11 Q Tell me how you read it.

12 A She states, "We have way too much other

13 stuff coming in our personal e-mail."

14 The way I read it is city e-mail

15 coming into personal e-mail, other stuff coming

16 into personal e-mail, there's way too many

17 things in there for her to have to filter

18 through and sort out.

19 Q Understood.

20 Did you ever discuss this e-mail with

21 Melody Beckham, the e-mail that's marked as

22 Gallagher Exhibit Number 1, City 0000481?

23 A Not to my recollection, no, sir.

24 Q Do you have any other information about

25 what this e-mail means, other than the way you

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 interpret the words on the page?

2 A No.

3 Q The documents you produced numbered

4 City -- I'm going to stop. Let me back up.

5 I'm going to stop using the initial zero

6 numbers.

7 MR. NEWELL: Yeah. Refer to stuff

8 as 1 through 3000.

9 MR. FALLICK: Can we agree on that?

10 MR. NEWELL: Absolutely.

11 MR. FALLICK: Thank you. It's

12 cumbersome.

13 MR. NEWELL: You don't even have to

14 say "City." Just say "Bates stamped number."

15 For the record, the City is the only

16 one that's numbered any documents so far. So

17 the only numbers that could be referenced are

18 numbers that were affixed by the City in their

19 response to your IPRA request.

20 Is that fair enough?

21 MR. FALLICK: Yes.

22 Q (BY MR. FALLICK) So, Mr. Gallagher,

23 from now on, in referring to, collectively or

24 individually, the documents marked as City

25 00001 through City 003492, I'm simply going to

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 refer to documents 1 through 3492.

2 Will you understand that and is that

3 agreeable to you?

4 A Absolutely.

5 Q Documents 1 through 3492 do not include

6 a single e-mail to or from anyone for 2014; is

7 that right?

8 A I don't know without looking at them.

9 I -- I think I may be able to clear

10 that up.

11 Q Let me start with: I don't want you to

12 review them all to determine that now, but

13 there may be a time when I'll ask you to do

14 that.

15 You wanted to add something to that

16 answer? You said you might be able to clear

17 that up?

18 A Yes. Let me take a look.

19 MR. NEWELL: Go ahead, because I was

20 going to tell Mr. Fallick something off the

21 record. So go ahead and --

22 THE WITNESS: At some point, my

23 computer crashed and it was replaced, and that

24 may be what -- what -- that may reflect that.

25 I can't tell you the date Jenny ordered the new

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 computer and -- and so on, so I don't -- I

2 don't know that to be the case.

3 But you're saying there's no e-mails

4 from 2014?

5 Q (BY MR. FALLICK) I saw none.

6 A Okay. That may be the case, that we

7 didn't have any because we didn't keep a record

8 of 'em.

9 Q When you say your computer, are you

10 talking about your personal computer or are you

11 talking about the entire City of Jal computer

12 system?

13 A The PC that was assigned to the city

14 manager's office was a hand-me-down, and I've

15 been talking about that PC that was assigned to

16 the city manager's office.

17 Q So you're not talking about whatever

18 computer may have maintained e-mails for the

19 councilors. You're talking about your e-mails.

20 A Yes.

21 Q And so do you -- did you know that

22 there are no e-mails from 2014 that were

23 produced, not yours and not any councilor's

24 e-mails for 2014? Did you know that?

25 A I did not know that.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Q And there also are no e-mails in

2 document 1 through 3492 from 2015. And that

3 means none for you and none for any of the

4 councilors.

5 Did you know that?

6 A No. There's no excuse for that.

7 Obviously, there were e-mails sent.

8 MR. FALLICK: Could you give me a

9 page and line for that last answer?

10 THE REPORTER: 29, 5.

11 MR. NEWELL: And, Gregg, we'll

12 stipulate that it looks like, in looking at the

13 documents, the earliest e-mail is dated

14 2/26/16.

15 THE WITNESS: Really?

16 MR. NEWELL: Yeah.

17 MR. FALLICK: And what's the end of

18 that stipulation?

19 THE REPORTER: Begins on Page 29,

20 line 8, and ends on line 10.

21 MR. NEWELL: Gregg, if you want to

22 go off the record a minute, I think I could

23 even make this easier.

24 MR. FALLICK: Sure.

25 (Brief recess in the deposition.)

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 (Exhibit Number 2 marked for

2 identification.)

3 MR. FALLICK: So we're going to go

4 back on the record. And off the record,

5 Mr. Newell provided me with a document that --

6 it's not page numbered, but it's --

7 MR. NEWELL: It does reference --

8 MR. FALLICK: -- refers to City

9 000001 through the final document that's

10 numbered 3492, and it is a log, essentially, of

11 the documents that were produced. And

12 Mr. Newell agreed to provide that to me based

13 on the questioning right before we went off the

14 record. We've marked that as Gallagher Exhibit

15 Number 2.

16 Q (BY MR. FALLICK) And would you

17 identify that Gallagher Number 2 is the

18 document your counsel provided as the log I

19 just described?

20 A Yes, sir.

21 Q And that's an index. It's a log of --

22 log of all the documents that were produced.

23 MR. NEWELL: Mr. Fallick, may I

24 state something for the record?

25 MR. FALLICK: Sure.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 MR. NEWELL: And I'll just cut

2 through this. Obviously, under questions that

3 were presented by Mr. Fallick and in looking at

4 the log or the index that was prepared in

5 preparation for this deposition, it appears

6 clear that 2014 and 2015 e-mails were not

7 produced. And I'll -- that's just a fact, and

8 so that's where we are.

9 MR. FALLICK: And as I understand

10 it -- and we can do this as a stipulation.

11 Instead of me asking Mr. Gallagher, I'll ask

12 you, Mr. Newell, that also no documents from

13 January 1, 2016, through February 25, 2016 --

14 MR. NEWELL: Right.

15 MR. FALLICK: -- that constitutes

16 e-mails, those weren't produced either.

17 MR. NEWELL: That appears to be

18 correct.

19 What I will state for the record is

20 the index of documents, which has been

21 identified as Gallagher Number 2, which begins

22 chronologically, begins with -- the first

23 e-mail on Page 1 is dated 2/26/16, and there do

24 not appear to be any e-mails prior to 2/26/16

25 produced, whether they were in 2016, 2015, or

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 2014.

2 Is that fair enough, counsel?

3 MR. FALLICK: Thank you.

4 Q (BY MR. FALLICK) I'm going to return

5 to questioning you, Mr. Gallagher. We're on

6 the record.

7 MR. NEWELL: No. That's fair

8 enough. And I wasn't trying to -- but I just

9 thought we could cut through some of that when

10 it's obvious that -- we obviously have made a

11 mistake. So...

12 MR. FALLICK: Well, we did, and the

13 log is certainly helpful for the record.

14 Q (BY MR. FALLICK) The City of Jal also

15 didn't produce anywhere near --

16 (Brief interruption in the

17 deposition.)

18 MR. FALLICK: I'm going to start

19 that question again.

20 MR. NEWELL: Please.

21 Q (BY MR. FALLICK) The City of Jal also

22 didn't produce anywhere near all of the 2016

23 e-mails either, right?

24 A My instructions were to produce every

25 e-mail that you asked for.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Q Tell me about those instructions.

2 Those instructions were to whom?

3 A To Jenny Edwards.

4 Q What would Jenny Edwards have access

5 to, to do that production?

6 A Everything. To the server that serves

7 the thing to PCs. I gave her my user name and

8 password.

9 Q So she would have access to everything

10 that was in the City-of-Jal-owned computers and

11 servers?

12 A Absolutely.

13 Q What about e-mails about City Council

14 business that city councilors sent and received

15 from private servers?

16 A We asked the City Council to produce

17 every e-mail that had to do with City

18 government regardless of where they came from.

19 Q What form did that request take?

20 A I think Jenny -- we had Jenny send out

21 the IPRA request to them and asked them to

22 respond to it with all the e-mails.

23 (Exhibit Number 3 marked for

24 identification.)

25 Q (BY MR. FALLICK) Next, I'm marking as

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Gallagher Exhibit 3 an e-mail from me to Mike

2 Newell dated June 9, 2017, that attaches two

3 PDF documents. And I'm going to show you that

4 e-mail and ask you questions referencing that

5 e-mail?

6 And why don't you take your time to

7 read the -- just the first page, the e-mail and

8 what it's discussing, and then we'll take it

9 from there.

10 A Mr. Fallick, the first page of the

11 e-mail, that's your e-mail to Mr. Newell.

12 Q Right.

13 A I apologize.

14 Q Because that's going to give you an

15 idea of where I'm going here.

16 A (Witness reviewing document.)

17 Okay.

18 Q So now look, please, at the second page

19 of Gallagher Exhibit 3, which starts with an

20 e-mail from you to David Catanach --

21 Did I pronounce that correctly?

22 A Yes, sir.

23 Q -- at the State of New Mexico, and it's

24 got prior e-mails connected to it in a chain.

25 And my question is: Did you search

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 the documents 1 through 3492 to determine

2 whether this exchange of e-mails is in those

3 documents?

4 A No.

5 Q And now, please, turn to the fourth

6 page of that exhibit, which starts with an

7 e-mail from Phillip Goetze to you.

8 Do you see that?

9 A Yes, sir.

10 Q Did you search through documents 1

11 through 3492 to determine if that document is

12 in the documents you produced?

13 A No.

14 Q Okay. I'll take that back.

15 MR. FALLICK: And I can either take

16 that back from you, Mike, or you can keep it.

17 I'm going to come back to it later.

18 MR. NEWELL: Okay. Then I'll keep

19 it, then.

20 (Exhibit Number 4 marked for

21 identification.)

22 Q (BY MR. FALLICK) Next, I'm going to

23 hand you a document that's marked as Gallagher

24 Exhibit Number 4, which is a June 10, 2017,

25 e-mail from me to Mike Newell, with a PDF

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 document attached, and ask you to read, again,

2 the first page, just my e-mail to Mr. Newell.

3 And when you're done, I'll ask you another

4 question.

5 A (Witness reviewing document.)

6 Okay.

7 Q Now, please look at the second page of

8 that Exhibit Number 4, which is an e-mail from

9 you to Gay Kernan dated September 22, 2016.

10 Did you review the documents numbered

11 1 through 3492 to determine if that e-mail was

12 produced to me?

13 A No.

14 Q Now, I'll take that back from you,

15 Mr. Gallagher. Thank you.

16 (Exhibit Number 5 marked for

17 identification.)

18 Q (BY MR. FALLICK) Next, I'm going to

19 show you a copy of an e-mail from Jim Ellison

20 that's part of a chain dated May 26, 2016,

21 that's been marked as Gallagher Number 5, and

22 ask you if that e-mail was produced in

23 documents 1 through 3492?

24 A (Witness reviewing document.)

25 Okay.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Q Do you know if that May 26th, 2016,

2 e-mail from Jim Ellison was included in the

3 production on Pages 1 through 3492?

4 A I don't know.

5 Q I'll take that back.

6 Jenny Edwards asked you if the City

7 needed to create City of Jal e-mail addresses

8 for city councillors, didn't she?

9 A I do know some of the councillors have

10 asked. I don't know if Jenny has asked in the

11 past.

12 (Exhibit Number 6 marked for

13 identification.)

14 Q (BY MR. FALLICK) I'm going to hand you

15 an e-mail string ending with you to Jenny --

16 and it's clear from the address that's Jenny

17 Edwards -- on June 8, 2016 -- and I may have

18 said this, but this is Gallagher Number 6 --

19 and ask you if that refreshes your recollection

20 about the communication from Jenny Edwards?

21 A I remember reading this, yes, sir.

22 Q The first e-mail on June 7th, the one

23 from Jenny to you on Gallagher Number 6, which

24 is Document 499, refers to, "not sure they

25 would like messing with the web mail."

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 What does that mean?

2 A That Jenny said to me?

3 Q Yeah.

4 A The web mail, the way -- we're not set

5 up, apparently -- and I'm not a technology

6 wizard. We're not set up, I don't think, on

7 Outlook or something. Web mail is the way, if

8 I was out of town, I would go to

9 CityofJal.US/webmail. And you've got to kind

10 of move through the process to get the e-mails

11 up on there. And I would assume that's what

12 Jenny meant.

13 Q So she's talking about if you're trying

14 to review an e-mail remotely, you go through

15 this web mail system, is that it?

16 A Yes, sir.

17 Q And then, in response to her question

18 about whether she needs to create City e-mail

19 addresses for all council members, you say --

20 there's a typo in there, but you say, "I don't

21 think so, but we may want to discuss it at the

22 meeting next week."

23 Did I read that correctly?

24 A I think my "I don't think so" would be

25 in response to her saying, "Not sure that they

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 would like messing with web mail."

2 And I said, "I don't think so,"

3 because it's a convoluted type of thing.

4 But, yes, you -- and then "we may want

5 to discuss it at the meeting next week."

6 Q So when she says, "Do I need to create

7 a City e-mail address for all the council

8 members," at a minimum, your answer is not a

9 yes, true?

10 A No. No. Not yes. At a minimum, it's

11 not yes.

12 Q Do you remember whether you discussed

13 it at the meeting the following week?

14 A I don't know, quite frankly, that -- if

15 we did, we have a recording of the meetings,

16 and it would be in the minutes.

17 Q Do you know whether, in fact, City

18 e-mails addresses were created for all council

19 members?

20 A Not at this time, they were not. We

21 are in the process of doing it at the request

22 of the Council.

23 Q Now?

24 A Yes, sir.

25 Q And prior to now, that didn't happen?

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 A No.

2 Q I did one of those bad questions again,

3 so forgive me. I'm going to have to ask. So

4 it sounds like the same thing again, but it's

5 not.

6 A Yes.

7 Q Did you create those City of Jal e-mail

8 addresses for council members before now?

9 A No.

10 Q For the time period that's subject to

11 my IPRA request, from January 1, 2014, through

12 the date of the City of Jal's production, do

13 you agree that the councillors' e-mails related

14 to City Council business and City Council

15 information must be produced in response to an

16 IPRA request even though they are on private

17 servers and there are no City of Jal e-mail

18 addresses?

19 MR. NEWELL: We're going to object

20 to the extent it asks for a legal conclusion.

21 Without waiving that objection, you

22 can respond.

23 THE WITNESS: Absolutely.

24 Q (BY MR. FALLICK) And regardless of

25 your legal opinion, your practical opinion, as

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 the manager for the City of Jal, is that you

2 would consider those public records and you

3 would produce them?

4 A That was -- in fact, that was the

5 discussion we had with them.

6 (Break taken from 10:17 a.m. to

7 10:33 a.m.)

8 MR. FALLICK: We're back on the

9 record.

10 (Exhibit Number 7 marked for

11 identification.)

12 Q (BY MR. FALLICK) And, Mr. Gallagher,

13 I'm going to show you Gallagher Exhibit

14 Number 7, which is an e-mail from you to Cheryl

15 Chance and others dated October 16th, 2016, and

16 it's numbered 1278.

17 MR. FALLICK: I've got a copy for

18 you, Mike.

19 MR. NEWELL: Thank you.

20 MR. FALLICK: You're welcome.

21 Q (BY MR. FALLICK) Did you do anything

22 other than send Gallagher Exhibit Number 7,

23 that's document 1278, to obtain from the

24 council members their e-mails responsive to my

25 IPRA letter?

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 A Let me finish reading this,

2 Mr. Fallick.

3 Q Yes. Take your time.

4 A (Witness reviewing document.)

5 And your question again, please?

6 Q Did you do anything beyond sending the

7 e-mail marked as Gallagher Number 7, that's

8 Document 1278, in order to obtain the e-mails

9 from council members that are responsive to my

10 IPRA request that are maintained on private

11 servers?

12 A Yes, sir. I talked with the

13 councillors, and then I -- and then I know that

14 Jenny -- I asked Jenny to call the individual

15 councillors, set a deadline for them to get all

16 their requirements in. There were several of

17 the councillors who specifically asked, "It's

18 on my personal e-mail. Do I need to do that?"

19 And I said, "Yes. It does not matter.

20 They need to get that if it involves City

21 business."

22 Q After you sent Document 1278 marked as

23 Number 7, did you think there was any chance

24 that those city councillors were going to

25 provide the disclosures required by state law?

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 A Absolutely. Sure. Why not?

2 Q How did you think the recipients would

3 interpret your statement, "I cannot begin to

4 tell you how a request such as this one shows

5 total disrespect for the needs of the citizens

6 of Jal"?

7 A How would they interpret -- they would

8 interpret it knowing full well what it -- what

9 it meant, the reason for the -- for the IPRA

10 because of the big newspaper article. And I

11 thought that the person that I think was

12 responsible was showing total disrespect,

13 meaning the needs of the City of Jal were fresh

14 water, and all of a sudden they want to take us

15 on for suggesting that someone needs to look at

16 it and make sure our future fresh water is

17 going to be clean.

18 Q Does that mean that you were hostile to

19 the idea that there was this public records

20 request?

21 A No.

22 Q Did you think that the recipients of

23 this letter would understand that sentence to

24 mean that you were hostile to the IPRA request?

25 A No.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Q You didn't think that that sentence was

2 telegraphing an intention not to provide a good

3 faith response to my IPRA response [sic]?

4 A No. I would never do that, nor would

5 they think that. The law's the law.

6 Q And you can keep that letter for a

7 little while that's marked as Gallagher Number

8 7.

9 How did you think that the recipients

10 would interpret your statement, "It cries out

11 drinking water be dammed. I can do anything I

12 want and will run over anyone in the way"?

13 A They would think that -- that I was

14 thinking that that was someone in town who was

15 saying that, that they didn't care about

16 drinking water, that they were -- they were

17 going to run over anybody that got in their

18 way. And that was specifically why this -- why

19 this all came about.

20 Q Did you expect the recipients to

21 understand that sentence as being you're

22 hostile to the IPRA letter?

23 A Oh, sure. We've talked about it.

24 We've talked about it in public meetings.

25 Talked about it last night in a public meeting.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Q So you think they all understood that

2 you were hostile to this IPRA letter?

3 A No, not at all. I was not hostile --

4 hostile to the IPRA letter. I was hostile to

5 the people that we believe were behind it for

6 the reasons that they were behind it, but not

7 to an IPRA letter. An IPRA letter is an IPRA

8 letter. You download the e-mails and you send

9 'em.

10 Q Did you think that sentence would lead

11 the recipients to understand that you had no

12 intention of providing a good-faith response to

13 the IPRA letter?

14 A No, not at all.

15 Q How did you think the recipients would

16 interpret your statement, "This is very

17 dangerous but some" -- excuse me -- "This is

18 very dangerous but gives you very good insight

19 into the thought process of someone that will

20 go to this length to retaliate against the City

21 because of the City wanting to ensure that its

22 citizens will have fresh drinking water free

23 from contamination for many years to come"?

24 How did you think they would interpret

25 that sentence?

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 A I think they fully understood that the

2 reason that this was being done, in my opinion,

3 was because the City asked the regulatory

4 agency of the State of New Mexico to help us

5 figure out if the future drinking water of the

6 City was going to be safe because of a disposal

7 well that may have been disposing in a wrong

8 formation. And so I think that -- that's

9 pretty clear there that -- that -- that the

10 owner of that disposal well was retaliating

11 against the City.

12 Q So your testimony is that you don't

13 think that sentence telegraphs that you were

14 hostile toward the IPRA request or that you

15 didn't intend to provide a good-faith response?

16 A No. In fact -- in fact, conversations

17 with the Council afterwards would tell you

18 that. My comment was, "Let's shower them with

19 paper, with everything we've got, because

20 there's nothing to hide."

21 I'm not going to be hostile to an IPRA

22 request. That's anybody's right. I can be

23 hostile to somebody who has gone to great

24 lengths to hurt the City or retaliate against

25 them. It's my job.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Q Explain why you believe the sending of

2 an IPRA request and asking for information

3 cries out, "Drinking water be dammed. I can do

4 anything I want and will run over anyone in my

5 way"?

6 A Understanding, Mr. Fallick, that "I" is

7 not meaning I. "I" is meaning a person is -- I

8 believe that that's what that person's saying.

9 And, to me, it fits hand in glove.

10 That person was very mad publicly,

11 very mad that the City would dare ask a

12 regulatory agency to look at a disposal well.

13 And -- and -- and the timing was -- was -- was

14 absolutely priceless. It was perfect. And I

15 just figured that's the reason for all the

16 requests. And so I think that's

17 self-explanatory to me and to the Council.

