Diaz Deposition in AtPac Case by The Union

Page 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

ATPAC, INC., Plaintiffs, vs.

No. 2:10-CV-00294WBS-KJM

APTITUDE SOLUTIONS, INC., et al.,

Pages 1 - 359

Defendants. ____________________________/

VIDEOTAPED DEPOSITION OF GREGORY J. DIAZ VOLUME I FRIDAY, MAY 27, 2011

NOTICING ATTORNEY:

REPORTED BY:

MICHAEL THOMAS

JOANIE MURAKAMI, CSR NO. 5199

Page 2 1

APPEARANCES

2 3 4

For the Plaintiffs: DOWNEY BRAND LLP BY: MICHAEL J. THOMAS, ATTORNEY AT LAW MICHAEL A. SCHAPS, ATTORNEY AT LAW (a.m. session only) 621 Capitol Mall, 18th Floor Sacramento, California 95814-4731 (916) 444-1000

8 9 10

For the Defendant: Pillsbury, Winthrop, Shaw, Pittman LLP BY: JOHN S. POULOS, ATTORNEY AT LAW 2600 Capitol Avenue, Suite 300 Sacramento, California 95816-5930 916.329.4700

13 14 15

Also Present: MICHAEL SWEET, VIDEOGRAPHER SACRAMENTO LEGAL VIDEO

DAVE KRUGLE 17 18

--oOo-19 20 21 22 23 24 25

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INDEX OF EXAMINATION

Page No.

Examination by Mr. Thomas

Afternoon Session

174

Reporter's Certificate

359

6 7

--oOo--

8 9

INDEX OF EXHIBITS

10 11

NUMBER

DESCRIPTION

EXHIBIT 370

Article from campaign website

EXHIBIT 371

e-mail string, 2 pages

121

EXHIBIT 372

e-mail string, 2 pages

128

EXHIBIT 373

e-mail string, 3 pages

135

EXHIBIT 374

e-mail dated 6/13/2008 from Tom McGrath

140

Information Systems Steering Board Meeting Agenda, June 19, 2008, 5 pages

144

e-mail sent April 1, 2008 to Diaz from Weir with attachment, 5 pages

156

e-mail string with attachment, 10 pages

160

e-mail sent July 29, 2008 from Balzer, with attachments, 18 pages

164

PAGE 48

EXHIBIT 375 18 19

EXHIBIT 376 20 21

EXHIBIT 377 22 23 24 25

EXHIBIT 378

Page 4 1

INDEX OF EXHIBITS

2 3

NUMBER

DESCRIPTION

EXHIBIT 379

e-mail sent 9/8/2008 from McCluskey with attachment, 5 pages

167

PAGE

EXHIBIT 380

e-mail string

174

EXHIBIT 381

Resolution No. 08-564, 48 pages

187

EXHIBIT 382

e-mail string, 3 pages

196

EXHIBIT 383

e-mail sent November 19, 2008 from McCluskey

203

EXHIBIT 384

e-mail string, 2 pages

205

EXHIBIT 385

e-mail string, 2 pages

218

EXHIBIT 386

e-mail string, 2 pages

219

EXHIBIT 387

e-mail string, 3 pages

230

EXHIBIT 388

e-mail string, 4 pages

238

EXHIBIT 389

e-mail string, 3 pages

243

EXHIBIT 390

e-mail sent November 2, 2008 to Diaz from Sandever

245

10 11 12 13 14 15 16 17 18

EXHIBIT 391

Resolution No. 05-44, 21 pages

254

EXHIBIT 392

e-mail string, 3 pages

278

EXHIBIT 393

e-mail sent February 13, 2009 from Sandever

284

EXHIBIT 394

e-mail string, 3 pages

289

EXHIBIT 395

e-mail sent January 7, 2009 from Shulman

302

21 22 23 24

EXHIBIT 396

e-mail string

303

EXHIBIT 397

e-mail string, 2 pages

304

Page 5 1

INDEX OF EXHIBITS

2 3

MARKED

DESCRIPTION

EXHIBIT 398

e-mail sent January 7, 2008 from Shulman to Diaz, with attachment, 2 pages

304

PAGE

EXHIBIT 399

e-mail string, 2 pages

308

EXHIBIT 400

Letter dated January 8, 2009 to Long and Weir from Diaz

317

EXHIBIT 401

e-mail string, 2 pages

331

EXHIBIT 402

e-mail string, 2 pages

331

EXHIBIT 403

Handwritten document, 7 pages

348

EXHIBIT 404

e-mail string, 2 pages

348

EXHIBIT 405

e-mail string, 2 pages

352

EXHIBIT 406

e-mail sent June 18, 2009 to Diaz from Jamison

354

8 9 10 11 12 13 14 15 16

--oOo--

17 18

UNANSWERED QUESTIONS

Page 140, Line 7

Page 306, Line 22

Page 319, Line 3

Page 319, Line 9

Page 342, Line 13

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Page 349, Line 16

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BE IT REMEMBERED that on FRIDAY, MAY 27, 2011

at the hour of 9:28 a.m., of said day, at the Law

Offices of Downey Brand, LLP, 621 Capitol Mall,

18th Floor, Sacramento, California, 95814-4731, before

me, JOANIE Y. MURAKAMI, a Certified Shorthand Reporter,

personally appeared

GREGORY J. DIAZ,

called as a witness, after having been first duly sworn

by the Certified Shorthand Reporter to tell the truth,

the whole truth and nothing but the truth, testified as

follows:

THE VIDEOGRAPHER:

My name is Michael Sweet.

will be videotaping this proceeding on behalf of

Sacramento Legal Video Center, Inc. at 3028 U Street in

Sacramento, California.

The date is May 27th, 2011.

The time on the

video monitor is 9:28 a.m.

Mall, 18th floor, Sacramento, California.

in the matter of AtPac versus Aptitude.

Our location is 621 Capitol We are here

This is the deposition of Gregory Diaz.

noticing attorney is Michael Thomas.

is Joanie Murakami of Marcus Deposition Reporter.

is a single-track recording.

be separated.

also be recorded.

The

The court reporter This

Overlapping voices cannot

Private discussions on the record will

Page 7 1 2

Would counsel please identify yourselves, your firms, and those you represent?

MR. THOMAS:

I'm Mike Thomas from the Downey

Brand Law Firm.

my colleague, Mike Schaps, and client representative,

Dave Krugle.

7 8

MR. POULOS:

15 16 17

Would you please swear in

the witness? (The witness was then sworn in by the Court Reporter.)

13 14

John Poulos, Pillsbury firm, for

THE VIDEOGRAPHER:

11 12

I'm here with

the defendants and the witness Gregory Diaz.

9 10

I represent AtPac, Inc.

EXAMINATION BY MR. THOMAS Q

Good morning, sir.

Please state your full name

and spell it for the record. A

Gregory Joseph Diaz, G-R-E-G-O-R-Y, Gregory,

Joseph, J-O-S-E-P-H, Diaz, D-I-A-Z.

And what's your current residence address, sir?

18656 Mustang Valley Place, Grass Valley,

20 21 22

California, 95949. Q

And how long have you been at that address,

approximately?

Nine years.

As I think you may know, we have a trial date

set in December of 2011 in this case.

Page 8 1 2

Do you plan to be at that address through the end of 2011, at least?

Right now, yes.

You have no plans to move at the moment?

Not at the moment.

What's your current work address?

950 Maidu Avenue, Maidu, M-A-I-D-U, Nevada

City, California, 95959.

And what's at that location?

The Eric Rood Administrative Center.

11 12 13 14 15 16 17

It's the

Administrative Center for the County of Nevada. Q

And where are you currently employed or where

do you work? A

I work at 950 Maidu Avenue, Nevada City,

California, 95959. Q

And you're the elected Clerk-Recorder for

Nevada County; is that right?

That's correct.

And when were you first employed as the

Clerk-Recorder for Nevada County?

June 26th, 2007.

And at that point in time, had you been elected

I'm pretty sure it's 26th.

or were you appointed?

Appointed.

Okay.

And the Board of Supervisors appointed

Page 9 1

you?

That's correct.

And who did you replace, if you know?

Kathleen Smith.

And then at some point after 2007, you were

6 7

confirmed at an election as the Clerk-Recorder; yes? A

At some point.

The election was June 8th,

2010, and I was sworn in January 2011.

January 3rd, 2011 --

I think it was

Okay.

-- to begin the term.

Before beginning work for Nevada County, in

September of 2007, where did you work?

Where?

Yeah.

Unemployed.

At what business or occupation did

you work --

Before that?

-- before 2007?

Exigent, Inc.

And what is Exigent?

It's a company that has recorder software,

24 25

competitor of AtPac. Q

This is a software company, Exigent?

Page 10 1

Yes.

Okay.

3 4 5

And what was your location of employment

for Exigent? I have no idea.

office, California.

It was in Danville, the

I think it was Danville.

And when did you last work for Exigent?

That was September 2006.

So between September 2006 and September 2007,

you were unemployed?

2007.

Okay.

So from September 2006 until June 2007,

14 15 16 17

No.

I got sworn in and appointed on June 26th,

unemployed. Okay.

And when did you first start working for

Exigent? A

I was there about a year-and-a-half, so it was

2005 -- I think it was October 2004, and that's just a

guess.

Don't have my records in front of me.

Right.

So if I'm not accurate, it's not because I'm

Okay.

Let me go --

trying to deceive, or whatever.

guess.

24 25

Fair enough.

It's just my best

And what was your position at

Exigent when you first started in approximately

Page 11 1

October 2004?

Vice president, regional manager, sales.

You listed three things:

Vice president,

regional manager and sales?

Uh-huh.

Were those three different responsibilities you

7 8 9

Well --

had? A

No, it was all the same.

You know these

companies, it really boils down to sales.

And sales of what?

Of the recorder software for county recorders.

And what regions in the country did Exigent --

It was --

If I may finish?

Uh-huh.

In what regions of the country did Exigent

market its software products?

Nationally.

And did you have a particular region that you

were responsible for?

Western.

Which included what?

California, Oregon, Washington, Nevada,

24 25

What states?

Arizona, New Mexico, and I was in Idaho a couple times. Q

Do you know how many customers, approximately,

Page 12 1

Exigent had while you worked there?

No.

You don't have an estimate?

Huh-uh.

Do you have an estimate in terms of a range?

In terms of what?

A range.

I don't have that handy.

For example, somewhere between 50 and

150 customers or more than 500 customers, something like

that?

I would say between 50 and 100.

All right.

Do you have that ability to estimate?

Now, have you ever been deposed

before?

No.

Let me explain the process.

You probably

talked about it with Mr. Poulos somewhat but I want to

make sure, on the record, we're clear.

You understand you've been given an oath?

Yes.

And that oath places you under penalty of

perjury as if you're testifying before a judge and jury.

Do you understand that?

Yes.

And you understand that it would be a crime not

24 25

to tell the truth in this deposition; yes? A

Yes.

Page 13 1

There's things we can do to make sure we get a

clear record of what's said here today.

can do is make sure that we not talk over one another.

So -- because the court reporter's taking down what we

say, it's sometimes difficult for her to take down what

we're saying when we're both talking at the same time,

so what I would ask is that, first of all, I will try to

be careful not to start talking until you finished an

answer.

One thing we

I will do my best to do that today.

There may

be times when I make a mistake and don't, but I'll try

not to, and I would ask that you also allow me to finish

the question before you begin providing an answer.

Will you do that for me today?

Yes.

It's also important --

With the same caveat that you have.

Exactly.

We'll do our best.

Thank you.

That's correct.

And it's also important that the communications

We'll do our best.

we have today be audible because the court reporter

can't necessarily take down gestures or nods of the head

or hand motions, if that actually is an answer to a

question.

Like if I ask for a "yes" or a "no" and you

Page 14 1

shake your head, that may not come out clearly on the

transcript.

answers?

So will you do your best to provide audible

Yes.

Thank you.

Is there any reason you can't give

your best, most truthful and accurate testimony here

this morning and today?

No.

Okay.

There's not any medication or any other

substance that would prevent you from understanding my

questions clearly?

No.

Or from answering truthfully and accurately?

No.

Okay.

16 17

Do you -- strike that.

Did you meet with counsel in preparation for your deposition today?

Yes.

And who did you meet with?

John Poulos and Meredith Nikkel.

And when did that meeting take place?

Thursday, May 26th, 2011.

Which is yesterday?

Yes.

How long did the meeting last, approximately?

Page 15 1

Seven hours.

During the deposition, I may ask you for events

that happened in the past.

going to ask you today is about events that happened in

the past and I am entitled to your very best

recollection of events or conversations that may have

happened, and do you understand that if you do have a

recollection, even if it's a faint recollection, I'm

entitled to whatever your recollection is.

Do you understand that?

Uh-huh.

All right.

Yes.

Thank you.

Pretty much everything I'm

Yes. And you'll provide that to me

during this deposition; yes?

Yes.

Okay.

On the other hand, I don't want you

making baseless guesses about things, and so if I ask

you for information and you have no ability to provide

me an answer, other than just randomly guess, we don't

want you to do that, either.

So I'd ask that you be careful not to guess or

speculate, but on the other hand, provide me with actual

recollections, even if they're faint recollections,

about events in the past.

Page 16 1

You'll do that?

Yes.

In addition, I would ask that you -- strike

that.

It's also a case that I'm entitled to

reasonable estimates, even if you don't have precise

dates, numbers or times about past events.

If you have a reasonable estimate about when

something happened or what was said or the time frame

something occurred in, I'm entitled to reasonable

estimates.

Do you understand that?

Yes.

Okay.

Now, during this meeting with counsel

yesterday, did you review documents?

Yes.

Okay.

50.

Were they in a binder?

Yes.

Did you bring any documents with you to the

About how many documents did you review?

Most were.

deposition today?

No.

Did you bring any documents to the meeting with

counsel yesterday?

Page 17 1

No.

Other than reviewing the binder of documents

with counsel yesterday, did you review any other

documents at any other time in preparation for your

deposition?

No.

Did you do anything, other than meet with

counsel yesterday, to prepare for your deposition?

I'm sorry.

Sure.

Could you repeat that?

Did you do anything to prepare for your

deposition other than meet with counsel yesterday?

Oh.

So, for example, you didn't talk to County

No.

Counsel at all in preparation --

Yesterday --

No --

-- in preparation?

-- at any point in time in preparation for your

deposition.

No.

When was the last time you spoke with Mike

Jamison?

May 26th, 2011.

And what were those discussions?

MR. POULOS:

Well, I'll object to the extent it

Page 18 1

calls for attorney-client privileged information.

you just asking about the general substance of it?

Are

MR. THOMAS:

Yeah, just generally.

MR. POULOS:

Generalities as opposed to what

was said.

6 7

Do you understand the difference?

him a topic but not any specific discussions.

8 9 10

You can give

THE WITNESS: Mike were:

Let's see.

The discussions with

One of the Pillsbury attorneys is here.

you want to come over and meet her, she's here.

Another was:

We'd love to have you for lunch.

We're bringing lunch in.

12:30, you're welcome.

If you want to come here at

Then later on, in the afternoon, I asked

Mike -- Mr. Poulos came, and he wanted to come over to

meet Mr. Poulos:

17 18 19 20

Come on over.

I think that's it. BY MR. THOMAS: Q

Okay.

And where was the meeting yesterday with

counsel?

In the Eric Rood Administrative Center.

And that's where you generally work on a

day-to-day business --

That's correct.

-- day-to-day basis?

Page 19 1

That's correct.

And that's been the case since you were first

employed at Nevada County; is that true?

That's correct.

And did the documents you looked at with

counsel, did they tend to refresh your recollection

about past events?

Some.

Which ones?

I can't recall.

You have no recollection whatsoever?

Of which documents refresh my --

Recollection, yes.

No, I really can't specifically recall exactly

which documents.

There were a couple e-mails but I couldn't tell

you who they were from, who sent them, the date of the

e-mail, but there were a couple where:

happened.

21 22 23

Oh, yeah, this

I remember this.

Okay.

Were these e-mails then that involved

you as either a sender or a recipient? A

Most of them, I was cc'd on.

As a matter of

fact, the bulk of the e-mails, I was cc'd on.

Bulk of what e-mails?

The e-mails that I viewed yesterday.

Page 20 1 2

And what events did those e-mails refresh your

recollection about, specifically?

Don't know.

You have no recollection?

No recollection.

If I saw the e-mail, I could

tell you, but I didn't -- I'm not real good at

memorizing a lot of e-mails when I see 'em for a

deposition prep.

Well, I'm actually not asking you to tell me

about the e-mail.

your recollection was refreshed about.

Yeah.

I'm asking you to tell me what events

And I just -- I'm trying to get across,

I can't remember the specific events.

of e-mails I went through yesterday, and some of those

e-mails did stir -- stir the memory.

Okay.

There were a lot

When you say "specific events," how

about generally?

refresh your recollection on?

What general events did these e-mails

General events?

Yeah.

None.

Could have been anything?

Pardon?

Could have been anything in the past?

I'm getting lost and confused now.

Page 21 1

Specifically, I can't tell you specific moments.

Generally, the whole case, I have a general

understanding of what this case is about, so none of

those e-mails added to my knowledge of what this case is

about.

Okay.

I don't know if you can understand that

8 9

distinction but that's -- that's how I feel about it. Q

Now, circling back to your past employment at

Exigent, you said you were the VP regional manager and

sales were your areas of responsibility; is that true?

Yes.

All right.

14 15 16

And what specifically were your job

functions? A

Oh, go round up county recorders and see if

they're interested in the product.

What else?

Making presentations to the county recorders.

Presentations of what?

Of the software product that we're selling,

which are recorders systems for county recorders,

correspondence with possible customers, attending

conferences, trade shows to get the product out there,

working on literature, sales literature.

Did you have any role with respect to actually

Page 22 1

implementing or installing Exigent software in any

counties?

No.

Did Exigent actually implement or install its

5 6

software in any counties while you were employed there? A

Don't know.

Don't remember.

I want to say

yes, but if pressed to the wall, I couldn't give you any

details --

So if I were to ask --

-- because I was not part of the installation

team.

Well --

Never saw 'em.

Well, was your objective to sell software and

bring new customers to the table?

Yes.

And as you sit here today, you can't recall

during the year or more you worked at --

Yeah, because there were no sales.

Excuse me, sir.

question.

If you could let me finish my

As you sit here today, you can't recall a

single sale that you closed as a VP of Exigent while you

worked there?

Correct.

Page 23 1

Is there a question?

MR. POULOS:

No.

MR. THOMAS:

Sure.

4 5 6 7

What were your accomplishments at Exigent, if

any? A

Accomplishments?

Well, we didn't have any

sales.

8 9

He just asked a question.

Oh, I would like to think I pushed the product to the forefront for a lot of the county recorders to

consider.

Did Exigent -- strike that. To your knowledge, did Exigent make

developments and improvement in its product, its

software products, while you were the vice president of

Exigent?

Yes.

Okay.

Not being a real technical person, the platform

What were those changes or improvements?

was changing and they were going to what they call a dot

net platform.

What's that?

Don't know.

You never asked?

Yeah, I asked.

And did anyone tell you?

Couldn't tell you.

Page 24 1

Yeah, they told me.

Who?

Who told me?

Yeah.

I think there's a guy named Curt there who was

head of the development team.

Curt what?

When I remember the last name, I'll tell you.

All right.

No.

And as a vice president of sales for Exigent,

What's his name?

You don't recall right now?

Curt -- yeah, Ehlers, E-H-L-E-R-S.

it wasn't important for you to understand and be able to

explain to customers the change to the dot net platform?

MR. POULOS:

THE WITNESS:

MR. POULOS:

Lacks foundation.

Do I have to answer it? Yeah.

Actually, he didn't explain

this to you but he asks questions.

THE WITNESS:

MR. POULOS:

interpose objections.

THE WITNESS:

MR. POULOS:

Objection.

Uh-huh. From time to time, I might

Uh-huh. Unless I instruct you not to

answer --

THE WITNESS:

MR. POULOS:

Oh.

Okay.

-- you have to answer the

Page 25 1

question, if you can.

THE WITNESS:

MR. POULOS:

Okay. But let me just finish one other

thing.

THE WITNESS:

MR. POULOS:

Yeah. And that is that if you do answer

his question, he's going to assume that you understood

his question, so if you don't understand it --

THE WITNESS:

10 11

MR. POULOS:

Right.

-- you can ask a clarifying

question.

THE WITNESS:

No, not particularly, was not a

need for me to explain technology.

BY MR. THOMAS:

15 16 17

And you're the one who demonstrated software

technology to potential customers, correct? A

You know, the answer would be yes.

Now, in the

particular room with our demonstrations, am I talking?

Am I up there with a pointer showing prospective

customers how it works?

No.

Am I the guy who's able to go into counties,

who knows the county recorders, who's able to set up

appointments, who's able to coordinate, bringing the

product to the County?

Yes.

So you were just a scheduler of appointments,

Page 26 1 2 3 4 5

essentially, as the vice president? A

Yeah, if you want to call that, you could say

that, sure. Q

And you were the vice president to perform that

function at Exigent; yes?

Yeah.

Did you have a secretary to help you with that?

No.

And who did you report to at Exigent?

Alex Maxwell.

And did you say you started at Exigent in

Yeah.

I think that's probably accurate.

Huh-uh.

October '04?

Yes.

Is that about right?

Yeah, about right.

And you finished up in about September of '06?

Uh-huh.

True?

Uh-huh.

Okay.

And so nearly two years, you worked at

Exigent?

Uh-huh.

All right.

24 25

And during the entire time, did you

report to Alex Maxwell? A

Yes.

Page 27 1 2 3 4

And what position did he hold in the company,

to your knowledge? A

He was president.

And again, I believe, I'm

not sure if it was president or CEO.

Okay.

Got laid off.

Laid off by who?

Alex Maxwell.

And at the point in time when you were laid off

And why did you leave Exigent?

by Exigent, were any other employees laid off at the

same time?

Three others.

Who?

I don't know.

Well, how do you know others were laid off?

Because I was told that.

By who?

By Alex Maxwell.

And what exactly was the term he used when he

20 21

let you know you were being let go? A

He says:

We're terminating your employment.

We're having a sale.

ten days and you, along with three other individuals,

are being let go for purposes of the sale, and then the

company was sold a couple weeks later to ACS.

The company is going to be sold in

Page 28 1

What is ACS?

I believe it stands for Affiliated Computer

Services.

Do you know what that company does?

Not entirely.

I understand it's a large

company.

Do you know --

I imagine it's computer services.

Did you ever seek employment with that company?

No.

And so when you said you were laid off,

Mr. Maxwell, he never told you you were being laid off,

did he?

He didn't use those words, no.

And why did you use those terms with me then?

Because it was dumping salary for the sale as

opposed to nonperformance, or whatever other words you

want to use.

How many -- how many employees, at the time you

were let go from Exigent, were employed by Exigent, to

your knowledge?

22 23 24 25

35.

I think it was less than 50.

Between 35

and 50. Q

And you would know that because you were the

vice president of Exigent; yes?

Page 29 1

No.

It wasn't important to know how big the company

was when you were vice president?

No, not for me.

You didn't care?

Well, I wouldn't say I didn't care but it was

not in the forefront of what I needed to know and the

forefront of what I needed to know was getting into the

County offices.

Well, wasn't part of the information you needed

to know was how robust Exigent was for purposes of

marketing the product to potential customers?

that important?

Wasn't

Yeah, I guess it was.

And didn't that include the size of Exigent, or

16 17 18 19 20

no, it didn't matter? A

I think it mattered but, you know, it was not

one of my big selling points. Q

In fact, it's something that you didn't -- you

didn't concern yourself with; yes?

The size of Exigent?

Right.

Yeah, I didn't concern myself with that.

Did you tell any of the potential customers of

Exigent that you thought the size of Exigent was a

Page 30 1

negative aspect of the company that should deter them

from buying the software?

Did I say that to prospective customers?

Yes.

That's your question?

Yeah.

No.

Why not?

That's a pretty negative statement, if you're

10 11 12

looking for customers. Q

Well, you were always truthful with customers,

right?

Sure.

Are you a truthful person?

Yes.

Is it ever your practice to misrepresent

things?

No.

Do you think it's okay to make

misrepresentations?

Sometimes.

Sometimes, it's okay?

Sure.

When I say "misrepresentations," I mean lie.

It's okay to lie sometimes?

Page 31 1

Sure.

Okay.

Suppose my family's in danger, and there's a

When is it okay?

situation where if I tell the truth, perhaps an intruder

can find where the key is and go in and do harm.

lie, perhaps I could buy me a few minutes so we can go

about rectifying the situation or diffusing the

situation.

If I

I think there are some situations, albeit

extreme, where, if I had to save a loved one, if I had

to save many people, if I was in a quandary and a lie

seemed to be a good strategy for the time, then I would

do it.

Do you consider this lawsuit to be a quandary?

A quandary?

Yeah.

What is "quandary"?

Oh.

You used --

Let me ask you.

You used the word

"quandary" about --

Oh.

-- 30 seconds -- let me finish.

Oh.

You used the word "quandary" about 30 seconds

24 25

Okay.

Uh-huh.

ago. What does that mean?

Page 32 1 2

You're in quicksand, if you will, sort of in a

tough situation.

Okay.

No.

Is this lawsuit a quandary for you? Or -- or, you know, let me take that back.

Perhaps.

definitions of "quandary" but it's unfortunate.

7 8

It depends on, you know, there are many

And when you're in a quandary, your testimony

is that it's -- it may be okay for you to lie?

MR. POULOS:

witness's testimony.

11 12

Objection.

THE WITNESS:

Oh.

Misstates the

Come on.

No.

BY MR. THOMAS:

I actually thought that's what you said.

This is not an extreme situation.

Okay.

I thought I was trying to be clear about

extreme situations.

This is not extreme.

Okay.

It's a pain in the ass but it's not extreme.

All right.

Understood.

I misunderstood you,

obviously.

