Gallagher Deposition Transcript (6.13.2017) (14750) IPRA Filing

TR-1
1 STATE OF NEW MEXICO

COUNTY OF LEA
2 FIFTH JUDICIAL DISTRICT
3 GREGG VANCE FALLICK,
4 Plaintiff,
5 vs. Case no. CV-2016-01346
6 THE CITY OF JAL, ROBERT GALLAGHER,

JOHN DOES 1-3, and JANE DOES 1-3,
7
Defendants.
8
9 _______________________________________________
10 DEPOSITION OF ROBERT GALLAGHER

Taken on the 13th day of June, 2017
11 _______________________________________________
12 DEPOSITION OF ROBERT GALLAGHER,
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

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1 A P P E A R A N C E S:
2 APPEARING FOR THE PLAINTIFF:
3 MR. GREGG VANCEL FALLICK, ESQ.

FALLICK LAW FIRM
4 GOLD AVENUE LOFTS
100 GOLD AVENUE, SW
5 ALBUQUERQUE, NM 87102
GVF@FallickLaw.com
6
8 APPEARING FOR THE DEFENDANTS:
9 MR. MICHAEL NEWELL, ESQ.

NEWELL LAW FIRM
10 101 W. ADAMS AVE.
SUITE E
11 LOVINGTON, NM 88260
mnewell@newelllawnm.com
12
13 Videographer: Dusty Deen, Roswell, NM

Also Present: Dennis Maez
14
15
16
17
REPORTED BY: GINA R. HORNBECK, CCR-RPR
18 NM CCR #43, TX CCR #2987
GINA GRUBEN, INC.
19 COURT REPORTING SERVICE
2200 W. PIERCE ST.
20 8A
CARLSBAD, NM 88220
21 575-623-4462
gina@courtreportersite.com
22
23
24
25

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1 I N D E X
2 PAGE
3 Examination by Mr. Fallick 04

Examination by Mr. Newell 206
4 Further Examination by Mr. Fallick 208
6
Reporter's Certificate.............. 211
7
Witness's Signature Page............ 214
8
9
E X H I B I T S
10
Exhibit # Description Page Marked
11
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
20
21
22
23
24
25

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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.
17 ROBERT GALLAGHER,
18 Having been first duly sworn, (or
19 affirmed), testified as follows:
20 EXAMINATION
21 BY MR. FALLICK:
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.

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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.

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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.
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.
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.
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.

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1 Q And she will be preparing a written
2 transcript of everything we say.
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.
23 A Yes.
24 Q In fact, this testimony is for use in
25 court so Judge Clingman can make a decision at

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

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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

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1 connection with your duties as city manager of
2 Jal, I'm representing you in this matter.
3 THE WITNESS: Yes.
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,

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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

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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

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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

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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

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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.
10 THE VIDEOGRAPHER: Rolling.
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.

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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

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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.
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,

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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.

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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.
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?

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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

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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.

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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.

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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

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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.

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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?

TR-26
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?

TR-27
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?

TR-28
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.

TR-29
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.)

TR-30
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

TR-31
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

TR-32
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

TR-33
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

TR-34
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.

TR-35
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.
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.

TR-36
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?

TR-37
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

TR-38
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.

TR-39
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.
24 identification.)
25 Q (BY MR. FALLICK) Next, I'm marking as

TR-40
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.
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

TR-41
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.
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

TR-42
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.
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.
17 identification.)
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?
25 Okay.

TR-43
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.
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."

TR-44
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

TR-45
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?

TR-46
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

TR-47
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.
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?

TR-48
1 A Let me finish reading this,
2 Mr. Fallick.
3 Q Yes. Take your time.
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?

TR-49
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.

TR-50
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.

TR-51
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?

TR-52
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.

TR-53
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

TR-54
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

TR-55
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

TR-56
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

TR-57
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

TR-58
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.
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?

TR-59
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.

TR-60
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

TR-61
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

TR-62
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?

TR-63
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

TR-64
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."

TR-65
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

TR-66
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

TR-67
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

TR-68
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?

TR-69
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.
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

TR-70
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.