18 And, obviously, not trying to hide

19 anything in here, because the gentleman's

20 sister is the Mayor. And so you notice the

21 Mayor is on every one of these.

22 Q Explain why you think that my IPRA

23 request was very dangerous.

24 A My thought process there, it's

25 dangerous to utilize any law to try to

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 retaliate against anybody, whether it's a

2 governmental agency or not. And I believe it's

3 a dangerous precedent that all of a sudden when

4 people want to retaliate against something that

5 was done to their private business that they

6 would retaliate by wanting to try to do

7 something to try to embarrass the City or any

8 government entity.

9 Q How do you think that submitting an

10 IPRA request is retaliation?

11 A He was looking for information at that

12 time of what the City was doing.

13 Q Why is that retaliation?

14 A It depends on what you were going to

15 use the information for.

16 Q Did you understand that IPRA makes the

17 reason for a request irrelevant?

18 A Absolutely. This e-mail didn't have

19 anything to do with our responding to the IPRA

20 request. This e-mail had everything to do with

21 me letting them be notified that we had one and

22 the thought process behind it, and my Irish/

23 Catholic temper.

24 Q How do you square the anger and

25 resentment expressed about that IPRA request in

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Gallagher Exhibit Number 7 with the declared

2 public policy of the State that I read you

3 earlier today that you acknowledged? How do

4 you square that?

5 A You don't. It's apples and oranges.

6 This had everything to do with a

7 gentleman in town, and I was talking about a

8 personal vendetta and made it very clear in

9 here it had nothing to do with what we should

10 do with the IPRA request. The IPRA request is

11 given to the custodian of public records and

12 it's filled.

13 Q When you said -- in Exhibit Number 7,

14 you said, "It cries out drinking water be

15 dammed. I can do anything I want and will run

16 over anyone in the way," you're talking about

17 the IPRA request, right?

18 A I'm talking about the person -- the

19 reason the person did it. It cries out. In

20 other words, we -- we went and asked the

21 regulatory agency to check and make sure our

22 drinking water was fine. And the person who I

23 believe was behind this I believe was saying,

24 "Drinking water be dammed. I don't care. I

25 can do anything and I'll run over anybody that

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 gets in my way."

2 And all the City was trying to do was

3 make sure that the future drinking water for

4 the Jal residents was being protected.

5 Q When you refer to "this is very

6 dangerous," again, you're talking about the

7 IPRA request, right?

8 A I'm talking about the utilization of an

9 IPRA request for a personal vendetta.

10 Q And you determined it was being

11 utilized for a personal vendetta based on what

12 information?

13 A That was my -- that was just my thought

14 process.

15 Q Looking at, again, Gallagher Exhibit

16 Number 7, Document 1278, the first paragraph,

17 the last sentence says, "Jenny, I will tell you

18 that there are no documents at all for

19 questions number 1 through 4."

20 A Right.

21 Q What did that mean?

22 A That meant that in the -- I read the

23 IPRA request that obviously was attached and

24 the first four questions specifically went to a

25 box of documents that I had been shown by

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Councillor Ellison, and my response to that was

2 there are no documents at all for questions

3 through 4 because we didn't have any documents

4 for 1 through 4.

5 And so to help her along -- she was

6 out of town at a conference and I had been --

7 and I had been home healing from eye surgery.

8 So I was telling her -- you know, she was going

9 to send out the letter saying, "The magnitude

10 is too large, give us more than the three -- or

11 15 days. And then, by the way, the first four

12 questions, you won't have to worry about 'em

13 because we don't have anything."

14 Q What did you understand those first

15 four questions to relate to?

16 A If I could see -- Mr. Fallick, could I

17 just see it?

18 Q Of course. I'm going to give you a

19 copy of the complaint because the complaint

20 attaches the IPRA letter. And so after the

21 signature page on Page 7 -- so I'm just going

22 to fold it to that -- is where the letter

23 starts. And paragraphs 1 through 4 referred to

24 an Exhibit A, which is attached to that letter

25 which is included in the complaint, and it was

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 attached to the original letter that you sent.

2 So it's folded to the beginning of the

3 letter. The letter is six pages numbered at

4 the top. And then the Exhibit A is your e-mail

5 of August 29, 2016, which is not numbered

6 Page 7, but it's the seventh page of the

7 letter.

8 So I'm handing you that. And, again,

9 that's part of the complaint that was filed

10 with the Court.

11 A (Witness reviewing document.)

12 After reading that, it was my belief

13 that the first four questions referred to a box

14 of documents that -- that was brought to my

15 office somewhere around April 25th or

16 April 26th, and it was a --

17 MR. NEWELL: Of what year?

18 April 25th or 26th of what year?

19 THE WITNESS: I apologize.

20 April 25th or April 26th of 2016.

21 Q (BY MR. FALLICK) And that is the box

22 of documents you referred to elsewhere as the

23 documents from an oil company in the area that

24 you relied upon in your communications with

25 OCD?

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 A Yes, it is.

2 Q And so when you say, "I'll tell you

3 there are no documents at all for questions

4 number 1 through 4," what did you mean by that?

5 A We didn't have the documents. I

6 didn't -- I didn't -- the box didn't -- I

7 looked -- I looked at some documents in the box

8 and then told -- Councillor Ellison said, "Do

9 you want to keep these? You want 'em here?"

10 And I said, "No. Number one, they --

11 from my looking at 'em, they're all in the

12 public domain."

13 It appeared to me that every one of

14 them came out of an Internet search or

15 something.

16 And two is, we're not the regulatory

17 body for oil and gas. Because of my experience

18 as president and CEO of the New Mexico Oil and

19 Gas Association, it was pretty obvious to me

20 that, hey, we should just get ahold of the Oil

21 Conservation Division and ask them to take a

22 look at it.

23 Q This was a box of documents, right?

24 A It was a cardboard box that a bunch of

25 documents were in, some bound, some not.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Q Brought to you by?

2 A Councillor Ellison.

3 Q And Councillor Orr?

4 A Councillor Orr was with them.

5 Councillor Ellison said that he was given the

6 box.

7 Q So Councillor Ellison had the

8 documents. Councillor Orr was with him, and

9 they brought the documents to you?

10 A They did.

11 Q You were in your office in the City of

12 Jal?

13 A Yes, I was.

14 Q And you're the city manager?

15 A I am.

16 Q So you have two city councillors who

17 bring you documents to show you as the city

18 manager, right?

19 A Yes.

20 Q You look at those documents and later

21 refer to those documents in communications with

22 the OCD, true?

23 A I referred to 'em as documentation, not

24 specific.

25 Q And you relied on those documents to

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 support your request to the OCD, correct?

2 A Sure. Our request was simple: Could

3 you check this well and see if it is going into

4 another zone which contains potential drinking

5 water?

6 Q Your belief was that even though these

7 documents were brought to you in your capacity

8 as city manager on City property by two city

9 councillors requesting that you take action on

10 behalf of the City of Jal, that you didn't have

11 an obligation to treat those as public records?

12 A No. Well, first of all, they looked to

13 me like they were all public records anyway.

14 And two is, why would I -- why would I go

15 through 'em when that's the Oil Conservation

16 Division's job?

17 Q I need to re-ask the question.

18 Given that you are the city manager

19 for the City of Jal, documents are brought to

20 you on City property by two councillors asking

21 you to take a position on behalf of the City of

22 Jal based on these documents.

23 Did you consider that box of documents

24 to be public records?

25 A First of all, they did not ask me to

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 take a position about those documents. They

2 brought the documents in and said, "What should

3 we do?"

4 I said, "We should write a letter or

5 e-mail to the Oil Conservation Division, send

6 those to them, if they want them, and ask them

7 to review 'em. Plain and simple."

8 Q Let me break it down, then, to pieces

9 and ask you separate questions about it.

10 There was a box of documents, correct?

11 A There was.

12 Q It was brought to you, correct?

13 A It was brought in my office, yes.

14 Q Your office. The city manager for the

15 City of Jal's office, correct?

16 A Right.

17 Q On City property?

18 A Yes.

19 Q It was showed to you in your capacity

20 as the city manager?

21 A Correct.

22 Q It was brought to you by City

23 Councillor Ellison?

24 A It was.

25 Q He had with him City Councilor Orr?

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 A He did.

2 Q You looked at the documents?

3 A Some of them.

4 Q And then Councilor Ellison asked you if

5 you wanted to keep them and you said, no, you

6 take them back?

7 A Councilor Ellison said, "What should we

8 do?"

9 I said, "I'm going to write a letter

10 to the OCD and request them to investigate."

11 He said, "Do you want those

12 documents?"

13 I said, "No, they're no use to me."

14 And he wasn't offering them -- they

15 weren't City records. He got 'em from a

16 private citizen is what he told me.

17 Q And then he took them away?

18 A Yes, right away with him that day.

19 Q Your understanding of IPRA is that if

20 you receive documents from anyone, regardless

21 of the kind of documents they are, that they're

22 not public records?

23 A I just figured if I get a thousand

24 documents a day, if I read it and discard it,

25 throw it away -- you know, if I don't have it

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 in my possession, they're not public records.

2 They weren't any part of an investigation or

3 any part of anything the City was doing.

4 Q Ultimately, you and the City claim that

5 you produced those records in response to my

6 IPRA letter?

7 A What I'm told from -- from Mr. Newell

8 is, yes, that -- that -- that all those records

9 were produced.

10 Q Do you know why they were produced if

11 they're not public records?

12 A You asked for them. Mr. Newell said,

13 you know, "Give 'em to him. It doesn't

14 matter."

15 But -- but they weren't in our

16 possession. When Mr. Ellison gave 'em to

17 Mr. Newell, then whether they're public

18 documents or not, I don't know. If they're

19 attorney-client privilege, I don't know. But

20 why worry about it? They were all in the

21 public domain. Why not give 'em what they

22 want?

23 But specifically here, I didn't have

24 'em. So the answer to Jenny was, "No we don't

25 have 'em. We don't have anything like that."

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Q So when you said there are no documents

2 at all for questions numbered 1 through 4, you

3 meant there were no documents at all for

4 questions 1 through 4?

5 A In our possession. We had no documents

6 at all.

7 Q You didn't mean, "Jenny, don't you

8 bother looking for 'em because I'm going to go

9 get them for you?" You didn't mean that, did

10 you?

11 A No. Just saying, "Jenny, there's --

12 there's nothing on numbers 1 through 4, and

13 we're decide -- you know, how we're going to

14 handle these other ones, who has to tell who,

15 what they're going to do, when we get back from

16 Albuquerque."

17 MR. FALLICK: Can you give me a line

18 number for that?

19 THE REPORTER: 54, 13 through 16.

20 Q (BY MR. FALLICK) What do you remember

21 about the documents that were brought to your

22 office in April of 2016 that we've been talking

23 about at this deposition?

24 A I remember there were a cardboard box,

25 small cardboard box. Some were bound and some

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 were just stacked up. And I remember looking

2 at some. Some looked like there was just a

3 copy of a wellbore, the complete copy of a

4 wellbore, diagram and everything. And,

5 obviously, it came -- looked to me like it came

6 off the OCD site. And there were other

7 documents, some graphs and stuff like that.

8 Q Do you remember anything about the

9 files that they were maintained in? You said

10 some were bound, some of 'em weren't. But what

11 color they were? Did they have legends on

12 them?

13 A Not -- not really, Mr. Fallick. There

14 was some beige file folders, basically. And I

15 think there may have been a hardbound binder,

16 but maybe not.

17 I didn't look at it. In fact, I

18 didn't -- he had it at the table, said, "Do you

19 want to look at these?"

20 And I looked over. He brought 'em

21 over. I looked and said, "No, that's not

22 really -- looked to me like they were all

23 public documents and we don't need 'em anyway.

24 It's not our deal."

25 Q Do you remember any of them being bound

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 in blue packaging?

2 A No, sir. I didn't look at it long

3 enough. I apologize.

4 Q If someone put exactly that box of

5 documents in front of you today, the originals,

6 just the way they were on April 25th or

7 April 26th of 2016, would you be able to say,

8 "Yeah, I know that those are those documents,"

9 or not?

10 A No.

11 Q You would not be able?

12 A No. I'm sorry. I would not be able to

13 say that.

14 Q Did you see the original documents

15 again at the time they were being collected to

16 be produced?

17 A No.

18 Q Was the only time you ever saw this box

19 of documents on April 25th or 26th of 2016?

20 A The only time.

21 Q Did you ever discuss that box of

22 documents with Mr. Ellison again?

23 A At that time, Mr. Ellison told me he

24 was taking 'em up to Mr. Newell's office. I

25 think we had a discussion. He said he was

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 taking 'em up to Mike, Mike wanted 'em.

2 I said, "Okay. Great."

3 Q Did he say anything about the documents

4 other than that?

5 A No, sir.

6 Q Do you know anything about where the

7 documents were maintained between April 26th of

8 2016 and the time that they went to Mike

9 Newell?

10 A Only I was told by Jim Ellison he kept

11 'em in his house or his garage, I believe.

12 Q These were Chevron documents?

13 A I don't know that.

14 Q Did Mr. Ellison tell you where he got

15 these documents?

16 A He said a fieldworker, somebody came to

17 him and said that, you know, this lady wanted

18 him to have these documents, to look through

19 it. He used to be in the oil field. She knew

20 him from a company that he worked for that had

21 purchased a company she used to work for.

22 That's what he told me.

23 Q Did he tell you whether the documents

24 he had were original documents from a company's

25 files or they were a set of copies?

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 A I think he alluded, he referred to them

2 as detailed documents that were from some files

3 and that there was some others. And I don't

4 know if he ever said they were original files

5 or copies. I think he alluded to there were

6 some documents that were in a file and others

7 that were loose.

8 Q Do you know whether those documents

9 were ever missed by the company that was the

10 source of those documents?

11 A I don't know.

12 Q Do you know whether there was any

13 authorization to release those documents?

14 A I don't know.

15 Q Do you know if there was ever an

16 objection to releasing those documents?

17 A None that I'm aware of, no, sir.

18 Q Do you know whether anybody ever tried

19 to recover those documents?

20 A No.

21 (Exhibit Number 8 marked for

22 identification.)

23 Q (BY MR. FALLICK) I'm going to show you

24 a document that's been marked as Gallagher

25 Number 8. It's an e-mail from you dated

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 June 9, 2017, to me and to Mike Newell, and ask

2 you if you recognize that document?

3 A I do.

4 Q What is that?

5 A It's an e-mail to you and to Mike

6 Newell that I e-mailed at 5:30 on June 9th.

7 Q It says, "Will a representative from

8 Chevron be there?" Correct?

9 A It does.

10 Q And the subject is deposition, correct?

11 A Yes.

12 Q Is that referring to today's

13 deposition?

14 A Yes, it is.

15 Q Why are you sending that e-mail?

16 A I was wondering if somebody from

17 Chevron was going to be here.

18 Q Why were you wondering if someone from

19 Chevron was going to be here?

20 A Because from what -- what you hear

21 later, supposedly some of those documents were

22 from Chevron.

23 Q You referred to an oil company in the

24 area in some of your communications with the

25 OCD.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Do you remember that?

2 A I do.

3 Q At the time you wrote that, did you

4 know who the oil company in the area was you

5 were referring to?

6 A I did not.

7 Q But you now believe that that is

8 Chevron?

9 A I do.

10 Q Tell me everything that you have

11 learned since you sent those letters to the OCD

12 that led you to believe that the oil company in

13 the area is Chevron.

14 A That there was a field engineer for

15 Chevron, a female, that worked in the area that

16 was put in charge of looking at -- for Chevron,

17 looking at the use of a pipeline that was going

18 to be sent to a disposal well and wanted to

19 study that for Chevron. And apparently she

20 studied it, what I'm told, and presented her

21 findings to Chevron and presented that she did

22 not think it was a good idea.

23 And subsequently her employment with

24 Chevron was terminated. Whether voluntarily or

25 not, I don't know. And she has since moved.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Q Where did you get all that information?

2 A Four or five different people. That

3 appears to be -- everybody in town seems to

4 know it. But in a small town, I guess

5 everybody knows everything.

6 Q Who are those four or five people?

7 A I can't even recall. Mr. Ellison would

8 have been one of them.

9 Q You can't remember any of the other

10 people at all?

11 A No.

12 Q When were these conversations?

13 A Oh, probably in about the past month

14 and a half. More so ramped up after an article

15 in the newspaper last week.

16 Q So your testimony is that in the last

17 month and a half, you spoke to four or five

18 people. And other than the ones we already

19 know about, you can't remember any of 'em?

20 A No.

21 Q Let me ask that one again.

22 Is your testimony that you spoke with

23 four or five people in the last six weeks who

24 gave you information that you just provided

25 regarding the source of the documents being

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Chevron, and other than the name we already

2 knew, Mr. Ellison, you can't remember any of

3 those people?

4 A I can remember two. I can remember

5 Judge Allen, who is a municipal judge. We were

6 out having a beer and he said this was what he

7 heard. And Greg Fulfer, in fact. I asked Greg

8 Fulfer if -- if he wanted to pull the bully off

9 of me, and he said, "That's not mine. That's

10 being paid for by a major oil company in the

11 area."

12 Q And he didn't say Chevron?

13 A No.

14 Q Did he say anything about this woman

15 who had been employed and was no longer

16 employed who provided these documents? Did

17 Mr. Fulfer say anything about that?

18 A Not to me.

19 Q Did Judge Allen say anything about that

20 to you?

21 A About?

22 Q About this woman who used to work at

23 Chevron?

24 A He said he had heard that. The Mayor

25 said she had heard it as well.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Q So other than the Mayor and Judge Allen

2 and Greg Fulfer, can you remember anybody else

3 who said that?

4 A I would say that would be about it.

5 MR. NEWELL: Gregg, is this a good

6 two-minute break? And I'm sorry.

7 MR. FALLICK: Sure.

8 (Break taken from 11:08 a.m. to

9 11:12 a.m.)

10 MR. FALLICK: Going back on the

11 record.

12 Q (BY MR. FALLICK) Mr. Gallagher, is

13 there anyone else at any time who told you

14 anything about these documents that were from

15 an oil company in the area referred to in your

16 OCD communications?

17 A Other than the people that we talked

18 about earlier, Mr. Fallick?

19 Q Correct.

20 A None that I really recall, no.

21 Q Is there any other information that

22 anyone told you about those documents from that

23 or any source that we haven't covered in your

24 testimony today?

25 A I don't believe so.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Q Did you ever see those documents at any

2 time, other than on that one occasion in April

3 of 2016 when you met with Councilor Orr and

4 Councilor Ellison?

5 A No. And I have not seen 'em since,

6 even up until this deposition.

7 Q Do you know anything more about where

8 those documents came from than you've already

9 testified about today?

10 A No, none that I can recall.

11 Q Do you know anything more about who has

12 information about those documents, other than

13 what you've already testified about today?

14 A Councilor Ellison and Orr, and then the

15 rumors, yeah. No.

16 Q Do you know anything more about what

17 happened to those documents between April of

18 2016 and now, other than what you've already

19 testified about today?

20 A No.

21 (Exhibit Number 9 marked for

22 identification.)

23 Q (BY MR. FALLICK) Next I'm going to

24 hand you a document marked as Gallagher 9,

25 which is my June 5, 2017, e-mail to Mike

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Newell. And I'm going to ask you to read that

2 document. I'm going to ask you some questions

3 about it.

4 MR. FALLICK: And there's one for

5 you, Mike, too.

6 MR. NEWELL: Switch with me, Bob.

7 You get the one with the red sticker.

8 THE WITNESS: Thanks.

9 MR. NEWELL: You're the special one.

10 THE WITNESS: (Witness reviewing

11 document.)

12 Okay.

13 Q (BY MR. FALLICK) Do you know,

14 Mr. Gallagher, which of the documents from 1

15 through 3429 constitute a complete set of the

16 documents from the oil company in the area that

17 the City has alleged were produced?

18 A No.

19 Q If you took the time to go through

20 those documents to determine by which page

21 numbers those -- let me start that question

22 over.

23 MR. NEWELL: May I make a

24 suggestion, too? For the purpose of this

25 question, if you want to use Exhibit Number 2,

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 it might be extremely helpful.

2 MR. FALLICK: I might, but let me

3 just ask it broadly and see if I can just get

4 the answer.

5 Q (BY MR. FALLICK) So if you looked at

6 all of the documents marked 1 through 3492, you

7 went through 'em page by page, would you be

8 able to identify which numbered documents are

9 the documents from the oil company that

10 Mr. Ellison brought to your office in April of

11 2016?

12 A I would be able to probably verify

13 wellbore documents. And then most of the other

14 documents, I guess, that are not e-mails would

15 be a majority of that. But that would be the

16 only thing that I could say for certain that I

17 saw in that box.