Yeah.

But I understand you now.

24 25

Yeah.

All right.

Yeah.

That's helpful.

So before you

worked at Exigent, where did you work before then?

Page 33 1

AMCAD.

And when did you -- strike that.

3 4 5 6

A company called AMCAD, A-M-C-A-D, Inc.

When did you last work for AMCAD? A

I think it was '04, that October '04.

I went

straight from AMCAD to Exigent. Q

Okay.

So just so we have kind of a clear

timeline, approximately October of 2004 is when you

would have --

Approximately.

-- last worked for AMCAD?

Excuse me.

Yeah, AMCAD.

All right.

And when did you first start

13 14 15

working for AMCAD? A

I think it was February 2002.

is approximate dates.

Fair enough.

Best of my recollection.

I appreciate that.

No.

Fair enough.

I take it back.

Yeah.

It was September 2002.

Okay.

And again, this

No.

So you worked for AMCAD --

I'm sorry.

I appreciate that.

And so you worked

for AMCAD for approximately two years.

Page 34 1

Yes.

Fair enough?

Yes.

All right.

5 6

And when you first started at

AMCAD, what was your position? Vice president.

Almost the same title.

Vice

president, regional manager for the western states, I

believe, was my title.

Vice president, regional manager.

For the western states.

that.

And who did you report to?

Ronald Corneilson.

Can you spell his last name, please, if you

know?

C-O-R-N-E-I-L-S-O-N.

All right.

They were clear about

That was my area.

Now, did you report to him the

entire time you worked at AMCAD?

Yes.

Okay.

And --

And what was his position with the

company?

He was CEO.

Okay.

Travel.

What does that mean?

And why did you leave AMCAD? Too much travel. You didn't like the

Page 35 1 2

travel involved in the work? A

Yeah.

Too much of it?

I was gone from my home approximately

three weeks out of four during the month.

retired.

out of four, not being at home.

My wife is

I didn't want to leave her there three weeks

Yeah.

Their headquarters were Washington, DC.

Okay.

That sounds tough.

Did you have a regional sales office you

worked out of?

out of --

Okay.

-- which was considered the regional office.

That was the regional office of AMCAD.

15 16

I had a little space in my garage that I worked

Fair enough.

So at AMCAD, you were making sales calls similar to the ones you discussed about Exigent?

Yes.

All right.

19 20

What were your responsibilities as

the vice president of AMCAD? A

Contacting counties, contacting county

recorders.

recording at that time.

expanding, so I was one of the quote-unquote experts in

electronic recording.

I was very involved with electronic It was an area that was

AMCAD also asked me to participate in a couple

Page 36 1

installs, so I did participate in a couple installs.

And what counties were those installs?

No idea.

Were they in California?

No.

Colorado.

One was in North Carolina and one was in

And what was your role in those installs for

AMCAD?

Trainee --

You were --

-- might be the best word.

You were just a trainee?

Absolutely correct.

Go down to Carolina for

three weeks with the install team and learn what you

can.

Okay.

So I don't know if that's a trainee or

18 19

apprentice, we can say. Q

So other than being trained by others on two

installs, was it -- is it your testimony that your work

for AMCAD was essentially just scheduling meetings

and --

Trying to make sales.

-- trying to make sales?

And the first part of making sales is getting

Page 37 1 2

through the door. Q

And once you get through the door, though, your

job was to arrange for presentations of product,

correct?

Correct.

And participate in those meetings?

Correct.

Demonstrating product?

Correct.

And did you -- were you the lead in any of

those meetings --

No.

-- as the vice president of AMCAD?

No.

Who was?

It was a fellow named Ryan Schoenfeld.

And what's his position?

And this guy named Jim Brown.

exactly.

sales.

Don't know

I think Ryan might have been director of

Okay.

Could I --

If you want to clarify something, please do.

I've been a county recorder for 12 years.

And --

was hired as a county recorder, the idea being I'm on a

Page 38 1

level playing field with the other recorders.

almost I'm the ex-county recorder endorsing a product,

and when I talk to recorders, it was mostly about

recording business, work flow in the office, indexing

rules.

So it's

I talked about the nuts and bolts of

functionality that a county recorder needs and I had

credibility from being a county recorder for 12 years.

When the demo of the product came, the

technical demos of the product, that was not really my

role at that time.

So I just want to clarify that.

So for example, you had no role when it comes

to like actually customizing software for a particular

customer?

No.

But -- well, if a customer said, in the

State of Missouri, "This is how we handle marriage

licenses," I'm going to understand that.

I'm going to go back to the team and say, "This

is how Missouri handles it.

functionality and whether our functionality can handle

this or if we have to go out and you guys are going to

have to write some more code to handle the functionality

that Missouri requires."

24 25

Was I writing code?

I want to know our

Was I with the techs?

I even understand how to write code?

No, but I do

Did

Page 39 1

understand the functionality and what the state statutes

require.

When you say "code," what is that?

Code?

Yeah.

I don't know.

You used the word "code." That's what all the techies say,

"code," so I guess I say it.

What --

It's programming.

makes software programs go.

You're not sure?

Not sure.

I think it's something that I don't know.

To this date, if you ask me what a

source code is, I probably couldn't give you a good

answer.

15 16

So when you said "code," you meant computer

program code?

Yes.

And it wasn't important for you to understand

Uh-huh.

what "computer program code" is --

Huh-uh.

-- as the vice president of a company that

22 23

sells computer programs? A

Huh-uh.

No.

I was never asked to sit down and

start learning code, and if so, I wouldn't have taken

the job.

Page 40 1

Now, you said -- have you now identified for me

all of the responsibilities you had as a vice president

of AMCAD?

Yes.

During the sales pitches you would make to

various counties as a vice president of AMCAD, was it

your practice to explain the benefits of AMCAD software?

Yes.

And so you had to understand what AMCAD

software did to explain those benefits; yes?

I had to understand the functionality, yes.

How the software worked generally; yes?

The functionality as opposed to how that

14 15 16

functionality was achieved. Q

Well, did you ever have to use the software to

show it to a client?

No.

So you've never used AMCAD software, true?

19 20 21

Never once. A

No, I think I have, when I was first hired, I

think I sat down and played around with it.

Other than that?

In front of a client?

You've never demonstrated any functionality to

No, huh-uh.

a client on a computer terminal --

Page 41 1

Huh-uh.

-- for AMCAD?

No.

You never did that for Exigent?

No.

How many times were you present when others

7 8 9 10 11

demonstrated functionality of AMCAD software? A

Don't know.

I can't tell you how many demos I

was involved with. Q

Was AMCAD -- this is clerk-recorder software

for AMCAD as well; yes?

That's correct.

Okay.

And do you know how many customers AMCAD

had, approximately, when you were a vice president of

AMCAD?

50, 55 counties.

Spread out through the --

Maybe 60.

Spread out through the country?

Mostly east of the Mississippi.

Were any in California?

At the time I started with AMCAD, no.

23 24 25

When I

left AMCAD, we did get Ventura County. Q

When you say when you left AMCAD, do you mean

before or after you left?

Page 42 1

Before I left AMCAD, we had Ventura County.

What is e-recording?

E-recording is a acronym for electronic

recording.

What is that?

Electronic recording is the act of delivering a

document in a digital or digitized state to the county

recorder for recordation.

9 10

And do you know if all counties in California

currently do electronic recording?

Do I know if all counties?

Yeah.

All counties do not --

Okay.

-- do electronic recording.

Do you have an understanding of which counties

do currently, in California, do electronic recording?

I used to.

If you know.

I used to because there were two.

Orange

County and San Bernardino County began actually in the

late '90s.

been certified by the state and I believe one of those

companies is called Certain.

counties Certain has but I believe one or two of their

There's a couple companies now that have

I don't know how many

Page 43 1

counties have begun to record electronically.

2 3

Do you know of any -- you said one or two

companies --

I know Orange and San Bernardino, they're doing

it.

quite sure how many more.

Kern County.

sure if any other Certain customers have begun

electronic recording.

Got that, two, but then what I'm saying is I'm not I do know -- I think Kern is,

They're a Certain customer, and I'm not

Does Nevada County do electronic recording?

No.

Why not?

Yeah.

It's something that I have decided not to

implement at this time.

Why was that?

There were other priorities.

What were those?

Other parts of my job.

Specifically, what were they?

Elections.

All right.

And transforming the recorder's office into a

Why did you make that decision?

much more efficient operation.

Page 44 1 2

And when did you make that decision to forego

or not to do electronic recording in Nevada County?

When?

Yes.

This is sort of a dynamic state, from the time

I got appointed until now, that decision is we're going

to be doing other things first and we're going to be

preparing our house for electronic recording.

Electronic recording, the statutes does involve

an additional fee.

need to be careful when you're asking for additional

fees from the constituents.

If you're an elected official, you

And how is it you're aware what other counties

are doing in terms of e-recording?

with other clerk-recorders?

Do you communicate

Yes.

Generally, it's a group of people, you

generally talk to one another; yeah?

You know, what got me to be aware, and on the

frontline, was my association with AtPac and Dave and

Jim.

probably aware they were a client of mine for many,

many, many years, and I was on the forefront with

electronic recording.

few things, very active in the County Recorders

We did a lot of good things in the '90s.

You're

I was on the forefront of quite a

Page 45 1

Association to the point of being elected president,

went through the chairs, going through the chairs again,

been head of their legislative committee, work with our

lobbyist for the County Recorders Association and it

helps me do my job better.

6 7

And in addition to the things you just

identified --

Uh-huh.

-- for approximately four years --

Uh-huh.

-- you worked as the vice president of two --

Two companies.

-- two software companies --

Uh-huh.

-- correct?

Yes.

That sold software to clerk-recorders, correct?

Yes.

Now, have you heard that Fresno County does

Yes.

electronic recording?

No.

You mentioned there were a couple of companies

that were certified by the state to do e-recording.

Uh-huh.

Do you remember that testimony?

Page 46 1

Yeah.

And you mentioned Certain is one of them.

was the other?

Yes.

Secure?

Uh-huh.

And do you know what Secure is?

8 9

What

The other is called Secure.

It's another

software company? A

Not quite sure the composition of Secure.

It's

a little complicated because I believe it was developed

by a private company and Orange County bought the rights

to the program, so I'm not quite sure how you would

describe Secure.

Okay.

But again, it's a certified portal for

16 17 18

electronic recording in the State of California. Q

And who's the current clerk-recorder software

vendor for Nevada County?

Aptitude Solutions.

Okay.

Do you know if Aptitude is certified by

the state to do e-recording?

They are not.

Do you know why that is?

I have no idea.

Have you ever talked to them about that?

Page 47 1

Not recently.

When -- strike that.

When did I last talk to them about this?

Yes.

After they installed in 2009.

Yes. Around

July 2009.

What is Certain?

What is it?

Yeah.

I believe it's a software company.

I'm going

to have to describe it as a software company.

built a portal for the delivery of electronic documents.

13 14

Did you know that AtPac was the first Certain

customer to do e-recording in California?

No.

Why is that great?

Why is it great?

Why do you think that's great?

I don't know.

They

That's great news.

The first customer of anything

seems to be pretty successful.

It's important to be --

I just -- I think this whole line of

questioning is not important, not relevant, and if you

continue, those are the kind of answers you're going to

get.

Page 48 1

What kind of answers?

Truthful answers.

So if I continue, you'll continue to be

truthful?

Yeah.

And you'll do that because you know you're

7 8 9 10

under oath, right? A

Well, you did the whole song and dance about

being truthful, and I told you I'm a truthful person. Q

Right.

I just didn't understand your last

comment when you said if you keep down this line of

questioning, those are the kind of answers you're going

to get.

Yeah.

Well, I'm answering these things

truthfully.

questioning a lot of my answers and I don't get it.

They're pretty clear answers.

MR. THOMAS:

I'm not trying to deceive anyone and you're

Pretty clear answers.

Now, can I have the large

document?

big but let's just be complete.

Let's mark this next in order.

Go ahead and mark it.

(Exhibit No. 370 was marked for

identification.)

23 24 25

It's kind of

BY MR. THOMAS: Q

Okay.

For the record, I've just marked as

Exhibit 370 a document I've placed in front of the

Page 49 1

witness.

Mr. Poulos and I agreed that we would leave a

gap between the last exhibit marked in the last

deposition so as to ensure, number one, there's no

duplication, and number two, to allow some space to add

one more exhibit to the last deposition.

7 8 9 10

MR. POULOS:

Fair enough?

Yep.

BY MR. THOMAS: Q

Okay.

Mr. Diaz, do you have Exhibit 370 in

front of you?

Yes.

What is this?

So a little story about Greg Diaz which was on

my campaign website.

Okay.

Yes.

Okay.

Most of it, yes.

Okay.

Another person on my campaign team and we just

21 22 23

And have you reviewed this before?

And did you write it?

Who else wrote parts of it?

wrote this together. Q

Okay.

And you reviewed it and made sure it was

truthful and accurate; yes?

Yes.

You were careful to do that?

Page 50 1

Yes.

In the fifth paragraph, it says:

It took us --

do you see that word, "It took us"?

Yes, uh-huh.

Please read that paragraph.

"It took us about eight years to build our

house.

could live here full-time.

County, and with it, a big pay cut.

That's when we started looking at whether we I took a job with Placer I later worked for

AMCAD, LLC, a nationwide imaging and document management

solutions provider, as vice president and general

manager for their western regional operations

customizing, testing, training and implementing land

information systems and voting systems for 30 counties

nationwide.

Nevada County."

systems."

19 20 21

Then in 2007, I became clerk-recorder for

And you used the word "land information

What is that? A

Land information systems?

Oh.

Land

information systems.

Yes.

County recorder systems.

When you say "systems," you mean computer

software; yes?

What does that mean?

Page 51 1

Yes.

And did you write that portion?

Yes.

Okay.

Now, you mentioned that you worked for

Placer County.

Yes.

And -- well, actually, let me ask you a better

question.

Where did you work before you worked at AMCAD?

Placer County.

Okay.

12 13 14 15 16

And when did you last work for Placer

County? A

September 2002, I believe, the same time I

joined AMCAD. Q

Okay.

And when did you start working for

Placer County?

February 2002.

All right.

And what was your position in

Placer County when you first started there?

Recording manager.

And did you keep that position the entire time

you were there?

Yes.

And what was the recording manager position?

What did you do?

Page 52 1

I oversaw the recorder operations.

And what were those operations?

Recording documents, indexing documents,

archiving documents, supplying copies, transfer tax

administration.

office.

Okay.

Things we do in a county recorder's

And did the -- in your oversight of

recording operations, were there any software products

used by Placer County at that time to perform recording

operations?

Sure.

So when you were the manager of recording in

AtPac.

Placer County, overseeing recording operations, that was

done using AtPac software, correct?

Correct.

And who did you report to?

Jim McCauley was the County Clerk-Recorder for

Placer County.

Do you know if he still is?

Yes, he is.

And why did you leave Placer County?

I had wanted to explore an opportunity in the

23 24 25

private sector with AMCAD. Q

What was your relationship with Mr. McCauley?

Was it a good one?

Page 53 1

Yeah.

Did Mr. McCauley ever express any performance

issues with your performance as the --

With me?

As the --

No.

-- manager of recording?

Well, yes.

As the manager of recording in Placer County?

Yeah.

What were those?

Great job.

He was happy with your work?

Absolutely.

Okay.

At all times.

Have you ever heard anything to the contrary

Yes.

The best.

At all times?

from anyone else?

No.

Oh, really?

But during the time I was employed, which I

22 23 24 25

Now, when I left, he didn't like that.

believe was your question -Q

Yeah.

What did he say about your departure?

You said he didn't like that. A

I believe he said -- he said:

Good luck.

Page 54 1

understand.

welcome back, all the -- the --

If you ever change your mind, you're

The niceties of a person departing?

A lot of the things that you hear, yeah.

I understand.

Okay.

Was your work in Placer

County the first time you had managed recording using

AtPac software?

No.

Okay.

that?

1989 in San Francisco County --

And what was your position?

-- before Mr. Krugle came.

What was your position in San Francisco when

15 16 17

And when was the first time you did

you started in 1989 working with AtPac software? A

You know, no, it was 1990, when I formally

became the assistant recorder at that time.

In San Francisco?

In San Francisco.

And at that time, San Francisco was using AtPac

software?

Yes.

For clerk-recorder functionality?

No, for recorder functionality.

the assistant recorder.

I would assist

The consolidation of the county

Page 55 1 2

clerk with the county recorder occurred in '92. Q

And you talked about your work in Placer County

starting in September of 2002.

before that?

Where did you work

City and County of San Francisco.

Okay.

And when did you last work for City and

County of San Francisco?

know.

Judy shortly before you started at Placer?

Two -- you know, give two weeks notice to the

February 2002, or maybe it was January, you

City and started working with Placer.

was toward the end of January and I actually started in

Placer in February of 2002.

15 16

Okay.

I believe that

And you started working for San

Francisco City and County when?

In 1985, in the City Attorney's Office.

And you became the assistant clerk-recorder in

1990, approximately?

No.

Understood.

-- in 1990.

No.

I became the assistant recorder --

The clerk and the recorder were

not consolidated in '90.

in '92.

The consolidation took place

Did you like working -- excuse me.

Page 56 1

Did you like working at Placer County?

Sure.

Was it a pleasant work experience for you or a

good one?

Yeah, it was fine.

It sounds like you have good memories of

7 8 9

working in Placer County; yes? A

Yeah, I have good memories of all my time in

the public sector.

Okay.

Horrible memories of the private.

So let me ask you this, sir.

13 14 15 16 17

You mentioned

being unemployed for a period of time. A

Uh-huh.

That was from Exigent.

When was that? I believe it

was September 2006 until my appointment in June 2007. Q

And did you look for work at all during that

point in time?

Yep.

Okay.

You're required to if you're collecting

21 22

Unemployment. Q

I understand.

So you were receiving -- you

weren't unemployed because you wanted to be unemployed.

You were interested in working hard for someone; yes?

Yes.

Page 57 1

Okay.

I didn't think I had a good shot to get

Why didn't you go back to Placer County?

employment in Placer County at the time.

Why did you think that?

McCauley stopped speaking to me after I left.

Oh.

Uh-huh.

Tell me:

Because he didn't speak to me.

How do you know?

You tried to talk to him and he wouldn't talk

Q to you?

Absolutely.

Oh.

that was?

A dog.

disappointed.

Well, do you have any understanding of why

I think when I left, he acted like I shot his

What do you

mean how do I know?

11 12

Really.

He was very disappointed.

Very, very

So -- but he also said you're welcome back any

time, right?

Those were his words when I -- my last day.

So did you -- when you became unemployed from

Exigent, tell me about what you did to try to get a job

with Placer.

Afterward?

Page 58 1

After you lost your job from Exigent.

I did not try to do anything to get a job at

Placer.

Why not?

Because the guy wasn't speaking to me.

So you learned that he wasn't speaking to you

when?

When I was with AMCAD.

Okay.

We attended recorder conferences.

Okay.

And Mr. McCauley was a recorder who also

13 14 15

And how did you learn that?

attended the conferences. Q

And your testimony is, sir, that he was so

thrilled with your work for him --

Uh-huh.

-- that when you left --

Uh-huh.

-- he flipped and actually began to have an

extreme dislike for you and refused to talk to you --

That's what I felt, uh-huh.

-- from that point forward?

Yes.

MR. POULOS:

THE WITNESS:

You got to let him finish -Okay.

Sorry.

Page 59 1

MR. POULOS:

-- before you answer.

MR. THOMAS:

It is important.

be careful, okay?

4 5 6 7

MR. POULOS:

So --

BY MR. THOMAS: Q

So it's your testimony -- let me just ask a

clean question.

8 9

We both need to

It's your testimony that Mr. McCauley was thrilled with you when you were employed there; thought

you were great, and then when you decided to leave --

according to you, you say you decided to leave -- he

then flipped and developed an extreme dislike for you

and refused to talk to you from that point forward.

14 15

MR. POULOS:

it misstates the witness's testimony but go ahead.

16 17 18 19

I'm going to object to the extent

THE WITNESS:

Yeah.

BY MR. THOMAS: Q

Why did you leave Placer County to go -- you

went from Placer to AMCAD, yes?

Uh-huh.

Why did you make that move?

MR. POULOS:

THE WITNESS:

Objection.

Asked and answered.

I think the biggest reason was a

desire to go to the private sector and a salary.

BY MR. THOMAS:

Page 60 1

It had nothing to do with Mr. McCauley

expressing dissatisfaction with your performance at

Placer?

At that time?

When you said "at that time," what do you mean?

The time I was working for him, not at all.

Did you ever hear from Mr. McCauley, after you

No, no, not at all.

finished working in Placer, that he was dissatisfied

with your performance at Placer?

No.

Did you ever ask him:

Yes.

And what did he say?

Nothing.

He just turned away and turned his back and

Why won't you talk to

me?

walked away?

Yeah.

When you say "Jim Maclam," tell me, that's --

He and Jim Maclam, uh-huh.

who's Jim Maclam?

He was the founder and president of AtPac.

Okay.

And when you say he and Jim Maclam

turned and walked away --

Uh-huh.

-- when did that happen?

Page 61 1

I can't tell you exactly.

Well, generally.

Generally --

-- Placer.

-- I believe, and this is why I'm not sure, but

I believe it was at the new law conference in 2002.

7 8

11 12 13

And what exactly happened there that you

Q recall?

9 10

It happened after you left --

I approached them, said:

A on?

Guys, what's going

And they walked right by me. Q

And when you say:

did you mean by that? A

Guys, what's going on, what

What were you --

Why are you giving me the cold shoulder after

we've been very good friends socially and professionally

for quite a few years.

16 17

And when you said "guys," you were talking to

both of them; yes?

Correct.

And so is it your testimony that Jim Maclam was

also giving you the cold shoulder?

Oh, absolutely.

And did that also happen only after you left

Placer County?

Yes, when I became a competitor of his.

So when did you first reach out to try to

Page 62 1

communicate with Jim Maclam after you left Placer

County?

3 4 5 6 7 8

Don't know exactly, but again, I believe it was

at the New Law Conference in 2002, December 2002. Q

And how many months after your departure from

Placer was that? A

Let's see.

October, November, December.

Eight

weeks.

Okay.

Yes.

And the last time before that you had talked to

So shortly after you left?

Jim McCauley was when he told you great work and you're

welcome back any time?

Correct.

And the very next time you talked to him was at

16 17 18 19 20

this conference, right? A

I didn't talk to him.

said "Hey, Guy" -- yeah. Q

Well, yes, I did.

Yes.

And you said to him:

Guys, what's going on,

right?

Right, uh-huh.

So I don't understand why you would have said

that to him if that was the next time you talked to Jim

McCauley.

Because I had heard Jim McCauley was very upset

Page 63 1

with me going to the private sector.

Okay.

I don't know.

You heard that from someone?

The county recorders is a small group, a very

Who told you that?

small group.

Yes.

So it may have been Phil Schmidt from Ventura

who I was friends with.

It may have been Craig Kramer

from Sacramento.

couple ladies in the office who would call and e-mail

and wanted to keep in touch with me.

It may have been -- there were a

Who was that?

Those ladies?

Yeah.

I can't -- I don't remember.

And when you said they would e-mail you, where

would they e-mail you?

At home or at the office?

Yeah, at home.

Okay.

Or call.

What's your e-mail address at home?

Right now, it's MustangValleyAlpaca@gmail.com.

And what was it after?

I have no idea -- what was it when?

And did you have --

That's

Page 64 1

what it is now, my e-mail now.

e-mail was nine years ago.

3 4

I don't know what my

When did you first establish the alpaca e-mail

you just listed?

I don't know.

Do you have an estimate?

Three years ago.

Do you use that to communicate with some

clerk-recorder staff?

Sometimes, yeah.

Even from -- staff from other counties; yes?

Yes.

Including Placer County?

Yeah, maybe, one or two times maybe.

Okay.

That's what I assume you meant.

And let me ask you, sir, what efforts

did you make to search that e-mail account, in this

case, to provide materials or documents to the lawyers

representing you and Nevada County?

No effort.

No effort whatsoever?

Huh-uh.

Okay.

No.

24 25

Did anyone ask you to? Search my personal e-mail account?

No.

Huh-uh. MR. THOMAS:

Okay.

I can tell you want to take

Page 65 1

a break.

MR. POULOS:

If it's okay.

MR. THOMAS:

Let's take a break.

MR. POULOS:

How long --

THE VIDEOGRAPHER:

That's fine.

Going off the record at

10:37 a.m.

(Recess taken from 10:37 a.m. to 10:47 a.m.)

THE VIDEOGRAPHER:

9 10 11

Back on the record at

10:47 a.m. BY MR. THOMAS: Q

Mr. Diaz, we take breaks sometimes during the

deposition.

reporter doesn't readminister the oath, the same oath

you gave this morning applies all during the day.

understand that?

You understand that even though the court

Yes.

Okay.

You

Sir, would you have any objection to our

review of employment records of yours from Placer County

which discuss the circumstances of your departure or

performance reviews?

object to us looking at those?

Would you have any reason to

No.

You have no -- nothing to hide there,

24 25

obviously, right? A

No.

Page 66 1 2 3

Placer County employment records? A

4 5 6

So you would consent to us looking at your

Sure. MR. POULOS:

You can send us the form.

BY MR. THOMAS: Q

Now, at some point, you worked with AtPac

software at Placer County, and then you left Placer

County, and for a period of roughly four years, you

worked as the vice president of two software companies,

and then you were unemployed for a period of time and

then you were appointed at Nevada County.

12 13 14

MR. POULOS:

Objection.

Compound.

BY MR. THOMAS: Q

Do I have that right? MR. POULOS:

ahead.

BY MR. THOMAS:

Objection.

Do I have that right?

Yes.

Okay.

Compound.

But go

And then your appointment in Nevada

County, that reunited you with working with AtPac

software again?

Yes.

The last time you had worked with it was in

Placer County?