TR-71
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.

TR-72
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

TR-73
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.

TR-74
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.
9 11:12 a.m.)
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.

TR-75
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.
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

TR-76
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,

TR-77
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

TR-78
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 --
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?

TR-79
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.

TR-80
1 Q Thank you.
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.

TR-81
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

TR-82
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

TR-83
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.
11 identification.)
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.

TR-84
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.

TR-85
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

TR-86
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?
23 Q Is there any other support for that
24 paragraph in the documents that I should be
25 aware of?

TR-87
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

TR-88
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?

TR-89
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

TR-90
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

TR-91
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

TR-92
1 this plan.
3 12:41 p.m.)
4 MR. FALLICK: We're returning on the
5 record.
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

TR-93
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.
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

TR-94
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.

TR-95
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.

TR-96
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

TR-97
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.

TR-98
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.
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.
24 MR. FALLICK: I want, ultimately, a
25 witness who's under oath to tell me that either

TR-99
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

TR-100
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

TR-101
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.)
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

TR-102
1 Number 3 is an e-mail from Phillip Goetz to
2 you.
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.
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

TR-103
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.
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

TR-104
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?
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.

TR-105
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?
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.

TR-106
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

TR-107
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.
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

TR-108
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?

TR-109
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.

TR-110
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).

TR-111
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.

TR-112
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.
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

TR-113
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.
6 THE WITNESS: Right.
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

TR-114
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

TR-115
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.
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

TR-116
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.

TR-117
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

TR-118
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."

TR-119
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

TR-120
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

TR-121
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?

TR-122
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

TR-123
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

TR-124
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

TR-125
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.

TR-126
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

TR-127
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

TR-128
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

TR-129
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

TR-130
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

TR-131
1 a public record that you had to produce under
2 IPRA?
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,

TR-132
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
25 admissible evidence.

TR-133
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

TR-134
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

TR-135
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.

TR-136
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

TR-137
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

TR-138
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.

TR-139
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.

TR-140
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?

TR-141
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.

TR-142
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
23 admissible evidence, and I'm going to instruct
24 him not to answer that question.
25 MR. FALLICK: Can you give me the

TR-143
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?
5 THE REPORTER: Yes.
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

TR-144
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

TR-145
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

TR-146
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

TR-147
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.
25 2:31 p.m.)

TR-148
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

TR-149
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

TR-150
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

TR-151
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

TR-152
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,

TR-153
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

TR-154
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

TR-155
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

TR-156
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?
16 MR. MAEZ: What was that again?
18 MR. FALLICK: Mark that as an end
19 point for you, too.
20 THE VIDEOGRAPHER: End?
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,

TR-157
1 Mike?
2 MR. NEWELL: I do.
3 Did you say 7.
4 MR. FALLICK: 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

TR-158
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?

TR-159
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

TR-160
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

TR-161
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

TR-162
1 that they think are going to Gregg Fulfer's
2 lawyer, right?
3 A That's absolutely wrong.
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

TR-163
1 I've looked at 'em"?
2 A Yes. At the very first, absolutely.
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.
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?

TR-164
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.

TR-165
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.
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

TR-166
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?

TR-167
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

TR-168
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."
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

TR-169
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?

TR-170
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?
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

TR-171
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

TR-172
1 for a murder?
2 A No.
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?

TR-173
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?

TR-174
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.
25 identification.)

TR-175
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.
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

TR-176
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."
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?
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

TR-177
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?

TR-178
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

TR-179
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.

TR-180
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

TR-181
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."
9 A You did.
10 Q And the "him" in that sentence is
11 referring to the prior city manager, 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

TR-182
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
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.

TR-183
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
8 THE WITNESS: And that's not
9 correct.
10 Q (BY MR. FALLICK) Well, explain to me
11 why that's not correct.
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?
23 THE WITNESS: That's apples and
24 oranges. I'm not going to answer that.

TR-184
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.
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?
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?

TR-185
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?

TR-186
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?
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?

TR-187
2 the question. I think he denied that he
3 requested that.
4 Can you restate your question,
5 because I think you --
6 MR. FALLICK: Yes.
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

TR-188
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?