18 Q So if you looked at those documents,

19 you wouldn't be able to say for sure it's these

20 numbers, those are the documents that were the

21 oil company documents referenced in our

22 communications? You wouldn't be able to say

23 that for sure?

24 A No. When I referenced -- when I said

25 in the e-mail to OCD "documentation," I was

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 referring to that box of documents. I could

2 not tell you for sure, Mr. Fallick, if it --

3 what I saw April 25th or 26th of 2016 were the

4 same documents that were produced.

5 I was told by Mr. Ellison he carried

6 the box intact up to Mr. Newell's office. I

7 would assume Mr. Newell turned it over lock,

8 stock and barrel.

9 Q So is the only person who can testify

10 that what was sitting in front of him is a

11 complete set of the oil company documents,

12 that's Mr. Ellison?

13 A I would think so, yes, sir.

14 Q If I showed you --

15 (Exhibit Number 10 marked for

16 identification.)

17 Q (BY MR. FALLICK) I'm going to show you

18 a document that's the September 2009 document

19 from the Texas Water Development Board, and

20 it's marked as Gallagher Exhibit Number 10.

21 MR. NEWELL: September what,

22 Mr. Fallick? I'm sorry.

23 MR. FALLICK: 2009.

24 MR. NEWELL: September?

25 MR. FALLICK: 2009.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 MR. NEWELL: Okay. I'm sorry.

2 Q (BY MR. FALLICK) And it's a 71-page

3 document. It's marked as Gallagher Number 10.

4 And I you show you that document and

5 I'm going to represent to you some things about

6 that document and ask you if you would be able

7 to answer a question about it.

8 So that document was produced to us --

9 me by the OCD, the document that's marked as

10 Gallagher Exhibit 10. That same 71 pages,

11 although the copy might be somewhat reduced or

12 enlarged, it's not exactly, but the same

13 71 pages was also produced by the City of Jal

14 as part of its production of 3,492 pages.

15 Would you, if you looked at that

16 document, be able to tell me, "Yes, that did

17 come from Chevron," or "No, it didn't come from

18 Chevron, it came from the OCD?" Would you know

19 one way or the other?

20 A No, sir. This is the first time I've

21 seen this document.

22 Q Okay. Thank you.

23 A Mr. Fallick, do you want this -- I

24 don't want to get you out of number. That's

25 Number 9.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Q Thank you.

2 (Exhibit Number 11 marked for

3 identification.)

4 Q (BY MR. FALLICK) I'm handing you,

5 Mr. Gallagher, marked as Number 11, an

6 April 28th, 2016, letter from you to Matthew

7 Earthman at Souder, Miller & Associates, with a

8 carbon copy to David Martin, secretary ENMRD;

9 David Catanach, director OCD; Tom Blaine, state

10 engineer. The document is numbered City 1697.

11 MR. FALLICK: And I have a copy

12 there for you, Mike, too.

13 MR. NEWELL: Okay. Thank you.

14 This is 11, right?

15 MR. FALLICK: This is 11.

16 Q (BY MR. FALLICK) Mr. Gallagher, do you

17 recognize document Number 11?

18 A I do.

19 Q This letter marked as Number 11 was

20 sent shortly after you met with Councillors

21 Ellison and Orr regarding the oil company

22 documents we've been talking about at this

23 deposition, correct?

24 A This letter was sent as a direct result

25 of that meeting.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Q And you said that meeting happened on

2 the 25th or 26th. So this is a couple of days,

3 three days later?

4 A My comment to them -- the reason I say

5 the 25th or 26th, my comment to them was that

6 I'll do a letter today or tomorrow, and it

7 seemed to me like I procrastinated a day. So,

8 yes, this would -- would all be -- as I

9 understand, would all be in the same week.

10 Q You're talking about wells that the

11 City is going to be drilling for drinking

12 water, correct?

13 A In this letter, yes, sir.

14 Q And then the third paragraph, you're

15 saying you want to ensure that the disposal

16 well, the Owl disposal well, "Will not cause

17 problems with shallow freshwater aquifers,"

18 correct?

19 A Yes, sir, at this time.

20 Q And you're saying you believe that

21 testing is warranted immediately, and then on a

22 regular basis thereafter at this time, correct?

23 A Yes, sir.

24 Q Do you remember what documents in the

25 box of oil company documents would support the

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 concern about potential problems with "shallow

2 freshwater aquifers"?

3 A The one in particular that comes to my

4 mind is the wellbore diagram itself.

5 Q Anything else?

6 A No, other than what I was -- other than

7 what I was told was in there.

8 Q So you didn't see anything other than

9 that? What you saw was the diagram?

10 A Right. And I saw some things that

11 looked like e-mails and a graph, like I said

12 before, that looked like it came from

13 downloading from the Internet.

14 Q Do you know if the documents you've

15 just described, the wellbore and map, the

16 e-mails, and the diagram, were produced in

17 documents 1 through 3492?

18 A I am told they were.

19 Q Who were you told that by?

20 A Mr. Newell.

21 Q But Mr. Newell can't know what you saw

22 back in 2016, right?

23 A I don't guess he could.

24 Q He wasn't there when you --

25 A No, he was not in the office when the

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 box came in.

2 Q So he looked at the current production.

3 You looked at the documents in 2016. You

4 talked about it, but you didn't look at what

5 Mr. Newell produced and he wasn't there to look

6 at what you saw in 2016; is that accurate?

7 A That's accurate. The only thing I know

8 is I was told by Mr. Ellison that he took the

9 box to Mr. Newell.

10 (Exhibit Number 12 marked for

11 identification.)

12 Q (BY MR. FALLICK) Next, I'm going to

13 hand you --

14 MR. FALLICK: And a copy for you,

15 Mr. Newell --

16 Q (BY MR. FALLICK) -- a -- four pages of

17 the City's production, 1419 through 1422, and

18 I'm going to ask you some questions about that.

19 So Page 419, the first page of Number

20 12, is e-mails that are talking about the

21 production of documents. And if you turn to

22 the second page, you start to see historical

23 documents. That's number 1420. If you look at

24 the bottom, you see an e-mail from you to

25 Mr. Goetze dated August 29, 2016.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Do you see that?

2 A Yes, sir.

3 Q Do you also recognize that as being

4 another version of an e-mail that's attached to

5 the complaint?

6 And so I'll give you back --

7 A I would imagine it is because it's an

8 e-mail, and I'm sure that since it's an e-mail,

9 we -- we -- we turned it over to you.

10 Q Well -- so the document you have in

11 front of you that's marked as Gallagher 12 --

12 A Okay.

13 Q -- is four pages that are numbered at

14 the bottom with City numbers --

15 A Yes, sir.

16 Q -- 19 -- I'm sorry -- 1419 through

17 1422. So those are documents that were

18 produced in response to my IPRA request. And

19 the e-mail from you to Mr. Goetz that's at the

20 bottom of 1420 is another version of the same

21 e-mail that's attached to the complaint as

22 Exhibit A --

23 A Yes, sir.

24 Q -- to the IPRA request, right?

25 A Yes, sir.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Q Thank you. Let me take that back.

2 That e-mail by you to Mr. Goetz in

3 paragraph 3, Number 3, is referring back to an

4 original concern filed with the division, and

5 that is referring to Gallagher Number 11, your

6 April 28th, 2016, letter, correct?

7 A That's correct.

8 Q That paragraph is talking about the

9 Chevron documents that we've been talking about

10 today, correct?

11 A I don't know them to be Chevron

12 documents. That is talking about the box of

13 documents that were brought to my office.

14 Q The oil company documents?

15 A Yes, sir.

16 Q That you've said since then, you heard

17 these thing about a Chevron engineer having

18 produced them, and after she was fired and

19 wrote a memo.

20 Is that -- are those all the same

21 documents we're talking about?

22 A I didn't use the word "fired." But the

23 documents I'm talking about was the box that

24 subsequently, in the last four to six weeks, I

25 have heard that it was a Chevron employee

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 involved in it.

2 Q And she no longer was at Chevron and

3 you don't know whether she was fired or quit or

4 retired --

5 A No.

6 Q -- or whatever.

7 A No.

8 Q But you just know she'd left?

9 A Yes.

10 Q And, again, in paragraph 1 of that

11 Goetz letter, which starts at the bottom of

12 Page 1420 in Exhibit 12 and carries over to the

13 top of Page 1421, that refers to a concern of

14 possibly contaminating a drinking water well,

15 correct?

16 A Yes.

17 Q The support for that concern is the

18 same support you testified about just a little

19 while ago when you were testifying about the

20 support for your letter that's marked as

21 Gallagher Exhibit 11?

22 A That's correct.

23 Q Is there any other support for that

24 paragraph in the documents that I should be

25 aware of?

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 A The only other in that -- in

2 paragraph 1 that we're looking at, Mr. Goetz

3 himself had said to me on the phone that they

4 were looking -- already had under investigation

5 an Owl well that had possibly contaminated a

6 drinking water well in the Carlsbad area. Then

7 I went on to say which is the same concern we

8 asked the department to address in Lea County.

9 Q In terms of the support you had on

10 April 26th when you sent -- excuse me -- on

11 April 28th when you sent Gallagher 11 and then

12 again when you followed up with Mr. Goetz in

13 what's included in Gallagher 12, can you

14 remember any other documents that were in the

15 box that would support that concern?

16 A No.

17 MR. FALLICK: I want to first talk

18 about something on the record, and then I'm

19 going to ask if we can go off the record to try

20 to work out the logistics.

21 So I've now covered what I want to

22 cover in terms of things that I need

23 Mr. Gallagher to go through in the binders. I

24 didn't want to have to do that more than once.

25 I wanted to, you know, have everything that

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 he's looking for at the same time. So I'm

2 prepared to do that now.

3 What I'd like to do is go off the

4 record, decide whether now's a good time to go

5 to lunch, or do you want to go later. But, in

6 any event, when we come back on the record, to

7 start having Mr. Gallagher go through to answer

8 questions and, you know, identify all the

9 questions in advance so that he can be looking

10 for it and have everything in front of him so

11 he can look for it all at the same time.

12 And I propose that we do -- I

13 propose we do that off the video record so that

14 we don't have the video camera just watching

15 Mr. Gallagher go through the documents.

16 So we can either do that -- take a

17 five-minute break now for me to get ready to do

18 that and get back at testimony, or we could go

19 to lunch and do it after lunch.

20 So, number one, how do you feel

21 about Mr. Gallagher going through the documents

22 off the video record?

23 MR. NEWELL: Here's my concern about

24 that. We're off the record now or we're still

25 on the record?

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 MR. FALLICK: Still on the record.

2 MR. NEWELL: Okay. So my concern is

3 that -- okay. So you and I have had

4 discussions about timing and extending this

5 out. To the extent that this allows you more

6 opportunity than to basically grind him out, if

7 that's not your intent -- and I will restate

8 for the record there's nothing that's occurred

9 in the deposition this morning that confirms my

10 concerns that that's what you're trying to do.

11 You haven't been repetitive or anything like

12 that. The record speaks for itself.

13 But that would be my concern, if

14 it's your intent to utilize that -- because,

15 you know, what we're talking about is depo time

16 as opposed to, you know, real clock time. And

17 so if we can satisfy that, then I think what

18 you suggest is a great solution.

19 MR. FALLICK: I think I understand.

20 What you're saying is you want the time that

21 he's looking through these documents to count

22 towards the seven hours of deposition time

23 that's permitted under the rules.

24 MR. NEWELL: If you think that we're

25 still going to utilize and if you think that's

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 something that is a relevant issue here for

2 this particular deposition, then I guess you

3 and I can talk about it. You're the one kind

4 of controlling the deposition. If you see that

5 as not being a relevant issue, then I think

6 what you suggested is -- is a good suggestion.

7 MR. FALLICK: I think it's a

8 relevant issue, but I also think it can be

9 resolved by the court reporter; that we go off

10 the record while he's reviewing, and then

11 noting what the time is when we go back so that

12 we have a record of the time that Mr. Gallagher

13 spent without being videotaped, but we don't

14 have a videotape of it.

15 MR. NEWELL: I'm comfortable that's

16 a great -- that's a great solution to that.

17 MR. FALLICK: Okay. So let's do it

18 that way.

19 And then the second question is:

20 It's 20 to noon. I could be ready to start

21 that process at a quarter to noon if you want

22 to do that, or if you want to go to lunch, we

23 can do it after lunch.

24 What would you prefer?

25 MR. NEWELL: So how long do you

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 anticipate after lunch? Do you think this is

2 still going to take most of the afternoon?

3 MR. FALLICK: Correct.

4 MR. NEWELL: Okay. So I would

5 suggest that let's go ahead and take a break

6 now.

7 MR. FALLICK: A lunch break?

8 MR. NEWELL: A lunch break now, and

9 then we'll come back --

10 MR. FALLICK: Come back at a quarter

11 to --

12 How long do you need for lunch,

13 guys?

14 THE REPORTER: 45 minutes to an

15 hour.

16 MR. FALLICK: So how about if we

17 stop now. It's almost -- it's 11:42. We come

18 back at 12:45 and resume then.

19 Does that work?

20 MR. NEWELL: That does.

21 MR. FALLICK: So we can go off the

22 record. And I think we really don't need to do

23 anything else off the record until -- we'll

24 come back -- we'll get back on the record.

25 Then we'll go off the video record and go by

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 this plan.

2 (Break taken from 11:40 a.m. to

3 12:41 p.m.)

4 MR. FALLICK: We're returning on the

5 record.

6 (Exhibit Number 13 marked for

7 identification.)

8 Q (BY MR. FALLICK) And, first, I want to

9 show you, Mr. Gallagher, Gallagher Number 13.

10 This is just notes that I just wrote of what

11 we're doing. I want to make sure that you can

12 read it, because I don't have the best

13 handwriting. Make sure that we got clear on

14 what our instructions are, and then we're going

15 to go forward.

16 MR. FALLICK: There's a copy for

17 you, Mike.

18 Q (BY MR. FALLICK) So I'm going to read

19 it to you, ask if you read it and understand

20 it, then we'll take it from there.

21 So Gallagher Number 13 is my

22 handwritten instructions. And it says,

23 "Identify all page numbers supporting concern

24 about possible contamination of shallow --

25 'shallow freshwater aquifers' and 'drinking

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 water wells.'"

2 Can you read that? Or at least now

3 that I read it to you, do you know what it

4 says?

5 A Yes, sir.

6 Q Okay. So what we're going to do now is

7 I'm going to ask you to go through those five

8 binders, which are the documents 1

9 through 3492, to look for several things at the

10 same time. And first one is going to be a

11 modification of what's in Gallagher 9.

12 So take a look at Gallagher 9.

13 Gallagher 9 is me asking you to identify all of

14 the documents that are the oil company

15 documents that have been produced.

16 Do you understand that?

17 A Yes, sir.

18 Q And you've testified today that you

19 can't really do that. You can't really

20 identify for sure which documents were

21 included. But you've also testified that you

22 could certainly identify certain documents that

23 you can rule out that are not documents that

24 were produced by the oil company because they

25 were clearly documents produced from Jal's

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 files, correct?

2 A Yes, sir.

3 Q So I'm going to ask you to do that.

4 Not to identify what's in 9, but the opposite;

5 that is, to identify what you are certain is

6 not an oil company document.

7 MR. FALLICK: Do you have a

8 question, Mike?

9 MR. NEWELL: Yeah. I was going to

10 say let's use the index, Exhibit Number 2.

11 MR. FALLICK: We'll use whatever is

12 useful.

13 MR. NEWELL: That's going to be

14 helpful, I believe.

15 MR. FALLICK: Whatever is useful to

16 you is totally fine with me. So let me find --

17 MR. NEWELL: It should be Exhibit 2.

18 MR. FALLICK: I think I have 'em in

19 order.

20 Yeah. Here's 2.

21 Q (BY MR. FALLICK) So -- and I'm going

22 to give you 2 for you to use however you like

23 as a resource to use. Feel free to do it. I

24 want you to keep 9 --

25 A Okay.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Q -- in front of you so that you know

2 we're keeping track of what you're doing.

3 So that's one thing you're doing.

4 The other thing -- the next thing

5 you're doing is Exhibit 3, which attaches two

6 documents, and I'm asking you whether those two

7 documents are in the binders. And so I want

8 you to, while you're looking, also look and see

9 if those two documents are in the binder.

10 A Okay.

11 Q The two that are attached to Gallagher

12 3.

13 Then, the next thing I'm going to ask

14 you to do while you're going through it is to

15 look for the document attached as Gallagher 4

16 and see if that's in the documents. And when I

17 say that, I mean that e-mail or any of those

18 e-mails. Even if it looks a little different,

19 I want it to be those items. And I'm going to

20 go through that in a little more detail.

21 Then, Gallagher 5 is a May 26th, 2016,

22 e-mail from Jim Ellison that starts with, "We

23 don't give a damn about their log." And I want

24 you to look for that, even, again, if it's in

25 somewhat different format.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 So that is it.

2 So we're looking for all those things.

3 Number 1, everything that's not for sure an oil

4 company, Chevron or other oil company document,

5 but, instead, is something that came from Jal's

6 files.

7 2, 3, 4, and 5, those other documents

8 I put in front of you. And so -- and I have a

9 set, too.

10 So regarding Exhibit 3, to be clear,

11 what we're looking for is the attachments. One

12 of 'em is an August 1, 2016, e-mail from you to

13 David Catanach that follows two prior

14 exchanges. And then the other one is a -- an

15 e-mail from Phillip Goetz to you about the

16 Morales Shoals B Well Number 2 that's also

17 attached to Exhibit Number 3.

18 And then the attachment to Exhibit

19 Number 4 is an e-mail from you to Gay Kernan

20 dated September 22, 2016.

21 So that's the universe of things

22 that's all in front of you, but -- with the

23 exception of Exhibit 9, as the things that are

24 specified in Exhibits 3, 4, 5, 9, and 13. And,

25 again, Exhibit 9, it's the converse, because

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 we -- you couldn't establish what was Chevron.

2 So we're at least eliminating what we know is

3 not Chevron.

4 Are all those instructions clear? You

5 know what you're looking for? Because I don't

6 want you to have to look through it twice.

7 MR. NEWELL: I'm going object to the

8 form of the question, especially that you don't

9 want him to have to look for it twice. You've

10 given him multiple tasks here.

11 MR. FALLICK: Right.

12 MR. NEWELL: And so I think that's a

13 compound question. If he needs to refer to the

14 documents as many times as he needs to, I don't

15 want to preclude --

16 MR. FALLICK: No. I'm just trying

17 to save time.

18 MR. NEWELL: Okay.

19 MR. FALLICK: I'm going to ask the

20 individual questions when he's done. I just

21 don't want to end up, if we can avoid it, in

22 the position where he says, "I forgot to look

23 for that one."

24 MR. NEWELL: Okay. Fair enough.

25 But if he does, he can go back and look for it.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 My point is, I don't want to get into a game of

2 gotcha.

3 MR. FALLICK: It's not about gotcha.

4 I just want to try to find those documents and

5 I want to try to --

6 MR. NEWELL: Do it --

7 MR. FALLICK: -- do it without

8 having to review these things five times.

9 That's why I saved it up to do it all at once.

10 MR. NEWELL: And I'm comfortable

11 with that.

12 MR. FALLICK: So there's no question

13 pending. There's a task pending.

14 MR. NEWELL: Okay.

15 MR. FALLICK: Then I'm going to go

16 back and ask questions.

17 MR. NEWELL: Next question, then:

18 To what extent do you object or not object to

19 me assisting him in this task?

20 MR. FALLICK: As long as he's going

21 to be responsible for the testimony, I have no

22 objection to you helping him.

23 MR. NEWELL: Okay.

24 MR. FALLICK: I want, ultimately, a

25 witness who's under oath to tell me that either

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 these things are there or they're not there.

2 That's what I want.

3 MR. NEWELL: All right.

4 MR. FALLICK: And to be able to

5 testify, something I can rely on.

6 MR. NEWELL: Why don't we look at

7 Exhibit 2 off the record and see if those are

8 reflected in there. If it's not in Exhibit 2,

9 then I would suspect that it's not --

10 MR. FALLICK: But it may or may not

11 be clear, and I want him to have time to go

12 through and see what he has to.

13 We're going to go off the video

14 record. She's going to keep --

15 MR. NEWELL: Like we talked about.

16 MR. FALLICK: -- control of the time

17 so we know how long it takes.