Page 67 1

Yes.

Okay.

Now, how long after you joined Nevada

County -- you joined as the clerk-recorder, appointed?

Yes.

Okay.

How long after your appointment did you

begin communications with Aptitude Solutions about

Aptitude -- about Aptitude potentially providing

clerk-recorder software to Nevada County?

9 10

MR. POULOS:

Objection, to the extent it lacks

foundation, but go ahead.

THE WITNESS:

How long after I started did I

talk to Aptitude about providing software services?

BY MR. THOMAS:

Or potentially providing software services.

Probably -- probably early 2008.

That's your best estimate as you sit here

17 18

today? A

Yeah.

There was a conference where pretty much

all the software vendors, I had mentioned to them:

out for an RFP from my county, and if you want a

response, I welcome your response.

Look

Okay.

So I mean I talked to every software vendor for

So --

a couple conferences.

out, but I let it known that we were working on an RFP,

It took a while to get the RFP

Page 68 1

uh-huh.

away?

I don't know.

Was it before or after you were appointed

And to your knowledge, when did Jim Maclam pass

clerk-recorder in Nevada County?

I think he had passed away before.

Okay.

To my knowledge.

And you had worked with him for many years

before he passed away?

I worked with him for many, many years.

Did you go to his funeral?

No.

Why not?

I didn't want to.

Why didn't you want to?

I don't know.

And so after you were appointed clerk-recorder

I didn't want to.

in Nevada County, when did you form a desire to change

clerk-recorder software?

appointment?

23 24 25

How long after your

Let me ask a clean question.

I'm sorry.

That's like three questions. How long after your appointment in Nevada

Page 69 1

County, as clerk-recorder, did you begin considering

replacing AtPac as the county's clerk-recorder software

provider?

How long after my appointment?

Yes.

Two minutes.

Immediately.

And it was not -- it was not to

replace the existing provider.

Right after I got

appointed, I wanted to see what was out there, and the

best way for me to see what was out there, to meet our

needs, was to go through an RFP process.

ordained from the beginning that AtPac was going to be

replaced.

It was not

Now, I do know that AtPac's going to tell you,

and they told staff, in my office:

replace us, and that's far from the truth.

the intent.

Oh, he wants to That was not

The intent was to see if we could do better in

terms of having a software provider and providing me

efficiencies in the office.

I have an understanding of how personnel is

used, the productivity that I want, and I wasn't getting

it when I first took over and that was pretty clear.

Pretty clear.

Page 70 1 2 3

And what do you mean by that specifically in

terms of you weren't getting productivity you wanted? A

There were 12 full-time people in the office

and two part-time people for an average of maybe 150

documents a day.

All right.

I'm coming from a shop that I was in charge of

for 12 years and we were averaging 900 to a thousand

documents a day with approximately, on the recorder

side, approximately 20 people.

away, there's some inefficiencies in Nevada County.

Okay.

So that said to me right

So your experience in San Francisco that

it was far more efficient there and you were basing --

strike that.

Based on that experience, you perceive that

there might be something that could be done with the

software that would assist in facilitating office

efficiency?

My guess was --

MR. POULOS:

THE WITNESS:

Objection. Okay.

Vague and ambiguous.

My guess was it would

probably be prudent to go out and see.

BY MR. THOMAS:

24 25

What other software vendors might be available

in place of AtPac?

Page 71 1

No.

What other software vendors could provide

me with the functionality that I think Nevada County

needed.

4 5

And give you the efficiencies that you didn't

think were there in Nevada County when you arrived?

Correct.

Okay.

Now, you compared -- you mentioned San

Francisco.

Did you -- was it your perception that was far

more efficient than Nevada County when you first arrived

at Nevada County given the number of transactions and

the number of employees?

I felt the use of the AtPac software in San

Francisco was a lot better than what it was in Nevada

County and that's exactly why the intent was not to

replace AtPac.

I thought AtPac worked well in San Francisco

for many years, but in Nevada County, it was not working

well, and that happens.

recorder offices.

exactly the same type of software, and you could see

efficiencies in one work flow compared to another work

flow.

Okay.

That happens if you go and see

Offices can have similar software,

So -- and you were the assistant

clerk-recorder in San Francisco at the point in time --

Page 72 1

strike that.

2 3 4 5 6 7

Were you the assistant recorder in San Francisco when you left San Francisco? A

No, I was the County Clerk-Recorder for San

Francisco when I left San Francisco. Q

Okay.

Were you -- was that an elected position

or was that --

That was appointed.

-- when you were appointed.

Okay.

For how long did you hold that position?

From '95 until 2002.

Okay.

For seven years.

And during that entire seven year period, you

So for seven years.

used -- your office used the AtPac software?

Correct.

All right.

And that office was structured and

managed under your direction and control?

Correct.

Okay.

Uh-huh.

-- you saw inefficiencies with the way the

And so when you joined Nevada County --

Nevada County office was structured and used the AtPac

software.

Yes.

Page 73 1

Right?

Yes.

And so -- and you remembered the higher

efficiency in San Francisco when you were in San

Francisco using the AtPac software.

Yes.

So why didn't you implement whatever protocols

and procedures you had in San Francisco using the AtPac

software in Nevada County?

Four years is a long time in technology and it

was also a long time in terms of legislative

requirements for county recorder offices.

All of a sudden, there were requirements for

redaction.

was automatic indexing that was on the horizon,

automatic redaction that was on the horizon, so there

was functionality, four years later, when I went into

the public sector, that enabled me, or I felt at that

time -- again, I'm not quite sure where AtPac is,

because I hadn't worked with them for four years -- but

I do know that 12 people for 150 documents a day is not

the type of efficiencies I'm looking for, so let's see

what I've missed for four years.

companies together.

Let's talk about what I'm paying for.

Electronic recording was coming up.

There

Let's get these

Let's talk about the base system. Let's talk about

Page 74 1

a third party usage for some of the functionality, et

cetera, et cetera, et cetera, and that was my reason.

3 4

You talked about e-recording on the horizon,

right?

mid-'90s.

California recorders.

8 9 10

Well, e-recording began -- it popped up in the '96, '97, it popped up as a serious topic for

But your testimony is e-recording popping up

between the time -- during the time frame you worked for private entities --

Uh-huh.

-- between 2002 and 2006 --

Yeah, uh-huh.

-- was the reason you wanted to look at new

recording software in Nevada County?

One of the reasons, yes.

But your testimony's also that e-recording

popped up in 1996, right?

Yes, they did, uh-huh.

So what did you mean when you said that came up

in the four-year period before 2007?

I lost you here.

You said e-recording, the fact that that issue

had come up, was one of the reasons you wanted to

consider replacing or changing the software used in

Page 75 1

Nevada County.

MR. POULOS:

witness's testimony.

BY MR. THOMAS:

5 6

Objection.

Misstates the

Isn't that one of the reasons you say you

wanted to --

E-recording is something -- yes, uh-huh.

And did you ask AtPac whether they were

certified to do e-recording?

Absolutely.

And they were, right?

Not that I know of, not at that time.

Well, your testimony's what?

14 15

They said:

No,

we're not? A

Yeah, I think they did say "no, we're not,"

because they told me, at the RFP evaluation, that that's

not part of their scope of operations; that they're a

back-end vendor --

What did that --

-- and they would not be in the business of

21 22 23 24 25

delivering electronic documents. Q

What does that mean, "in the business of

delivering electronic documents"? A

When electronic recording popped up, in '97,

there was a task force assembled by the Attorney

Page 76 1

General, lots of discussions, models from other states.

Legislation didn't appear until -- I believe it was

2006.

It may have been 2005.

So for quite a few years, there were a lot of

discussions, a lot of models, but legislation didn't pop

up until 2005.

In the recorder's office, when a document is

presented, it will get looked at, it will get cashiered,

it will get labeled, it will get indexed, it will get

archived.

office.

Those are the functions inside the recorder's

Generally in real life, a submitter is going to

be on the other side of the desk submitting a document

to the recorder.

or delivered, to the recorder, then that document will

go through the AtPac software, and AtPac described

themselves as being a back-end system.

once the document has been received by the county

recorder.

Once that document has been submitted

They kick in

They told me they were not in the delivery

business, being a person here, delivering the document,

to the county recorder.

California legislation that was enabled in 2005.

believe it was called the Electronic Recording Delivery

Act.

That's the gist of the I

Page 77 1

I see.

Because there has to be software, if a document

is in a digitized or digital state, there has to be some

software to deliver that image, or template, if you

will, to the recorder.

Uh-huh.

They told me they're not in the business of

delivering.

Okay.

Sorry for the long-winded answer but --

No.

-- I wanted to try to be clear.

Yes.

No problem.

And Aptitude is not in the business of

delivering documents, either, right?

That's correct.

Okay.

That's correct.

And neither is Exigent?

That's correct.

Were any of the counties that -- or strike

that.

And neither is AMCAD?

Were any of the software vendors that

participated in a Request for Proposal issued by Nevada

County, in 2008, were any of them in the business of

delivering documents as you've just testified, to your

Page 78 1 2

knowledge? A

To the best of my recollection, I believe

Aptitude, in different states, was involved with

electronic recording.

There's a company called Record Fusion that was

involved with electronic recording.

Those two.

I think that's it.

Well, I asked you earlier -- go ahead.

Now, the other states' statutes are very, very,

very different from California, like night and day, so

the hurdles associated with complying with the

California statutes were not there in these other

states.

Almost like night and day. But the question was, if I recollect the

question properly, were any other companies involved

with electronic recording, and I believe those two were

and other states under different statutes, under

different conditions, under different logistics.

So when you -- strike that. So none of the software vendors that Nevada

County asked to respond to the Request for Proposal, in

2008, none of them, to your knowledge, were doing

electronic recording in California.

Correct.

Why didn't you ask any vendors, who were doing

Page 79 1

electronic recording in California, to respond to the

Request for Proposal?

3 4

Who were doing electronic recording in

California?

Yes.

Why didn't I ask?

Or why didn't --

I didn't ask anyone to respond to the RFP.

Purchasing handled RFP.

I don't handle that.

Did you ever suggest to purchasing that they

should ask, at least some software vendors who were

doing e-recording in California, to respond to the RFP?

Yeah, I think so.

Who did you tell them to ask?

There's a list, I remember outside of AtPac --

Yes.

because obviously, the incumbent vendor was going to get

the RFP -- but there was a list of companies I gave to

purchasing because they asked:

be interested in responding?

Who do you think would

And your statement that obviously AtPac would

get the RFP, what you mean by that is you provided a

list to purchasing of potential vendors for the RFP;

yes?

24 25

Yes.

They asked me who, who else would -- do

you think will be interested.

Page 80 1 2

Who said who else do you think would be

interested?

Mary Ross.

Okay.

That's my recollection.

When did she say that to you?

I don't know.

8 9 10 11 12

On or around the time they were

beginning to issue the RFP. Q

I was not in purchasing.

Well, then, why was she talking to you about

potential vendors? A

Because it's my department.

I think it was

more of a courtesy thing.

What was a courtesy thing?

Do you know of any other vendors.

Purchasing,

generally, they're not really up on departments, and so

they look for departments to assist them a lot of times

with information.

18 19

And they asked you for information on potential

bidders on the RFP --

Yeah --

-- process?

-- who do you think -- who do you think might

23 24 25

want to bid, yes. MR. POULOS: BY MR. THOMAS:

Objection.

Vague and ambiguous.

Page 81 1 2

We need to be careful not to talk over one

another.

Okay.

And you provided a list to purchasing?

Yes.

And the list you provided did not include

AtPac, correct?

Right, uh-huh.

Did you ever talk to AtPac about the RFP

before?

AtPac?

Let me ask a better question.

Uh-huh.

Did you ever tell AtPac that there was an RFP

process before it was issued?

I don't think so.

Okay.

18 19

Did you ever talk to Aptitude about the

RFP process before the RFP issued? A

Yeah.

I had mentioned that before.

I talked

to all the prospective vendors to look out for an RFP

coming from our county.

22 23

And the only one you didn't talk to about a

potential RFP or prospective RFP --

Uh-huh.

-- was AtPac?

Page 82 1

Yeah.

Jackie Pollard talked to them for me.

That seemed to be how it went when -- my tenure when I

was there with AtPac.

Jackie.

5 6

They always wanted to go through

Well, let me make sure I have a clear answer to

my question because --

Okay.

-- I don't think you answered my question.

Okay.

Before the RFP was issued by Nevada County --

Uh-huh.

-- in 2008 --

Uh-huh.

-- you knew the RFP would be issued, of course,

right?

Yes.

Okay.

And before the RFP was issued, you

talked personally with a number of software vendors

telling them to be on the lookout for the RFP.

Yes.

And you talked to Aptitude specifically,

correct?

Well, I talked to all of them.

Well, in part, you talked to at least --

Was Aptitude one of the vendors I spoke to?

Page 83 1 2 3 4

Yes. Q

Yes.

And when you say you talked to all

vendors -A

All who were at the conference, who came to the

conferences.

vendor in the United States that had recording software

but I talked to the vendors who showed up in California

at the county recorder conferences.

9 10

I don't think I talked to every single

But you never talked to AtPac about the RFP

before the RFP issued, correct?

Correct.

And the list you gave to purchasing for people

you thought should get a copy of the RFP --

Uh-huh.

-- did not include AtPac, correct?

Uh-huh.

Was AtPac at the conference you've referred to?

Yeah.

Why didn't you talk to AtPac at that

20 21

Correct.

Yeah.

Uh-huh.

conference? A

Because they had lousy customer service.

They

made it clear that they're going through Jackie Pollard,

who was my third in command, who pretty much violated my

trust from day one, and everything in my confidential

meetings, I found out that Jackie had relayed to AtPac,

Page 84 1

so I was well aware that AtPac knew intimately and more

than any other company about the RFP, what we were

looking for, timelines, because unbeknownst to me, when

I asked my people to be confidential, Jackie Pollard was

not, and AtPac got all that information.

Okay.

So there's no need for me to tell 'em, in my

mind.

They had more information than anyone else. Now, as a Clerk-Recorder for Nevada County,

it's your job to make sure the county's being provided

with the services it needed by its vendors, yeah?

That's one of your responsibilities?

Say that again?

Let me ask a better question.

I'm sorry. Where are the

communications between you and AtPac telling AtPac its

customer service is lousy?

I haven't seen a single piece of correspondence

to that effect, sir.

communication?

MR. POULOS:

THE WITNESS:

Why is there no such

Objection.

Compound.

Don't know why.

I felt I didn't

need to write a letter to that effect.

We had a couple

meetings and I told them.

BY MR. THOMAS:

Who did you meet with?

Page 85 1

Kirk Weir and Wayne Long.

What did you tell them?

I told them customer service is terrible and I

told them to start going through me with anything

instead of going through Jackie Pollard, and if there is

something to be said or if you want to do something, you

talk to me.

8 9

Now, tell me, sir, what specifically were the

customer service concerns you had?

I don't know.

You don't remember?

I don't remember.

they didn't talk to me.

Most of it, generally, was

They talked to Jackie Pollard.

And that irritated you?

Absolutely.

If Jackie wants to run for

clerk-recorder, she can.

And the vendor, when they work for me, they

need to understand that they deal with me.

deal with one of my subordinates, especially after I ask

them not to deal with one of my subordinates.

They don't

And the fact that there's no communications

from you to AtPac identifying with any precision at

all -- strike that.

24 25

You have no explanation why you never wrote to AtPac to explain that you thought their customer service

Page 86 1 2 3 4

was terrible? A

No explanation.

I just didn't want to.

didn't feel I had to. Q

Now, earlier, you testified that you knew that

AtPac had received information about the 2008 Request

for Proposal from the clerk-recorder's office.

Uh-huh.

Who told you that?

Jackie Pollard.

What did she say to you?

She says:

AtPac's well aware of the RFP and

AtPac thinks that you're going to replace 'em, and

again, the same -- the same song and dance.

"Jackie, this is not an RFP to replace AtPac.

This is an RFP to see what's out there, and if we can do

better, I'm going to do better."

17 18

And so when did Jackie tell you that AtPac was

well aware?

I don't know.

Did she tell you -- well, AtPac certainly

I don't know.

didn't have the details of the RFP because you hadn't

issued it yet, right?

I would think not.

What evidence do you have, other than your

allegation that Jackie Pollard told you AtPac was aware

Page 87 1

of the RFP --

Uh-huh.

-- what evidence do you have, sir, that AtPac

was aware of the RFP?

None, except through hearsay.

And who is Jackie Pollard?

She was the recording manager in Nevada County.

I think that was her title.

I'm not quite sure.

She reported to who?

Me.

Did you --

But I felt like she reported to AtPac.

13 14 15

But

anyway, technically, she reported to me. Q

Now, you were the recording manager in Placer

County, right?

Correct.

Did you ever have communications with AtPac,

when you were the recording manager in Placer County,

that used AtPac software?

Yes.

Why?

Why --

Yeah.

-- did I have -- because I'm the recording

manager.

Page 88 1

Okay.

And if there was a glitch, maybe in the

indexing module or cashiering module, I would take care

of it and that was my job.

issues --

Sure.

-- with the software?

Sure.

And when you say you would take care of it,

And you could communicate with AtPac about

what did you mean?

Take care of what?

I don't know.

14 15 16

You said if there was a glitch

maybe in the index module or cashiering module -A

Oh.

I would take care of it, what does that

mean --

Yeah.

-- I would take care of it?

I would sit down

and make the necessary calls to get the correct people

to fix the problem.

Calls to who?

AtPac.

23 24 25

AtPac?

Calls could have involved the County IT

people, the department IT people. Q the --

How often did you talk with AtPac when you were

Page 89 1

Don't know.

You got to let me finish the question.

I thought you were finished.

4 5 6

Sorry.

I thought

you were finished. Q

It's okay.

How often did you talk with AtPac

when you were the recording manager in Placer County?

Don't know.

Frequently?

No.

Did Jim McCauley ever scold you for talking to

AtPac when you were the recording manager in Placer

County?

13 14

He scolded me for something and I wasn't sure

if it was AtPac or not.

What did he scold you for?

I don't remember.

Now, why do you -- if you talked to AtPac when

you were the recording manager in Placer County, why did

you think it was improper for AtPac to communicate with

Jackie Pollard in Nevada County when she was recording

manager in Nevada County?

Jim McCauley had his way of running the office.

I have my way of running the office.

the office is:

My way of running

AtPac, you talk to me.

This was the beginning of our relationship as

Page 90 1

my role as clerk-recorder and that's how I wanted it

done --

You wanted to be --

-- at that time.

You wanted to be the point of contact?

Absolutely.

And was that your desire all the way through

the point in time AtPac ceased providing software in

Nevada County?

10 11 12 13

Absolutely.

everything? Q

Oh.

Why do you think I'm cc'd on

I do not want to be blindsided by anything. Well, that begs the question I actually

have to ask you.

Uh-huh.

When you say "why do I think I'm cc'd on

16 17 18 19

everything," what do you mean by that? A

I'm cc'd because I want to be informed.

don't want to be blindsided by issues. Q

No, sir.

Your testimony is it was your desire

to be the primary point of contact with AtPac at all

times; yes?

At all times in Nevada County, yes.

So if there was any communication with AtPac,

24 25

it would be directly from or to you, correct? A

Uh-huh.

Page 91 1

Not cc'd to you?

Yeah.

Right?

Well, it depends on what the issues are.

Oh.

Because if I talk to them face-to-face, I'm

informed, and if I get cc'd, I'm informed, and the key

point here is being informed.

to be informed.

There are a lot of ways

So when I asked you about your experience with

Jim McCauley and you said he had only praise for you,

you forgot about the one instance where he scolded you;

is that right?

Well, someone scolds somebody, I don't know

what that has to do with praise.

the time, but you know what?

scold 'em, so I'm not sure I understand that.

18 19

Once in a while, I have to

And just because you had to scold someone

doesn't mean they're a bad person, right?

Well, for me.

Uh-huh.

I praise my kids all

So what was your opinion of Jackie

Pollard?

MR. POULOS:

go ahead.

BY MR. THOMAS:

I'll object.

It's irrelevant but

Page 92 1

You disliked her?

MR. POULOS:

(Conference off the record.)

MR. POULOS:

You can answer.

Yeah.

record for two seconds.

MR. THOMAS:

THE VIDEOGRAPHER:

Okay. Going off the record at

11:19 a.m.

(Discussion off the record.)

THE VIDEOGRAPHER:

11:20 a.m.

BY MR. THOMAS:

Why don't we go off the

Back on the record at

Now, you said you were -- you learned that

AtPac communicated with Jackie Pollard at certain times

when you were clerk-recorder of Nevada County, right?

Quite a bit.

Okay.

Very frequently.

And you would acknowledge that AtPac

would have a reason to communicate with the recording

manager --

Absolutely.

-- of Nevada County.

22 23

But something about these communications that irritated you on some level; yes?

Yes.

And what was it that irritated you?

Page 93 1

There were quite a few fixes, functionality

issues, that I became aware of after the fact.

what irritated me, not the issues themselves.

That's

I'm sure Jackie had been doing things for a

long time and a certain way and I'm sure it worked fine

for Jackie and AtPac.

I was saying.

Maybe she just flat out refused to comply, but I wanted

a different mode of communication because I want to be

10 11

Maybe she didn't understand what

Maybe she didn't want to understand.

informed before the fact, not after the fact. Q

So your primary irritation with communication

between Ms. Pollard and AtPac was your assertion that

you weren't copied on certain communications?

14 15

My primary irritation was I was not informed

and I believe things were misrepresented to me.

And who made -- what was misrepresented to you?

I don't have the fact now -- the facts now.

Quite a few things, actually.

Quite a few things were misrepresented to you?

Uh-huh.

By who?

Jackie Pollard.

And you have no recollection of what those

24 25

Uh-huh.

things are? A

Specifically, no.

Page 94 1

Or generally.

Generally?

Yeah.

In terms of providing clerk-recorder

6 7

What AtPac was doing.

functionality? A

Correct, or fixing issues, or if something went

down, I would learn after the fact.

something goes down when it goes down.

10 11

Yeah.

I like to know if

And for that reason, you're careful to

review correspondence that's copied to you; yes?

Yeah.

Because it's important not to be surprised,

14 15 16 17 18

right? A

Not to be blindsided.

For me, it is, that's

correct. Q

That's why you want to be cc'd on all

communications --

That's correct.

-- involving the clerk-recorder?

That's correct.

And those cc's are meaningful because you read

them; yes?

Yes.

And if you don't understand them, you call

Page 95 1 2 3 4 5

someone? And they're meaningful because the employees

have complied with what I've asked them to do. So earlier, when you said you wanted to be the

primary point of contact with AtPac --

Uh-huh.

-- you didn't really mean that, did you.

you meant is you just want to be copied on

communications with AtPac; yes?

10 11 12

No.

What

I wanted to be the primary point of

contact. Q

Okay.

So whenever there was a need to

communicate with AtPac, it was -- you didn't delegate

that.

You would do that directly; yes?

MR. POULOS:

witness's testimony.

occasions, yes.

BY MR. THOMAS:

Okay.

Misstates the

Lacks foundation.

THE WITNESS:

Objection.

No, I wouldn't -- on some

On some occasions, no.

Why, earlier, did you testify that you

received only positive feedback from Jim McCauley?

Because that's true.

Except for when he scolded you, right?

I look at that as positive feedback.

not a negative person.

I -- I'm

I know you can't learn if you're

Page 96 1 2

thinking everything and everyone is negative. Q

All right.

So when you provided the list of

vendors for the RFP to the purchasing department in

2008, you had already become irritated with Jackie

Pollard's communications with AtPac that weren't copied

to you, right?

Uh-huh.

And --

Yes.

And you also --

I was more -- sorry.

You were more what?

Sorry.

No.

More irritated with AtPac.

Oh.

Because they would continue to go through

Yes.

I didn't want to interrupt.

That's fine.

Tell me.

Sorry.

You were more what?

Why?

Jackie Pollard.

And who is "they"?

AtPac.

Who at AtPac?

I don't -- mostly I think Dave Krugle, I think.

And how did you know that?

Because I could see and observe it after the

fact.

Page 97 1

How?

Give me a specific instance of you seeing

and observing after the fact communications between Dave

Krugle and Jackie Pollard that you weren't informed of.

It wasn't communications.

It was issues.

There would be a time when the indexing module would be

slow.

"Jackie, next time this happens, let me know."

Two weeks down the road, a staff member would

say:

down for three or four hours but we got it fixed.

Wow, yesterday was really rough.

Indexing was

I found out after the fact, a day later, from

staff, in an innocuous comment about how rough the prior

day was.

glitch for a couple hours in the recorder's office, when

time and time again before, with Jackie Pollard:

there's a problem and you have to call AtPac, let me

know about it, will you?

Jackie?

you, Jackie?

I found out that way that there was a little

Would that be possible,

Would that be something that would be okay with

Jackie replied:

Two weeks later, I find out after the fact that

Yes.

No problem.

there's a glitch, and that happened more than one

occasion.

And why did that cause you irritation with

AtPac?

to a customer, Ms. Pollard?

Why was it their -- weren't they just responding

Page 98 1

They were.

And so why do you blame AtPac for Ms. Pollard

3 4 5

not communicating with you? A

Because AtPac, to me, they just have poor

customer service.

Right.

And I had talked to AtPac about things.

Now,

in that particular situation, yeah, I'm a little annoyed

at AtPac, but I'm more annoyed at Jackie Pollard.

10 11 12 13

thought that was more the question. Q

Then why, a moment ago, did you say you were

mostly annoyed with AtPac? A

Because I was mostly annoyed with AtPac because

I had enjoyed, for years, a level of customer service

that I did not receive when I became clerk-recorder in

Nevada County.

17 18 19

So why, a moment ago, did you then say you were

more annoyed with Jackie Pollard? A

Well, I was talking about your specific

question, and if you want to, let's just say I'm annoyed

at both of them.