TR-189
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
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

TR-190
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?
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).

TR-191
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

TR-192
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

TR-193
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

TR-194
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

TR-195
1 the Jal Basin that could otherwise be available
2 for the City of Jal, right?
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?
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

TR-196
1 December 2014 says?
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

TR-197
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?
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

TR-198
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

TR-199
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

TR-200
1 you said it pretty conclusively, didn't you?
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.
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?
20 Yeah.
21 MR. NEWELL: And I want to object to
22 this as not reasonably calculated to lead to
24 Q (BY MR. FALLICK) You're done?
25 A Yes.

TR-201
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.
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

TR-202
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

TR-203
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.

TR-204
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.

TR-205
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?

TR-206
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.
10 EXAMINATION
11 BY MR. NEWELL:
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

TR-207
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

TR-208
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.
17 FURTHER EXAMINATION
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.

TR-209
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

TR-210
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.)
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

TR-211
1 STATE OF NEW MEXICO

COUNTY OF LEA
2 FIFTH JUDICIAL DISTRICT
3 GREGG VANCE FALLICK,
4 Plaintiff,
5 vs. Case no. CV-2016-01346
6 THE CITY OF JAL, ROBERT GALLAGHER,

JOHN DOES 1-3, and JANE DOES 1-3,
7
Defendants.
8
10 CERTIFICATE OF COMPLETION OF DEPOSITION
11
12 I, GINA R. HORNBECK, RPR, NM CCR #43,
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:
18 MR. GREGG VANCEL FALLICK, ESQ.

FALLICK LAW FIRM
19 GOLD AVENUE LOFTS
100 GOLD AVENUE, SW
20 ALBUQUERQUE, NM 87102
GVF@FallickLaw.com
21
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.

TR-212
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 $_______.
11 I FURTHER CERTIFY that I did
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.
25

TR-213
1 _____________________
2 GINA R. HORNBECK, CCR-RPR

NM CCR #43; TX CSR #2987;
3 GINA GRUBEN, INC.
COURT REPORTING SERVICES
4 2200 W. PIERCE ST.
8A
5 CARLSBAD, NM 88220
gina@courtreportersite.com
6 575-623-4462
LICENSES EXPIRE: 12/31/17
7
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

TR-214
1 FALLICK V. CITY OF JAL
2 DEPONENT SIGNATURE/CORRECTION PAGE
3 If there are any typographical errors to

your deposition, indicate them below:
4
PAGE LINE CHANGE TO REASON FOR CHANGE
5 ___ ____ _______________ _________________
6 ___ ____ _______________ _________________
7 ___ ____ _______________ _________________
8 ___ ____ _______________ _________________
9 ___ ____ _______________ _________________
10 ___ ____ _______________ _________________
11 ___ ____ _______________ _________________
12 ___ ____ _______________ _________________
13 ___ ____ _______________ _________________
14 ___ ____ _______________ _________________
15
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.
19
______________________________
20 ROBERT GALLAGHER
21 ______________________________
DATE
22
23
24
25

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1 STATE OF NEW MEXICO

3 GREGG VANCE FALLICK,

5 vs. Case no. CV-2016-01346

6 THE CITY OF JAL, ROBERT GALLAGHER,

10 DEPOSITION OF ROBERT GALLAGHER

12 DEPOSITION OF ROBERT GALLAGHER,

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

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

2 APPEARING FOR THE PLAINTIFF:

3 MR. GREGG VANCEL FALLICK, ESQ.

8 APPEARING FOR THE DEFENDANTS:

9 MR. MICHAEL NEWELL, ESQ.

13 Videographer: Dusty Deen, Roswell, NM

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

3 Examination by Mr. Fallick 04

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

7 This is Dennis Maez. He's my

9 I'm Gregg Fallick.

10 You know Mike Newell.

11 And the witness is Robert Gallagher,

13 Unless either of you have something

14 to say, then I'll get going.

15 THE REPORTER: Well, let me swear in

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?

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

5 Q What is your date of birth?

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?

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

19 and I will repeat it.

20 Do you understand that?