18 MR. NEWELL: I'm comfortable with

19 that part of it because you've agreed to the --

20 MR. FALLICK: And it's fine with me

21 if you -- if you help Mr. Gallagher. I would

22 do it as a confident -- I don't have a problem

23 with you whispering in his ear. You know, I

24 know that wouldn't be normal, but that's -- for

25 this task, that's fine. We're not going to

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 get -- we're not going to get -- Gina's not

2 going to type what you're saying.

3 MR. NEWELL: I'm comfortable with

4 that. I'm not worried about that.

5 Okay. That sounds -- that sounds

6 appropriate. Let's see what we can do in

7 plowing ahead.

8 What we may do is I probably have

9 some Post-it notes or something like that in my

10 bag or something else that we could flag

11 documents with. It looks like you have some

12 there as well. That way we don't have to go

13 through multiple times.

14 MR. FALLICK: No. We can break down

15 the numbers, too. Whatever you --

16 (Brief interruption in the

17 deposition.)

18 MR. FALLICK: So are we ready to go

19 off the video record?

20 MR. NEWELL: Yes.

21 MR. FALLICK: Go off the video

22 record now. We're going to stay on the

23 stenographic record just for purposes of

24 maintaining control. There's no question

25 pending. There's a task pending. I'll ask

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 questions about the result of your task when

2 you're done.

3 (Break taken from 12:51 p.m. to

4 1:03 p.m.)

5 MR. FALLICK: Going back on the

6 record.

7 Q (BY MR. FALLICK) Please put Exhibit

8 Number 3 in front of you, Mr. Gallagher.

9 That's the June 9, 2017, e-mail from me to Mike

10 Newell with attachments.

11 Do you have that in front of you?

12 A I do.

13 Q The first attachment is an e-mail from

14 you to David Cataknack dated August 1, 2016.

15 Is that e-mail included in the

16 documents you produced numbered 1 through 3492?

17 A No. I could not find it.

18 Q How about the e-mails leading up to

19 that e-mail in that document?

20 There's an e-mail to Mr. Cataknack

21 dated July 28th. Is that e-mail as a separate

22 e-mail somewhere in the documents you produced,

23 1 through 3492?

24 A Not that I could find, no, sir.

25 Q The second attachment to Exhibit

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Number 3 is an e-mail from Phillip Goetz to

2 you.

3 Is that e-mail included in the

4 documents you produced numbered 1 through 3492?

5 A No, not that I can find.

6 Q Now turning to Exhibit Number 4, which

7 is my June 10th e-mail to Mike Newell.

8 Do you have that one?

9 A Yes, sir, I do.

10 Q I may have just said that, but that's

11 Exhibit Number 4, correct?

12 A Yes, sir.

13 Q The attachment to that is an e-mail

14 from you to Senator Gay Kernan dated September

15 22, 2016.

16 Is that e-mail included in the

17 documents you produced numbered 1 through 3492?

18 A No, sir. I could not find it.

19 Q Did you intentionally hide from me the

20 e-mails attached to Exhibits 3 and 4?

21 A No, sir, I did not.

22 Q Why weren't they included in the

23 documents you and the City of Jal disclosed?

24 A I would think that you would need to

25 ask the custodian of the public records. In

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 other words, I don't understand why they would

2 not be.

3 Q Now turning to Exhibit 5, which is the

4 May 26th, 2016, e-mail from Jim Ellison.

5 Is that e-mail included in the

6 documents produced as 1 through 3492?

7 A No, sir, not that I could find.

8 Q Why wasn't that e-mail produced to me?

9 A Again, I don't know. My instructions

10 were every e-mail, just to dump my e-mail and

11 councillors' e-mails and send it.

12 Q Now please turn to Exhibit Number 9.

13 Regarding the question about the

14 converse of that, that is not what you're sure

15 is a document from the oil company, but what

16 you're sure is not a document from the oil

17 company, based on the numbers -- do you have a

18 number range or several number ranges you can

19 provide me that certainly did not come from the

20 oil company?

21 A I do.

22 Q What is that?

23 A If I could skip the zeros like we did.

24 Q Yes.

25 A Number 1 through 1500, I can definitely

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 say that that would not be included in anything

2 that I alluded to as from documentation from an

3 oil company or companies.

4 Q So 1501 through 3492 includes documents

5 that may or may not have come from the oil

6 company; is that right?

7 A Give me a minute, please.

8 And your question was from 1501, they

9 were documents --

10 Q From 1501 through 3492, that entire

11 series of documents are items that may or may

12 not have come from the oil company? You can't

13 specifically say one way or the other as to

14 that series of documents?

15 A That's correct.

16 Q So the number of documents that

17 potentially may have come from the oil

18 company -- I don't have an accounting expert

19 with me, but I'm going to try to do some math

20 myself.

21 MR. NEWELL: You know what they say.

22 If we'd have done math, we'd have gone to med

23 school.

24 MR. FALLICK: My father wanted me to

25 go to med school.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Q (BY MR. FALLICK) So 3492 minus 1500

2 is?

3 A About 1800 and something.

4 Q I'm coming up with 1992 documents.

5 MR. NEWELL: Just short of 2000.

6 MR. FALLICK: Does that sound right?

7 MR. NEWELL: It does.

8 Q (BY MR. FALLICK) So, at most, the

9 documents that have been produced to us that

10 may have been oil company documents and may

11 have been Chevron Oil Company documents is a

12 total, at most, of 1,992 pages; is that right?

13 A That's correct.

14 Q Now, do you know a ream of paper is

15 500 pages? When you get a box of copy paper

16 from Zerox and it comes with ten packages of

17 paper that are each a ream, and a ream is

18 500 pages, did you know that?

19 A I did not.

20 Q Okay. I'll represent to you a ream is

21 500 pages of documents.

22 I'll also represent to you that when

23 you get a box of documents from Xerox or Office

24 Depot, whoever -- excuse me -- a box of copy

25 paper, it's ten reams, it's 5,000 pages.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 That's a nice-sized box, like a banker's box,

2 maybe a little bigger. And that's 5,000 pages.

3 Okay?

4 So 1992 pages, say, rounded up to

5 2000, is four reams of paper, which is eight

6 inches high if you stack it on top of each

7 other.

8 So the most that was produced to us

9 that could be oil company documents is an

10 eight-inch high stack of paper.

11 MR. NEWELL: No. I'll object to

12 that. That's assuming you copied 'em and put

13 'em on single sheets. He's already identified

14 what he saw included some bound materials, some

15 materials that were laid in there loosely. So

16 there's a lot of variables that go into how

17 high something is going to appear. So that's

18 the basis of my objection.

19 MR. FALLICK: Let me rephrase the

20 question, because that's accurate.

21 Q (BY MR. FALLICK) If you take

22 1992 pages and you round it up to 2000, and you

23 don't include crumpled pages, you don't include

24 file folders, you don't include binders, you

25 know, you don't include anything that would be

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 other than a stack of the papers one on top of

2 the other in a neat stack, that's eight inches,

3 eight inches of documents.

4 If you take a ream of paper and you

5 take ten of those, a full box of Xerox paper, a

6 box like that is 5,000 pages. So you testified

7 about having -- excuse me. You didn't testify

8 about it. You've made statements in the past

9 about this being a large box of documents.

10 Do you remember that?

11 A I don't remember if I said "large." I

12 will tell you when you refer to a Xerox box,

13 this box was probably half the size.

14 Q Okay. Well, I'm going to play you a

15 document -- a recording of you talking about

16 this box of documents, and then I'm going to

17 ask you some questions.

18 A Okay.

19 Q I need a minute because I need to do an

20 electronic search.

21 I'm going to play you what I

22 understand to be you speaking at a March 27,

23 2017, City Council meeting.

24 (Discussion off the record.)

25 Q (BY MR. FALLICK) This is, as I said, I

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 believe you speaking at a March 27, 2017, City

2 Council meeting, and this is the recording that

3 starts at 9 minutes and 21 seconds. And see if

4 it looks --

5 (Recording being played.)

6 BY MR. GALLAGHER: As a third item,

7 we received, and I believe you-all received in

8 your e-mail, from the State of New Mexico a

9 lengthy letter from the Energy, Minerals and

10 Natural Resources Department from the Oil

11 Conservation Division. And this is -- has to

12 do with a letter that the City sent on

13 April 28th of 2016, to the Oil Conservation

14 District. The letter was sent because

15 Councillor Ellison and Councillor Orr came to

16 my office with a large box of documents that

17 was given to them that seemed to suggest the

18 possibility a formation where the City may have

19 to get their future drinking water was

20 potentially being contaminated by a disposal

21 well.

22 (End of recording.)

23 Q (BY MR. FALLICK) Let me ask you first,

24 Mr. Gallagher, is that your voice on that

25 recording we just listened to?

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 A That is.

2 Q When you're referring to the large box

3 of documents and the disposal well, is that the

4 same box of documents and the same disposal

5 well that you've been testifying about today?

6 A It is.

7 Q Today, you, during your testimony,

8 talked about a small box of documents, but --

9 MR. NEWELL: Objection.

10 Mischaracterizes his testimony.

11 MR. FALLICK: Well, the record will

12 speak for itself. But when you read the

13 transcript, you'll see that earlier this

14 morning he talked about a small box of

15 documents. So I'm either right or wrong, but

16 the transcript will say what it says.

17 Q (BY MR. FALLICK) But, in any event,

18 either way, at the March 27th meeting, you

19 referred to it as a large box of documents,

20 correct?

21 A Correct.

22 Q When you talked about a large box of

23 documents, what are you talking about?

24 A Bigger than a Kleenex box. Bigger than

25 a little, you know, box that paper comes in.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 It was an old cardboard box. I think we've

2 moved 10 times, 12 times in my life, and it

3 would be one of the smaller moving boxes,

4 because moving boxes are very big. But it

5 would be -- gosh, I don't know what to -- a

6 regular-sized -- bigger than just a box box.

7 Probably if you took this binder, that box is

8 probably that wide (indicating).

9 Q So you're holding your hands about

10 three inches on either side of the binder?

11 A Yeah. Two or three inches on each

12 side.

13 Q And how about the other dimensions?

14 A It was probably this high (indicating).

15 It didn't have a cover on it. So it was

16 probably that high (indicating).

17 Q You're holding five inches above the

18 edge of the binder; is that right?

19 A Yes, sir.

20 Q So we've got side to side. We've got

21 height.

22 How about depth?

23 A I can only imagine the depth,

24 obviously, would be from here to the table

25 (indicating).

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Q Right. Maybe I'm not describing it

2 well.

3 A I apologize.

4 Q So we've gotten from up to down --

5 A I gotcha.

6 Q -- we've gotten from side to side.

7 How about from front to back?

8 A I'd say just a little bit bigger than

9 this cover.

10 Q And that's what you refer to as a large

11 box of documents?

12 A In that -- in that recording, yes, sir.

13 Q You see banker's boxes behind you on

14 the --

15 A I do.

16 Q -- floor there, right?

17 A Uh-huh.

18 Q Is there -- that's a "yes"?

19 A Yes, sir, I see the boxes.

20 Q Do you -- when you refer to a large box

21 of documents, is it larger or smaller than one

22 of those banker's boxes?

23 A The box that I saw is smaller than

24 that.

25 Q Okay.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 MR. FALLICK: And let's go off the

2 record momentarily. I'm going to go get a

3 ruler. I'm going to measure the box.

4 MR. NEWELL: It should have the

5 dimensions on it, I think.

6 MR. FALLICK: Does it?

7 MR. NEWELL: You know, I think the

8 better ones do. We've got two different

9 qualities here.

10 MR. FALLICK: Oh, those are your

11 boxes.

12 MR. NEWELL: Yeah.

13 MR. FALLICK: While you're doing

14 that, I'm going to get a ruler.

15 (Break taken from 1:23 p.m. to

16 1:24 p.m.)

17 Q (BY MR. FALLICK) So when we were off

18 the record, Mr. Gallagher, we measured a

19 banker's box, right?

20 A Yes, sir.

21 Q And the banker's box that we measured

22 also didn't have a lid like you described,

23 correct?

24 A Correct.

25 Q Without the lid, the banker's box

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 measured 16 inches back to front, 12 and a half

2 inches from side to side, and 10 inches from

3 bottom to top; is that right?

4 MR. NEWELL: That's what you

5 measured.


7 MR. FALLICK: Mr. Newell, you

8 observed it.

9 MR. NEWELL: Yeah. We can stipulate

10 to your measurements. And if we need to, we

11 can bring -- we can bring the box. I mean, I

12 think we can agree they're all standard-size

13 banker's boxes that are customarily used in our

14 business.

15 Q (BY MR. FALLICK) So the document we

16 looked at was 16 inches by 10 inches by 12 and

17 a half inches.

18 And you said that the box that you

19 referred to as a large box of documents was

20 smaller than that?

21 A A little bit smaller than that.

22 Q And describe how the documents were

23 situated in the box, because your lawyer was

24 talking about the difference between a bunch of

25 flat documents and then the documents that are

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 maintained some other way.

2 A I was sitting behind my desk about this

3 depth (indicating). Mr. Ellison was sitting in

4 a chair here (indicating), Mr. Orr here

5 (indicating). There's a small table in front

6 of them. The box was on the table. I looked

7 up and there were papers, loose papers

8 scattered about, and then some other stuff that

9 looked like it was either reports or something

10 in a folder or a binder. That's what I saw.

11 Q In your opinion, based on what you saw,

12 do you believe it's possible that that large

13 box of documents had the equivalent of a stack

14 of eight inches of paper; that is, four reams

15 of paper in that large box?

16 A Yes. Could be. You know, I didn't

17 even get back here to see if it was filled in

18 or if there was a gap in between here.

19 Q Returning to now Exhibit 13, which is

20 my handwritten notes to you --

21 A Yes, sir.

22 Q -- would you read that again into the

23 record? Can you read it?

24 A "I identified all page numbers

25 supporting concern about possible contamination

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 of 'shallow freshwater aquifers' and 'drinking

2 water wells.'"

3 Q Were you able to find any documents in

4 1 through 3492 that supported a concern about

5 that?

6 A Not through documents 1 through 1500.

7 Q Well, would you take the time -- and

8 we'll go off the record again. I'd like to

9 know if there are any documents that would

10 support that concern in any of the documents

11 from 1 through 3492.

12 MR. NEWELL: Same thing?

13 MR. FALLICK: Yes. So, Dusty, we

14 can go off the video record.

15 And, Gina, we can just record the

16 times that we're off the record, please.

17 (Break taken from 1:28 p.m. to

18 1:35 p.m.)

19 Q (BY MR. FALLICK) Before we went off

20 the record, Mr. Gallagher, you were looking for

21 documents that were based on the handwritten

22 note I gave you that would you read that one

23 more time?

24 A Sure. "Identify all page numbers

25 supporting concern about possible contamination

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 of 'shallow freshwater aquifers' and 'drinking

2 water wells.'"

3 Q Did you find any documents responsive

4 to that in documents 1 through 3492?

5 A I did.

6 Q What document numbers?

7 A Document numbers 2777 to 2781. I

8 identified those documents as documents that I

9 actually saw in the box that I was on record of

10 saying before.

11 Q What is it about document numbers 2777

12 through 2781 that support that concern?

13 A On 2777, it shows that the string of

14 tubing there was not cemented in like would

15 normally be cemented in in a well that met

16 compliance, and that would be a concern of

17 leakage from that because it was not cemented

18 in.

19 The second is, is that the well itself

20 was deepened from 2849 to 3055 and it was open

21 hole and not perforated. So that means that

22 anything that's coming through that pipe, that

23 tubing at a high rate is going to just spread

24 all right -- dump right -- all right out

25 instead of being spread and perforated through.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 So that was a concern.

2 The second is document 2778 and 2779

3 that showed a seismic, if you will, from

4 December of 2015 that showed an unusual what I

5 would call plume where, if you looked at the

6 depth, could be in the Capitan Reef. The

7 Capitan Reef had been identified by our

8 consulting engineers a year before this as the

9 potential future drinking water of the City of

10 Jal.

11 The same in 2780, it -- I didn't

12 understand this graph as much as I did the one

13 in 2779, but I remember seeing that and then

14 also seeing, as I think I referred to before,

15 as a chart of 2781 that actually would have

16 shown -- I've seen this chart before. I

17 believe it was from the one that was in the box

18 that actually showed the barrels of water that

19 were placed into that disposal well that I --

20 that I wrote OCD about our concerns.

21 Q Now, what you just described about

22 those documents, is that something that you

23 determined based on your expertise, or is that

24 something that somebody else explained to you?

25 A Both. From my -- from my time in oil

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 and gas, it was obvious to me that there was a

2 concern about the -- the way the tubing and the

3 casing was here and how it was situated. And

4 then, too, obviously --

5 MR. NEWELL: When you reference

6 something, reference the page numbers.

7 THE WITNESS: I apologize.

8 In 2777, it was -- it was obvious to

9 me that there could be a concern there, from my

10 past history.

11 And then on 2778, there was a --

12 some e-mail from people that I did not know who

13 they were, and the company's not identified in

14 it, that says they've modified a screen shot

15 from Fuji with the highlight of what looks like

16 the transition from back [sic] reef to the reef

17 in yellow. If the depth conversion is correct,

18 the top of the mass would be about 3200 feet.

19 Does not prove our well is in the "reef," but

20 warrants a closer examination that this is --

21 that this very high level took.

22 And that in itself, when you look at

23 it -- I'm not sure who these people were, but

24 it's obvious when you look at it that it says

25 so, "It looks like something weird."

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 MR. NEWELL: What page?

2 THE WITNESS: Page 2779 says, "It

3 looks like something weird. Is that a fault,"

4 et cetera.

5 Well, I think anybody, whether

6 they're educated about oil and gas or not,

7 would look at this and could absolutely say

8 that we may have a concern, a concern about

9 possible contamination of shallow freshwater

10 aquifers and drinking water wells.

11 When I use -- this quote says

12 shallow freshwater aquifers. That may not --

13 that may not be the exact description of a

14 Capitan Reef because Capitan Reef may have

15 freshwater, but it also may have water that

16 would be less costly for us to clean up than

17 any other formation, is what our engineers had

18 told us.

19 So this alone, as I said before,

20 when I saw this, and then when Mr. Ellison said

21 the other documents support this based on that,

22 my letter to Mr. Earthman and copied to Energy

23 Minerals and Natural Resources said I have a

24 concern. Anybody that sees this and knows a

25 little bit about oil and gas I think would

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 absolutely have a concern that something's

2 going on.

3 Our concern was heightened because

4 that is right above and right into the Capitan

5 Reef, which had been identified as a potential

6 future drinking water source for the City of

7 Jal.

8 Q (BY MR. FALLICK) Were there any

9 documents in that box from the oil company

10 resolving the question that the author raised

11 about whether there was something weird going

12 on?

13 A I can't -- I can't answer that because

14 I did not look at the other documents, as I

15 have said before.

16 Q As far as you know, there may have been

17 documents like that and they may not have been

18 produced to us.

19 You don't know one way or the other,

20 do you?

21 A No.

22 Q There I go again. I'm going to have to

23 ask that question again.

24 Do you know one way or the other

25 whether there are documents that were in that

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 box of documents from the oil company that

2 resolved that issue and that were not provided

3 to us?

4 A No.

5 Q Now, the Capitan Reef is not a drinking

6 water well, is it?

7 MR. NEWELL: Objection to form of

8 the question. Restate the question. You

9 said it's not a drinking water well.

10 MR. FALLICK: What?

11 MR. NEWELL: You said a water --

12 it's not a drinking well. I mean, it's a huge

13 formation that goes hundreds of miles. So I

14 don't know that there's -- oh, I see what

15 you're saying.

16 THE WITNESS: I just spoke to that.

17 MR. NEWELL: I'll withdraw my

18 objection. I see the context you're saying

19 that. No, that's -- that's fine, Mr. Fallick.

20 I apologize.

21 Q (BY MR. FALLICK) One of the documents

22 we looked at this morning was you expressed a

23 concern about contamination of "shallow

24 freshwater aquifers."

25 The Capitan Reef is not that, is it?

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 A From studies that they've shown, no, it

2 would not be called a freshwater well. It

3 could turn into that. Understanding that that

4 quote came from, if I'm not mistaken, my

5 April 28th letter. We had no idea at that

6 point whether it would impact the Capitan,

7 which is drinking water, because that's where

8 our 900 acres that I referred to in the letter,

9 we were going to the Capitan formation, not the

10 Capitan Reef formation.

11 Ultimately, we found out that they

12 were going above the reef. And the reef is

13 where Souder Miller, who I sent the letter to,

14 had said we got turned down for 900-acre feet

15 in the Capitan. We may have to find it in the

16 Capitan Reef.

17 So when I referred to that, originally

18 I referred to -- meaning that the freshwater

19 well would be the Capitan.