Maybe that will work better.

So after these instances where you claim that

you found out after the fact that AtPac had assisted

Ms. Pollard in whatever request she made concerning

clerk-recorder software --

Page 99 1

Uh-huh.

-- why didn't you send any written

communications to AtPac telling them that they shouldn't

work directly with Ms. Pollard or anything to that

effect?

Just didn't do it.

And there's no evidence that these instances

8 9

No reason.

occurred other than your statement today; yes? A

You can talk to Jackie Pollard.

If she decides

to be truthful, there's plenty of evidence.

talk to AtPac.

You can

Who, within the clerk recorder's office, if

anyone, told you they thought AtPac had poor customer

service?

Who?

Yeah.

In the clerk recorder's office?

Yeah.

Told me they thought that AtPac had poor

customer service?

Yes, if anyone.

Eileen Moody.

Angie Bain.

A lady named Sonya.

I forget her last name but she left a couple years ago.

Jean Roberts.

about AtPac's customer service.

They did communicate with me complaining

Page 100 1

Okay.

There are some people from the IT department,

too.

Krugle on quite a few occasions.

5 6 7 8

I'm not quite sure but they complained about Dave

Who was the primary IT department person

assigned to -A

There wasn't one.

Nevada County has

centralized IT --

Okay.

-- and...

Have you heard of -- are you familiar with

E-recorder server in Nevada County?

I'm familiar with that term.

Yeah.

Have I seen it?

Well, you understood it's the server that has

You understand -Do I know what it is?

No.

AtPac software; yes?

That's my understanding.

And --

My understanding, that's not the only server,

21 22 23 24 25

but that's one of the servers. Q

And you knew that when you were clerk-recorder,

right? A

Yes.

Not from the get-go.

On June 27th, I did

not know there was a server called ER, or whatever it's

Page 101 1

called, but during my tenure, yes, I became aware of

that fact.

3 4

Well, you knew there was a server in Nevada

County that had the AtPac software, obviously?

Yes.

Okay.

And you knew that server contained

software that allowed AtPac software to provide the

features it provided --

Yes.

-- to the clerk-recorder's office?

Yes.

And that software also had features that house

and store databases, right?

14 15

MR. POULOS:

Objection.

Lacks foundation.

Calls for speculation.

THE WITNESS:

Yeah, I didn't really know that.

I really couldn't say that I really knew that.

BY MR. THOMAS:

19 20 21 22 23 24 25

Well, you knew clerk-recorder software is

database software, right? A

I never really heard it described that way as

database software. Q

Well, clerk-recorder software allows for the

recording -A

Uh-huh.

Page 102 1

-- storage and retrieval of data and databases.

Uh-huh.

"Yes"?

Okay.

Well, you knew that because you were the vice

Yeah.

president of two companies --

Yeah.

-- that provided that service?

Yeah.

I just never heard it termed that

way.

But you agree with that, right?

I agree with that.

Okay.

When you asked if it was, you know, database

I --

software, I just had never heard it termed that way.

But you agree with that, correct?

Sure.

18 19 20 21

MR. POULOS:

Objection.

Vague and ambiguous.

BY MR. THOMAS: Q

And you knew AtPac's databases were stored on

servers within the county's computers, right?

Yes.

So when did you notify the Nevada County

contracting department about AtPac's alleged substandard

performance, if ever?

Page 103 1

I never did.

Why not?

No reason to.

It's not purchasing's responsibility.

5 6 7

It's not their responsibility.

Purchasing's responsibility goes more toward procurement. Q

But once a contract is let with a vendor, then

it's the job of the department to ensure contract

compliance?

Say that again.

Once -- strike that.

Is it your understanding that it was your job

to oversee and track whether AtPac was performing with

its contractual obligations?

Yeah.

Okay.

And you never reported to purchasing

that AtPac was providing poor customer service, right?

Right.

That's your allegation.

Right.

And you --

I probably mentioned it, but no, never formally

23 24 25

charged AtPac with poor customer service. Q

And you never formally charged AtPac itself

with poor customer service?

Page 104 1

Correct.

Now, specifically what was so poor about

3 4

AtPac's customer service, specifically, if you know? A

Yeah.

If I recall, it was hard, at times, to

identify a point person or one person to deal with

issues.

of the fixes done.

There were timeliness issues with getting some

Anything else?

That's about it, that I can recall right now.

Do you ever remember getting those types of

complaints from customers when you worked at AMCAD?

MR. POULOS:

THE WITNESS:

Objection.

Vague and ambiguous.

Customer service issues?

BY MR. THOMAS:

Yeah.

I think once in a while, sure.

Sure.

AMCAD, right?

responsiveness?

And timeliness issues, when you were at

20 21 22

You heard customer complaints about

It was hearsay.

That was not my responsibility

to deal with issues and host counties. Q

Now, if there were communications between

Aptitude and Nevada County personnel that aren't copied

to you, clerk-recorder communications, that would be

contrary to your directives, correct?

Page 105 1

Uh-huh.

Because you have informed all of your staff

that they are to copy you on all communications with

Aptitude; is that true?

MR. POULOS:

THE WITNESS:

7 8 9 10 11

Objection.

Lacks foundation.

No, that's not true.

BY MR. THOMAS: Q

Really.

Why haven't you sent out that

directive since you want to be informed of everything and never blindsided? A

Because there are some issues that I'm aware of

and they don't have to cc me on every step of the fix.

Let me know what's wrong.

fix, let me know.

know when it's done.

16 17

If there's a problem with the

Otherwise, you're going to let me

Do you ever ask people to blind cc you, bcc you

on communications with Aptitude?

No, I don't do --

Have you ever been blind copied or bcc'd on

communications with Aptitude?

No.

Have you now identified for me the sum total of

things you can remember, according to your allegation

today, that were AtPac customer service issues?

You know, there seem to have been some

Page 106 1

complaints from County IT that I just can't put my

finger on it, but I do -- I do remember some complaints

from IT.

Again, what they were, I can't recall. Now, have you received complaints from your

staff regarding the timeliness of Aptitude's response to

concerns regarding its software?

Couple times, yes, sure.

Just only two?

That I can remember, only two.

Two, you can remember?

Uh-huh.

And have you -- have you received any

communications from your staff that Aptitude has more

than one point of contact for issues --

No.

-- or concerns?

No.

So with respect to AtPac, can you recall a

specific single customer service problem as you sit here

today?

21 22 23

Let me re-ask that.

I'm going to fix that

question. With respect to the service provided by AtPac

to the County of Nevada's Clerk-Recorder department, can

you recall, as you sit here today, a single specific

Page 107 1 2

example of a customer service problem? A

Yes.

Now, I cannot give you the time and the

date, but I do remember there was an issue with our

indexing module.

The ladies -- and I believe it was a

verification issue.

and verification, and I remember it was very difficult

to come to conclusion with this issue, more difficult

than I ever remember in my years with dealing with

Indexing comes in two parts:

Entry

AtPac.

Calls were made.

Someone else had to be

notified, and then you notify that person, and then

someone else had to be notified, and I thought that was

a good instance of poor customer service, that I

remember.

That's the only one you can remember, correct?

Yeah, right now.

The only other part is after

I had Kirk and Wayne in the office, there were some

issues about functionality.

automated indexing, about redaction, and those talks

were held with Jackie Pollard --

We have to --

-- not with me.

I'm sorry, sir.

That's okay.

There were some talks about

Page 108 1 2

MR. THOMAS:

He has

to take a break because of his tape.

3 4

I don't mean to interrupt.

THE VIDEOGRAPHER: 11:30 -- 11:40 a.m.

Going off the record at

End of disc one.

(Recess taken from 11:40 a.m. to 11:47 a.m.)

THE VIDEOGRAPHER:

11:47 a.m.

BY MR. THOMAS:

Back on the record at

Beginning of disc two.

Earlier, sir, you testified about an incidence

where it was difficult to come to a conclusion on an

issue and you thought that was an instance of poor

customer service by AtPac.

Do you have any explanation why no e-mails

concerning that instance have been produced in this

case?

No.

Were there e-mails about that issue?

No.

19 20 21

24 25

None were sent by me or

received by me. Q

And who, within your office, handled that issue

besides you?

22 23

I don't know.

MR. POULOS:

Objection.

Vague.

BY MR. THOMAS: Q AtPac --

Who, within your office, was dealing with

Page 109 1

I believe it --

-- concerning the instance of poor customer

3 4

service you've alleged? A

I believe it was --

MR. POULOS:

THE WITNESS:

Moody.

BY MR. THOMAS:

Objection.

Lacks foundation.

-- Jackie Pollard and Eileen

Now, when I asked you if that was the only

example, you then went on to say that there were some

discussions you had with Kirk and Wayne about

functionality.

Do you remember that testimony?

Yes.

Were you talking about customer service issues

or software functionality issues?

All of the above.

Well, my question was specific, though, to

customer service issues.

Yes.

Okay.

So what is it about the functionality

that you thought was a customer service issue when you

talked to Kirk and Wayne?

I don't understand your question.

Let me clarify.

I want to make sure we have a

Page 110 1

clear record.

2 3

I asked you to give me any single instance of customer service you could remember.

Uh-huh.

And you testified to about that one issue.

Uh-huh.

MR. POULOS:

witness's testimony.

MR. THOMAS:

13 14

That's what we're trying to

clarify.

11 12

I think that misrepresents the

THE WITNESS:

Uh-huh.

BY MR. THOMAS: Q

You gave me one example where you thought it

took too long to come to issue --

Uh-huh.

-- and different points of contact where it

happened.

Uh-huh.

I asked you if that was the only one you can

remember.

Uh-huh.

And is it?

Specifically, with specifics, yes, except I

Uh-huh.

think I mentioned I spoke with Kirk Weir and Wayne Long

and ask that I be apprised of situations, upcoming

Page 111 1

functionality, fixes, patches, that I want to know.

Now, in that conversation, we talked about

functionality, but when I asked them to make sure I know

about it and to contact me first, that's a customer

service issue, in my eyes, when they fail to do that.

6 7

It's your testimony that after you talked to

them about that, that they --

That they --

-- failed to do so?

Absolutely.

Is it your testimony they were e-mailing Jackie

Pollard without copying you?

Yeah.

Was it your instruction to them that if they

I think I know that, uh-huh, yes.

received a request or a directive from Jackie Pollard,

they were to not do anything until you confirmed it?

that your testimony?

No.

So what were they to do when they got a

directive or a request from Jackie Pollard?

They were to comply with that.

Okay.

Do nothing?

So were you critical if AtPac complied

with Jackie Pollard's directive?

No.

What else were they supposed to do if Jackie

Page 112 1

Pollard asked AtPac to do something?

Pretty much comply with that.

Okay.

4 5

Do you have any criticism for them not

doing that? A

No, but I think, again, for the third time,

I -- if there were functionality issues, if there were

enhancements, if there were -- if there was

functionality that we may be proposing or thinking about

doing, those are the issues that I want to know about

and those issues were discussed with Jackie Pollard.

You just came back asking me when Jackie

notified AtPac, and AtPac complied, was that a problem,

and I mentioned to you no, that's not the problem, but

again, my problem is if we're talking about an

enhancement with the system, you talk to me first, not

to Jackie Pollard first.

Now -- now what instances are you aware of

where AtPac discussed enhancements that excluded you

from the communication?

Cannot give you the specifics.

What instances are you aware of where AtPac

discussed functionalities with Jackie Pollard --

Cannot --

-- excluded you from those communications?

Cannot give you the specifics.

Page 113 1

Or generally?

Cannot give you generally.

Now, with respect to the -- strike that.

What effort did you make -- we already know you

didn't search at all your personal e-mail accounts in

connection with this litigation and the document

requests we made.

8 9 10 11

What efforts did you make to search documents -- search for documents in connection with request for documents by AtPac in this case? A

I went through what I believe are the normal

search parameters and produced e-mails twice, one

pursuant to Public Record Act requests that were

plentiful before the litigation, and then the exact same

requests after the litigation was filed.

Okay.

And you said normal search parameters?

Yeah.

That's all I am.

I'm not a techie.

don't know anything -- I don't know anything else but

the normal search parameters.

20 21 22 23

You said you're not a tech -- you sort of cut

off your word. A

You're not a tech --

A techie.

You know, I know some people who are

more adept at searching than I.

Who's that?

I would think Steve Monaghan, he probably does

Page 114 1

more.

Evers.

then we can go to some of the other more techie people.

You have to give me a minute.

Kathy Barale, Marie McCluskey.

I would think Dan

I'm trying to think of all the people in IT and

And when you say "techie" --

Or IT personnel might be a better phrase.

Okay.

Well, let me ask you this.

What did you

do to search for documents or communications in response

to either Public Records Act requests or requests for

production in the lawsuit?

That question is hard for me to answer because

you didn't give me a specific item that I was searching

for.

If I was searching for records or any e-mails

between me and, say, Patty Sandever from Aptitude, I

will put in the name of Patty Sandever.

I would search

all my files.

That's what I

do to search.

19 20 21 22 23

I would search my inbox.

Well, how did you know what to search for when

you did this normal search parameter search? A

Because I was told by County Counsel:

Greg, we

need all the e-mails. MR. POULOS:

I don't want you to reveal

communications from attorneys.

THE WITNESS:

Oh.

Okay.

Page 115 1

MR. THOMAS:

I actually think those

communications would have been at the time when they

were waived, but if you're going to stand on the

objection --

MR. POULOS:

Yeah.

I don't -- I don't care

if -- your question about, you know, what he did to

search for documents is fair.

BY MR. THOMAS:

9 10 11 12

I want to know what you searched for,

specifically. A

What did you search for?

E-mails between myself and Aptitude or Aptitude

personnel.

E-mails between yourself and Aptitude?

Uh-huh, or Aptitude personnel, yeah.

Is that all you searched for?

I don't know.

17 18

other requests. Q

There might have been a couple

Don't recall.

And that's the sum total of what you can recall

you looked for in connection with discovery in this

litigation?

Yeah.

You never looked through file folders looking

for paper, copies of documents, correct?

MR. POULOS:

witness's testimony.

Objection.

That misstates the

Page 116 1

THE WITNESS:

folders.

BY MR. THOMAS:

No, I looked through file

I just don't have a lot.

Well, when I asked --

The ones that I did, yeah.

Well, when I asked you if looking through your

e-mail for communications between Aptitude was the sum

total of what you did, why did you say yes, when now,

you say you did more?

I don't know.

MR. POULOS:

THE WITNESS:

Objection.

Misstates testimony.

I guess I just didn't remember to

say that with my couple file folders.

BY MR. THOMAS:

Okay.

Yes.

All right.

My apologies.

It's just something you forgot? My apologies. So, now, let me get a recap.

Searching your recollection --

Yeah.

-- tell me everything you did to search for

either documents or electronic documents or anything

else in this litigation.

23 24 25

Okay.

I went through file folders and did an

electronic search. Q

What file folders did you look through?

Page 117 1

I don't know.

You don't know what they were?

I think one was labeled RFP.

They were folders in my cabinet.

I believe one was

labeled Electronic Recording.

County Recorders Association of California.

that's what I can recall, remember, recollect.

I believe one was labeled Yeah,

And you looked through those folders?

Yes.

What did you do when you looked through them?

10 11 12

Did you make copies of everything in them? A

If there was correspondence between myself and

Aptitude, I would make copies --

Okay.

-- yes.

So even with respect to the paper documents,

you limited what you gathered to correspondence between

yourself and Aptitude; yes?

I limited it to anything that said Aptitude, I

will pull.

decisions were made there.

If I wasn't sure, I had assistance and

So for example, if a document only had AtPac's

name on it, that wouldn't have fallen within the scope

of what you gathered, right?

24 25

Yeah.

There was a request to look for AtPac,

so anything that had the name of AtPac, I produced,

Page 118 1

yeah.

How did you search for e-mail?

I just put in the name of a person or company

and see what popped up.

And what search terms did you use?

Just the name of the companies and the people.

Can you list them for me, please?

As far as I can recollect, on the AtPac side, I

know Dave Krugle, Kirk Weir, Wayne Long, Richard,

Richard Sandblade, the term AtPac, Aptitude, Paul

Miller, Tom McGrath, Patty Sandever, Alana Wittig.

my recollection, that's -- those are the terms I put

into the little search box.

And when did you do that?

When?

Yeah.

I can't recall the exact day and month when I

did that.

Well, generally, do you have an estimate?

No, I don't.

Whenever I was told to do it, I

believe it was done before litigation.

months before the litigation was filed, and then when

you all started all this discovery stuff.

have a better idea of when than I.

It was a couple

You probably

It's your testimony that you did all those --

Page 119 1

you searched for all those search terms back before the

litigation?

3 4

Yeah.

There was some Public Record Requests

Acts and I was asked to search.

And my -- but the question is more specific.

Uh-huh.

You specifically did the search with all the

search terms you've now listed back before the

litigation started, correct?

10 11

No.

Because before -- actually, yeah, I

will have to say yes.

Yes.

Uh-huh.

Okay.

Yeah.

So do you have any explanation then of why

communications between Ms. Wittig and you weren't

produced until late in 2010 to AtPac?

17 18

MR. POULOS:

Objection.

Lacks foundation.

BY MR. THOMAS:

Do you have any explanation for that?

No.

Could it be that you didn't do those search

Do you?

terms until much later?

Absolutely not.

When I asked you about what you had done to

search, and you said:

I looked for anything.

I limited

Page 120 1

it to communications between me and Aptitude.

Uh-huh.

Do you remember that testimony?

Uh-huh.

Why was it -- you just forgot about all this

searching and the search terms?

I'm sorry.

Why is it when I asked you the total of your

Can you repeat that question?

searching, you specifically said:

I limited it to

communications between me and Aptitude.

testify to that?

MR. POULOS:

THE WITNESS:

truthful answer.

BY MR. THOMAS:

16 17

That's what I thought was the

have been searching for the word "Sandblade"? MR. POULOS:

Objection.

Already asked and

answered.

20 21

Lacks foundation.

Well, are communications -- then why would you

18 19

Objection.

Why did you

THE WITNESS:

He's an employee of AtPac.

BY MR. THOMAS:

Yeah.

And so why would you search for that if you

Isn't he?

were limiting your search to communications between you

Page 121 1 2

and Aptitude? A

I think I said to my recollection.

And then

you mentioned AtPac, and I said yeah, yeah, there was a

request for AtPac as well.

Isn't that how it went?

MR. THOMAS:

Now, let's mark this next in

MR. POULOS:

371.

(Exhibit No. 371 was marked for

identification.)

order.

10 11

THE WITNESS:

Thank you.

BY MR. THOMAS:

Sir, do you have Exhibit 371 in front of you?

Yes.

And what is this document?

It's an e-mail from Aptitude Solutions, Paul S.

Miller to Gregory Diaz.

And did you receive this e-mail?

It looks like I did, yes.

Okay.

When you see an e-mail with your name on

it and it's from Paul Miller, you acknowledge you

received this e-mail, right?

Uh-huh.

Now, did you have any discussions with

Mr. Miller concerning Aptitude's interest in expanding

its market share or developing a market share in

Page 122 1

California?

MR. POULOS:

THE WITNESS:

Objection.

Vague.

Yeah, I probably will have to say

yes, in the context of us issuing an RFP.

BY MR. THOMAS:

And what were those discussions?

Look out for an RFP from Nevada County.

response was:

looking out for that.

10 11

And he specifically told you they were

Not at that time.

He told me they were very

interested in responding to Nevada County's RFP.

14 15

We're very interested and we will be

interested in developing business in California, right?

12 13

When was this communication with Paul Miller

you recounted?

I don't know.

Was it before or after this e-mail?

It was before this e-mail.

All right.

And did you -- it says that you'll

receive a hard copy later this week.

Do you see that?

Yes, uh-huh.

Did you receive a hard copy?

24 25

The

It's a letter to

you. A

You know, I probably did.

I don't remember

Page 123 1 2 3

receiving. Q

If you could turn to the third paragraph of the

attachment to the e-mail.

Uh-huh.

Do you see it says:

Uh-huh. California represents the

single largest market in the US for our business?

Yes.

And you understood he's referring to

9 10

clerk-recorder software? A

That's my --

MR. POULOS:

THE WITNESS:

read this letter.

BY MR. THOMAS:

Yes.

Objection.

Lacks foundation.

That's my understanding when I

And do you agree with that statement that

California is the single largest market for

clerk-recorder software?

18 19 20 21

I don't know.

I never agreed nor disagreed.

It's just a statement. Q

My question is:

As you sit here today, is that

a true statement?

I don't know.

You don't know.

You never learned that when

you were working as a vice president of two

clerk-recorder software companies?

Page 124 1

Well, because of my experience in the private

sector is exactly why I don't know.

this sentence appears to be true, but when you realize a

county like LA has a home-grown system, that takes

millions and millions of documents out of play for

outside vendors, so that's why I don't know.

Texas has 200-something counties.

8 9

Okay.

On the face of it,

I mean

I don't know.

Sir, are you aware of any other e-mails

you received from any other clerk-recorder vendors

discussing the Request for Proposal process in Nevada

County other than Aptitude?

MR. POULOS:

THE WITNESS:

Objection.

Vague.

Yes.

BY MR. THOMAS:

Which others?

Exigent, Soft Tech, AMCAD.

I think DFM.

mean I got letters, brochures, information from all the

vendors.

19 20 21 22 23 24 25

Specifically discussing your upcoming

procurement? A

Absolutely.

As soon as they knew, material was

sent to me, yeah. Q

And when you say "as soon as they knew," my

question was before you issued the Request for Proposal. A

Yeah, but this is before the RFP process.

Page 125 1 2 3

been provided to our office? A

4 5 6 7 8

And why is it, sir, that those e-mails haven't

They weren't e-mails. MR. POULOS:

Objection.

Lacks foundation.

BY MR. THOMAS: Q

Why weren't those written materials provided to

my office? A

Because -MR. POULOS:

THE WITNESS:

Same objection. -- I didn't have a request to

produce those documents.

BY MR. THOMAS:

says:

within California.

Now, the next sentence in that third paragraph We are actively speaking with multiple counties

Uh-huh.

Do you see that?

Yes.

Do you know what counties --

No.

-- at the time?

No.

know.

Because it says so in the next sentence?

Humboldt County, I do know.

I take that back.

San Francisco, I do

Just those two.

Page 126 1 2

Okay.

And at this point in time, did you know

they were pursuing Placer County?

No.

Okay.

Yes.

Okay.

At this time, I didn't know Placer was looking.

Since this particular e-mail, have you had

You eventually learned that, right?

discussions with personnel from Aptitude about their

business plans and expanding their customer base in

California?

Since this e-mail?

Yeah.

Yes.

And what have those communications been?

Status reports on how they're doing in

17 18

California. Q

And do you know why it is you receive status

reports from Aptitude about other customers of theirs or

other marketing efforts of theirs?

22 23 24 25

They volunteered the information. MR. POULOS:

Objection.

Calls for speculation.

BY MR. THOMAS: Q

They volunteered the information. Have you ever seen any business plans by

Page 127 1

Aptitude for the California market?

No.

Have they ever explained to you what their

business plans are --

No.

-- in California?

No.

What was your pre-RFP interaction with

Aptitude?

MR. POULOS:

THE WITNESS:

Objection.

Vague.

I thought I already answered.

interaction was obviously looking at their product, like

I routinely do at our conferences for all the vendors,

and then informing all the vendors, if they were

interested, they may want to look at an RFP coming from

Nevada County.

BY MR. THOMAS:

18 19

And what pre-Request for Proposal interaction

did your staff have with Aptitude?

I don't know.

Why don't you know?

Wouldn't they have copied

you on those e-mails or communications?

If they did, they would have.

And because you're not aware of e-mails, then

apparently, you're not aware of any communication your

Page 128 1 2

staff had with Aptitude before the RFP. A

Correct.

(Exhibit No. 372 was marked for

identification.)

5 6 7

BY MR. THOMAS: Q

Sir, do you have Exhibit 372?

Do you have

Exhibit 372, sir?

Yes.

What is this document?

It's from me to Dee Murphy about an RFI

I'm sorry.

template, and then it's an e-mail from Patty Sandever to

me enclosing the attached RFI used by San Francisco

County.

Okay.

And it says -- so you received this

e-mail from Ms. Sandever and then forwarded it to

Ms. Murphy; is that right?

Yes.

Who is Ms. -- who is Dee Murphy?

She was a paralegal working for the County.

And why did you send an e-mail from Patty

21 22

Sandever to Dee Murphy? A

Because Dee Murphy was involved with

creating -- actually, she was involved in the RFP

process in Nevada County.

Okay.

And that's why you sent this e-mail to

Page 129 1

her?

Yes.

Okay.

And what was -- let's look at the e-mail

from Ms. Sandever to you.

Do you see that?

Yes.

It says, "It was great speaking with you

yesterday."

Yes.

"As promise attached please find an RFI

template we created."

Do you see that?

Yes.

And what was this RFI template that -- when she

says "we," that means Aptitude; yes?

Yes.

Okay.

Uh-huh.

And what was this RFI template that

Aptitude created that they sent to you?

I don't know.

And then she says, "I have also attached the

RFI used by San Francisco County which we recently

responded to."

Uh-huh.

And then it says, "This one, of course, is not

tailored to OnCore; however, we are able to handle all

Page 130 1

their requirements."

Do you see that?

Yes.

And so let me ask you this.

the RFP in Aptitude at all -- strike that.

6 7

Was the RF -- was

Was the RFP in Nevada County for clerk-recorder software --

Uh-huh.

-- issued in 2008 --

Uh-huh.

-- was that in any way modeled after or

developed using the RFI template that Ms. Sandever

provided to you?

I don't think so.

How do you know?

Because Nevada County has their own template

for the RFP.

So Nevada County didn't need --

And --

-- didn't need the RFI template from Aptitude?

Can we go back to the other statement because I

wasn't finished my response.

I'm sorry.

That's okay.

Go ahead, sir. That's okay.