20 Q The Capitan Reef isn't shallow either,

21 is it?

22 A It depends on your definition of

23 shallow. 3000 feet, 3200 feet is shallow in

24 the oil field.

25 Q The Capitan Reef isn't a drinking water

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 well, is it?

2 A No.

3 Q You know there's a difference between

4 the Capitan and the Capitan Reef, right?

5 A I do.

6 Q Is the water in the Capitan Reef

7 drinkable?

8 A From tests, not without some clean up

9 prior to that time.

10 Q Do you know how extensive the clean up

11 would have to be in the portion of the Capitan

12 Reef that would be accessible to Jal?

13 A According to the engineers, it would be

14 less than the other formations that were maybe

15 shallower, like the Rustler and some others.

16 They thought that that would be the less --

17 least expensive route for the City to go.

18 Q There's no current technology that

19 would allow the Capitan Reef water accessible

20 to Jal to be used as drinking water for

21 anything even approaching an affordable

22 cleanup, is there?

23 A I don't agree with that statement. I

24 believe that there would be.

25 Q Currently, the City of Jal gets its

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 drinking water from drinking wells that you can

2 drink that water now, right?

3 You don't have to do anything to clean

4 it up. It's drinkable now, where you currently

5 get your water, right?

6 A From the Jal Basin.

7 Q Isn't that right?

8 A Correct.

9 Q This well, this injection well is

10 nowhere near that water; is that true?

11 A That's true. Nor did we ever suggest

12 that it was.

13 Q But there is an injection well that is

14 really close to that water, isn't there?

15 MR. NEWELL: I'm going to object to

16 the form of the question. And then how is this

17 reasonably calculated to lead to discovery of

18 admissible evidence in the IPRA?

19 MR. FALLICK: I think it's intended

20 to show that there's a motive not to provide us

21 with all of the requested documents. It's

22 intended to show a reason not to be honest

23 about the production and that there's something

24 to hide.

25 MR. NEWELL: You can answer the

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 question.

2 We totally disagree with that.

3 THE WITNESS: That's fine.

4 What was the question?

5 Q (BY MR. FALLICK) The question is:

6 Isn't there another injection well that is

7 right near the actual freshwater drinking well

8 that the City of Jal is using now?

9 A Not that I'm aware of, nor not that I

10 believe has ever been brought to our attention.

11 Q Really? Are you sure?

12 A That's what I said. I don't believe or

13 don't recall that I would ever be aware. Or if

14 I was aware, there must have been a reason why

15 there was no concern. And, obviously, the

16 drinking water that we drink is tested.

17 So I would not have any concern, but I

18 am -- I don't recall ever knowing that there

19 was a disposal well by our existing drinking

20 water.

21 Q You would agree that a threat to the

22 existing drinking water would be a higher

23 concern than a threat to the Capitan Reef,

24 right?

25 A Absolutely.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Q I'm going to take those exhibits back

2 for now.

3 A And I think they're in numerical order.

4 Here's 3, 4, 5. And here's 9.

5 Q Thank you.

6 Now, I want to go back to Exhibit 8

7 and ask you about that. That's our June 9,

8 2017, e-mail to me and Mike Newell?

9 A That's correct.

10 Q Why were you e-mailing me about that?

11 A Well, it was in response to an e-mail

12 that you had sent that Mike sent me that said

13 this is what the questions you're going to ask.

14 Q So Mr. Newell sent you e-mails that I

15 sent him, and then you sent that to Mr. Newell

16 and me because of receiving through Mr. Newell

17 my prior e-mail?

18 A Yes, sir.

19 Q Why did you want to know if a

20 representative from Chevron was going to be

21 here?

22 A Just wanted to.

23 Q What was the -- why did you think there

24 might be a representative from Chevron here?

25 A Based on what I have earlier alluded

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 to, that apparently some of these documents

2 may -- now -- now knew apparently some of these

3 documents may have come from Chevron.

4 Q Did you think that Chevron was an

5 undisclosed principal seeking this information?

6 A I don't really care.

7 Q So, again, I'm not sure I understand

8 what you thought -- why you thought Chevron

9 might be here and what the point of the inquiry

10 was.

11 A I just answered that.

12 Q You just wanted to know?

13 A Yeah, I wanted to know if they were

14 going to be here.

15 Q Did you have any reason to think they

16 would be here?

17 A Well, if they thought some of those

18 documents were theirs, I thought, well, maybe

19 they think that their -- maybe something

20 happened with those documents that shouldn't

21 happen with Chevron.

22 Q You had mentioned in your testimony

23 earlier that your impression of the documents

24 that Mr. Ellison brought to your office in

25 April of 2016 was that those were all documents

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 that were otherwise in the public domain,

2 right?

3 A From the documents I saw.

4 Q Did you notice that there were

5 documents in there that referred to

6 attorney-client privilege?

7 A No. I never saw a document that said

8 that.

9 Q If you were ordered by the Court to

10 produce the original large box of Chevron

11 documents --

12 MR. NEWELL: We don't have to be

13 ordered by the Court. I'll produce it. I've

14 got it in my office in my possession.

15 MR. FALLICK: I guess that answers

16 my question.

17 Q (BY MR. FALLICK) So where I was going

18 with the question was: What would you do to

19 find it?

20 And so maybe Mr. Newell's answered

21 that. You'd go to Mr. Newell's office?

22 A I'm told that Mr. Newell has possession

23 of it, but I'm also told that it had been

24 produced to you-all.

25 Q I understand that. So let's assume

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 that you just wanted -- let's assume -- well,

2 let me think about how to phrase that, because

3 what you've testified is -- the question I was

4 going to ask you was: What would you do to

5 find the original box of documents?

6 And Mr. Newell, I think, has said, and

7 now you're testifying, as I understand it,

8 you'd go over to Mr. Newell's office?

9 MR. NEWELL: And if I'd have known,

10 I would have brought 'em to court the other

11 day. I mean, that's -- if this is an issue,

12 you know, we're not trying to hide anything.

13 And the reason we didn't make 'em for

14 inspection was we thought we were doing you a

15 favor by copying 'em and producing 'em in the

16 way we did instead of making you come down. I

17 mean, that was kind of our goal there.

18 Q (BY MR. FALLICK) I mean, what I'm

19 trying to get at is, if -- I have no doubt that

20 you produced what you were given. And if we

21 question whether you were given everything,

22 what would you do to confirm that Mr. Newell

23 was given everything?

24 If you had to do it, the judge ordered

25 you, Mr. Gallagher, go do whatever homework you

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 need to do to confirm or disprove that

2 everything that Mr. Newell was given is the

3 entire set of documents, what would you do to

4 get to the bottom of it?

5 A I'd go to the person who brought it to

6 my office. I would have to go to Mr. Ellison

7 and say, "Jim, the box that you brought to my

8 office, did you add anything to it? Did you

9 take anything out of it? Did you alter that

10 box in any way prior to giving it to

11 Mr. Newell?"

12 Q So I think I understand what that means

13 is you would go to Mr. Ellison?

14 A Yes, sir.

15 Q Is there anybody else you would go to,

16 anything else you would do other than go to

17 Mr. Ellison?

18 A I don't think so, because the

19 information I had from Mr. Ellison was, when he

20 left my office, he took the box back home and

21 it sat there until Mr. Newell asked him for it.

22 Q When you told Mr. Ellison to take those

23 boxes home -- excuse me. New question.

24 When you told Councillor Ellison to

25 take that box home, was that to avoid it being

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 a public record that you had to produce under


3 A No.

4 Q Did you discuss this box of documents

5 we're talking about at a staff meeting?

6 A I don't know. I don't recall.

7 Q Did you -- do you recall telling

8 anyone -- well, let me think about how to say

9 this.

10 Do you deny having said at a staff

11 meeting something to the effect that you did

12 not want the box of documents in City custody?

13 A I don't deny that. I wouldn't want the

14 box in City custody. I said that before.

15 Q Why wouldn't you want it?

16 A It wasn't our job. Our job was to --

17 if we have documents, and I was told by people

18 that saw every document in that box that there

19 was -- that it led them to believe there could

20 be a concern about Capitan Reef, the best thing

21 to do is and the easiest thing to do is call

22 the regulatory agency and ask them to look at

23 it. I figure at some point they're going to --

24 they're going to have that box. So if I'm not

25 investigating it and if I'm not looking at it,

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 why do I need that information?

2 Q Now, you did more than just tell OCD

3 that you had a concern that needed to be

4 investigated, didn't you?

5 A When?

6 Q At any time regarding the investigation

7 of the injection well.

8 A That's how it started out as a concern.

9 If there was anything else I told 'em, it was

10 based upon what they may have brought back to

11 us or further information that we had gotten.

12 Q Didn't you have some pretty aggressive

13 communications with the OCD criticizing them

14 for not being concerned about freshwater

15 because they didn't take a more aggressive

16 position in investigating that well?

17 A Absolutely.

18 Q That sounds like a lot more than just

19 expressing a concern and finding out whether

20 there was anything to it.

21 Doesn't it sound like more aggressive

22 than that to you?

23 MR. NEWELL: Objection, form, not

24 reasonably calculated to lead to discovery of

25 admissible evidence.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 With that being said, you can go

2 ahead and answer.

3 THE WITNESS: No, not at all.

4 When-- when -- I think that if somebody raised

5 a question about the potential contamination of

6 future drinking water, if I was the agency who

7 was charged with the responsibility of doing

8 that and protecting that, I think I would have

9 responded somewhere quicker than within the

10 four months, I believe it was.

11 And that -- that is the source and

12 was the source of my agitation. Absolutely no

13 conversations, no written -- nothing from them,

14 as if they weren't concerned.

15 Q (BY MR. FALLICK) As I understood your

16 testimony, and correct me if I'm wrong, you

17 were bringing this to the OCD's concern --

18 attention because there was a question raised,

19 but there was no answer for the question. So

20 there was a possibility of some of this

21 injection water getting into the Capitan Reef,

22 but there was nothing more than a possibility.

23 Is that accurate?

24 A I think that would be accurate, and I

25 believe that's how I initially spoke to the

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 subject matter.

2 Q But that changed?

3 A Some of it changed based upon

4 conversations with Mr. Goetz, the OCD person,

5 that they had found some concerns, that they

6 were concerned, that they were investigating an

7 Owl well that potentially contaminated the

8 fresh drinking water source of Carlsbad.

9 Which, coincidentally, Carlsbad gets their

10 water from the Capitan Reef, as the City of

11 Loving does. And then, obviously, that

12 concerns you that if they're saying that may

13 have happened, it heightens your concern.

14 Q You understand that the water quality

15 in the Capitan Reef varies dramatically from

16 one location to another, correct?

17 A I'm not a hydrologist. No.

18 Q So you didn't understand that the

19 Capitan Reef in Carlsbad is very different than

20 the Capitan Reef near Jal?

21 A No. I wouldn't have any reason to know

22 that.

23 Q Turning back to Exhibit 12 -- actually,

24 let me take a step back.

25 The complete set of e-mails you

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 produced in response to our IPRA request would

2 be found within pages 1 through 1500, right?

3 A The e-mails?

4 Q Correct.

5 A Yes, sir, that's what it appears as

6 I've looked through those binders.

7 MR. NEWELL: But on that, I mean,

8 obviously, you pointed out some that have not

9 been produced. So the word "complete," I have

10 an issue with, but we're going to try to remedy

11 that. And we're already trying to do another

12 sweep for additional documents.

13 MR. FALLICK: It's clear that

14 they're not complete. So let me rephrase that

15 question and make sure we're saying the same

16 thing.

17 Q (BY MR. FALLICK) What I'm saying is:

18 Whatever e-mails you did produce, they're

19 between 1 and 1500, they're not between 1501

20 and 3492, right?

21 A What I was told by the custodian of the

22 public records is that they had sent you

23 everything that you had requested, and the

24 e-mail portion of that would be contained

25 between number 1 and 1500.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Q So we know it's not complete, but we

2 also know that, to the extent they were

3 produced, it's between 1 and 1500, right?

4 A That would be correct.

5 Q And 1 through 1500 also includes a

6 substantial number of attachments to the

7 e-mails, right?

8 A I would just take your word for that.

9 I have not closely examined them.

10 Q Well, I can tell you, represent to

11 you --

12 MR. FALLICK: And you can check it

13 later, Mr. Newell.

14 Q (BY MR. FALLICK) -- that there are

15 fewer than 750 pages of e-mails when you don't

16 count the attachments that were produced.

17 Even from the end of February of 2016

18 until the end of 2016, for you and five

19 councillors, there's a lot more than 750

20 e-mails, right?

21 A You know, I wouldn't think so. I don't

22 know. But as I told you, it's not a lot of

23 e-mailing, especially when you have at least

24 three councillors that are not comfortable with

25 e-mails. And so there's a lot of

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 conversations.

2 Jal's 2500 people. You see each other

3 all the time when you're here. And so there's

4 a lot of give and take there, not a lot of need

5 for e-mails from -- especially from me to them.

6 Q There's 365 days in a year, right?

7 A Yes.

8 Q And if you take out January and

9 February of the year, you've still got over

10 300 days in a year, right?

11 A Okay.

12 Q Does that sound right?

13 A Sure.

14 Q And if you divide that in a way that

15 you eliminate weekends, all right, so you

16 divide by seven and then multiply by five, does

17 that get rid of weekends?

18 A Sure.

19 Q You're still left with 230 workdays

20 between March 1st and the end of the year.

21 Does that sound about right?

22 A That's fine. Okay.

23 Q So you have 230 workdays. And if we

24 just talk about your e-mails, if you have two

25 e-mails a workday going out and two e-mails a

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 workday going in, you have way over 800 e-mails

2 just for you.

3 A Okay.

4 Q Is it possible that you had less than

5 two e-mails coming in a day and two e-mails

6 going out a day?

7 A Absolutely. There's times that I may

8 go a week without getting an e-mail from Jal or

9 me sending an e-mail to Jal.

10 Q Even with you and five councillors for

11 230 workdays, you think it's possible there

12 could be fewer than two e-mails going out and

13 two e-mails coming in per day?

14 A First of all, there's six councillors.

15 Q The request was only for five.

16 A Oh, okay.

17 Q So you and five councillors, that's six

18 people. So 220 days.

19 A Absolutely possible. And the reason,

20 quite frankly, is, is the two weeks that I

21 spend in town, both of those weeks we have

22 meetings. And when you have meetings means

23 that you see people face-to-face and you have

24 discussions with them. And so e-mails, it is

25 not a big form of communication in Jal.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 I will tell you conversely in Sunland

2 Park, which is 16,000 people, e-mails are a

3 lot. But in Jal, they're just not.

4 And when you have councillors that

5 have concern about technology because they

6 don't use it and if you need to communicate

7 with them on a timely basis, e-mail is not the

8 best way to do it.

9 MR. NEWELL: Counsel, that being

10 said, you've obviously shown us there's

11 documents that haven't been produced. So I can

12 represent to you and represent on the record

13 that we've already started the process of going

14 back through the documents. And you and I can

15 talk about how we want to do that, but,

16 obviously, we're making another sweep back

17 through.

18 MR. FALLICK: Well, certainly we

19 know we didn't get them for 2014 and '15. I'm

20 not talking about that. We know we didn't get

21 'em for most of the first two months of 2016.

22 We're not talking about that. It might have

23 been a day or two. And we know there were some

24 e-mails I found even for later in 2016 that we

25 didn't get.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 But I'm asking in terms of the rest

2 of the 2016, questions about the volume and --

3 MR. NEWELL: No, I understand that.

4 And the ones you identified are in that time

5 window that we have produced documents for. So

6 we know even within that time window that we

7 produced documents for there are documents that

8 appear to be responsive to the request that

9 were not produced.

10 So what I'm representing to you is

11 we've already started -- since this has come to

12 our attention today, we started that additional

13 sweep through those documents.

14 MR. FALLICK: What I'm asking is:

15 What kind of volume do we think we're talking

16 about?

17 Q (BY MR. FALLICK) And you're saying,

18 Mr. Gallagher, if I am correct, that even for

19 you and five councillors, it's reasonable to

20 assume that it may only be a total of two

21 e-mails going out and two e-mails coming in per

22 business day.

23 MR. NEWELL: On average.

24 Q (BY MR. FALLICK) That's not an

25 unreasonable guess?

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 A What I'm saying is that, number one, is

2 correct.

3 Number two, what I'm saying is that I

4 told the custodian of public records that

5 100 percent of the e-mails that I sent or got

6 were to be given to you, according to your

7 request.

8 Q You report to the Jal City Council,

9 right?

10 A I do.

11 Q You provide reports to the Jal City

12 Council and the public at City Council

13 meetings?

14 A I do.

15 Q Are you under oath when you speak at

16 City Council meetings?

17 A No.

18 Q Do you have a duty to tell the truth

19 when you speak at City Council meetings?

20 MR. NEWELL: Object to the extent it

21 calls for a legal --

22 Q (BY MR. FALLICK) Do you --

23 MR. FALLICK: I'll rephrase the

24 question.

25 MR. NEWELL: Okay.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Q (BY MR. FALLICK) Do you consider

2 yourself to have a duty to tell the truth to

3 the City Council even though you're not under

4 oath?

5 A I consider myself to have a duty to

6 tell the truth anytime I open my mouth.

7 Q True. Just like today under oath, at

8 the Council meeting, it makes no difference to

9 you, the truthfulness requirement is always

10 there?

11 A It does not matter.

12 Q And you've already testified you

13 expect -- you understand that you have a duty

14 to tell the truth today, and you view your

15 speaking at City Council meetings the same way?

16 A Yes, sir.

17 Q Do you think a city manager who made

18 false statements to the City Council at a

19 meeting, that that would be cause for

20 termination?

21 MR. NEWELL: Object. This is not

22 reasonably calculated to lead to discovery of

23 admissible evidence, and I'm going to instruct

24 him not to answer that question.

25 MR. FALLICK: Can you give me the

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 page and line on that?

2 THE REPORTER: 125. The objection

3 starts at line 11 and ends at 14.

4 MR. NEWELL: 125, 11 to 14?


6 MR. FALLICK: Well, I'll ask you,

7 Mike. Aside from whether you think you can or

8 can't give that instruction, why would you want

9 to? Why wouldn't you want him to answer that

10 question?

11 MR. NEWELL: Because I don't know

12 the purpose for which you're going to take that

13 response and what you're going to try to do

14 with it.

15 It occurs to me and it feels like

16 that now this has become like an effort to --

17 and you suggested this a second ago, or a few

18 minutes ago, that you believe there's some kind

19 of improper motive or improper attempt here to

20 shield documents from you. And now the

21 insinuation is that Mr. Gallagher's making

22 misrepresentations to the Council.

23 And so that's why I'm very concerned

24 about the nature and context of that question

25 in this proceeding, which is supposed to be

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 about the IPRA request.

2 THE WITNESS: Well, and it's not

3 misrepresentations only, Mr. Newell. It's he

4 said it was a lie.

5 MR. NEWELL: Okay.

6 MR. FALLICK: Why wouldn't you want

7 to clear that up if it's not true?

8 MR. NEWELL: I've stated my

9 objection and I've stated the instruction.

10 THE WITNESS: Ask the question.

11 MR. NEWELL: I stated the

12 instruction.

13 Q (BY MR. FALLICK) Well, I'll ask you.

14 Mr. Newell's instructed you not to answer that

15 question.

16 A Tell me the statement that you think is

17 false.

18 Q Well, I'm asking you this first. I

19 asked you the question: Do you think the city

20 manager making a false statement to a City

21 Council at a public meeting would be cause for

22 termination?

23 Mr. Newell instructed you not to

24 answer that question.

25 Are you going to follow that

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 instruction?

2 A Yes, I am.

3 MR. NEWELL: And I will say this.

4 Does it relate to the IPRA request? Does your

5 comment relate to the IPRA request?

6 MR. FALLICK: I believe that it

7 does, yes.

8 MR. NEWELL: Read it in the record

9 and then I might instruct him to answer. If

10 you'll read the question, how it relates to the

11 IPRA request, then -- if the representations or

12 whatever you're concerned about his

13 communications with his Council, if it relates

14 to the IPRA request, then that's one thing. If

15 it relates to other matters, then absolutely my

16 objection --

17 MR. FALLICK: I will be asking him

18 about the IPRA request, but the question is a

19 general one to try to get toward credibility.

20 The question on its face doesn't ask about

21 IPRA, but I'm going to get there.

22 MR. NEWELL: My objection stands.

23 It's not reasonably calculated to lead to

24 discovery of admissible evidence.

25 Q (BY MR. FALLICK) Did you report to the

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Jal City Council and the public about this IPRA

2 lawsuit at a January 9, 2017, City Council

3 meeting?

4 A I don't know.

5 Q Did you at any time tell the Jal City

6 Council and the public that there were hundreds

7 of thousands of e-mails responsive to my IPRA

8 request?

9 A I don't know. I think I probably

10 used -- whether that term or boatloads or

11 whatever, because your request was very broad.

12 Q Because you're saying today that for

13 all six of the requested people on my IPRA

14 letter for the period from March 1 through

15 December 31, 2016, there might only be 800 or

16 so e-mails.

17 That was your testimony today, right?

18 A That's not the -- that's not the entire

19 answer to the IPRA request. I most likely said

20 on many, many occasions there's boatloads of

21 'em, there's thousands of things that we're

22 going to have to find or we have found and send

23 to them. Yeah, that's absolutely generalized

24 that, and I would call that the same thing.

25 I've testified that I did not see

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 everything that was sent. I instructed the

2 custodian of public records to send everything

3 that was requested.

4 Q I mean, would you agree there's a big

5 difference between 800 e-mails and hundreds of

6 thousands of e-mails?

7 A No, I'm not going to, because that's

8 not a fair question. The 800 e-mails was only

9 e-mails between me and the Council. Comments

10 about thousands of e-mails is about everything

11 that potentially could have been -- could have

12 been in your request.

13 Q Would you agree that there's a pretty

14 big difference between hundreds of thousands of

15 responsive documents and 3,492 pages?

16 A I would agree.

17 Q I'm going to play you a recording from

18 the January 9, 2017, City Council meeting that

19 begins at 39 minutes and 43 seconds, and I'm

20 going to play until 41 minutes and 3 seconds.

21 When I'm done playing it, I'm going to

22 ask you, number one, is that you? And then

23 I'll ask you some more questions.

24 (Break taken from 2:19 p.m. to

25 2:31 p.m.)

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 MR. FALLICK: We're going back on

2 the record.

3 Q (BY MR. FALLICK) And I'm about to play

4 you less than two minutes from a January 9,

5 2017, City Council meeting. Then I'm going to

6 ask you some questions about it.

7 (Audio being played.)

8 MR. GALLAGHER: A little bit dicey

9 was all other non-electronic documents, the

10 current hourly of the municipal clerk.

11 (Audio stopped.)

12 MR. FALLICK: Let me stop.

13 Q (BY MR. FALLICK) Is that you speaking,

14 Mr. Gallagher?

15 A That is.

16 (Audio being played.)

17 MR. GALLAGHER: To the nearest

18 15-minute interval according to the document of

19 time that it takes to reproduce the record

20 provided such record does not exceed more than

21 $1 per page.

22 Now, that's only been in there, all

23 electronic documents. This case that

24 Mr. Newell refers to, we suggest that we could

25 send all these to the gentleman, and he didn't

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 want 'em that way. He wanted to personally

2 send down a courier and pick up all copies of

3 every original in hard copy.

4 (Audio stopped.)

5 MR. FALLICK: So I'm going to stop

6 it there again. That's 40 minutes and

7 22 seconds.

8 Q (BY MR. FALLICK) Do you recall,

9 Mr. Gallagher, when you were talking about the

10 case that Mr. Newell was describing earlier in

11 the meeting, that that's this case based on my

12 IPRA request?

13 MR. NEWELL: No. I'll object to

14 foundation for that very point.

15 Q (BY MR. FALLICK) Well, I want to ask

16 you if you know that.

17 A From that tape?

18 Q Yes.

19 A No, I don't know that.

20 Q Okay. So I'm going to back up. I'm

21 going to play you starting at 11 minutes and

22 45 seconds for about a minute, comments about

23 Mr. Newell, and ask you if that refreshes your

24 recollection about that.

25 So starting at 11 minutes and

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 44 seconds into the January 9, 2017, City

2 Council meeting.

3 (Audio playing.)

4 MR. NEWELL: Right now the big

5 driver of --

6 (Audio stopped.)

7 Q (BY MR. FALLICK) So let me ask you,

8 Mr. Gallagher, do you recognize that as Mike

9 Newell's voice?

10 A I do.

11 Q Now we are at 11 minutes and

12 28 seconds.

13 (Audio playing.)

14 MR. NEWELL: The expenses of the

15 lawsuit that's been filed by an attorney in

16 Albuquerque who is not only the attorney who is

17 the plaintiff, his name is Gregg Vance Fallick,

18 and he's brought a lawsuit under the Inspection

19 of Public Records Act for a records request

20 which he made back in September. And the

21 records request was quite voluminous and it

22 took the City, you know, some time to gather up

23 all the documents.

24 Well, when he had the opportunity to

25 and we hadn't produced the documents quickly

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 enough, he's filed a lawsuit. One of the

2 things that we did after we got hired mid last

3 month is we filed an answer to that lawsuit.

4 And one of the things that he wanted -- we got

5 the documents to him as well, but that's the

6 other big deal.

7 (Audio stopped.)

8 Q (BY MR. FALLICK) So later in this

9 meeting, Mr. Gallagher, when you talk about the

10 case that Mr. Newell is referring to, is it now

11 clear to you that he's talking about this case,

12 my IPRA letter?

13 A Yes.

14 Q So now we're going to go back to -- I'm

15 trying to get as close as we can to where we

16 were. We're right -- I can try to get closer

17 than this. We're right at 39:52, which might

18 be -- you listen to something you've heard

19 before for a few seconds, but we're pretty

20 close.

21 (Audio playing.)

22 MR. GALLAGHER: To the nearest

23 15-minute interval, according to the documented

24 time that it takes to reproduce the record,

25 provided such record does not exceed more than

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 $1 per page.

2 Now, that's always been in there.

3 But all electronic documents, this case that

4 Mr. Newell refers to, we suggested that we

5 could send all these to the gentleman. He

6 didn't want 'em that way. He wanted to

7 personally send down a courier and pick up all

8 copies of every original in hard copy, which

9 would have and did require -- I think it ended

10 up to be hundreds of thousands of pages of

11 documents. And so -- just so -- I mean, it's

12 an open meetings thing. They requested e-mails

13 from all the Council -- or some of the Council,

14 and they requested every e-mail that I have

15 ever done since I was hired here in January of

16 2014.

17 And I would like to talk about it,

18 but I used to like to e-mail a lot. All

19 they're doing now is forcing you to pick up the

20 phone and talk. That's what they're asking

21 for.

22 (Audio stopped.)

23 Q (BY MR. FALLICK) You told the Jal City

24 Council that there were hundreds of thousands

25 of e-mails in response to my IPRA request,

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 right?

2 A I think what I listened to is I said

3 there could be hundreds and thousands.

4 Q Could be?

5 A Hundreds and thousands of e-mails. I

6 believe that's what I said.

7 Q So you thought for three years, from

8 January 1, 2014, until the end of 2016, that

9 potentially as few as hundreds of e-mails was

10 absolutely ridiculous to ask for.

11 Is that your testimony?

12 A It was ridiculous because what you were

13 specifically asking about didn't occur until

14 April of 2016, and you wanted documents from

15 2014 and '15 that had nothing to do with what

16 we talked about.

17 Q So your interpretation of my IPRA

18 request was that I was asking for something

19 narrow and that my requests for e-mails didn't

20 relate to that narrow request.

21 That's what you're saying?

22 A In your April request, the first four

23 questions was pretty obvious where you were

24 going and what you were interested in, the

25 Maralo Sholes and that process. That didn't

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 really begin until April of 2016. I wasn't

2 sure how relevant e-mails were from everybody

3 in 2014 and 2015.

4 Q So you thought that the rest of the

5 requests in my six-page IPRA letter were

6 limited to what I was asking about in the first

7 four paragraphs of the IPRA letter?

8 A Not necessarily limited to. Anytime

9 you get a six-page IPRA request, there's

10 always -- there's always something somebody's

11 looking to -- somebody's looking for

12 information to smear somebody. Someone's

13 looking for information -- I mean, you can put

14 in an IPRA request in about a page and a half.

15 You don't need six pages to do it. It was

16 obvious, then, to us that somebody's on a witch

17 hunt. Let's just -- let's just go do it.

18 Q So you view that as smearing and a

19 witch hunt. You don't view that as someone

20 exercising their right under state law to "be

21 entitled to the greatest possible information

22 regarding the affairs of government and the

23 official acts of public officers and

24 employees?" And that it's "an essential

25 function of representative government and an

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 integral part of reaching the duties of public

2 officers and employees" to provide that

3 information?

4 A You said that, I didn't. The IPRA

5 request is clear. You were entitled to every

6 one of the documents that you asked for, and

7 that's what my response was to the custodian of

8 public records.

9 My opinion of the IPRA request I

10 shared with the Council. Okay? But that

11 doesn't have anything to do with the response

12 to the IPRA request. The IPRA request is what

13 it is. You just go do it.

14 And knowing that we had one person, a

15 one-person staff, it was going to take a long

16 time for us to go do it.

17 Q In any event, your testimony is that

18 that recording about the absolutely ridiculous

19 request for e-mails isn't saying hundreds of

20 thousands, it's saying hundreds or thousands?

21 A The way that I would talk, I would

22 think I would say hundreds or thousands or

23 hundreds and thousands or something like that.

24 I do not think that that was one word of saying

25 a hundred thousand e-mails. I wouldn't have

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 said that. I would have just said -- because I

2 had no clue.

3 I'd have just said it's going to

4 probably take hundreds and thousands of e-mails

5 to respond to this thing. It's six pages long.

6 Q You also made it clear in that meeting

7 to the Council that you were hostile to IPRA

8 requests in general and my IPRA request in

9 particular, didn't you?

10 A I don't believe so. Not in general. I

11 wouldn't think I would be hostile in general.

12 I've already testified that I'm not.

13 MR. FALLICK: Mark that, please.

14 What is that?

15 THE REPORTER: 136, 11 through 13.

16 MR. MAEZ: What was that again?

17 THE REPORTER: 13, 11 through 13.

18 MR. FALLICK: Mark that as an end

19 point for you, too.


21 Q (BY MR. FALLICK) I want to go back

22 to -- after we play you that recording, I want

23 to go back to Gallagher Exhibit 7. So I'll

24 give you that.

25 MR. FALLICK: Do you have that,

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Mike?

2 MR. NEWELL: I do.

3 Did you say 7.


5 This is now starting at 42:25 of the

6 January 7, 2000 -- excuse me -- January 9,

7 2817, City Council meeting.

8 (Audio playing.)

9 A resolution just like this. And so

10 it ends up saying payment of foreseeable

11 charges may be required prior to the

12 reproduction, and possible shipping of the

13 requested records will not -- any will not

14 include the addition of unforeseeable charges

15 being added to the total amount due.

16 In other words, we're not going to

17 send 'em to 'em until they pay, and I think

18 that's a good policy. We send it to 'em, and

19 they promise the check's in the mail. After

20 all, they are attorneys. So there --

21 (Audio stopped.)

22 Q (BY MR. FALLICK) Do you agree that

23 that expresses a hostility to the IPRA

24 requests, particularly from attorneys?

25 MR. NEWELL: No. I'm going to

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 object to the context.

2 You can answer the question.

3 THE WITNESS: No, not at all, not to

4 IPRA requests. I made a general joke that --

5 probably said ten of thousands of times a day

6 about attorneys or accountants or doctors or

7 city managers. That doesn't go to the content

8 of being hostile to general IPRA requests, but

9 a specific IPRA request that was -- I've

10 already said, was overbearing. That doesn't

11 make a difference. We're going to answer it.

12 Q (BY MR. FALLICK) You knew that by

13 speculating I was Gregg Fulfer's lawyer, you

14 were eliminating any possibility that

15 Councillor Orr, Councillor Ellison or

16 Councillor Chesser or Councillor Beckham would

17 disclose their e-mails as required by state

18 law, didn't you?

19 A No, not at all. That's bizarre.

20 Q You knew those councillors have an

21 intense dislike for Gregg Fulfer, didn't you?

22 A I know two of them do.

23 Q You knew they would take the queue from

24 your e-mail that's marked as Gallagher

25 Exhibit 7 not to comply with IPRA, right?

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 A No, not at all. In fact, there were

2 followup discussions with not only those two,

3 but others, that they absolutely have to and

4 this is how -- you know, how are we going to do

5 it?

6 I said, "Get with Jenny. Dump your

7 e-mails and send 'em to her."

8 Q In addition to your statements during

9 the City Council meetings, you've said a

10 variety of things to a number of people about

11 my IPRA request in this lawsuit, haven't you?

12 A Probably.

13 Q Did you record any of those

14 conversations?

15 A I never record any conversation.

16 Q Do you know if anyone else recorded any

17 of those conversations?

18 A I don't have any doubt that they would

19 record conversations.

20 Q Did you tell anyone that there was a

21 feud between Gregg Fulfer and Councillors

22 Ellison and Orr that was like the Hatfields and

23 McCoys?

24 A On many occasions.

25 Q Did you ever tell anyone anything to

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 the effect that Councillors Ellison and Orr

2 were grabbing at straws to do anything they

3 could to make life difficult for Gregg Fulfer

4 because of their feud?

5 A No. When the Mayor told you that, the

6 Mayor is absolutely wrong. She had said that

7 on several times, and I did not say that.

8 Q Other than the conversation with the

9 Mayor, did you tell anyone else anything to the

10 effect that Councillors Ellison and Orr were

11 grabbing at straws to do anything they could to

12 make life difficult for Gregg Fulfer because of

13 their feud?

14 A Not that I would recall.

15 Q Do you deny that you did it or you just

16 don't recall?

17 A I wouldn't recall. That didn't sound

18 like anything I would say, but...

19 Q Did you ever tell anyone that when

20 issues arise involving Gregg Fulfer, they're

21 not handled the same as they would be for

22 anyone else?

23 A No. The Mayor told you a half

24 sentence.

25 Q Did you ever tell anyone, other than

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 the Mayor, that when issues arise involving

2 Gregg Fulfer, they're not handled the same way

3 as they would for anyone else?

4 A No. I do not believe that, because

5 that's not the case.

6 Q You knew that Councillor Beckham was

7 siding with Councillors Ellison and Orr in

8 their feud with Gregg Fulfer, right?

9 A I didn't know she was -- I don't know

10 if I would call it siding. Her comment was

11 that she believes that we need to have OCD

12 check this out and see if our water was

13 concerned. If that's siding, then, yes.

14 Q On any other issue, did Councillor

15 Beckham make it clear that like Councillor

16 Ellison and Orr, she intensely disliked Gregg

17 Fulfer?

18 A Never had told me that.

19 Q How the about same for Councillor

20 Chesser? Did she ever express that she was on

21 the same side as Ellison and Orr in their feud

22 with Beckham -- with Fulfer?

23 A Never to me.

24 Q You knew that Councillors Orr and

25 Ellison are not going to produce any documents

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 that they think are going to Gregg Fulfer's

2 lawyer, right?

3 A That's absolutely wrong.

4 Q Did you ever tell anyone anything to

5 the effect that you were going to drag your

6 feet in response to my IPRA letter?

7 A Not that I recall. What I told Jenny

8 was to send you the normal letter. And me

9 dragging my feet has nothing to do with it.

10 Jenny's the custodian of public records. She's

11 going to tell us when the deadlines are, when

12 the records have to be produced, and when they

13 have to be sent in.

14 Q Are you saying you've never given Jenny

15 direction about what she should or shouldn't do

16 in response an IPRA letter?

17 A I think I gave Jenny, in the initial

18 e-mail, to send Mr. Fallick a letter saying

19 that it appeared to be I think I used the word

20 cumbersome or overburdensome, and that we would

21 not be able to do it within the three and

22 15 days. That's a normal form found in the

23 state law concerning IPRA.

24 Q Did you ever tell Jenny, "Don't produce

25 any documents in response to this request until

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 I've looked at 'em"?

2 A Yes. At the very first, absolutely.

3 Q Did you ever tell anyone anything to

4 the effect that you were going to be as

5 uncooperative as possible in responding to my

6 IPRA letter?

7 A I don't respond to your IPRA letter.

8 Q Is that a "no"?

9 A No. I wouldn't respond to your IPRA

10 letter, so I'm not sure why I would say that.

11 Q Did you ever tell anyone anything to

12 the effect that you were going to make sure

13 that the City of Jal was uncooperative as

14 possible in responding to my IPRA request?

15 A That doesn't sound like me, no. You

16 can be uncooperative, counselor, and you could

17 still legally respond. But that wouldn't sound

18 like to me that I would say -- why would we be

19 uncooperative?

20 Q How can you be uncooperative and

21 legally --

22 A You don't have to like what you're

23 doing, but you certainly have to do it by law.

24 Q Isn't there a difference between liking

25 what you're doing and being cooperative?

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 A I don't think so.

2 Q Did you ever use an expletive to say

3 anything to the effect that Gregg Fulfer and

4 his lawyer can go jump in a lake because

5 they're not getting the documents requested in

6 the IPRA letter?

7 A I would imagine on many occasions I

8 probably used an expletive when talking about

9 this case, but not when it was going to say

10 that I would not produce documents, no, sir.

11 Q Did you hear anyone else say an

12 expletive to the effect that Gregg Fulfer and

13 his lawyer can go jump in a lake because

14 they're not getting the documents requested in

15 their IPRA letter?

16 A No. I don't think anybody would have

17 said that. Besides, there's only one person

18 who gets -- is the custodian of public records.

19 Everybody knows they abide by the law. They

20 send it there and they move forward.

21 Q Well, all of the councillors who have

22 e-mails in their private servers, the clerk

23 can't produce any documents they don't give to

24 her, right?

25 A Right.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Q And any documents that Mr. Ellison got

2 from an oil company, Jenny Edwards can't

3 produce those unless Mr. Ellison gives them to

4 her, right?

5 A Well, they weren't -- they weren't part

6 of -- they weren't in the City's possession.

7 Q They were produced, right?

8 A If Mr. Newell produced 'em at some

9 point, they were produced, yes, sir.

10 Q And they could only be produced if

11 Mr. Ellison handed 'em over, right?

12 A When they went to Mr. Newell, then

13 Mr. Newell had possession of 'em, and he's an

14 attorney for the City of Jal, right.

15 Q And if Mr. Ellison gave him only some

16 of the documents, not all of the documents,

17 then Mr. Newell would only be able to produce

18 what he got, right?

19 A Right.

20 Q Did you ever tell anyone anything to

21 the effect that Mr. Ellison used his hand to

22 cover up part of one of the documents he was

23 showing you that he got from the oil company?

24 A I think I said to somebody that when he

25 showed me a document when -- from the box, that

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 he had his hand here (indicating). And I said

2 I did not know if that was an attempt to not

3 show me where it came from or not, but I did

4 not see where it came from.

5 Q Did you ever tell anybody that you

6 asked Mr. Ellison and he said, "You can't see

7 that"?

8 A No. Not to my recollection, no.

9 Q Do you deny that or you just don't

10 remember?

11 A I said not to my recollection.

12 Q So that means you don't deny it, you

13 just don't remember?

14 A Yeah, I just don't remember.

15 Q Now, if Mr. Ellison didn't want you to

16 see something, what do you think the chances

17 are he'd give it to me?

18 A You would have to ask Mr. Ellison.

19 Q Explain the City of Jal's backup system

20 to me. What do you do to back up your records?

21 A I don't know.

22 Q There's a company that you use for IT

23 services?

24 A Yes.

25 Q Who's that?

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 A It's called S-W-A-T Solutions, Swat

2 Solutions, that has an office in Hobbs. And

3 then Cassell is the software that we utilize

4 for our financial records.

5 Q Do you have any contact name off the

6 top of your head of your IT people?

7 A Not off the top of my head.

8 Q How about a phone number off the top of

9 your head?

10 A No. I don't deal with them.

11 Q Who does?

12 A Jenny Edwards or Anthony Dobbs, the

13 deputy city clerk.

14 Q What do they do? Do they maintain

15 backups of your documents? Do they just

16 service your computers? What do they do?

17 A My understanding is they service our

18 computers and service the server. And those

19 documents, I do not believe that they serve as,

20 like, an off-site backup.

21 Q Have you ever had a situation where you

22 lost some data and they were able to get it

23 back for you?