Nevada County has

their own template for RFP, so the RFI that was sent to

Page 131 1

Dee Murphy, County Counsel, was a comparison of

functionality between a large county and a smaller

county.

4 5 6 7 8 9 10 11 12

The RFP itself, Nevada County has its own template or so I'm to believe from Mary Ross. Q

Why did you forward this e-mail from

Ms. Sandever to Dee Murphy? A

Pursuant to Dee's request.

promised"?

Doesn't it say "as

I think it says "as promised," so that's why

I'm sure it's pursuant to her request. Q

Well, I don't see Dee on the e-mail from Patty

Sandever, do you?

No.

So how did Dee know that you received that

document from Patsy Sandever?

MR. POULOS:

Objection.

Calls for speculation.

BY MR. THOMAS:

You would have had to have told her.

I'm pretty sure I told her, yeah.

And what does "as promised" mean?

That means

you promised to give it to her, right?

Yeah.

That doesn't mean she asked for it, does it?

No.

You use the word "as promised" repeatedly in

Page 132 1

your e-mail, don't you?

In my e-mails?

Uh-huh.

Repeatedly?

Yeah.

What does it mean when you use it?

Sometimes. It means

you've told someone you're going to send them something

and then you do it?

Yes.

So there's nothing -- you're not aware of any

e-mail where Dee Murphy asked you for the RFI template

that Aptitude gave you --

No.

-- are you?

No.

Now, did you ask Dee Murphy to use the Aptitude

RFI to develop the Request for Proposal in Nevada

County?

No.

Did Nevada County issue an RFI --

No.

-- at any point in time?

24 25

RFP. A

Correct.

It only issued an

Page 133 1 2

MR. POULOS:

Objection.

BY MR. THOMAS:

What's an RFI, sir?

It's, my understanding, it means Request for

5 6 7

Information. Q

And that's sometimes is a step that's done

before a Request for Proposal or an RFP?

Sometimes.

Okay.

That's not something you did in Nevada

County in 2008?

No, we did not.

Okay.

13 14 15

Who selected Aptitude as the vendor for

Nevada County? A

I did, pursuant to a recommendation from an

evaluation task force that was set up by purchasing.

And who was on that task force?

I don't know.

I don't have all the names in

front of me.

Were you on it?

Yes.

Who else was on it, that you recall?

I don't know.

23 24 25

I don't have all the names in

front of me. Q force?

Well, can you recall anyone who was on the task

Page 134 1

Let's see.

There was a lady named Teresa.

forget what's her last -- Teresa, I forget her last

name.

Mary Ross.

Russ.

I forget.

How many people were on this task force?

I believe it was six.

And you were one of the six?

Yes.

9 10 11

I believe there was a guy named Phil There was a list of names.

Or probably better termed evaluation

committee. Q

Now, let's go down to Ms. Sandever's e-mail.

Do you have that in front of you?

I do.

She says:

"Please let me know if there's

anything else I can help you with."

Do you see that?

Yes.

Did you ask her for help that this e-mail was

responding to?

I don't recall.

You don't know what that means in this e-mail?

Yeah, I know what it means.

It's a

salesperson's way of trying to get into the door and

being chummy with the elected official.

24 25

Well, this isn't the firm time you'd spoken

with Ms. Sandever, is it?

Page 135 1

No.

Okay.

I've known Patty for many years. Then the next sentence says:

forward to seeing you again soon."

Do you see that?

"I look

Yes.

So she had spoken to you face-to-face the day

7 8

before; is that true? A

9 10

You see the first sentence?

I don't think so, no, that's not true. MR. THOMAS:

All right.

Mark this next in

order.

(Exhibit No. 373 was marked for

identification.)

BY MR. THOMAS:

All right.

Yes.

And this is another e-mail chain.

Sir, do you have Exhibit 373?

Did you send

this e-mail, the one at the top?

Yes.

And by sending this e-mail, you would have sent

everything connected in the chain of the e-mail; yes?

I -- yes.

You believe so?

I believe so.

Now, this particular e-mail, if we go back to

the beginning, can we turn -- turn back in the e-mail so

Page 136 1

we can start earlier in time, because I think -- or

actually, it's two e-mails, apparently.

Let's look at the second page.

page that I'm not interested in.

5 6

So we're on the second page of the e-mail.

Yes.

Okay.

And you're on that page.

So the first

e-mail at the bottom half of the page is from Ms. Sandever to you, correct?

Yes.

And you received that e-mail, right?

Yes.

And she's referring to the Aptitude

you see the bottom number, it says NV 000504?

There's a third

certification status with the California DOJ?

Yes.

And that refers to e-recording, right?

Yes.

And Aptitude never did get certified with the

DOJ, correct?

Yes.

And to your knowledge -- well, you don't know

if AtPac was or is certified with the DOJ for ER,

e-recording, are you?

other?

You don't know one way or the

Page 137 1

At this time?

Yeah.

Oh, I do.

Okay.

Yes.

What do you know?

That they're not certified.

That AtPac's not certified for e-recording?

Correct.

Now, with respect to the next sentence, it

says:

all certification requirements for ERDS.

They were not certified.

Do you know now whether they are?

As stated previously, we are committed to meeting

What is ERDS?

Electronic Recording Delivery System.

And then it says:

"And Nevada County's

requirements for electronic recording."

Do you see that?

Yes.

And at some point as of -- well, as of

June 2008, it was your intention to move Nevada County

and include electronic recording?

Still is.

Okay.

Absolutely.

Okay.

Oh, it is?

And at some point, was it your intention

Page 138 1

to require, as part of the Request for Proposal in 2008,

that the vendors provide e-recording?

have --

Did you ever

My intention was down the road, that vendor

would be in a position to supply electronic recording

services to us.

7 8 9 10

Okay.

And this e-mail with Ms. Sandever, this

is before the Request for Proposal process, right? A

Oh, boy.

This date seems like it's right in

the middle of the process.

Okay.

Uh-huh.

Ms. Sandever is e-mailing you at June 11, 2008.

Let's turn to the first page.

Do you see that?

Yeah.

Five --

Now, that was before the process, yeah.

Okay.

Uh-huh.

And she's referring to her making the short

list in San Francisco RFI.

Do you see that?

Yes.

And do you know why she told you that?

Why?

Page 139 1

Yeah.

I think it was part of her trying to get a sale

3 4 5 6

for Nevada County. Q

And let me ask you this.

Why did you forward

that e-mail on to Dee Murphy? A

At this time, I believe correspondence from

Aptitude, I was asked to forward this to County Counsel.

I think.

9 10

I think.

I believe.

Well, on August 19, 2008, County Counsel asked

you to forward this to Dee Murphy; yes?

MR. POULOS:

Objection.

attorney-client communications.

BY MR. THOMAS:

14 15 16

Calls for

That's your explanation of why you sent it to

Dee Murphy? A

Yes. MR. POULOS:

You need to -- if I object and

call attorney-client, you need to listen, okay?

we're not going to --

THE WITNESS:

You said you'll tell me not to

answer.

22 23

MR. POULOS:

Right.

I was just about to before

you --

THE WITNESS:

MR. POULOS:

Oh.

Okay.

-- answered the question.

Page 140 1

THE WITNESS:

MR. POULOS:

THE WITNESS:

MR. POULOS:

Okay. So -Yeah.

attorneys, off limits.

BY MR. THOMAS: Q

Okay.

-- questions to and from

Okay.

What was the general issue, without getting

into any specifics at all, of why County Counsel wanted

you to forward this e-mail in 2008 to Dee Murphy in

2008, August 2008, before the RFP or during the RFP?

11 12

MR. POULOS:

If you can answer that without

revealing communications from attorneys --

THE WITNESS:

MR. POULOS:

(Exhibit No. 374 was marked for

identification.)

17 18 19

I can't. Okay.

Then don't answer.

BY MR. THOMAS: Q

Sir, I put in front of you Exhibit 374.

Do you

have that?

Yes.

And what is this document?

It appears to be an e-mail from Tom McGrath.

The "to" line is blank.

Eileen Moody in our office.

It appears to be "Eileen" is

You see that up at the top of the e-mail,

Page 141 1

right?

Yeah.

When you print e-mail, usually the person who

Yeah.

Uh-huh.

prints it, the name ends up at the top.

Do you see that?

I see that.

So this e-mail refers to questions about

I did not know that.

fictitious business names that Tom McGrath is asking of

Eileen Moody.

Do you see that?

I do.

And you were informed of these communications,

right, generally?

No.

Oh.

You didn't know these discussions were

taking place?

Between Tom and Eileen, no.

This is a surprise to you?

This e-mail, yes.

And so she did this on her own without your

approval?

22 23 24 25

MR. POULOS:

Objection.

Calls for speculation.

BY MR. THOMAS: Q

Oh.

Did you approve of her communicating with

Tom McGrath about fictitious business name questions?

Page 142 1

No.

How did Tom McGrath know to communicate with

No.

her?

MR. POULOS:

THE WITNESS:

Objection.

Calls for speculation.

No idea.

BY MR. THOMAS:

Is it your testimony, sir, that before the RFP,

you didn't know Aptitude was asking questions of your

staff about how to do fictitious business names?

Yeah, that's my testimony.

Okay.

And did you know that, before the RFP,

Aptitude did not have California fictitious business

name functionality?

MR. POULOS:

THE WITNESS:

Objection.

Lacks foundation.

I had an idea that they may not

have had fictitious business name, that nomenclature.

BY MR. THOMAS:

Functionality?

They had dba functionality.

Dba, doing

business as functionality is very similar, if not

exactly the same, as FBN functionality.

difference in nomenclature.

That's a

And if it's exactly the same, do you know why

Mr. McGrath would be asking Eileen Moody questions about

it?

Page 143 1

Nope.

You have no explanation?

No explanation.

And then if you look at the last sentence in

the e-mail --

Uh-huh.

-- it says:

now."

Uh-huh.

"Any information you can provide would be

"I have developers working on this

greatly appreciated."

Uh-huh.

Do you know if your staff was helping any

software companies develop functionality before the RFP

process other than helping Aptitude?

MR. POULOS:

THE WITNESS:

MR. POULOS:

19 20 21

Objection.

Vague.

No, I don't know. Lacks foundation.

BY MR. THOMAS: Q

Did you instruct your staff to work with any

potential --

No.

-- vendors before the RFP process?

MR. POULOS:

THE WITNESS:

Slow down. No.

Page 144 1 2

MR. THOMAS: a highlighted section.

3 4

I gave you the wrong one. I'm going to do this.

Do you have a clear one? the same document.

There we go.

It's

Sorry, John.

MR. POULOS:

(Exhibit No. 375 was marked for

identification.)

I have

No problem.

375.

BY MR. THOMAS:

Sir, do you have Exhibit 375 in front of you?

Yes.

All right.

know?

And what is this document, if you

The County has a committee called the ISSB

Committee, Information System Steering Board Committee.

They wanted a report from me about the procurement of

another recording system.

And why did they want that?

Why?

I don't know why.

What did they say?

This is a -- an

internal procedure done by Information Systems.

they decided to have a procedure like this, I don't

know.

And turn to the second page.

Uh-huh.

Is -- this looks like a document -- it's got

your name at the top, "presented by Greg Diaz."

Why

Page 145 1

Do you see that?

Yes.

What is this document?

It's a Project Evaluation and Prioritization

5 6 7

Criteria document. Q

And can you turn through the balance of this

exhibit, the next four pages?

Uh-huh.

Is that -- do those four pages comprise the

balance of this document you called Project Evaluation?

Yes.

All right.

Greg Diaz prepared pages one, the first

And who prepared this document?

paragraph under project scope, and then I worked with

Mary Ross and Marie for the middle of page two, name,

organizational role, project responsibility, project

milestones, the three of us worked on.

benefits was mine.

staffing requirements, mine.

interest chart, mine.

All right.

Expected

Expected cost was mine.

Resource/

And the community of

Let's turn back to -- actually,

when I say the first page, the first page of the project

evaluation.

24 25

You said you prepared the entire first page? A

Yes.

Page 146 1

If we could turn just up to the second page,

did you prepare the bullets at the top of the second

page, also?

MR. POULOS:

THE WITNESS:

MR. POULOS:

Yes. -- the first page is actually the

second page of the exhibit.

MR. THOMAS:

THE WITNESS:

Just so the record's clear --

Yeah. Okay.

BY MR. THOMAS:

So you prepared the entire first page?

Yeah, uh-huh.

And in part, the bullets on the top of the

second page?

Uh-huh.

Okay.

And in terms -- if you go down to the

bottom of the first page, it says:

standard recorder system core functions" --

"In addition to

Uh-huh.

-- "the new system must support the following

critical core functions."

Uh-huh.

Do you see that?

Yes.

It says "Built in image redaction."

Page 147 1

Yes.

What does that mean?

It means if, after we scan a document, we have

the ability to redact specifically Social Security

numbers to comply with California legislation.

What did you mean by "built in"?

The redaction -- how would I say -- software,

or that redaction feature would be part of the core

system.

And currently --

As opposed to using a third party.

12 13 14

I'm sorry.

Sorry. Q

Well, does Aptitude currently use a third party

for redaction?

Yes.

So Aptitude does not comply with that new

17 18

system requirement that you listed at the bottom of -A

They do comply because they also have the

built-in redaction.

built in.

provided by a third party.

There's manual redaction, which is

There's automated redaction, which is

And with respect to, if you turn the page --

Yeah.

-- you have "electronic document handling

including document receipt, recording, archive," et

Page 148 1

cetera.

Do you see that?

Yes.

And that's something you ultimately elected not

to require as part of the RFP, correct?

Correct.

Did AtPac ever, while it was the vendor for

Nevada County, did you ever ask AtPac to provide

redaction services or software?

10 11

I think I did ask for how are we going to

address this legislation.

And what did AtPac --

So that's a different -- that's a different

response to the actual question, so I guess the answer

is no.

What did AtPac --

What I did ask is how are you going to comply

18 19

with the legislation. Q

Did AtPac -- AtPac, you understood, had

software product that provided for redaction.

understood that, right?

No.

Okay.

24 25

You

Did AtPac ever send you a proposal to

provide redaction services? A

Yes, I think they did.

Yeah, I think they did.

Page 149 1

And did you understand they had a software

product that provided that, or through a third party,

could provide that?

I believe it was through a third party.

Like what Aptitude now does, correct?

Yes.

Well, no, no, because Aptitude has the

manual redaction.

redaction built in.

party.

10 11

AtPac doesn't have the manual Everything is done by a third

So when you said built-in image redaction, you

were referring only to the manual redaction?

Correct.

So you weren't requiring automated redaction at

all?

Correct.

Now, if we turn to the second page, you're on

that, I see.

Yes.

You have a cost estimate.

It says:

"The scope

of the project to purchase and implement new recording

system software meeting mandatory statutory requirements

by September 30, 2008" --

Uh-huh.

-- "within the cost of $140,000 for the first

year of implementation."

Page 150 1

Do you see that?

Yes.

And how did you arrive at that number?

I have no idea.

Okay.

Was it a number you arrived at that you

developed?

Yeah, I think it was.

And was the money for this particular project,

9 10

did that come out of -- I've seen documents referring to a particular fund.

11 12 13

Can you tell me what that fund is that was used to fund the clerk-recorder software? A

The recorder's authorized to set up three

dedicated or special funds.

funds.

a dollar for each page that gets recorded, and

obviously, that's for modernization in the office.

Some people call them trust

One fund is called the modernization fund.

It's

There's another fund called micrographics.

That's a dollar per doc, per document, and again, that's

to be used solely for micrographics efforts in the

office.

Okay.

And we have a redaction fund, a dollar per doc

24 25

to enable recorders to redact Social Security numbers. Q

Okay.

Page 151 1 2 3

The money came from the first two trust funds

that I mentioned, modernization and micrographics. Q

Okay.

When you say "the money," are you

referring to the money that was ultimately used to

procure the Aptitude software?

Yes.

Okay.

And that money was earmarked for use for

modernizing the technology in the clerk-recorder's

office; is that right?

Yes.

Okay.

Now, there were specific documents which

describe the restrictions on those funds.

some documents that you're aware that describe what

those funds can't --

No.

-- can and can't be used for?

No.

Okay.

Was there

Does anything describe what those funds

are restricted to being used for?

Yes.

What's that?

I believe it's Government Code 27361, you will

find the verbiage.

Okay.

And if I'm a little wrong there, we can find

And so those funds --

Page 152 1

it.

I believe it's 27361, California Government Code --

Okay.

-- so -- and statute.

4 5 6

funds are to be used. Q

Okay.

And those are funds that are separate

and apart from the County's general fund?

Correct.

I see.

9 10

It describes how the

Have you heard of litigation where

those -- some counties have run into disputes about using those funds for general fund purposes?

Yes.

What county, if you know?

I don't know.

If we look at the list of names on the

document, page two, which is exhibit -- or Nevada 510

Bate Stamp number, do you have that?

Yes.

Your name is by clerk-recorder, project

sponsor.

Yes.

It also says you're recorder office SME.

is that?

I don't know.

You don't know what SME means?

No.

What

Page 153 1 2

MR. POULOS:

Oh.

Okay

I got you.

3 4

Where do you see that?

THE WITNESS:

I don't know.

BY MR. THOMAS: Q

The page where you have the cost estimate of

$140,000, on the next page, that said software license

cost.

Do you see that?

Yes.

And you also have annual maintenance and

technical support cost, 25,000.

Do you see that?

Yes.

Do you know where you developed that number or

15 16 17 18

Yes.

how that number was arrived at? A

I believe it was very similar to what we were

paying AtPac. Q

Okay.

So you were looking for an annual

maintenance cost that was essentially the same as what

you were paying AtPac?

Yes.

Okay.

cost?

as what had been paid to AtPac?

And what about the software license

Do you have a sense of whether that was the same

No.

I -- no.

Page 154 1

Were you aware that the County had renewed its

license with AtPac periodically over the years before

you joined the County?

Yes.

And did anyone ever tell you why the County did

that?

No.

That was 375.

9 10

Exhibit 321, please, in the binders. moment, Mr. Diaz.

11 12 13

One

(Interruption in proceedings.) BY MR. THOMAS: Q

Mr. Diaz, turning back to Exhibit 375, if you

could turn again to the third page of the document, down

at the bottom, it says "Expected Benefits."

Do you see that?

Yes.

The first one, "The internal Nevada County

departments will have access to recorder documents at no

cost to them for hardware or software" --

Yes.

-- that was an internal issue between County

departments?

Yes.

Okay.

Do you know, with respect to this AtPac

Page 155 1

system that was in place at the time you prepared this,

were the Nevada County departments being charged for

access to the AtPac software?

I don't know.

Okay.

The next bullet point says:

"Nevada

County will have a system that enacts the Social

Security transaction legislation."

8 9 10

What's that? A

That should be actually "truncation

legislation."

What's that?

California has enabling

legislation that says a document submitted for

recording, the recorder should truncate the first five

digits of a Social Security number.

15 16

Okay.

And then the next expected benefit is

that Nevada County can offer e-recording.

Do you see that?

Yes.

Okay.

Those were benefits that you felt -- did

you feel the County did not already have those benefits

that you listed in this document from the AtPac

software?

MR. POULOS:

THE WITNESS:

BY MR. THOMAS:

Objection.

Vague.

No, not particularly.

Page 156 1

When you say "not particularly," do you mean

the County did have the benefits from AtPac or it did

not?

4 5

could have realized some of these expected benefits.

6 7

If -- I'm sure if we had stayed with AtPac, we

MR. THOMAS:

All right.

Let's turn to next in

order, Exhibit 376, please, if you could mark that.

(Exhibit No. 376 was marked for

identification.)

10 11 12

BY MR. THOMAS: Q

Sir, do you have 376 in front of you?

Do you

have 376, sir?

Oh.

And this is -- what is this document?

It's a letter from -- actually, it's an e-mail

I'm sorry.

from Kirk Weir to me.

Weir to me.

Yes.

Attached is a letter from Kirk

And this is from April 2008?

Yes.

And did you receive this e-mail?

Yes.

And if you look at the first paragraph of the

letter, it says:

meeting, we have specifically addressed," and then

there's four little bullet points.

"As requested, at our February 14th

Page 157 1

Do you see that?

Yes.

And do you see what the last bullet point says?

Yes.

It says -- this is referring to redaction

services AtPac is offering; is that correct?

Yes.

And did you ever respond to this proposal --

I don't know.

-- and take AtPac up on its offer to provide

redaction services?

I don't recall responding to it.

Do you know why you didn't?

MR. POULOS:

THE WITNESS:

16 17 18

Objection.

Lacks foundation.

No, I don't know why I didn't.

BY MR. THOMAS: Q

And you notice this e-mail from Mr. Weir, this

is to you and Eileen Moody, correct?

Eileen was cc'd, correct.

Okay.

And so this is an instance where AtPac

is doing what you want them to do, communicate with you

directly --

Yes.

-- right?

Did you evaluate this proposal?

MR. POULOS:

Objection.

Lacks foundation.

Page 158 1 2

THE WITNESS:

Yes.

BY MR. THOMAS:

And what was your conclusion?

Pretty mediocre proposal was my conclusion.

And is that why you didn't respond?

Probably.

What was mediocre about it?

I don't know.

Just seemed to me to be --

didn't knock my socks off.

Okay.

You know, just -- I don't know.

You don't know?

No.

14 15

MR. THOMAS:

Okay.

321, please.

You don't

have exhibits from yesterday, do you?

THE REPORTER:

MR. KRUGLE:

We have a second book.

MR. THOMAS:

John, this is a previously marked

MR. POULOS:

Okay.

MR. THOMAS:

With your stipulation, I don't

have a sticker version of it.

of the witness and rely on that?

24 25

No.

exhibit.

MR. POULOS: BY MR. THOMAS:

Can I put that in front

That's fine.

Page 159 1 2

Mr. Diaz, do you have in front of you

Exhibit 321?

Yes.

And what is this e-mail?

It's an e-mail to Marie about some other

vendors, in my opinion, should receive the RFP.

What is -- this is an e-mail from you to Marie?

Yes.

All right.

10 11 12 13 14

to her? A

And what did you say in your e-mail

Specifically what does it say? Marie, comma, as promised, comma, here is some

vendors that should receive our RFP. Q

Okay.

You did not say to her:

Here are some

other vendors, correct?

Correct.

Thank you.

Yes.

Did you expect Ms. McCluskey to send out,

And you sent that e-mail, right?

electronically, Request for Proposals to vendors?

No.

Did you expect someone to affirmatively send

out RFPs to vendors?

RFPs.

it's just posted.

No.

Was that your intention?

I don't know how purchasing dealt with

Some counties, they get sent out.

Most counties,

Notification is given to vendors that

Page 160 1

there's a posting.

And do you know how --

But I don't know Nevada County purchasing.

sorry.

I don't know.

I'm

Excuse me.

When you sent your e-mail to Ms. McCluskey, why

did you tell her:

receive our RFP?

Here are some vendors that should

No idea.

Do you know if the RFP in Nevada County

That's just how I wrote it.

actually was affirmatively e-mailed or communicated to

any vendors?

12 13

I don't know.

I don't know how purchasing did

it.

(Exhibit No. 377 was marked for

identification.)

16 17

BY MR. THOMAS: Q

18 19

What exhibit do you have in front of you, sir? MR. POULOS:

377.

BY MR. THOMAS:

Thank you.

Yes.

And do you know what this document is?

It appears to be an e-mail from Sandy Balzer

Do you have 377 in front of you?

to -- I see South Tech Systems, Adam Mote, info @ record

fusion, L. Cook @ AMCAD.

The subject:

County of Nevada

Page 161 1

Recording System Request for Proposals.

So the Nevada County purchasing agent on behalf

of Nevada County clerk-recorder is requesting sealed

proposals at 950 Maidu until the hour... from all

interested providers of a recording system.

So this appears to be an e-mail to prospective

responders of the Nevada County recording system Request

for Proposal and what the terms are for the response and

how the response should be packaged to the County.

10 11

That's what I'm getting from this first paragraph.

12 13

Let's see. recipient, a line.

On the second page, I see I see a bc:

Gregory Diaz.

What is that?

It looks like a blind copy to me.

Well, were you blind copied on the e --

I guess I was.

Okay.

I don't remember it.

You didn't want to be blindsided, right?

And did you read it?

you looked at it, correct?

MR. POULOS:

witness's testimony.

24 25

THE WITNESS: BY MR. THOMAS:

Objection.

You know.

Mischaracterizes the

Page 162 1

Actually, I don't know.

I saw -- oh.

Okay.

I don't know if I read it

or not.

just something sent to the vendors, so I don't think I

spent a whole lot of time looking through this e-mail.

6 7 8 9

It's obvious, from the first paragraph, this is

The first paragraph pretty much informed me of what I needed to be informed of. Q

Well, were you concerned when you looked at

this e-mail and saw that AtPac wasn't included on the

list?

Like I say, I don't even -- I don't remember

looking at the list.

needed to know.

my call.

15 16

The first paragraph told me what I

Fine.

That's not my area.

It's purchasing.

That's not

It's not my call.

Well, then, if it's not your call, why, on

exhibit --

Because --

-- on 321 --

Yes.

-- were you making a list of vendors to respond

21 22 23

and to receive the RFP if it's not your call? A

Because I was asked what vendors do you think

should get this, so I replied.

All right.

Whether they accepted my recommendation or not,

Thank you, sir.

Page 163 1

I don't know.

2 3

And that's the list you excluded AtPac from,

correct?

Yes, AtPac was not on that list since they're

the existing vendor and the existing vendor always gets

it.

Except in this case?

I guess so, or so AtPac said.

But that's not

my responsibility.

Let's look at Exhibit 370 --

Not my responsibility.

Let's look at Exhibit 377.

Okay.

Do you have the second page?

Yep.

I said that AtPac didn't receive the proposal,

and you said:

you know.

Well, that's what AtPac said.

That's what they say.

I'm sure I believe 'em,

Are you aware of any evidence to suggest AtPac

received the Request --

No.

-- for Proposal --

No.

-- when other vendors received it?

Page 164 1 2

MR. POULOS:

Let him finish.

BY MR. THOMAS:

The answer's --

No.

-- no?

I'm done with 377.

(Exhibit No. 378 was marked for

identification.)

BY MR. THOMAS:

What is Exhibit 378, sir?

Looks like an e-mail and purchasing is sending

prospective sponsors an addendum to the Request for

Proposal.

Okay.

And so this is -- there's a modification

of some kind to the RFP that was communicated to the

potential vendors; yes?

I don't think so.

Okay.

-- to the RFP.

It's not a modification --

What was it? I believe it was a revision for

the proposed due date --

Okay.

-- which I think that's -- I see that as two

22 23 24 25

different things. Q

Okay.

And do you know why the due date was

changed on July 29th, 2008? A

Yeah.

Because AtPac sent me a notice of

Page 165 1

termination and everyone in the County was worried about

it, and so provisions were made to extend the date, I

believe.

been sent.

I know of no other reason why it would have

And so --

You know what?

MR. POULOS:

THE WITNESS:

9 10 11

Can I amend an earlier answer?

Sure. Is that okay?

BY MR. THOMAS: Q

Well, you're under oath.

If you want to

clarify something you said, you can.

Yeah.

Just understand, I can comment on it in front

of the jury.

You said --

Sir, just understand when you make changes to

your testimony, lawyers in the case can comment upon

that --

I understand.

-- to a jury.

I understand.

All right.

When I mentioned to you earlier I didn't know

It may affect your credibility.

of any evidence that AtPac had received this or had

knowledge of the RFP, during my years in the private

Page 166 1

sector, I was aware that AtPac, along with the companies

I worked for, along with the other competitors, did have

a subscription service which would alert them to RFPs

being issued by the County.

Okay.

-- so this was a modification -- or some sort

Looking at Exhibit 378, sir --

of a change to the RFP that was sent from Ms. Balzer.

She's in the purchasing group --

Yes.

-- at Nevada County?

Uh-huh.

This was cc'd to you, right?

Uh-huh.

And do you see AtPac as an addressee of this

e-mail?

No.

Why not?

You could ask purchasing.

Did that concern you --

No.

-- that they weren't?

No.

Why not?

It's not my gig.

Why wasn't it? I don't know.

This is purchasing's gig.

Page 167 1

You didn't care?

Nope.

MR. THOMAS:

(Exhibit No. 379 was marked for

identification.)

Next in order.

BY MR. THOMAS:

that?

Do you have Exhibit 379, sir?

Yes.

Uh-huh.

Do you have

Sorry.

MR. POULOS:

Do you have an extra copy?

MR. THOMAS:

I'm sorry.

MR. POULOS:

No problem.

BY MR. THOMAS:

Do you have Exhibit 379, sir?

Yes.

And what is this document?

Looks like a document from Marie to me, Marie,

Mary and Phil Russ, with evaluation worksheets attached

to this.

And did you receive this e-mail?

Yes, uh-huh.

Okay.

And what was -- it says Primary

Evaluation Team:

Greg, Mary, Phil and Marie.

Uh-huh.

What is that group?

What's "Primary Evaluation

Page 168 1

Team" mean?

I don't know.

Okay.

And turning to the attachments, are any

of these attachments your writing?

your writing?

No.

Okay.

And if we turn to the third page of the

exhibit, it's Bate Stamped Page 441.

441.

Okay.

Do any of them have

Yes.

Uh-huh.

This is an RFP.

It appears to be a

score sheet.

Do you see that?

Yes.

Did you ever fill out a score sheet like this

during the RFP process?

I don't remember doing it.

Okay.

You understand every time I talk about

the RFP process in this deposition, I'm talking about

the Nevada County Clerk-Recorder RFP in 2008.

You understand that, right?

Yes.

Okay.

And you've known that every question

I've asked, right?

Yes.

I just want to make sure there's no

Page 169 1

miscommunication.

2 3

Did you score the vendors that responded to the RFP in any way?

Yes.

How did you --

I think so.

How did you do that?

I don't recall.

9 10 11

It just seems to me there was

another template that we used to score, other than this one. Q

All right.

And if you look at the core

features and standard functions -- it's the third row --

under -- which one do you have in front of you now?

Ms. McCluskey?

Yes.

Do you see the core features, standard

functions?

Yes.

And she lists 15 out of a possible 15.

see that?

It says total possible points, in

parentheses, 15, and to the left of that, I see ten.

23 24

I see ten.

Do you

Am I reading from the wrong column here? on page, at the bottom, 442. Q

Interesting.

I'm

Page 170 1

And I'm at the third -- doesn't that say ten?

2 3

MR. POULOS: for 9/22.

4 5

Okay.

One of them is

The other one's 9/7. MR. THOMAS:

6 7

Different dates.

I see.

Yeah.

Thank you.

So you're on -MR. POULOS:

They're both McCluskey.

BY MR. THOMAS:

You're on 442?

Yes.

So looking at Bate Stamp Page 441, can you do

that, please?

Oh.

Turn to the other page.

Uh-huh.

Yeah.

441?

Here, I see 15.

I'm sorry.

You see 15 for core features and

standard functions.

Do you see that?

Yes.

Now, one of the core features and standard

Uh-huh.

functions that the clerk recorder's office -- well, one

of the core features and standard functions of

clerk-recorder software in September of 2008 was bond

paper tracking functionality, correct?

24 25

I would really have to look at the list to see.

I believe that's correct, but I couldn't give you a

Page 171 1

definite correct.

And do you know whether Aptitude Solutions had

bond paper tracking on September -- in September of

2008?

I don't know.

I would have to go back and look

at the evaluation worksheets.

Do you know whether Aptitude Solutions had

fictitious business name functionality for California

counties in 2008?

10 11

I believe their response indicated that they

did.

No.

Uh-huh.

Did Aptitude actually have fictitious business

name functionality in 2008 for California?

16 17

That wasn't my question.

I can't distinguish the questions.

If they

tell me they did --

My question --

-- who am I to say that they didn't?

I did not

know that they didn't because they were not installed in

California so it's hard to know.

could go to verify if they were telling me the truth or

not.

24 25

There's no where I

If they said they did, then we, as the evaluation team, took 'em for their word.

Page 172 1

And you have a specific recollection of

Aptitude telling you they had California fictitious

business name functionality in their software,

clerk-recorder software in 2008.

5 6 7 8

They told you that?

No, they didn't tell me that.

I believe it was

part of their response. Q

Do you recall the exhibit we looked at earlier

in June of 2008 where Eileen Moody --

Yep.

-- was answering questions of Aptitude about

fictitious business name functionality?

Yeah.

So at that point in time, you understood

Aptitude did not have fictitious business

name California --

Sure looks like it, yes.

-- California functionality, right?

Yes.

And so do you think it was -- your testimony

then is you assumed Aptitude developed the functionality

in just the two months between June and August 2008?

22 23 24 25

I -- I didn't even think that hard about it.

It was in the response. Q

Well, didn't you -- didn't they demonstrate

their software, though?

Page 173 1 2 3 4

They did.

They came back and demonstrated

their software. Q

And how did you score fictitious business name

functionality?

I would have to look at the score sheet.

How would you have scored bond paper tracking

functionality for Aptitude if it did not have it when

they demonstrated their software?

I don't know.

MR. THOMAS:

I actually can -- I don't know

what you want to do in terms of a break, but I'd be fine

with a break for lunch, if you guys would like to break

for lunch.

MR. POULOS:

It's up to you.

MR. THOMAS:

Normally, the court reporter needs

She's hungry.

a break because she's working harder than anybody.

THE WITNESS:

MR. THOMAS:

Your call.

I'm just --

Let's just take a lunch break and

return in one hour.

but that's what seems reasonable for the court reporter.

21 22

Is that all right?

THE VIDEOGRAPHER:

It's up to you

Going off the record at

1:04 p.m.

(Lunch recess at 1:04 p.m.)

---oOo---

Page 174 1

AFTERNOON SESSION

(The appearance of all parties having been

noted for the record, Mr. Schap no longer present, the

proceedings resumed at 2:07 p.m.)

--oOo--

(Exhibit Nos. 380 and 381 were marked for

identification.)

THE VIDEOGRAPHER:

2:07 p.m.

EXAMINATION (RESUMED) BY MR. THOMAS

11 12

Back on the record at

Mr. Diaz, do you have Exhibit 380 in front of

you?

Yes.

And is this an e-mail that you sent?

Yes.

Okay.

And down below, it's an e-mail from

Carolyn --

Crnich.

-- Crnich.

Sorry to interrupt.

It says:

your new recording system."

23 24 25

"I hope you are all settled in with

So she's written this to you after you're working with Aptitude; is that true? A

Yes.

Page 175 1 2

But as of 4/9/09, you hadn't yet gone live with

the Aptitude system, right?

Correct.

When did the County of Nevada go-live with the

Aptitude clerk-recorder software?

We went live with Aptitude solely on July 1st.

And -- go ahead, sir.

If I could clarify, we went live running dual

systems on June 1st, and that was done for a reason, but

the AtPac contract expired on June 30th and that's when

we solely used Aptitude.

12 13

for a reason.

14 15

And you said you went live running dual systems

What was that reason? A

If there were some glitches in Aptitude, we

could still record documents through the AtPac system

while we pay attention and fix the glitches in the new

system.

So the County continued to -- strike that.

The County of Nevada continued to use the AtPac

clerk-recorder software through the end of June 2009; is

that true?

Yes.

Before the end of June 2009, to your knowledge,

did you ever notify AtPac that you believed it was in

Page 176 1

breach of its contract or license agreement with the

County?

3 4

MR. POULOS:

it calls for a legal conclusion but go ahead.

THE WITNESS:

I'm sorry.

BY MR. THOMAS:

8 9

I'm going to object to the extent

Sure.

Could you repeat the question?

It's a question about what you said to

AtPac.

Before June of 2009, the end of June 2009, at

any point in time, did you send AtPac any notice that

you believed AtPac was in breach of its agreement with

Nevada County?

MR. POULOS:

THE WITNESS:

16 17

Objection.

Vague.

Not that I can recall.

BY MR. THOMAS: Q

And before the end of June 2009, are you aware

of anyone else within Nevada County sending notice to

AtPac declaring or stating that AtPac was in breach of

its agreement with Nevada County?

Not that I can recall.

Okay.

Now, at some point, was there -- there

was a schedule in place for the implementation of the

Aptitude software, correct?

Yes.

Page 177 1

And at one point, did the schedule call for the

Aptitude software to go-live in approximately April of

2009?

I don't recall that at all.

What do you recall?

You don't recall there

being a change in the schedule with respect to when

Aptitude solution software would go-live in Nevada

County?

I recall two, maybe three changes in the

schedule.

was certainly extended from our initial discussions.

The specific dates, I can't recall, but it

extended?

The go-live date.

And how many times was the go-live date

extended?

18 19

Okay.

And when you say "extended," what was

I can't specifically recall.

It seems to me

two or three times. Q

Did you become aware, that at some point in

time, Placer County was also working to implement the

Aptitude Solutions software in the beginning of 2009?

22 23

I don't think it was in the beginning of

2009 --

When was it?

-- that I had knowledge of that.

Page 178 1

When did you become aware that Aptitude

Solutions was working with Placer County to implement

its software?

4 5

Cannot give you a specific date.

Generally, I

believe it was Spring 2009.

And how did you become aware of that?

Well, someone told me.

Who it was, I don't

recall, unless it came from Aptitude.

been Patty Sandever who told me.

It might have

And did you ever talk to Jim McCauley about the

Aptitude software that was being provided or at least

attempted in Placer County?

13 14 15

MR. POULOS:

Vague.

BY MR. THOMAS: Q

16 17

Objection.

Let me ask a different question. Did you ever talk to Jim McCauley about

Aptitude Solutions efforts in Placer County?

Yes.

When did you have those discussions?

Don't know.

Did you ask him?

He approached me at -- I believe it was a Board

Don't remember.

He --

of Director's meeting for the California Recorders

Association of California informing me that he had some

problems with Aptitude.

Page 179 1

He felt Aptitude was or had breached their

contract and he was getting rid of Aptitude, or he was

going to -- I don't know what the right word is.

guess they had a signed contract.

breach of contract and he was going to go with another

vendor but he came to me with that.

Aptitude was in

And what was your response?

"I'm sorry to hear about that, Jim," or words

to that effect.

Did you ask him any details about that?

No.

Did that concern you at all since that was a

vendor you were working with, also?

No.

Why not?

I -- I have room to get concerned about a few

things and that wasn't one of the things I'm going to

get concerned about, Jim McCauley's relationship with

Aptitude.

Well, I'm not so much interested in whether you

were concerned about Jim McCauley's relationship with

Aptitude.

My question is:

Did the fact that Jim McCauley

was telling you he believed Aptitude breached its

contract in Placer County give you any concern that

Page 180 1

Aptitude may not be able to perform in Nevada County?

No.

Why not?

Because I'm there in charge in Nevada County.

And how would that change whether or not

Aptitude was able to comply with Nevada County's

requirements?

8 9 10 11 12

Because I just pay attention to the compliance

in Nevada County, and to that date, things had been going along fine. Q

Well, to that date, had you already pushed the

schedule back in Nevada County?

Oh, I think so.

Well, how was that going along fine?

MR. POULOS:

THE WITNESS:

Yeah, I think so.

Objection.

Vague.

How was that --

BY MR. THOMAS:

Is delay of the schedule --

Uh-huh.

-- okay?

No.

The delay of the schedule mostly came from

AtPac's behavior with stonewalling getting the data

dictionary from them so we can do the conversion.

24 25

So you're talk -- so the delays in the schedule

you referred to before, that --

Page 181 1

Uh-huh.

-- you attribute delays in the schedule to

AtPac's behavior?

Mostly, yeah, uh-huh.

And specifically what?

The e-mails about AtPac being able to hand over

some exports, the data structure, and the terms were

constantly changing, and we basically had to wait and

see if negotiations could be successful with AtPac.

Obviously, they weren't, and when they weren't,

IT put another plan in motion and that did cause delays.

12 13

data dictionary.

14 15

And when you say -- you said something about

What is a data dictionary? A

Yeah, that's what I call it.

I guess it's a

data structure so that elements, or our data, the

County's data, could be easier -- easily migrated to the

new structure.

And I'd like to get some definitions here.

You

talked about data structure and then you said elements.

First of all, what is data structure?

I have no idea.

That's what they call it.

think data structure, my limited knowledge would be

there are fields in the software program containing

different data elements.

A data element could include

Page 182 1

the recorder document number, the date of recording, the

title of the document, the grantor name, the grantee

name.

a software program to enable search of the records.

5 6 7 8 9 10

Those are the data elements that have to fit into

Okay.

Those are the data elements and data

structure -A

That's my understanding of what a data element

is, yes, sir. Q

Yes.

And is the structure the organization of

those data elements?

My understanding is -- yes.

Is the data structure the organization of those

Sorry.

data elements inside the software and how they're

organized?

That's my understanding, yes.

Okay.

Have you heard the word "data schema"

before?

Yes.

And what does that mean to you?

Data dictionary.

Which is -- do you also -- is that another term

for data structure?

In my, again, limited understanding, yes.

And that's different than a data element which

is a name, a date or a document title, right?

Page 183 1

Yes.

And you talked about terms were constantly

changing, something to that effect.

referring to?

5 6

What were you

AtPac felt initially they needed hundreds of

hours to supply that information to the County.

How many hundreds?

It may have been 100, the first e-mail, and I

9 10

believe the first e-mail talked about a hundred hours and $15,000 to give us that information.

And then there was an e-mail talking about we

probably need additional hours, so let's bump it up to

$20,000, and then I believe in a second e-mail or maybe

subsequent -- subsequent correspondence, they were

talking about 30 business days to have this completed or

30 business days would be a rough estimate for when we

could get it completed.

18 19 20 21 22 23

So the negotiation for working with AtPac was a little unsteady during that time. Q

Who was involved in those negotiations, to your

knowledge? A

I believe it was Marie McCluskey, Steve

Monaghan and County Counsel was involved as well.

What about you?

I was there but not really negotiating with

Page 184 1

'em.

So any information you have --

Yes.

-- about comments or statements made by AtPac

are pieces of information told to you by others; is that

what you're saying?

Yes, for this negotiation.

And when you say "this negotiation," what was

9 10

the negotiation? A

Yes.

Was it a contract negotiation?

It was a negotiation to set up a

professional services contract with AtPac to provide the

exports, which I'm not sure what they meant by that, but

also the data structures, schema, dictionary, whatever

term we would like to use.

Well, isn't it true you were in discussions

with AtPac regarding a professional services contract to

provide the data elements?

We have the data elements.

Where?

That was embedded in AtPac's software.

And weren't you in negotiations with AtPac so

as to potentially have AtPac extract the data elements

and provide them to the Aptitude Solutions company so

that it could import the data elements into its data

structure?

Isn't that what was going on?

I have that

Page 185 1

right, don't I?

could be.

Well --

I was under the impression it was the schema,

I'm not sure if you have it right or not.

That

if it was given to the County, the whole migration

effort which takes three, four months, in any install,

for a county recorder's office, that certainly wouldn't

have been done by AtPac.

That would have been done by

the County and the new vendor.

AtPac would not be a major player in the

migration.

the County and the new vendor undertakes the task of

migrating those elements from the old system to the new

system.

16 17

AtPac would just give us a schema and then

That's my understanding. Where did you get that understanding since you

weren't in the discussions?

18 years.

As far as being around recorder offices for

So, for example, it's your understanding that

the County -- you owned Aptitude Solutions data schema.

That's your position as a clerk-recorder from Nevada

County, right?

say that.

I don't know where that came from.

I didn't

Page 186 1

Well --

We entered into a contract with Aptitude for

Aptitude to install their software products in our

county to enable us to record documents, to enable the

document to search, to enable to make copies, et cetera,

et cetera.

7 8

strike that.

Did Aptitude -- excuse me.

10 11

Is it your testimony that you consider --

Strike that.

Did AtPac ever tell you that it was willing to provide its data schema to Aptitude?

Well, maybe.

Really.

During the negotiations for a professional

I think so.

When did that happen?

services contract.

County.

It was either to Aptitude or to the

But you weren't in those discussions, right?

The technical discussions, no.

How many data migrations have you been involved

in from one vendor to another, clerk-recorder software?

MR. POULOS:

At Nevada County or anywhere?

MR. THOMAS:

In his career.

THE WITNESS:

In my career?

For a whole

complete new system, or doesn't it matter?

would count?

Modules

Page 187 1

BY MR. THOMAS:

From one vendor to another.

To another?

Please look at Exhibit 381.

I think four. I don't know if I

asked you this already, but you wrote Exhibit 380,

correct, the e-mail?

7 8 9 10

The top -- the top e-mail, I wrote.

e-mail, I did not write. Q

But you sent the e-mail at the top which

included the one at the bottom, correct?

Yes.

All right.

13 14 15 16 17

Let's go to Exhibit 381, and I'd

like you to tell me what this is. A

This is a resolution authorizing execution of a

contract with Aptitude Solutions for a recorder system. Q

Okay.

And is this the current contract that

Nevada County has with Aptitude?

Yes.

Okay.

And the contract itself is attached to

the resolution.

Do you see that?

Yes.

Can you turn to Page 2087?

24 25

The bottom

I'd just like you

to confirm that that's your signature on Page 2087. A

Yes, it is.

Page 188 1 2

And then there are certain initials, like turn

to 2091.

Are your initials somewhere on there?

Yes.

Initials for licensee?

Yes.

Okay.

that box?

Yes.

And it says OnCore License Fee, 125,000.

Yes.

It says Annual Maintenance Fee, 25,000.

Yes.

And is that the cost -- well, that's the

And there's a fee summary.

Do you see

license fee and the maintenance fee for the Aptitude

software?

Yes.

What's the term of this agreement, in terms of

its duration; do you know?

No.

Don't you have an understanding, as a

clerk-recorder, how long the software contract lasts?

critical.

No.

Someone will tell me when it gets

Did you understand it was a five-year term?

Page 189 1

It may be, but again, I just don't recall.

All right.

What would be typical on a

clerk-recorder software environment for software?

it typically be a multiyear contract?

MR. POULOS:

THE WITNESS:

Objection.

Would

Lacks foundation.

Typically, it would be multiyear,

but outside of that, I don't think there is any typical.

BY MR. THOMAS:

9 10

Okay.

November 18th, 2008; is that true?

Yes.

Okay.

And then this resolution is passed on

And that's when the Aptitude contract

was confirmed by the Board of Supervisors?

Yes.

And it also says, in the resolution, it talks

about software provided through Aptitude Solutions by

Mentis Technology Solutions in the amount of $214,428,

plus travel allowance of 15,000, for a total amount of

229,428.

Do you see that?

I don't think that's accurate, what you just

said.

If I recall, you just said -- you talked about

Mentis and that purchase price being 214,428, and I

respectfully disagree.

When we're talking about Aptitude and Mentis,

Page 190 1

then we get the amount of 214,428 with the travel

allowance of $15,000 for a total amount of 229.

And what does Mentis Technology Solutions refer

What does it refer to?

Yeah.

Mentis Technology Solutions is a company that

8 9 10

to?

What is Mentis Technology Solutions?

provides us with the aiINDEX and aiREDACT software. Q

I see.

So that's some functionality that's

provided outside the OnCore product?

The base OnCore product, that's correct.

Okay.

And the total number, the $229,000

number, is the sum of the Aptitude contract price plus

additional fees for the Mentis-related components?

That's correct.

And are those fees paid directly to Mentis or

to Aptitude; do you know?

Aptitude.

Okay.

I have no idea.

Have you ever signed a contract with Mentis,

To my knowledge, those fees are paid to

Do you know why that is?

that you know of?

Yes.

Okay.

This contract. Is Mentis a party to this contract

Page 191 1

somewhere?

I don't believe so.

So when did you sign a contract with Mentis?

Sorry.

I take that back.

This contract I

signed enabled us to use the Mentis product.

And if you could turn --

So you're correct, I didn't sign it with

8 9 10

Mentis, but it enables us to use -Q

If you could turn to Page 2096.

Do you see the

fee summary?

Yes.

So these are additional fees in addition to the

OnCore fees we looked at earlier?

Yes.

Okay.

And do you see the aiREDACT license fee

of 7,448 or 7,044?

Yes.

Do you know if that's a yearly fee or a fee --

a one-time fee?

Do you have a sense of that?

It's a yearly fee.

Okay.

22 23

Do you remember what the yearly fee was

at Aptitude -- excuse me.

Strike that.

Do you remember what the yearly fee was

proposed by AtPac when it provided your proposal for

redaction services?

Page 192 1

No.

That may have been on one of the other

documents that you produced but I don't remember that

yearly fee.

And is this redaction fee listed on Page 2096,

is that a fee that's the hand redaction product or is

that the automated redaction?

That's the automated redaction.

Do you remember seeing one of the objectives

for this particular project, the implementation of the

software project in Nevada County, that you wanted the

redaction software to have -- to be embedded in the

clerk recorder software?

Do you remember that?

Yes.

But this is -- your testimony is now that you

were referring only to the manual redaction, not the

automated redaction.

That's your testimony?

Correct.

Does the clerk recorder's office prepare a --

strike that.

Does the clerk recorder's office have

accounting records for the financial transactions it

engaged in?

Yes.

Okay.

And I'm not so much talking about with

the public on transactions.

I'm talking about things

Page 193 1

like, you know, paying software license fees and the

like.

3 4

Are there accounting records for the clerk-recorder's office in that respect?

Yes.

And where are those kept?

In my department.

Do they have a particular name or they're just

9 10 11

clerk-recorder office accounting records?

I mean do you

have a name for them? A

I have an administrative assistant by the name

of Abby Kelly who does that work.

Mrs. Kelly's files to see how she names particular

files.

I see.

I have not gone into

Do you have a sense that this contract

is at least a three-year contract?

contract," I'm talking about Exhibit 381 from the Nevada

County Aptitude Solutions Software License Agreement.

When I say "a

I'm sorry.

Actually, I don't have a page.

question.

22 23

What page? It's just a

Do you have a sense that this contract is at least for a three-year term?

Yes.

Okay.

Do you believe it's at least a four-year

Page 194 1

term?

Yeah, I think so.

Okay.

term?

Perhaps.

Okay.

It looks like three years, huh?

Oh.

Do you believe it's at least a five-year

Again, I'm not sure what that is.

That's all I have for that.

You found something, Mr. Diaz.

you?

Perhaps.

All right.

Where are

I'm on Page 2101. And this is, if you turn to page

2100, that's a Software Maintenance Agreement.

Do you see that?

Uh-huh.

And then if you turn to 2101, where you were --

Uh-huh.

-- and this says that the term of the agreement

shall remain in effect for a period ending on the date

immediately prior to the third annual anniversary date

of the maintenance agreement effective date.

Do you see that?

Yes.

Does that suggest to you it was a three-year

term?

Yes.

Page 195 1

Okay.

And do you know if, at the end of the

three-year term, Aptitude Solutions would have to pay

another initial software fee if it wants to continue

using the software?

I don't know.

You don't know.

Is that important for you to

know that?

Yes.

But you don't know?

Yes.

All right.

That's all I have for that right

now.

So are you aware of any other contract between

Nevada County and Aptitude Solutions other than the

software license agreement attached to the resolution at

Exhibit 381?

I had a small contract with Aptitude, along

with 21 other vendors, when I hosted the 2009 Annual

County Recorders Association of California Conference.

When the vendors signed up, they obviously had

to pay.

you will:

in exchange for -- I believe we were charging them $700

per vendor for that space.

into with Aptitude, again, along with the other 21

We entered into a very informal contract, if You get to have this space for the conference

That was something entered

Page 196 1 2

vendors who attended our conference. Q

Okay.