24 A I wouldn't know that.

25 Q And I'm placing back in front of you

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Gallagher Number 12, which is pages 1419

2 through 1422. And I want to draw your

3 attention to the e-mail from you to Mr. Goetz

4 that starts on the bottom of Page 1420 and

5 carries over to Page 1421, and draw your

6 attention to paragraph 4 on 1421.

7 That paragraph reads, "It appears that

8 anytime your communication involves an employee

9 of the district office in Hobbs, the company

10 who owns the well in question is notified of

11 our communications. We are obviously

12 disappointed and concerned about this."

13 Did I read that correctly?

14 A You did.

15 Q Does this mean you thought you should

16 be able to register an official concern with

17 the OCD on behalf of the City of Jal in secret?

18 A No.

19 Q What does it mean?

20 A It meant to me that I believe that they

21 were sharing everything we did with the owner

22 of the well, and I found that kind of odd. As

23 I said, we were disappointed and concerned

24 about it. I never said that it shouldn't

25 happen. I just said that we were disappointed

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 and concerned about it.

2 Q Why did you consider it odd?

3 A Well, because they were investigating a

4 well and they were sharing the information that

5 they were getting as part of an investigation.

6 I don't think an investigator downloads

7 everything he gets every time he talks to

8 someone and then goes, gives it to the other

9 side. I thought that they would take the

10 information, do a complete investigation, and

11 then visit with the other side.

12 But everybody in town knew -- about a

13 day after we communicated with OCD, everybody

14 in you town was talking about it. It was

15 almost -- it was almost -- it was funny. It

16 would be funny if it wasn't concerning to us.

17 Q When you refer to the affected company

18 as being on the other side, why do you say it

19 that way?

20 A The other side of the issue. We --

21 we -- we asked somebody to look at it. They're

22 on the other side of the issue. That's all.

23 Q You don't think regulators and

24 companies cooperate and share information to

25 try to solve problems?

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 A Do it all the time. I just thought

2 that they would gather information before they

3 then began to ask for responses.

4 Q Why did you think it would be obvious

5 that you would be disappointed and concerned

6 about the OCD providing this information to the

7 company who owns the well in question?

8 MR. NEWELL: Object to the form of

9 the question. Not reasonably calculated to

10 lead to discovery of admissible evidence.

11 You can answer.

12 THE WITNESS: I said we are

13 obviously. I didn't think that it was obvious

14 to them. I wanted them to know that obviously

15 we were disappointed that everything we're

16 giving them in terms of them doing an

17 investigation was given to the party that they

18 were supposed to be investigating the well on.

19 I mean, you know, you just don't do

20 that in common practice.

21 Q (BY MR. FALLICK) Explain why you think

22 that.

23 MR. NEWELL: Same objection. Not

24 reasonably calculated to lead to discovery of

25 admissible evidence.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 You can respond.

2 THE WITNESS: I think -- you know,

3 if a detective is out looking at a murder case

4 and he goes and interviews four people and they

5 say, "Well, I saw this person here, this

6 person," he's going to take that information

7 and he's going to utilize that to further an

8 investigation. He's not going to take that

9 information and call the defense attorney and

10 go, "Hey, Frank, by the way, I found this out

11 last night." Boom, boom, boom, boom.

12 I just figured if you're going to

13 look at something, you're going to go do some

14 tests, you're going to gather data and gather

15 information, and then you're going to sit down

16 with the company and say in writing, "Here's

17 what we found. Would you give us a written

18 response?"

19 That -- and that's actually what has

20 happened at the end. But every time we wrote,

21 everybody in town knew about it.

22 Q (BY MR. FALLICK) So you think when you

23 have a concern that there may be a problem with

24 a well that the OCD should treat that like the

25 police do when they're investigating somebody

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 for a murder?

2 A No.

3 MR. NEWELL: Object to the form of

4 the question. Not reasonably calculated to

5 lead to discovery of admissible evidence.

6 You can answer.

7 THE WITNESS: No, and you know that.

8 I just used that kind of as an example of, if

9 somebody was looking at something, you don't

10 share it with the other side until you have

11 completed it, and then you ask the other side

12 to explain it.

13 Q (BY MR. FALLICK) Why did you use that

14 analogy?

15 A I don't know. My background is in

16 criminal justice. I don't know why I used that

17 analogy. But from this point forward, I won't

18 be analogizing.

19 Q Did you ever tell anyone that you've

20 used a contractor to completely wipe data from

21 computers and phones?

22 A Not that I remember. I don't think I

23 have used one in the past. I -- I --

24 Q You've never used a computer consultant

25 to wipe data off a computer or a phone?

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 A Definitely not here, but I don't even

2 think I've done that. I'm not even sure that's

3 doable.

4 Q Were you trying to hide your

5 communications with some city councillors, like

6 Councillor Ellison and Orr, from other

7 councillors?

8 A No.

9 Q Drawing your attention back to

10 Gallagher Exhibit Number 5. This is one of the

11 e-mails that you did not produce to us, along

12 with the e-mails and other documents produced

13 from Number 1 through 3924 -- is it 3942?

14 Let me withdraw that question and look

15 at my notes here.

16 Exhibit Number 5, that May 26th e-mail

17 exchange with Ellison and Orr, is one of the

18 e-mails that was not included in the production

19 of Pages 1 through 3492, correct?

20 A It is, and I had testified that I don't

21 know why.

22 Q And that exchange does not include

23 other councillors, does it?

24 A No, it does not.

25 Q Why?

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 A Because Mr. Ellison and Mr. Orr, about

2 30 days prior to the date on this e-mail, were

3 the ones that brought the information. At this

4 point, we had not heard back from the OCD at

5 all. So there really wasn't anything to share

6 with the Council yet. I was doing my job as

7 the city manager.

8 Q Do you agree that as city manager, you

9 should not be leaving some councillors out of

10 communications about City business while you

11 just communicate with others?

12 A I agree that when the city manager is

13 doing his job, that there are some councillors

14 you communicate with and some you don't,

15 depending on what you have. Some councillors

16 are stronger in one area or the other.

17 When you now have something, as we did

18 in August or September, when the OCD finally

19 responded to us, then we send e-mails out to

20 everybody.

21 Q I'm going to ask you to look at -- I'm

22 actually going to pull that out of this binder

23 and mark it, and I'll replace it later.

24 (Exhibit Number 14 marked for

25 identification.)

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Q (BY MR. FALLICK) But I'm going to ask

2 you to look at Gallagher 14, which is an e-mail

3 from you dated June 27, 2016, to Cheryl Chance

4 and a number of other recipients. I'm going to

5 ask you to take a look at that.

6 MR. NEWELL: What's the Bates

7 number?

8 MR. FALLICK: It's 594.

9 Q (BY MR. FALLICK) And then I'm going to

10 ask you, once you've read it, to go back to

11 paragraph 2 and I'm going to ask you a question

12 about that.

13 MR. FALLICK: 594.

14 MR. NEWELL: Thanks.

15 MR. FALLICK: You're welcome.

16 THE WITNESS: (Witness reviewing

17 document.)

18 Okay.

19 Q (BY MR. FALLICK) And I'm going to read

20 the second paragraph of Gallagher Number 14 and

21 ask you if I read it correctly.

22 "I inadvertently left Councillor

23 Beckham's name off of my e-mail message to

24 you-all last Thursday evening. Those of you

25 who know me understand that I would not

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 intentionally communicate with a councilor and

2 leave one or two out, and I apologize for that

3 occurring. I understood that the Monday work

4 session was moved to Wednesday to accommodate

5 everyone's schedule in order to go over the

6 proposed contracts. Now that contract has been

7 withdrawn. I'm not sure. There may be a need

8 for a work session this week."

9 Did I read that correctly?

10 A You did.

11 Q Why doesn't that reasoning apply to

12 leaving the other councillors off of your

13 e-mail, to --

14 A Right.

15 Q -- Mr. Ellison and Orr that's marked as

16 Gallagher Exhibit 5?

17 MR. NEWELL: Object to the form of

18 the question. Not reasonably calculated to

19 lead to discovery of admissible evidence.

20 But you can answer.

21 THE WITNESS: That's very easy to

22 answer. I mean, when you're talking about

23 communicating, you're doing several different

24 things. If I was communicating as I am here

25 with a full kind of an update of what's going

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 on and what's not going on, you communicate

2 with the whole Council. If you're working on a

3 project, you're communicating with those people

4 that you're working on the project with. If

5 you're communicating everything to the Council,

6 you're communicating everything to the Council.

7 Fairly easy.

8 Q (BY MR. FALLICK) You're taking a

9 position with the OCD on behalf of the City of

10 Jal, right?

11 A I'm asking the OCD, on behalf of the

12 City of Jal, to investigate something that was

13 brought to our attention, yes, sir.

14 Q And then when you aren't satisfied with

15 the way they're handling it, you're pretty

16 critical and you let 'em know, right?

17 A Yes, sir.

18 Q And that's on behalf of the City of

19 Jal, right?

20 A Yes, sir.

21 Q It has more than two councilors in the

22 City of Jal, right?

23 A Right.

24 Q But you thought it's okay to just

25 communicate with Ellison and Orr about it?

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 A Absolutely. That's implied in statute.

2 That's the city manager's job to -- to -- to

3 work on these things. If every little thing

4 came to me that you sent out to every

5 councillor, "By the way, I'm going to do this,

6 this, this. Today I'm going to do this, and

7 then tomorrow I'm going to go to the bathroom

8 at 9 o'clock," you don't do that. You're the

9 administrative head of the City. You are in

10 charge, by law, of the day-to-day operations of

11 the City.

12 And, by law, the City Council should

13 not be intimately involved or involved in the

14 day-to-day activities. So the city manager is

15 charged with doing those.

16 I communicate with some of these. And

17 then when it becomes outside of that realm

18 because now the OCD is going to finally answer

19 us and do something, then I tell the Council.

20 Q So the fact that you didn't produce

21 Exhibit 5 to me and the fact that you didn't

22 disclose that to the other Council members at

23 the time, that's just a coincidence, it's not

24 you're trying to hide that?

25 A One is I didn't -- I didn't expose

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 those to you, Ms. Edwards did.

2 Two is I think -- and the answer is:

3 Absolutely that is, because there are other

4 documents, I think, in those 1500 that were

5 only two one -- one or two councillors. And so

6 why show those if you don't show -- show the

7 rest?

8 Q So you're saying that Exhibit 5 is not

9 evidence that you're trying to hide anything?

10 A Exactly. And let me say it another

11 way. I didn't hide anything, never had any

12 intention to hide anything.

13 Q Were you trying to hide that you took

14 this official action on behalf of the City of

15 Jal without the authorization of the City

16 Council?

17 A I did not need the authorization of the

18 City Council.

19 Q What's your basis for concluding that?

20 A The city manager is in charge of the

21 day-to-day operations of the City. It didn't

22 involve asking them to adopt an ordinance. It

23 didn't involve a fiscal matter. It involved a

24 matter of day-to-day operations, and that's

25 what city managers do.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 (Exhibit Number 15 marked for

2 identification.)

3 Q (BY MR. FALLICK) I'm marking as

4 Exhibit 15 the first page of a letter that you

5 sent on May 16, 2016, to Mr. Richard D. Kinder

6 at Kinder Morgan, and I'm going to ask you if

7 you recognize it.

8 I don't have a copy of the rest of the

9 letter, but if you want to look at it, it's in

10 the binder. This is just page 440, and I ask

11 you if recognize that?

12 MR. FALLICK: And I have that one

13 page for you, too.

14 THE WITNESS: I do recognize that.

15 Q (BY MR. FALLICK) And you're, in the

16 third paragraph, talking about the prior city

17 manager's conduct, right?

18 A I'm not sure I can find that.

19 Q Third paragraph.

20 A Oh. "The reason for him signing the

21 agreement with the legality of him being able

22 to agree to such agreement without City Council

23 approval is a question for someone else to

24 answer."

25 Q Yes. That's the paragraph I'm talking

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 about. I will read you that sentence in its

2 entirety and ask you if I read it correctly.

3 "The reason for him signing the

4 agreement or the legality of him being able to

5 agree to such agreement without City Council

6 approval is a question for someone else to

7 answer."

8 Did I read that correctly?

9 A You did.

10 Q And the "him" in that sentence is

11 referring to the prior city manager, correct?

12 A That's correct.

13 Q And the date of this letter is May 16,

14 2016, right?

15 A Correct.

16 Q So that's after your April 2016 letter

17 to the OCD and before your subsequent e-mails

18 on the same topic to the OCD, correct?

19 A Correct.

20 Q So on May 16, 2016, you weren't able to

21 answer the question of the legality of the

22 prior city manager being able to agree to such

23 agreement without City Council approval, but

24 during the same period, you're able to conclude

25 that you can take a position with a state

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 agency on behalf of the City of Jal without

2 City Council approval, right?

3 MR. NEWELL: Objection, form of the

4 question. Not reasonably calculated to lead to

5 discovery of admissible evidence.

6 THE WITNESS: You know, counsel,

7 that's the fourth time today you tried to put

8 words in my mouth and you tried to compare

9 oranges with apples. What I told you before,

10 that the Council needed to approve anything

11 that had to do with money. Okay? And the

12 contract they're talking about here was giving

13 away water acres and a water well. Okay? That

14 is a contractual agreement.

15 Me doing -- checking up on something

16 that was brought to me is not -- is not

17 contractually obligating the City to money to

18 spend or to get. All it is is doing my

19 day-to-job. When someone brought us

20 information, I go to find it out. Here, this

21 contract was giving away a water well and

22 385-acre feet of water.

23 And I didn't even conclude in here

24 that he would have had to do it. I just said

25 it's for someone else to answer.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Q (BY MR. FALLICK) But when it comes to

2 your conduct, you were able to answer it and

3 say that it was just fine without City Council

4 approval?

5 MR. NEWELL: Objection. Not

6 reasonably calculated to lead to discovery of

7 admissible evidence.

8 THE WITNESS: And that's not

9 correct.

10 Q (BY MR. FALLICK) Well, explain to me

11 why that's not correct.

12 MR. NEWELL: Objection. Not

13 reasonably calculated to lead to discovery of

14 admissible evidence.

15 THE WITNESS: I didn't come to any

16 conclusion in paragraph 3.

17 Q (BY MR. FALLICK) But you did come to a

18 conclusion when it came to your conduct,

19 correct?

20 MR. NEWELL: Objection. Not

21 reasonably calculated to lead to discovery of

22 admissible evidence.

23 THE WITNESS: That's apples and

24 oranges. I'm not going to answer that.

25 (Exhibit Number 16 marked for

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 identification.)

2 Q (BY MR. FALLICK) Next, I'm handing you

3 Gallagher 16.

4 MR. FALLICK: There's a copy for

5 you, Mike.

6 Q (BY MR. FALLICK) And ask you to review

7 that and let me know when you're done.

8 A (Witness reviewing document.)

9 Okay.

10 Q Gallagher 16 is your December 2, 2014,

11 letter to Mr. Linden at the office of the state

12 engineer, correct?

13 A It is correct.

14 Q Did you have City Council approval to

15 send that letter?

16 MR. NEWELL: Objection. Not

17 reasonably calculated to lead to discovery of

18 admissible evidence.

19 THE WITNESS: I was instructed by

20 the City Council to send the letter.

21 Q (BY MR. FALLICK) Meaning that the City

22 Council as a whole took a vote and instructed

23 you to do this?

24 MR. NEWELL: Objection. Not

25 reasonably calculated to lead to discovery of

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 admissible evidence.

2 THE WITNESS: Meaning that the Mayor

3 showed me the file where it backed up this

4 (indicating). They asked that she -- they

5 talked to me about sending a letter. I said,

6 "I can't send a letter unless I see the file

7 where the City actually took formal action to

8 do this."

9 Apparently, the City, before that

10 time, before I got there, voted to do this

11 support, and they -- then she -- they asked me

12 to reaffirm it.

13 Q (BY MR. FALLICK) The City voted to do

14 what?

15 A I believe, if I'm not mistaken, before

16 I got there, the City voted to support an

17 application for water rights that Mr. Beckham

18 had originally -- he had apparently asked for

19 1500, and the City said no. And then they

20 apparently negotiated 750, and then finally the

21 City agreed to say they could support 500.

22 Q And the City Council did a resolution

23 of that?

24 MR. NEWELL: Objection. Not

25 reasonably calculated to lead to discovery of

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 admissible evidence.

2 THE WITNESS: As I'm lead to

3 believe, they were, but it was prior to my

4 tenure as city manager.

5 Q (BY MR. FALLICK) Did you see a City

6 Council resolution?

7 MR. NEWELL: Objection. Not

8 reasonably calculated to lead to discovery of

9 admissible evidence.

10 THE WITNESS: I saw -- if I'm not

11 mistaken, I saw a letter from the Council, I

12 think it was signed by all the Mayor and the

13 Council, that alluded to that action and was

14 actually sent to the state engineer, in that

15 file.

16 Q (BY MR. FALLICK) Do you deny that you

17 obstructed my right to documents under IPRA

18 because you had things that you want to hide?

19 A Absolutely deny it.

20 Q Do you want to hide that while you were

21 employed as city manager in Jal, you asked

22 Gregg Fulfer for $50,000?

23 A Absolutely I'd deny that.

24 Q Do you deny that you did that and you

25 deny that you wanted to hide that?

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 MR. NEWELL: Object to the form of

2 the question. I think he denied that he

3 requested that.

4 Can you restate your question,

5 because I think you --


7 Q (BY MR. FALLICK) I'll break it into

8 two pieces.

9 Did you ask Gregg Fulfer for $50,000

10 while you were employed as Jal city manager?

11 A For personal use or the City use or --

12 Q Not for the City use.

13 A For my use? $50,000? Gregg Fulfer and

14 I discussed his potential partnership in a

15 country club that I was a part owner in at one

16 point. But no, never even asked. No.

17 Q Who brought up him being a potential

18 partner in your country club, you or him?

19 A I believe I did. We were looking for

20 partners and we asked several different people.

21 Q Did you ask him for $50,000 about that?

22 A No. I think it was more than that. In

23 fact, I think Gregg -- in fact, I think Gregg

24 called me back one time and said -- I asked him

25 for help with -- we were going to buy golf

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 carts instead of lease golf carts. I said in

2 exchange for that, we will be willing to give

3 him a portion of the business and was he

4 willing to do it. He called me back and he

5 said he talked to his wife and they would like

6 to go a hundred thousand or a little bit more.

7 Ultimately, I said we were able to

8 work out a better lease with the maker of the

9 golf carts and we decided that we weren't going

10 to go ahead and buy 'em, so we didn't need the

11 money, but thank you.

12 Q You apparently had a good enough

13 relationship with Gregg Fulfer at that point to

14 ask him for that money, right?

15 A To ask him if he was interested. I

16 wasn't asking him for a handout of money. I

17 was asking him, because he was a successful

18 businessman, was he interested in a partnership

19 with the country club.

20 Q You had a good enough relationship with

21 him at that point to do that, right?

22 A Absolutely.

23 Q And not so much now, right?

24 A Right.

25 Q Isn't it true that he said no?

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 A That I said no?

2 Q That he said no, that he wasn't going

3 to give you the money?

4 A No. In fact, the opposite. As I just

5 reported to you, he called me. He said, "I've

6 talked to Kimmy and we're good to go on that."

7 I said, "We went a different

8 direction."

9 Q You don't recall him saying no and you

10 later telling him you got the money somewhere

11 else?

12 A No, not at all.

13 Q Did you disclose to the City Council

14 that you were discussing getting money from

15 members of the public in Jal while you were

16 city manager?

17 MR. NEWELL: Object. That's not

18 reasonably calculated to lead to discovery of

19 admissible evidence.

20 THE WITNESS: My contract with the

21 City of Jal allows me time to work on other

22 endeavors and contracts that I have under the

23 RMG Consulting firm.

24 Q (BY MR. FALLICK) Did you want to hide

25 that you're taking money from other people who

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 live in the City of Jal while you're the City

2 of Jal manager?

3 A I have never taken money from other

4 people while I was in the City of Jal when I

5 was the city manager, so there's nothing to

6 hide.

7 Q You've never received any money from

8 the Beckhams?

9 A From the Beckhams?

10 Q Correct.

11 A No, not a penny. Never asked for it.

12 Never was asked if I wanted it. And, quite

13 frankly, that's a -- that's a disgusting

14 question to ask somebody.

15 Q You said, in your letter to Kinder

16 Morgan, that the City of Jal's in dire need of

17 water, right?

18 MR. NEWELL: Object to the form of

19 the question. Not reasonably calculated to

20 lead to discovery of admissible evidence.

21 THE WITNESS: I believe I referred

22 to we were in -- because our engineers had told

23 us that we need two wells.