But other than that small informal

contract, you're not aware of any other contracts

between Nevada County --

No.

-- and Aptitude other than Exhibit 381?

Correct.

No.

MR. THOMAS:

(Exhibit No. 382 was marked for

10 11

Okay.

identification.) BY MR. THOMAS:

All right.

Yes.

And you sent this e-mail?

Yes.

And you're at the top, so you would have sent

everything attached to the e-mail in the chain, correct?

Yes.

All right.

And if we turn -- this looks like

it's dated around the time the contract was signed.

21 22

Do you have Exhibit 382?

Do you notice that, when I say "the contract" --

Yes.

-- the Aptitude contract?

And if you look at the e-mail at the bottom of

Page 197 1

the first page, it looks like it's from Tom McGrath to

Marie.

Do you see that?

Yes.

And you understand that's Marie McCluskey?

Yes.

What was her role with respect to the Aptitude

project?

I believe she was named as project manager.

Okay.

And it looks like Mr. McGrath says:

understood that the board has approved the contract and

we are ready to move forward.

from AtPac.

Here's what we'll need

Do you see that?

Yes.

So does this essentially indicate to you that

once the contract was signed, Aptitude was providing

information that it wanted from AtPac to the County?

19 20 21

I'm sorry.

Could you repeat that,

please? Q

Do you understand this to be Mr. McGrath's

request from the County of what Aptitude wanted from

AtPac?

Yes.

Okay.

And then if you look at the e-mail above

Page 198 1

that, Ms. McCluskey responds to him and says:

submit your request to AtPac.

Uh-huh.

Okay.

Do you know how Mr. McGrath understood

the board had approved the contract?

MR. POULOS:

THE WITNESS:

8 9 10

I'll

Objection.

Calls for speculation.

No.

BY MR. THOMAS: Q

Did you tell him that the board had approved

the contract?

Don't think so, no.

Do you know who did?

No.

Because this e-mail's on the same day that the

contract is approved, I notice.

You have no knowledge of how he knew that?

No.

Okay.

All right.

And you see under the

request from Mr. McGrath to Ms. McCluskey, at the bottom

of the first page, where it says:

need?

Yes.

It says:

24 25

Here's what we'll

File/field layout, field layout for

all document image and administrative data exports -A

Yes.

Page 199 1 2

-- should include field name, size and format

for each file.

Yes.

Do you see that?

And is it your understanding Ms. McCluskey

then -- she says she'll submit your request to AtPac in

her e-mail above.

Do you know if she did that?

I don't know.

Okay.

people:

You forward this e-mail on to two

Christine Peters and Krista Pyzer.

Yes.

Who are they?

They are recorder staff.

Why did you send this e-mail to them?

I have no idea.

If you look at about the eighth line down in

I was trying to remember that.

Ms. McCluskey's e-mail, she says:

plan.

This is a migration

Do you see that?

Yes.

It says:

This is a migration plan because the

current production system does not meet Aptitude

systems' requirements and can't be reused for the new

system which is what the County had originally planned

Page 200 1

when we submitted the RFI.

Do you see that?

Yes.

Do you know:

Was that news to you that

Aptitude Solutions' system wouldn't be able to reuse the

County's equipment?

that.

I -- this is the first time I'm hearing about

So during the Request for Proposal process, did

Aptitude Solutions then represent to you that it would

be able to use the County's existing equipment since

this is the first time you're hearing about it?

Yes.

And does it trouble you that Aptitude made that

misrepresentation to you?

MR. POULOS:

THE WITNESS:

misrepresentation.

equipment.

BY MR. THOMAS:

21 22 23

No.

Objection.

Lacks foundation.

I don't see it as a

The Aptitude is using the County's

My question is about the County's current

equipment. Did Aptitude -- it's a surprise to you -- the

first time you're seeing it is this e-mail -- where

Aptitude says it's unable to use or Aptitude cannot use

Page 201 1

the County's current production system, and that would

be the system in place in 2008, correct?

Yes.

And that's news to you today.

Yeah.

Okay.

So during the proposal process, Aptitude

represented to you that it could use the County's then

existing equipment, correct?

9 10

MR. POULOS:

Objection.

Lacks foundation.

Calls for speculation.

THE WITNESS:

You know, I believe they

represented to us that they would need more space,

server space than what was currently provided to AtPac,

so I know that.

I know they needed more server space, so I

guess the answer to your question is it didn't concern

me.

BY MR. THOMAS:

19 20 21

Wasn't that one of the objectives of the RFI to

use the existing equipment? A

Yes.

MR. POULOS:

THE WITNESS:

24 25

Objection.

Lacks foundation.

Uh-huh.

BY MR. THOMAS: Q

Wasn't one of the objectives identified, in the

Page 202 1

Request for Proposal, that the vendors use the existing

County equipment?

Yeah.

And Aptitude Solutions didn't meet that

Yeah.

objective, correct?

MR. POULOS:

THE WITNESS:

Objection. Yeah.

Lacks foundation.

They needed more space.

BY MR. THOMAS:

And different equipment, right?

Not that I know of.

11 12 13

issue with the servers. Q

I believe it was a space

That's my recollection.

Do you know what kind of server AtPac used as

of 2008?

I have no idea.

Did you pay for a new server to house the AtPac

software sometime during your tenure, "you" being your

department?

I paid -- no, I did not pay for a new server.

It sounds like you --

Can I clarify?

Yes, please.

I did pay for space on a County server, called

a virtual server, and we share that server with other

departments, so technically, I did not pay for a new

server.

Page 203 1 2

My question was:

Did you pay for a new server

to house the AtPac software sometime before 2008?

Under my tenure, no.

All right.

Did you talk to Tom McGrath about

the needs that Aptitude expressed in his e-mail to Marie

McCluskey?

No.

MR. THOMAS:

(Exhibit No. 383 was marked for

10 11

Okay.

I'm done with Exhibit 382.

identification.) BY MR. THOMAS:

Please identify Exhibit 383.

This is an e-mail from Marie McCluskey to Dave

Krugle, it looks like Linda Reed, Richard Sandblade, and

Phil Russ and myself were cc'd, the subject line being

CRiis information.

And you received this e-mail?

Yes.

Okay.

And do you understand this is an e-mail

where Ms. McCluskey forwarded on to AtPac the request

being made by Aptitude?

No.

Okay.

CRiis information.

24 25

What did you understand this e-mail to

be?

Page 204 1

says:

and data conversion, Nevada County requests the

following information from AtPac."

Okay.

Look at the substance of the e-mail.

"In preparation for the upcoming system change

Uh-huh.

Do you see it says "field/file layout"?

Uh-huh.

"Field layout for all documents"?

Uh-huh.

If I refer you back to the bottom of

Exhibit 382, that's also right in front of you --

Uh-huh.

-- the very bottom, do you see that e-mail from

Tom McGrath to Marie?

Uh-huh.

Do you see he's identified what he wants her to

ask AtPac for?

Yes, uh-huh.

And then she relays that request to AtPac,

20 21

those pieces of information? A

Oh.

Okay.

Yes.

it is an e-mail to AtPac, yes.

uh-huh.

24 25

Right.

Okay.

I'm sorry.

I see that.

Uh-huh

No,

And so this is Ms. McCluskey asking

AtPac for the information --

Page 205 1

Uh-huh.

-- Aptitude had asked --

Uh-huh.

-- the County to ask for, right?

Okay.

And you understood that?

Yes.

You understood that at the time, right?

Yes.

Of course.

Yes.

You paid attention to this.

This

was important business?

Didn't pay too much attention to this.

Oh, really?

No.

It wasn't important to you?

Yeah, it's important to me, but not this -- I

don't micromanage.

AtPac.

Great.

An e-mail's being sent to

I'm sure Marie's on top of it.

MR. THOMAS:

(Exhibit No. 384 was marked for

identification.)

22 23 24 25

All right.

BY MR. THOMAS: A

And why did you send that e-mail, 382, to

Ms. Pyzer and Ms. Peters? MR. POULOS:

I think you misspoke.

Page 206 1

THE WITNESS:

MR. POULOS:

THE WITNESS:

MR. THOMAS:

5 6

I don't know. 383, you meant. I'm trying to remember that. Yes.

Thank you.

Actually, 382.

You sent Exhibit 382 to Ms. Pyzer and

Ms. Peters, right?

Yes.

And you wouldn't have sent that unless it was

9 10

important, right? A

Right.

MR. POULOS:

THE WITNESS:

No, I think --

informational purposes.

BY MR. THOMAS:

I think it's probably for

15 16

No.

All right.

All e-mails are informational,

right?

Yeah.

I mean every e-mail's about providing

Uh-huh.

information; don't you agree?

Yes, uh-huh.

All right.

you have that now, sir?

Yes, I do.

All right.

So let's look at Exhibit 384.

that you sent --

And this is also another e-mail

Page 207 1

Right.

-- to Ms. Peters and Ms. Pyzer again?

Yes.

And what is this?

I don't know.

I'm reading this.

What is this?

This seems to be a letter from

Yes.

AtPac to Marie McCluskey.

the beginning of the stonewalling by AtPac for us to get

the conversion done, but I don't understand the last

McCluskey -- frankly, this is

paragraph:

intention that your earlier message constitutes a 60-day

notice of cancellation as called for in our County

contract."

14 15

"Finally, please clarify if it is your

MR. THOMAS:

I hate to interrupt you, sir, but

can we change the tape right now, please?

MR. POULOS:

THE VIDEOGRAPHER:

2:50 p.m.

He has to change the tape. Going off the record at

End of disc two.

(Recess taken from 2:50 p.m. to 2:54 p.m.)

THE VIDEOGRAPHER:

2:55 p.m.

BY MR. THOMAS:

Back on the record at

Beginning of disc three.

Sir, I'm looking at the e-mail from Ms. --

Mr. Weir to Ms. McCluskey that was forwarded to you.

you have that in front of you?

Page 208 1

Yes.

And you've read this e-mail at the time, right?

Yes.

Right.

5 6

It says -- please read the second

paragraph into the record starting with "I hope." A

"I hope you will accept this prompt response as

an indication of our commitment to provide an

appropriate level of cooperation during the conversion

to the new recording system."

10 11

And if you look at Exhibit 383, Ms. McCluskey's

e-mail to Mr. Weir --

Yes.

Actually, to Dave Krugle and Linda Reed of

AtPac, do you see that?

Yes.

That was at 1:31 p.m.

Yes.

And then Mr. Weir's response was within about

Do you see that?

40 minutes of that.

Yes.

Okay.

And the second paragraph, can you please

read that into the record of Mr. Weir's e-mail to

Ms. McCluskey?

24 25

"I hope you will accept this prompt response as

an indication" --

Page 209 1

I'm sorry.

I thought you said the second paragraph.

I did, but I meant to say the third.

I think you --

Sorry to

interrupt you.

That's okay.

Please read the third paragraph in --

Sure.

-- Exhibit 384.

"I have discussed the various options outlined

in your original message with our solutions support vice

president, Dave Krugle.

method you described, which involves read-only access,

does not appear to be workable with the CISAM data place

employed by CRiis.

that will need to be planned for."

Okay.

Yes.

All right.

Unfortunately, the alternate

There are a lot of issues and tasks

And you read that at the time?

And had you understood that one of

the proposals Ms. McCluskey made was to allow read-only

access to the AtPac databases?

21 22 23

To the extent that I read her paragraph, in her

e-mail, that I was cc'd on. Q

All right.

And turning to the fourth paragraph

of Mr. Weir's e-mail, can you please read that into the

record?

Page 210 1

"As you may already be aware, this is an

extremely busy time for AtPac and its other customers,

nearly all of whom require another set of new marriage

forms and many will also be implementing day forward

redaction by 11/09."

And as of November 2008, that fourth paragraph,

you just read, is that consistent with your recollection

of the -- how busy it was for clerk-recorders at that

time?

Let me strike that. Were you aware, in November of 2008, that

nearly all clerk-recorders would require a new set of

marriage forms in California?

Yes.

Why was that?

I forget which legislation it was that was

16 17 18

passed. Q

But did it have to do with same sex marriage,

to your knowledge?

I don't know.

And then Mr. Weir also says that many

It may have.

clerk-recorders will also be implementing day forward

redaction by 11/09.

Do you see that?

Yes.

And that was a true statement, also, right?

Page 211 1

I believe so, yes.

So you would agree that the fourth paragraph of

Mr. Weir's e-mail is true, to your knowledge, correct?

It was a true statement?

I have no reason to believe that it's not true.

All right.

Ms. McCluskey?

No.

Okay.

Did you talk about this e-mail with

You forwarded it to others within the

clerk recorder's office?

Yes.

Can you now please turn to Exhibit 21?

in an existing binder, sir.

you.

15 16

I'll put that in front of

Here's another e-mail.

Do you have Exhibit 21

in front of you?

Yes.

And did you receive this e-mail?

Yes.

And the attachment?

Yes.

Okay.

23 24 25

That's

And do you remember reading this e-mail

at the time and the attachment? A

I don't remember reading the e-mail at the

time, but now that I'm looking at it, I do remember that

Page 212 1 2

I did read it. Q

Looking at the e-mail -- or excuse me -- the

document attached to the e-mail, the third numbered

paragraph, do you see that it says "third"?

Yes, uh-huh.

Can you please read that first sentence into

7 8 9

the record? A

"Third:

The format and structure of our data

files is proprietary so we will need to create exports

for all of the clerk-recorder's files, slash, groups of

files in CRiis.

the exports as to the size and data type in each field.

If it will be helpful for us to prioritize the export of

a particular type group, in parentheses, subset of the

data, we will do all we can to accommodate you."

We will also have to document each of

Is it -- did you have any reason to think AtPac

wasn't being truthful in that statement, this paragraph

you just read?

Yeah, because during my time in the private

sector, I had never seen an outgoing vendor express

these type of concerns to an incoming vendor.

You'd only been involved in four --

Yes.

-- conversions?

Right.

I'm just saying I had never seen it so

Page 213 1 2

it was puzzling to me. Q

And for at least two of the four years, you

were in private sector, you didn't have a single

successful sale, so --

Right.

-- two of the years, you had no experience with

any change of vendors, right?

Correct.

Because you didn't sell a single customer?

Not a single one.

So you understood AtPac's position that the

format and structure of its data files was proprietary

no later than November 20th, 2008, correct?

MR. POULOS:

THE WITNESS:

what they said.

BY MR. THOMAS:

Objection. I read this e-mail and that's

Right.

About what?

About the fact that AtPac said the format and

And did you talk to anyone about that?

structure of its data files is proprietary, about that.

Yeah, I think I spoke with Marie about that.

And what were those discussions?

"Marie, what are you going to do?"

Okay.

What did she say?

Page 214 1

I don't recall.

You didn't give her direction.

3 4

You asked her

what she would do? A

No, I do not give her direction on IT matters.

I don't have enough knowledge to give anyone direction

on IT matters.

As a department head here, it appeared there

was a concern by AtPac and the proprietary nature of

their files, and I asked Marie to consult with Steve

10 11 12

Monaghan so we can fix it and get the migration going. Q

Well, AtPac was still proposing to assist you

with migrating its --

Uh-huh.

-- or the data, correct?

Yeah.

All right.

And I was prepared to pay the money.

Okay.

I think there's an e-mail somewhere, that I

So --

What money?

recall, and I remember vividly they wanted $15,000 for

this.

And you remember that being a not to exceed

contract price, right?

15,000.

contract that would not exceed 15,000.

So AtPac didn't want actually

They were willing to move forward with a Do you remember

Page 215 1

that?

No, I don't.

I just remember 15,000.

I don't

remember if it was not to exceed.

15,000 and I remember telling IT, Marie and Steve

Monaghan:

Okay.

We can do that.

I just remember

We'll do that.

Now, when you say you remember 15,000, once

again, you weren't involved in the negotiation, so it's

not something you have personal knowledge of, hearing

that from AtPac, right?

I read it --

All right.

-- on an e-mail from AtPac.

Okay.

So you said -- you talked to Steve

Monaghan trying to fix this.

fact that AtPac --

What did you do to fix the

I didn't say I talked to Steve Monaghan.

spoke with Marie McCluskey, who was the project manager,

to go to her boss, who was Steve Monaghan, and let's do

what we need to do to get the migration started.

Okay.

And what did you do with respect to the

information Kirk Weir said that the format and structure

of the data files is proprietary?

What did I do with that?

Yeah.

Nothing.

Page 216 1 2

Did that impact the way you moved forward in

any way?

Yes.

How?

There was an issue with AtPac about proprietary

files that we had to solve.

And how did you solve it?

I asked Marie to huddle up with her boss and

get a solution so we can have the migration get started.

And what was the solution?

The initial solution was we will pay AtPac 15

grand and they would do what they had to do to get this

information to us.

All right.

And what was -- apparently, you say

that was the initial solution.

there?

What other solution was

AtPac came back saying they couldn't do it for

15 grand and they wanted 20 grand to do it and AtPac

came back with a date uncertain as to when they could

accomplish it.

that I read.

solution.

24 25

Okay.

That's my recollection of the e-mails

So you said there was an initial

What was the other solution? A

The other solution was we will pay 20 grand if

Page 217 1

I can get a date certain.

Okay.

Well, the last solution was Steve Monaghan

Was that the only other solution?

represented to me, with County Counsel, that they could

work with the new vendor to accomplish this without

AtPac, and that's the solution we arrived at.

And when did that discussion take place?

I have no idea.

And did Steve Monaghan represent to you -- so

he represented to you that IT, IT of Nevada County,

could work with the new vendor to accomplish this.

is "this"?

13 14 15

What

To accomplish migrating these Della (phonetic)

elements from the old system to the new system. Q

And did he tell you that he could do that

without disclosing the format and structure of Atpac's

data files to Aptitude?

Did he tell you he could do that, Mr. Monaghan,

did he tell you he could do that without disclosing to

Aptitude the format and structure of AtPac's data files?

21 22 23

MR. POULOS:

Objection.

Vague and ambiguous.

Compound. THE WITNESS:

exact words.

BY MR. THOMAS:

I don't recall if he used those

Page 218 1 2

Well, words to that effect.

Is that what he

said to you?

Yes.

Okay.

Sir, do I give this back to you?

You can just --

I'm sorry.

I'm done with Exhibit 21.

(Exhibit No. 385 was marked for

identification.)

BY MR. THOMAS:

Do you have Exhibit 385, sir?

Uh-huh.

And this is another e-mail from you, correct?

Yes.

This is where you're forwarding the memo or

letter --

Uh-huh.

-- from Kirk Weir?

Uh-huh.

You thought it was important enough to forward

21 22 23

on to Krista and Christine? A

Yeah.

I believe they were being point people

for me, if you will.

for what?

Oh.

What do you mean by that?

Point people

Page 219 1 2

For the upcoming migration from the old vendor

to the new vendor at this time.

mean?

When you say "point people," what does that

If I need information or if I need to recall

something or if I need to see something, I could be

assured that it was forwarded to Christine and Krista

and they would have the information.

Do they both still work for the County?

Yes.

Did you talk to them to prepare for your

12 13

deposition? A

No.

MR. THOMAS:

(Exhibit No. 386 was marked for

identification.)

17 18

Okay.

386.

BY MR. THOMAS: Q

Exhibit 386.

MR. POULOS:

Do you have an extra?

MR. THOMAS:

Sorry, John.

What is Exhibit 386, sir?

It's an e-mail from me to County Counsel.

And this is also forwarding the very same memo

from Kirk Weir that you forwarded to your point people

in your office, right?

Page 220 1

Yes.

Why did you send this as a separate e-mail

3 4

instead of just sending it to all three people at once? A

Krista, Christine are staff members of my

office.

e-mail to all three.

providing me with similar services.

Mike is County Counsel.

I don't send the same

I don't consider them to be

Can we get Exhibit 130, please? So Mr. Diaz, when you said that you thought

AtPac told you it was willing to provide its data

structure and schema, and that's what you were

contracting for AtPac to do, do you remember that

testimony?

The personal services contract?

Yes.

Isn't that directly contradictory to Kirk

Weir's memo to Marie McCluskey on November 20th saying

the format and structure of the data files is

proprietary?

No.

Why not?

How's that not directly the opposite

of what you said?

What did I say?

What did you say?

Go ahead and tell me again

Page 221 1

since you're under oath.

Just go ahead.

contract.

Yes.

So AtPac could give us the information we

We were negotiating a personal services

needed without infringing upon AtPac's proprietary

files.

This letter right here, with the other letter

right here, is a letter from AtPac pointing out to the

County, most importantly, the format and structure of

our data files is proprietary.

Yes.

So I respectfully disagree.

This is not

contradictory.

position of trying to work with AtPac so there wouldn't

be any violation.

I call my folks and say:

don't want to run afoul of AtPac; and therefore,

communications began to formulate a personal services

contract that would be suitable to both the County, the

new vendor and the old vendor, so that's why I don't

understand.

This is in fact in keeping with our

AtPac's concerned about a violation. Get this fixed because we

Why do you say they're contradictory?

So you didn't disagree with AtPac's position

that the format and structure of its data files was

proprietary.

Page 222 1 2

I believe I mentioned before, I had no reason

to disagree with that statement.

If they say so, fine.

All right.

And that's why we wanted to pursue a personal

services contract so we would not infringe upon these

proprietary files.

7 8

Okay.

Do you have Exhibit 130 in front of you,

sir?

Yes.

Sir, you're not suggesting that because the

County and Aptitude did not ultimately reach agreement

on a personal services agreement, that the County had

the right to infringe AtPac's intellectual property

rights, are you?

15 16

MR. POULOS:

Calls for a legal

conclusion, plus I think you misspoke in your question.

17 18

Objection.

MR. THOMAS: Q

All right.

Let me restate it.

Sir, you're not suggesting that because the

County and AtPac ultimately did not enter into a

personal services agreement, that that gave the County

the right and Aptitude the right to infringe AtPac's

proprietary rights in its data file structures, are you?

MR. POULOS:

Object to the extent it calls for

a legal conclusion and it calls for speculation, but if

you can answer it, go ahead.

Page 223 1 2

THE WITNESS:

No.

BY MR. THOMAS:

You're not saying that?

No.

And do you have Exhibit 130 in front of you?

Yes.

Turn to the second -- well, actually, what is

8 9

this document, Exhibit 130? A

Let's see.

It's a document -- it seems to

summarize an intro technical meeting which was held

before the migration.

12 13

Okay.

participants.

And it says you were one of the Were you?

I guess I was.

The bottom of page one talks about data

It says so, so I guess I was.

exports.

Do you see that?

Yes.

It says:

"Marie provided a briefing on the

status of the AtPac data exports and the required change

for a professional services contract with AtPac to

fulfill the data export requirements."

Did I read that correctly?

Yes.

"Marie reported the data exports will not be

Page 224 1

available before January 15th."

Did I read that correctly?

2009.

Thank you.

It says:

"This delays the data

conversion and requires the County to be specific about

data export/extract requirements for AtPac to deliver."

Do you see that?

Yes.

Do you remember discussing that during this

meeting, this whole subject that's in that data exports?

No.

And then the second line that I read, it says:

Data exports and the required change for a professional

services contract.

Do you see that?

Yes.

What was that referring to, if you recall?

Don't recall.

Do you recall the substance of any of this

meeting as it related to data exports?

No.

Did you ever tell Aptitude that AtPac was

concerned about the proprietary nature of its data

files?

No.

Page 225 1

Why not?

Because I believe those concerns were relayed

to Aptitude by Marie, so I did not call up Aptitude to

try to repeat what Marie had already said to Aptitude.

5 6

I see.

information.

So you believe Aptitude received that

It just wasn't from you?

Correct.

Okay.

All right.

Can we turn to Exhibit 131?

I don't actually see you on this e-mail.

Are you a sender or recipient of this?

Have

you ever seen this e-mail before?

you were on it, but you're not, so I'm going to move

past it.

I actually thought

No, I don't.

We'll move past it.

Okay.

Can you turn to Exhibit 134, please, in your

binder?

Yes.

Looking at this e-mail, did you receive this

Yes.

e-mail?

Yes.

All right.

It says that I did, yes. And right below the numbered

paragraphs, it says:

session, Aptitude was providing Nevada County a copy of

After the process mapping work

Page 226 1

the processing work sessions and a summary of

discoveries and differences between the current AtPac

system and the new Aptitude system.

Do you see that?

Yes.

Did you explain differences between the AtPac

system and the Aptitude system to Aptitude?

No.

How did Aptitude know differences between its

systems and AtPac system as of December 11th, 2008, to

your knowledge?

I have no idea.

MR. POULOS:

THE WITNESS:

MR. POULOS:

16 17

Objection.

Let me finish.

Sorry. Objection.

Calls for speculation.

BY MR. THOMAS: Q

Have you ever seen instances, or did you see

instances, before AtPac left Nevada County, where

Aptitude personnel sat at terminal screens looking at

how the AtPac software worked?

Yes.

How many instances did that happen to your

knowledge?

Strike that.

On how many instances did you observe that,

Aptitude personnel working at a terminal where AtPac

Page 227 1

software was displayed and being used?

Three, four times.

During the migration process?

During the migration process.

And who was involved in that work?

happen.

You saw it

Who was at the terminal?

I saw Tom McGrath and I saw Alana Wittig.

Was anyone from Nevada County with them?

No.

Were these terminals within Nevada County's

work space or were they the public terminals?

The public terminals.

Did you ever see Nevada County -- strike that.

Did you ever see Aptitude Solutions personnel

sitting at or working at a terminal that was not a

public terminal where AtPac software was displayed?

I don't know.

I saw Aptitude personnel sitting

behind a terminal that was not a public terminal.

not privy to what they were looking at.

and sit down next to them to see what they were looking

at --

And this was --

-- so I don't know.

This was in the clerk recorder's office?

Correct.

I was

I did not go

Page 228 1 2 3

could have been displaying AtPac software? A

4 5 6 7

Was it a terminal that, to your knowledge,

To my knowledge, it could have. MR. POULOS:

Objection.