24 MR. NEWELL: There it is right there

25 (indicating).

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 THE WITNESS: Two more wells in west

2 field.

3 MR. NEWELL: If you're going to ask

4 him about that paragraph, can we go ahead and

5 get the second page, because that paragraph

6 bleeds over into the second page? I've got it

7 right here.

8 MR. FALLICK: Yes, please.

9 MR. NEWELL: What's the number

10 again, Bob?

11 MR. FALLICK: So we're going to

12 amend Exhibit -- let's put it on the original

13 that's going to be in the record and not that

14 copy.

15 We're going to amend Exhibit 15 by

16 adding the following page, which is --

17 MR. NEWELL: Is it page or pages?

18 Let's look.

19 MR. FALLICK: Take a look.

20 THE WITNESS: I think it's just one

21 more page. I think it's a half a page.

22 MR. MAEZ: We don't have that one,

23 do we?

24 MR. NEWELL: Yeah. It will be in

25 that one over there. Should be. Yeah. And it

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 looks like it's just one more page.

2 Mr. Fallick, feel free to confirm

3 that.

4 MR. FALLICK: I don't know what

5 Page 424 is.

6 MR. NEWELL: No. I think we were

7 just looking at 440 and 441.

8 MR. FALLICK: This page says 441

9 refers to some public officials, carbon copies.

10 And then the next page has Attorney General

11 Hector Balderas. I don't know whether that is

12 another carbon copy to 441 or not.

13 THE WITNESS: That's the second page

14 to that letter.

15 MR. FALLICK: Right. I just don't

16 know if this is the third page. I don't know

17 what that --

18 THE WITNESS: We're not talking

19 about a third page. There's only two pages to

20 the letter.

21 MR. FALLICK: That's what I'm

22 saying. I can't confirm that that's not part

23 of it.

24 MR. NEWELL: Fair enough. But the

25 way it appears, the signature block's at the

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 bottom of 441.

2 MR. FALLICK: Right. You got that

3 XC, and then you've got that and that. So I

4 don't know what Page 442 is, but I'm sure that

5 Page 441 is the second page of --

6 MR. NEWELL: My concern was you were

7 asking about the last paragraph on 440.

8 MR. FALLICK: Right. So you have no

9 objection to taking this page and adding it?

10 MR. NEWELL: I thought we were going

11 to take it out.

12 MR. FALLICK: We can do that.

13 Do you have 441 there.

14 MR. MAEZ: That's 441.

15 MR. FALLICK: So we've got that

16 stapled, but we'll just say those two pages

17 together comprise --

18 That's 15?

19 MR. NEWELL: Yeah, that will be 15.

20 And we agree that 15 is now a two-page

21 document.

22 MR. FALLICK: And did you -- was

23 there something about that you wanted to grab

24 the witness' attention.

25 MR. NEWELL: No. Just you were

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 asking him about -- your question, I believe,

2 related to the comment about the City finds

3 itself in dire need of water. And since that's

4 the last paragraph on Page 440 and it bleeds

5 over into 441, my comment was: Let's let him

6 have the benefit of being able to read the

7 balance of that paragraph.

8 MR. FALLICK: That's totally fine.

9 THE WITNESS: Sure. I mean, what I

10 was trying to tell Mr. Kinder was that we find

11 ourselves in need of water because our

12 engineers have told us our water supply used to

13 be 13, 1400 gallons per minute, and every well

14 is now down to 500. We're going to need two

15 new wells.

16 We lost water the summer before I

17 had gotten there for four days. And we had

18 applied for a grant for $986,000. The Water

19 Trust Board just turned us down. And so now

20 we're out looking, you know. And that goes

21 directly to the well, because if that well was

22 rightfully ours, then we wouldn't have to be

23 out looking.

24 Q (BY MR. FALLICK) Now, Gallagher

25 Exhibit Number 16 is talking about water from

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 the Jal Basin that could otherwise be available

2 for the City of Jal, right?

3 MR. NEWELL: Objection. Not

4 reasonably calculated to lead to discovery of

5 admissible evidence.

6 THE WITNESS: I don't think I've

7 seen Gallagher 16.

8 MR. NEWELL: The December 2nd.

9 THE WITNESS: Oh, I'm sorry.

10 And the question, counselor?

11 Q (BY MR. FALLICK) That has to do with

12 an application to take water from the Jal

13 Basin, right?

14 A Yes, sir.

15 Q The Jal Basin is also where the City of

16 Jal draws its water, right?

17 MR. NEWELL: Objection. Not

18 reasonably calculated to lead to discovery of

19 admissible evidence.

20 THE WITNESS: It is at this time.

21 Q (BY MR. FALLICK) And the office of the

22 state engineer denied the Beckham Ranch's

23 request for water from the Jal Basin, right?

24 MR. NEWELL: Objection --

25 Q (BY MR. FALLICK) That's what

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 December 2014 says?

2 MR. NEWELL: Objection. Not

3 reasonably calculated to lead to discovery of

4 admissible evidence.

5 THE WITNESS: He denied -- as I

6 understood this, he denied the original

7 request. And then there was an agreement

8 reached prior to my tenure between the City and

9 the Beckham Ranch that we -- we -- was an

10 attachment to Gallagher 16. And it says, as I

11 said it, "It's my understanding that the

12 applications have been denied. Beckham Ranch

13 is taking the appeal. The City hereby

14 reaffirms its support of the applications

15 pursuant to the terms of the agreement,"

16 meaning the agreement that was attached here.

17 Okay? And that's what I testified before.

18 The first 1500, I think it was

19 turned down at some other one. He came back

20 looking for support, at what level was the City

21 willing to support it? Apparently, the Mayor

22 and the Council decided to support it at

23 500-acre feet of water.

24 Q (BY MR. FALLICK) And that's water from

25 the Jal Basin while the City of Jal is in dire

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 need of water?

2 MR. NEWELL: Objection. I'm sorry,

3 Gregg. I didn't mean to step on you.

4 Objection. Not reasonably

5 calculated to lead to discovery of admissible

6 evidence.

7 THE WITNESS: That was two years

8 beforehand, and there was more information

9 available at the -- later. And we also know

10 that the Jal Basin was closed, so there

11 couldn't be any more people that would be

12 applying.

13 Q (BY MR. FALLICK) Is it your testimony

14 that you, until today, didn't know that the

15 Beckhams have an injection well that's right

16 next to the City of Jal's current water supply?

17 MR. NEWELL: Objection. Not

18 reasonably calculated to lead to the discovery

19 of admissible evidence.

20 THE WITNESS: It's my testimony not

21 until today, until this exact moment when you

22 said the Beckhams owned it. I testified before

23 I did not -- was not aware of an injection well

24 close by west field, which we refer to west

25 field is where our wells are. And now you've

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 said that the Beckhams have an injection or a

2 disposal well, I guess. Not aware of that at

3 all. Never had been brought to my attention,

4 nor had we had any reason -- because we test

5 the water so often and an independent lab does

6 it, nor would we have any reason to be

7 concerned about our drinking water.

8 Q (BY MR. FALLICK) You understand that

9 one of the purposes of IPRA is to keep public

10 officials from hiding corrupt activities from

11 the public, right?

12 A Correct.

13 Q Is there any corruption in Jal that you

14 want to hide from the public?

15 A I don't want to hide anything from the

16 public. And there's plenty of corruption in

17 Jal. Not by the city government, though.

18 Q So not including the city government?

19 What kind of corruption is there, then? What

20 do you mean by "corruption"?

21 A We had Mr. Fulfer stealing water from

22 the City, and that was documented. Although we

23 could never prove it, it was documented by the

24 pictures of the City. They rode -- took a city

25 water line and ran it directly into their tank

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 and sold water from it and they knew the meter

2 wasn't running.

3 So, I mean, there's all sorts of

4 corruption, and I'm not going to get into it,

5 that the proper authorities know anything about

6 that.

7 Q Do you deny that, actually, on that

8 very issue, you conducted an investigation and

9 wrote a report concluding that there was no

10 theft of water?

11 A No. I -- I -- I concluded that I could

12 not, and I used the term -- and I can't

13 remember the term that I used -- that we could

14 not conclusively bring that to a close

15 because -- because we -- there were no tickets,

16 water tickets that were checked there. And so

17 we could not prove that it was not used,

18 although -- we could prove it was used because

19 the tank filled up and the tank was empty the

20 next day. The tank filled up. The tank was

21 empty the next day. And they admitted to

22 taking their poly hose and running it up their

23 tank and putting it in their tank.

24 Q You said you couldn't conclusively

25 conclude anything then. But today under oath

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 you said it pretty conclusively, didn't you?

2 MR. NEWELL: Objection. Not

3 reasonably calculated to lead to discovery of

4 admissible evidence.

5 THE WITNESS: Yes, I did.

6 MR. FALLICK: Would you hand me that

7 sticker, please?

8 Q (BY MR. FALLICK) I'm marking a

9 document as Gallagher Exhibit Number 17 and I'm

10 going to review it first, but then I'm going to

11 give it to you and ask you to identify it.

12 (Exhibit Number 17 marked for

13 identification.)

14 Q (BY MR. FALLICK) I'm going to put in

15 front of you Gallagher Exhibit Number 17 --

16 it's the only copy of this document that I

17 have -- and ask you if you recognize it and if

18 that is a report that you prepared?

19 A (Witness reviewing document.)

20 Yeah.

21 MR. NEWELL: And I want to object to

22 this as not reasonably calculated to lead to

23 discovery of admissible evidence.

24 Q (BY MR. FALLICK) You're done?

25 A Yes.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Q I'll take it back.

2 This is your --

3 MR. NEWELL: May I review it,

4 because --

5 MR. FALLICK: Of course. And I'll

6 wait with my question so you can review it.

7 MR. NEWELL: Yeah. Thank you.

8 MR. FALLICK: Sure. Why don't you

9 take a ten-minute break and that gives Mike a

10 chance to read that, and we're getting pretty

11 near the end of the day.

12 (Break taken from 3:42 p.m. to

13 3:53 p.m.)

14 MR. FALLICK: Back on the record.

15 Q (BY MR. FALLICK) I'm going to hand you

16 back Gallagher Exhibit Number 17,

17 Mr. Gallagher, but first I'm going to read the

18 first sentence of the paragraph, it's the final

19 paragraph on the first page of that exhibit,

20 and then hand it to you and ask you to tell me

21 whether I read it correctly.

22 "I do not believe, nor is there any

23 evidence showing or proving, that the company

24 owned by these two individuals had illegally

25 taken water from the City and sold it for a

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 profit."

2 And I'm going to ask you if I read

3 that correctly?

4 A Yes, sir, you did.

5 Q I'll take that back.

6 Mr. Gallagher, if you have nothing to

7 hide in this lawsuit, why didn't you agree to a

8 date to be deposed for the five months from the

9 time that I sent you a notice of deposition

10 until the time that the Judge ruled on your

11 motion for protective order?

12 MR. NEWELL: I would object to the

13 form of the question. Not reasonably

14 calculated to lead to discovery of admissible

15 evidence.

16 And, also, I want to object to the

17 extent it includes attorney-client

18 communications.

19 Beyond that, you can answer if

20 you --

21 THE WITNESS: On advice of my

22 attorney, I choose not to answer.

23 Q (BY MR. FALLICK) Do you have any

24 reason for not providing that date during five

25 months, other than what advice you received

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 from your attorney?

2 THE WITNESS: I'd like to answer

3 that.

4 MR. NEWELL: Go ahead.

5 A Honestly, I didn't understand. I just

6 thought IPRA cases were IPRA cases were IPRA

7 cases. You either provide the information or

8 you don't provide the information. And if you

9 intentionally did not provide the information,

10 you're subject to a hundred-dollar-a-day fine.

11 I just thought that was pretty much black and

12 white. I didn't understand why -- all of a

13 sudden why this deposition is required and why

14 there's this and why there's that.

15 You know, where are we going with

16 this, Mike? What can you ask me? Did you

17 provide everything? Yes, I did. Here it is.

18 Are there any other questions?

19 Unless you're going on a fishing

20 expedition, deep sea.

21 Q (BY MR. FALLICK) Why wouldn't you just

22 answer the questions rather than spend the

23 money on a lawyer to file a motion?

24 A He's the city attorney and he just --

25 that was his advice.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 Q Well, I was asking you other than his

2 advice. Did you have any other reason that you

3 wanted to --

4 A No, none at all.

5 Q Did you ever say anything to the effect

6 that the concerns raised with the OCD that are

7 the subject of this questioning today had

8 nothing to do with fresh drinking water and

9 everything to do with trying to create problems

10 for Gregg Fulfer?

11 A No. In fact, I probably said the

12 opposite, said that this IPRA lawsuit has

13 nothing to do with protecting drinking water

14 and everything to do with getting information

15 to be able to smear the City, and specifically

16 me and a couple of councillors.

17 Q And what's your basis for concluding

18 that?

19 A Everything that you've asked for, we

20 gave. And so if you got that, then what is

21 your basis for saying you needed seven hours

22 for a deposition?

23 I just thought that it's pretty black

24 and white. The IPRA says you give. We

25 gathered 'em. The custodian gave 'em to you.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 I just figured it was a moot point at that

2 point, and I think today proved that.

3 Q Why would you testify you gave us

4 everything when you've already admitted you

5 didn't give us everything?

6 A I was under the -- I was told by the

7 custodian of public records we gave you

8 everything.

9 Q So now you know that you didn't give us

10 everything.

11 How does this deposition prove that

12 you gave us everything?

13 A Because now we're going to have to go

14 back and figure out why we didn't, what

15 happened with them. Did we give you everything

16 we had and was there a computer problem? It's

17 the first time I heard it was today when you

18 said you didn't have any of those documents.

19 Was there a miscommunication? Was

20 there a misunderstanding? I don't know.

21 Q You denied that you received any money

22 from the Beckhams.

23 Have you received any money from any

24 other Jal citizen in excess of $10,000?

25 MR. NEWELL: Objection. Not

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 reasonably calculated to lead to discovery of

2 admissible evidence.

3 THE WITNESS: I think I'm already on

4 the record as saying, number one, no, I didn't

5 receive it from Beckham. Never received money

6 from any other Jal citizen. $10,000, I'm not

7 sure I've ever received $0.50.

8 MR. FALLICK: Pass the witness.



12 Q Just a couple of questions.

13 During the course of the deposition

14 today, there's been documents that were

15 identified that weren't produced and then some

16 time frames, '14 and '15, most notably in the

17 first month, and mostly the second month of

18 2016, were documents produced.

19 Have you -- during the breaks and over

20 lunch at this deposition, have you made

21 inquiries to try to figure out what happened?

22 A At the very first break this morning,

23 after I heard that, I went out and called the

24 city clerk and I said, "Why are there no

25 documents from '14, '15, and first about

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 60 days of '16?"

2 And she said that there had been --

3 the way our e-mails had worked, that when you

4 get so many e-mails, you're at your limit, you

5 have to then move them. She moved them -- so

6 we could get new e-mails, she moved them to her

7 server, her computer. And then her computer

8 was infected with a virus and we injected

9 everything in theirs and she lost everything.

10 She then said she had Swat come and

11 Cassell and gave me -- has provided me the

12 names of them and their invoices of what they

13 did and what they found.

14 And so I need to go do some more

15 checking because this is the first time that I

16 had heard that there was a belief that we

17 didn't produce everything that was asked for.

18 Q Okay. And when you were told that the

19 computer crashed, are there still concerns you

20 have given the date that you were told the

21 computer crashed?

22 A I was told the computer crashed in

23 March of 2015. And I then have subsequently

24 sent an e-mail back saying, "Well, if that's

25 the case and it was backed up, then why don't

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 we have e-mails from March of 2015 forward?"

2 And right now, when I checked my

3 e-mail, I haven't gotten an answer. And these

4 e-mails are going to Jenny Edwards, the city

5 clerk.

6 Q Is it your intention to make sure that

7 we do another thorough sweep or another sweep

8 of the documents to see if there's any

9 documents that are responsive to the request?

10 A Absolutely. The opposing counsel said

11 that we didn't -- we didn't produce, and I

12 don't want anybody to suggest that. If that's

13 the case, we're going to go find out why and

14 going to take care of it.

15 MR. NEWELL: Okay. I'll pass the

16 witness.


18 Q (BY MR. FALLICK) The questions

19 Mr. Newell just asked you and the answers that

20 you just gave him, do those in any way explain

21 why we don't have any e-mails from 2014 or '15

22 or the first two months of '16 for the City

23 Councillors who are using private servers?

24 A You know, I don't know if it does. I

25 don't know if there was miscommunication.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 I noticed in one thing that

2 Ms. Beckham said that -- one exhibit you gave

3 me, she made the comment, "These are the only

4 e-mails I have as it refers to Owl."

5 Well, it made me think now, did they

6 believe that your IPRA request was looking for

7 any e-mails that had to refer -- that referred

8 to Owl and maybe just did that or -- I don't

9 know. When I read that when you presented that

10 to me, I thought, "Hmm. I wonder if that goes

11 to the question?"

12 And I don't know, quite frankly. I

13 need to go find out.

14 Q Regarding your testimony about the

15 computer problems at the City of Jal, do you

16 agree that that has nothing to do with whether

17 there were documents produced for 2014, '15,

18 and the first part of '16 from private servers

19 by the councillors?

20 A No, I don't, because when we asked them

21 to send 'em, they may have been able to -- no,

22 I wouldn't say that, because if we asked them

23 to send them, we asked them to send 'em after

24 April of '16. So the server should not have

25 had anything to do with '14 or '15, or the

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 first couple of months of '16, you are correct,

2 counsel, because they would not have sent them.

3 They weren't asked at that time to send them.

4 MR. FALLICK: I pass the witness.

5 MR. NEWELL: I'll tell you,

6 Mr. Fallick, on the record, we'll try to get to

7 the bottom of it.

8 Thank you. No further questions.

9 He'll read and sign.

10 (Deposition concluded at 4:05 p.m.)
















GINA R. HORNBECK, CCR-RPR 575-623-4462





4 Plaintiff,

5 vs. Case no. CV-2016-01346


JOHN DOES 1-3, and JANE DOES 1-3,




13 TX CSR #2987, DO HEREBY CERTIFY that on the

14 13th day of June, 2017, the deposition of

15 Robert Gallagher was taken before me at the

16 request of The Plaintiff, and sealed original

17 thereof retained by:



22 I FURTHER CERTIFY that copies of this

23 certificate have been mailed or delivered to

24 Counsel of record, and parties not represented

25 by counsel.

GINA R. HORNBECK, CCR-RPR 575-623-4462


1 I FURTHER CERTIFY that examination of

2 this transcript and signature of the witness

3 was REQUESTED by the witness and all parties

4 present. On the 29th day of June, 2017, a

5 letter was e-mailed to Mike Newell/Robert

6 Gallagher regarding signature of the witness.

7 I FURTHER CERTIFY that the recoverable

8 cost of the original and one copy of the

9 deposition, including exhibits to

10 Mr. Fallick is $_______.


12 administer the oath to the witness herein prior

13 to the taking of this deposition, that I did

14 thereafter report in stenographic shorthand the

15 questions and answers set forth herein, and the

16 foregoing is a true and correct transcript of

17 the proceeding had upon the taking of this

18 deposition to the best of my ability.

19 I FURTHER CERTIFY that I am neither

20 employed by nor related to nor contracted with

21 (unless excepted by the rules) any of the

22 parties or attorneys in this case, and that I

23 have no interest whatsoever in the final

24 disposition of this case in any court.


GINA R. HORNBECK, CCR-RPR 575-623-4462


1 _____________________


NM CCR #43; TX CSR #2987;
4 2200 W. PIERCE ST.
5 CARLSBAD, NM 88220
6 575-623-4462

















GINA R. HORNBECK, CCR-RPR 575-623-4462




3 If there are any typographical errors to

your deposition, indicate them below:
5 ___ ____ _______________ _________________

6 ___ ____ _______________ _________________

7 ___ ____ _______________ _________________

8 ___ ____ _______________ _________________

9 ___ ____ _______________ _________________

10 ___ ____ _______________ _________________

11 ___ ____ _______________ _________________

12 ___ ____ _______________ _________________

13 ___ ____ _______________ _________________

14 ___ ____ _______________ _________________


16 I, Robert Gallagher, do hereby certify

that I have read the foregoing pages of my
17 testimony as transcribed, and that the same is
a true and correct transcript of the testimony
18 given by me in this deposition, except for the
changes made.

21 ______________________________




GINA R. HORNBECK, CCR-RPR 575-623-4462