BY MR. THOMAS: Q

Could you turn to Exhibit 140 in your binder,

please?

MR. POULOS:

THE WITNESS:

10 11 12

Calls for speculation.

Give me a chance to object. Okay.

Okay.

BY MR. THOMAS: Q

140.

cc'd to you.

It looks like this is an e-mail that's Do you see that --

Yes.

-- dated December 24, 2008?

Yes.

And did you receive this e-mail?

Well, it says that I did, uh-huh.

All right.

that?

No.

All right.

You have no reason to disagree with

And it says:

"Marie:

Alana

informed us of your decision to move forward with an

AtPac professional services contract to provide data

exports needed for conversion."

Do you see that?

Page 229 1

Yes.

So as of November 24th, 2008, it was your

intention to enter into a professional services contract

with AtPac?

5 6

MR. POULOS: and the document.

7 8 9 10 11

Misstates the evidence

I think you misspoke, Mike.

MR. THOMAS: Q

Objection.

I'll say it again.

So as of December 24th -MR. POULOS:

Yeah.

BY MR. THOMAS: Q

-- 2008, it was your intention, on behalf of

Nevada County, to enter into a contract for professional

services with AtPac to provide data exports?

Yes.

And you understood that contract was intended

to be one in which AtPac would provide data elements to

the County and Aptitude for insertion into Aptitude

software; is that true?

MR. POULOS:

THE WITNESS:

21 22 23 24 25

Objection.

Vague.

No.

BY MR. THOMAS: Q

What was your understanding then of the

purpose? A

My understanding was this professional services

contract would be suitable to both the County and to

Page 230 1

AtPac for AtPac to provide the County whatever it is the

County wanted.

Anything the County wanted?

No, whatever it was the County wanted for the

5 6 7

migration of data elements from one system to another. Q

And that contract was never entered into,

correct?

Correct.

Who broke off the discussions regarding the

negotiation between AtPac and Nevada County concerning

the professional services agreement?

I think the County did.

(Exhibit No. 387 was marked for

identification.)

BY MR. THOMAS:

Do you have Exhibit 387, sir?

Yes.

And do you recognize this as an e-mail that you

received?

Well, it says that I received it, so yes.

And you would have received the e-mail chain

attached to it as well, correct?

Yes.

And you believe you received this e-mail,

right?

Page 231 1

Yes.

All right.

Yes.

-- to you and Tom McGrath, copied to you?

Yes.

It says:

And you see it's from Ms. Barale --

"We are concerned that if AtPac gets

wind of us combining forces with Placer, that they may

increase their fees regarding the data extractions."

Do you see that?

Yes.

So you certainly knew, no later than

December 31, that Aptitude was working with Placer,

right?

December 31, 2008, right?

Yes.

You knew before that, right?

first notice of that, was it?

Pretty, pretty much it was.

All right.

This wasn't your

Let's turn to the e-mail below that

at the bottom of the page.

Do you see that?

Uh-huh.

It's to Kathy from Tom McGrath.

Uh-huh.

And it says, in the second full paragraph --

can you read the first sentence in?

Page 232 1

"Regarding the database and image structures at

Nevada and Placer, they are certainly similar if not

identical."

Okay.

And you received that e-mail containing

that statement from Tom McGrath of Aptitude on

December 31, 2008; yes?

Yes.

All right.

Now, you had already been told by

Kirk Weir, of AtPac, that AtPac's position was that the

database structures for AtPac software were proprietary,

correct?

Yes.

Okay.

Didn't this statement from Mr. McGrath

concern you that he knew and was able to assess the

database and image structures at Nevada and Placer

County and comment that they are similar if not

identical?

Didn't that concern you?

No.

Why not?

I don't see what the concern -- where the

concern would be, if in fact this e-mail is telling me

that Tom has been working with Placer.

what type of work Tom was doing in Placer, but according

to this e-mail, Tom is making a statement that the

database and image structure at Nevada and Placer are

I don't know

Page 233 1

certainly similar.

I have no reason to think or this sentence did

not ring any red bells that there was a concern

anyplace.

Well, how did you think, at the time, Tom

McGrath would know what the database structures in

Nevada County were?

8 9

MR. POULOS: Calls for speculation.

Objection.

Lacks foundation.

THE WITNESS:

Vague and ambiguous. My thinking at the time is Tom

was in Placer and he viewed it.

BY MR. THOMAS:

Viewed what?

He viewed the database and image structures in

15 16

Placer County. Q

Yes.

And he also refers -- and he compares

them to the database and image structures in Nevada

County, correct?

Yes.

So what was your understanding of how

Mr. McGrath was aware of the database structures in

Nevada County as of December 31, 2008?

23 24 25

MR. POULOS:

Objection.

Lacks foundation.

Calls for speculation. THE WITNESS:

I guess I just don't understand.

Page 234 1

I am assuming, at this time, he was also familiar with

the database and image structures in Nevada County.

BY MR. THOMAS:

4 5 6

And how did he become familiar with them?

Why

did you assume that? A

Well, we had a contract in place.

Migration

efforts were beginning, and as part of the migration

efforts, I assume Tom McGrath, as the lead technical

person for Aptitude, was viewing database and image

10 11

structures in Nevada. Q

And didn't that concern you given that Kirk

Weir had already told you, approximately a month or more

before, that AtPac considered its database structures to

be proprietary?

No, I didn't put that together.

MR. POULOS:

THE WITNESS:

together.

BY MR. THOMAS:

20 21

Objection. Sorry.

Lacks foundation.

No, I didn't put that

Do you see now what Mr. McGrath is saying would

conflict with the proprietary concerns of Mr. Weir?

MR. POULOS:

THE WITNESS:

MR. POULOS:

THE WITNESS:

Objection. Not really. Vague. Not really.

Page 235 1

BY MR. THOMAS:

Why not?

I just don't have that type of understanding to

4 5

specifically see how they conflict. Q

Well, Mr. Weir told you that he believed the

database structures of AtPac's software were

proprietary, correct?

MR. POULOS:

THE WITNESS:

10 11 12

Objection.

Lacks foundation.

Where is that?

BY MR. THOMAS: Q

Oh.

I'm sorry.

You must have forgotten.

It's

an e-mail you sent to three different people.

You said database structure?

Yes.

Okay.

Yep, you're right.

Didn't get that,

because it says the format structure of our data files

is proprietary.

Yes.

This says the database and image structures are

20 21 22

certainly similar. Q

Yeah.

So Mr. Weir informed you that the format

and structure of the data files is proprietary, correct?

Say that again.

Oh.

I'm sorry.

Mr. Weir told you the format and structure

of the data files is proprietary.

Page 236 1

Yeah.

On November 20th, 2008, you learned that, from

Mr. Weir, right?

Right.

And about 40 days later, Mr. McGrath writes an

That was written to Marie, right.

e-mail that you receive --

Uh-huh.

-- where he's revealing, certainly, that he's

able to compare the database image and structures --

excuse me -- the database and image structures in

Placer.

Uh-huh.

And that didn't concern you at all?

At all.

MR. POULOS:

Objection.

Asked and answered,

but I think part of the problem is you keep saying "told

you," and you're referring to that document.

18 19

MR. THOMAS:

Well, he told Marie and Marie told

MR. POULOS:

Well, the letter certainly, as you

you.

20 21

read it, it gets a little confusing when you say "told

you, told you."

23 24 25

MR. THOMAS: Q

Let me restate it.

Kirk Weir wrote a letter to the County, Marie

McCluskey, that you received on November 20th, telling

Page 237 1

the County that the format and structure of AtPac's data

files is proprietary.

Uh-huh.

On December 31, you receive an e-mail which

contains a statement by Tom McGrath --

Uh-huh.

-- which reveals that he has compared the

database structures in Nevada and Placer County,

correct?

Uh-huh.

And you didn't have any concern with that given

Kirk Weir's statement to you?

No.

You didn't put them together?

No.

You've been a clerk-recorder in this business

for what?

19 20

I didn't put them together, no.

20 years?

Yeah.

For a while.

I don't know what that has

to do with the price of fish, though. Q

And you read both e-mails, of course, right?

Because you don't like to be blindsided, right?

why you're copied on e-mails, correct?

Right.

Exhibit 336.

I'll come back to that.

have Exhibit 28 in your binder, please, sir?

That's

Do you It's the

Page 238 1

first one.

Do you have Exhibit 28, sir?

Yes.

And please identify that, for the record.

It's an e-mail from Kathy Barale to Alana

Wittig and Tom McGrath, and Debra Russell, Phil Russ and

Greg Diaz were cc'd.

Data.

And you received this e-mail?

It says that I did so I must have.

Did you read it?

I think I did.

Okay.

Skimmed it.

Sir, you went to law school, correct?

Yes.

Subject:

Initial Copy of AtPac

(Exhibit No. 388 was marked for

identification.)

MR. POULOS:

388.

BY MR. THOMAS:

Do you have 388 in front of you?

Yes.

Sir, did you -- just so I can understand your

24 25

background, your undergraduate degree is in what? A

History and education.

Page 239 1 2

Okay.

school?

No.

Okay.

And you -- did you graduate from law

You finished -- you stopped at some

point during what year?

What year of law school?

Yes.

Third year.

All right.

Do you have Exhibit 388 in front of

you?

Yes.

And this is another copy of the e-mail you saw

from November 19th.

e-mail.

15 16

Strike that.

So you have Exhibit 388.

It's a different

You forwarded this

e-mail to Ms. Peters and Ms. Pyzer.

Do you see that?

Yes.

All right.

And if you could turn down to the

e-mail from Tom McGrath to Ms. McCluskey.

that?

Yes.

Okay.

Yes.

Okay.

Do you have

And that's dated November 19th, right?

And did you read that e-mail, too?

Page 240 1

I'm sure that I did.

Okay.

Can you look down into the second

paragraph of Mr. McGrath's e-mail?

Uh-huh.

The third line at the end, to the right, it

says "during."

7 8 9

Can you read that into the record? A

Yeah.

"During my recent visit to your County,

however, I found the AtPac schema to be somewhat

different from the one encountered at our prior

project."

Okay.

Do you know what prior project he was

referring to?

No.

Okay.

Did the fact that he informed you that

he was -- he had analyzed that AtPac's schema, was that

concern to you?

19 20

No. MR. POULOS:

Objection.

Lacks foundation.

BY MR. THOMAS:

Why not?

I leave it up to my migration team.

23 24 25

If they

have concerns, they voice those concerns to me. They did not voice concerns to me about this sentence so I didn't have any concerns about this

Page 241 1

sentence.

So as long as other people don't make --

express a concern, you have no concern?

MR. POULOS:

witness's testimony.

THE WITNESS:

Objection.

Misstates the

As long as my project manager,

for this particular project, has not approached me with

concerns, that's correct, I'm not going to have

concerns.

10 11 12

BY MR. THOMAS: Q

And do you know how it is that Tom McGrath had

seen AtPac's schema during a recent visit to the County?

Do I know how Tom --

Yes.

MR. POULOS:

THE WITNESS:

17 18 19

Objection.

Calls for speculation.

No.

BY MR. THOMAS: Q

Well, "do you know" couldn't call for

speculation.

Do you know when Tom McGrath visited the County

before November 19th -- the visit before that, that

date?

24 25

I do not have the specific dates for when he

visited Nevada County. Q

You have no idea, as you sit here today, at

Page 242 1

that -- strike that.

On November 19th, 2008, you had no idea how it

is Tom McGrath would have had knowledge of AtPac's

schema?

No.

And you forwarded that e-mail on.

You thought

it was important enough to forward that e-mail on,

correct?

Yes.

May I say something?

MR. POULOS:

THE WITNESS:

Yes. May I say something?

BY MR. THOMAS:

Do you want to clarify an answer?

Yes.

What answer?

Why these e-mails were forwarded to Krista and

17 18 19

Christine. Q

Sure.

You told me already, they're your point

people.

If I could, please.

Fair enough.

I'm in the middle of conducting the largest

election Nevada County ever had.

November 8th, 2008 election.

on for 28 days afterward, which I preside over, and this

That was the

We have a canvas that goes

Page 243 1

particular situation, we had a congressional race that

was less than .5 of a percentage point, which calls for

a postelection, manual audit, which involved hours,

attorneys, and frankly, a lot of these e-mails were

viewed by me but were sent on to Christine and Krista.

Marie had her assignments, and the bulk of my attention,

at that time, my priority, at that time, was to get

through the largest canvas the County has ever had and

to get through a very rare postelection manual audit and

a congressional district race.

11 12

Okay.

Just want to clarify.

So what exhibit do you have in front of

you?

I have 388.

388.

That's where I forwarded an e-mail to Krista

And what is that?

That's the --

and Christine.

(Exhibit No. 389 was marked for

identification.)

19 20

BY MR. THOMAS: Q

Please look at Exhibit 389.

That's the

original e-mail you received from Ms. McCluskey.

see that?

23 24 25

Excuse me. MR. POULOS:

I think we're messed up here.

BY MR. THOMAS: Q

Do you

Exhibit 388, do you have that?

Page 244 1

Yes.

And that is the e-mail you forwarded on?

Yes.

Okay.

Do you have that?

Yes.

And this is actually an e-mail to you but Tom

9 10

And then let's go to 389.

McGrath actually says "Marie" in the introduction or salutation.

Do you see that?

Yes.

Or the greeting.

received, Exhibit 389, correct?

Yes.

All right.

But this is an e-mail you

Thank you.

I want to set these

aside for one moment.

Can we go -- let me grab some more papers.

MR. POULOS:

20 21 22

You actually handed me one, Mike,

and then didn't mark it. MR. THOMAS:

Maybe we haven't marked this.

Let's just go ahead and -- just one second.

That's 386, John.

MR. POULOS:

It is?

MR. THOMAS:

Yeah.

Page 245 1

(Exhibit No. 390 was marked for

identification.)

3 4

BY MR. THOMAS: Q

Please take a look at Exhibit 390, sir. All right.

Do you have 390?

Yes.

And did you receive this e-mail from

Ms. Sandever?

Yes.

And it's on Sunday, November 2nd.

that?

Yes.

Okay.

14 15

Do you see

Please read into the record her first

paragraph to you. A

"Since this week is extremely busy for you and

your staff, and Marie has not had an opportunity to put

our support box on your network, we will have to

reschedule our trip to evaluate your data."

19 20

Okay.

When she said "evaluate your data," what

did you understand that to mean?

MR. POULOS:

THE WITNESS:

Objection.

evaluation of our data.

BY MR. THOMAS:

I understood that to mean an

Lacks foundation.

Well, what did that mean, though?

Page 246 1

That's all it meant to me.

Did -- she next says they'll still be in the

area this week.

Do you see that in the next paragraph?

Yes.

Did in fact Aptitude Solutions' staff -- you

understand they did visit Nevada County that first week

of November.

Do you recall that?

No.

And then the next sentence, in the second

paragraph, says:

IT staff does have time to put the support box on the

network, then we will be happy to be there on Tuesday or

Wednesday."

"Of course, if Marie and anyone in the

Do you see that?

Yes.

Do you know if that happened?

I don't know.

Can we get Exhibit 211, please?

All right.

you, sir?

Yeah.

All right.

document?

Do you have Exhibit 211 in front of

Yes. And could you identify this

What is this?

Page 247 1 2 3 4

This is an NCSP-102 A1 Vendor End User Security

Affidavit. Q

Do you understand this is a form that's filled

out to create a vendor login account?

That was what was told to me, yes.

Who told you that?

Marie McCluskey, I believe.

And what did she say specifically about this

document?

Sign it.

She provided this to you?

I don't think so.

I think Abby Kelly, from my

office, my administrative assistant, asked me to sign

this.

And can you turn to Page 2121?

Yes.

Is your signature --

Yes.

-- under -- that's under "Authorized

Requester," says "Gregory J. Diaz," that's you?

Yes.

And that is your signature?

Yes.

Okay.

No.

And did you read this document?

Page 248 1

You signed it without reading it?

Yes.

Do you do that frequently?

Yes.

Why do you do that?

Because I trust my people when they describe to

me what the document is and what I'm signing.

Okay.

And if I have concern, I read.

10 11 12 13

If I don't, I

don't read. Q

And how do you know if there are concerns if

you don't read it? A

This is an IT form and my sister department is

just asking for this form to be filled out so the vendor

could have a login, and with that information being

provided to me, I did not have a concern.

All right.

It's overseen by IT.

All right.

And what did Abby Kelly tell you

about this form, the purpose of it, if anything?

said:

for the new vendor to have access.

I don't think Abby said anything about it.

She

Greg, here is the form that needs to be signed

Have access to what?

I believe it's access to County information.

Page 249 1

Okay.

I would imagine, or I thought, at the time, it

Did you -- what information?

would be information that would be germane to the

migration from the new vendor to the old vendor.

And what information, specifically?

I don't know everything but I would imagine a

lot of the information would be the data elements that

we have in AtPac software.

Well, when you say you imagine, I'm not sure

what you mean.

in this deposition.

I don't want you to guess or speculate

I'm not guessing at -- when this was presented

to me for the login, my thoughts were this was necessary

for the migration.

Did your thoughts include your obligations to

be careful not to disclose AtPac's intellectual property

to third parties?

19 20

MR. POULOS:

Objection.

Calls for a legal

conclusion.

21 22

That --

THE WITNESS:

No.

BY MR. THOMAS: Q

You understood the County had an obligation to

protect and prevent the disclosure of AtPac's

intellectual property to third parties, correct?

Page 250 1

MR. POULOS:

THE WITNESS:

Same objection. At this time?

BY MR. THOMAS:

At all times.

Yeah.

Did you think about that when you signed this

form?

Absolutely not.

Did you understand this form was providing

I'll give that a yes.

Uh-huh.

Aptitude Solutions with access to the server that housed

AtPac's proprietary software?

MR. POULOS:

Calls for a legal conclusion.

14 15 16

THE WITNESS:

Lacks foundation.

Just didn't think that far, no.

BY MR. THOMAS: Q

But you understand that now right?

MR. POULOS:

THE WITNESS:

Objection.

Lacks foundation.

Not really.

BY MR. THOMAS:

You don't know?

Not really.

Did you read the part above your signature, at

least the page that you signed, or no?

I did.

And it says what?

Page 251 1 2 3 4 5

The part -- what?

Above my signature?

What

does it say? Q

Anywhere on this page.

Did you read any of

this page? A

I read the second paragraph.

It says:

"We

will remote in to our support server" -- "our support

server," that means Aptitude's support server -- "and

need read-only access to the current land record data

for conversion purposes."

mean?

Okay.

And what did you understand that to

I understand this to mean a very standard and

typical step before the migration of data from an old

vendor to a new vendor.

How many times, in Nevada County, have you ever

filled out a form which gave one vendor an account to

another vendor's server?

How many times?

MR. POULOS:

THE WITNESS:

Objection.

Lacks foundation.

Once.

BY MR. THOMAS:

This one time?

Yes.

And how many times, in your experience as a

vice president for clerk-recorder software companies,

Page 252 1

did you become aware of a county giving your employer a

password to a server which housed a competitor's

software?

4 5

MR. POULOS:

Lacks foundation.

Calls for speculation.

6 7

Objection.

THE WITNESS:

I think only once.

BY MR. THOMAS:

Really?

In North Carolina.

Really?

Yes.

And did both software vendors approve of that?

I can't say I really know that --

Did you --

-- but yeah.

Well, you can't say you really know that, but

your recollection is what?

in North Carolina?

Yes.

Okay.

That both vendors were aware

In this instance, did you ever tell

AtPac that you had authorized the creation of an account

giving Aptitude a password to the server that housed

AtPac's software?

No.

Why not?

Page 253 1

Why should I?

Did you ever --

This was -- I signed this form so that there

could be a login for the new vendor.

I don't speculate and think that wrongdoing is

going to occur when this type of a form is given to me.

In filling out this form, you understood the

intent was to give Aptitude Solutions' access to the

server that housed AtPac software.

You understood that?

MR. POULOS:

THE WITNESS:

Objection. No.

Lacks foundation.

I understood this paragraph

right here, "We will remote into our support server,"

this support server was not AtPac's server.

Aptitude's server.

BY MR. THOMAS:

It was

That's the first half of the sentence.

Okay.

"And need read-only access to the

current land record data for conversion purposes."

And where --

That's read-only access.

And where was the land record data when you

filled out this form?

housed AtPac software, correct?

Absolutely.

That was on the server that

Page 254 1

You understood that?

At the time that I signed?

Yes.

No, I'm not thinking about all that:

Wow,

there might be a problem here signing this form because

the server containing our land information has something

that AtPac considers proprietary, and I didn't even know

about the concern with proprietary information until

this letter was forwarded to me which came well after me

signing this form.

Sir, at the time you filled out this form --

Yeah.

-- that's Exhibit 211 --

Yeah.

-- the County was under contract with AtPac,

right?

Uh-huh.

There was a Software License Agreement --

Uh-huh.

-- correct?

Yeah.

(Exhibit No. 391 was marked for

identification.)

MR. POULOS:

THE WITNESS:

What exhibit is this? 391.

Page 255 1

BY MR. THOMAS:

Did you ever read that contract?

Yes.

When?

I don't recall.

Did you read it before or after you filled out

the exhibit?

8 9 10

Strike that.

Did you read the AtPac contract before or after you authorized the creation of an account for Aptitude to a server housing AtPac software?

Before.

Okay.

And can you turn to the Program License

Agreement, which is -- it's about two-thirds of the way

through.

15 16

It looks like this, sir. at the top.

There's an Exhibit E

There you go.

Did you read Exhibit E before you signed

Exhibit 211, which is the authorization for Aptitude to

have an account?

Yes.

And when did you read that, specifically?

I don't know.

And did you discuss this Program License

24 25

Agreement with anyone when you read it? A

I believe so, yes.

Page 256 1

Who did you discuss it with?

I don't know.

Did you ever provide this agreement, this AtPac

Nevada County License Agreement to Aptitude?

Did I provide this to Aptitude?

Yes.

No.

Do you know if anyone else did from the County?

I don't know.

Okay.

If you turn to page two of the Program

License Agreement, do you have that?

Yes.

All right.

Do you see the numbered paragraphs

starting with paragraph number two?

Yes.

And did you read Paragraph 2.2, proprietary

rights, nondisclosure?

Yes.

Now, when you told me the first notice you had

of AtPac's concern about proprietary rights, you said it

was Kirk Weir's November 20th memo --

Yes.

-- 2008.

Yeah.

But you had read this AtPac contract before

Page 257 1

then.

Yes.

And you read Paragraph 2.2 before then.

Yes.

And you see Paragraph 2.2 is titled Proprietary

Rights?

Yes.

So you understood AtPac did have concerns with

9 10

respect to proprietary rights before you received Kirk Weir's memo on November 20th, correct?

Yes.

So why did you say your first notice was when

13 14

you received Kirk Weir's memo? A

I consider this to be a lot of boilerplate

material and I approached it as boilerplate material.

don't see wording in here that matches the wording on

Mr. Weir's letter at all.

if you will, with intellectual property, the proprietary

rights, I'm looking at a fairly, in my mind, innocuous

document setting up the new vendor to begin a migration.

And again, in my ignorance,

The new vendor and the County authorizes the

sponsoring department to sign this form, so I signed it.

It did not occur to me to go back to previous contracts

and exhibits that the County had with AtPac and to zero

in on Paragraph 2.2 under two to see if this would have

Page 258 1

anything to do with this form that was submitted to me

for signature for a new vendor to have login rights.

And that's your testimony, notwithstanding the

fact that you've already testified that once purchasing

enters into and forms a contract with a vendor --

Uh-huh.

-- it's your job, as the clerk-recorder, to

ensure compliance with that contract, correct?

9 10

MR. POULOS:

it calls for a legal conclusion but go ahead.

11 12 13 14

I'm going to object to the extent

THE WITNESS:

Yeah, I suppose.

BY MR. THOMAS: Q

Now, let's look at Notice of Unauthorized Use,

Paragraph 2.4.

Do you see that?

Yes.

It says Licensee -- you went to law school.

Uh-huh.

You know that's the County, right?

county licensing the software, right?

Yes, uh-huh.

Right?

Uh-huh.

It says:

24 25

immediately -A

Uh-huh.

The licensee is the

Licensee shall notify licensor

Page 259 1

-- of known or suspected --

Uh-huh.

-- unauthorized use --

Uh-huh.

-- access --

Uh-huh.

-- or possession of the package --

Uh-huh.

-- or any part thereof?

Uh-huh.

Okay.

You understood that you had authorized

access to the server housing AtPac software when you

signed Exhibit 211?

Uh-huh. MR. POULOS:

conclusion.

BY MR. THOMAS:

Objection.

Calls for a legal

Lacks foundation.

You understood that, correct, sir?

Understood what?

No.

My question.

Paragraph 2.4? You understood, when you

signed Exhibit 211, you've already testified that you

understood it gave access to the land records --

Uh-huh.

-- data that was contained --

Uh-huh.

Page 260 1

-- on the server --

Uh-huh.

-- that housed AtPac software?

Correct.

So you granted and approved a password to the

server that housed AtPac software; yes?

MR. POULOS:

THE WITNESS:

9 10

Objection.

Lacks foundation.

Yes.

BY MR. THOMAS: Q

All right.

And you also, before you did that,

read this contract between -- the license agreement

between Nevada County and AtPac and you read

Paragraph 2.4.

correct?

You were aware of Paragraph 2.4,

Absolutely.

And that specifically required you to

immediately notify AtPac of any known or suspected

unauthorized access.

MR. POULOS:

Objection.

BY MR. THOMAS:

Right?

Right.

And you never did that.

24 25

Lacks foundation.

You never notified

AtPac of any access to its server by Aptitude, did you? A

I did not.

Page 261 1

Why not?

Never occurred to me to do so.

Because you considered this boilerplate.

4 5

That's your testimony. A

Yes, and the fact I -- it did not occur to

me -- I think I mentioned this before -- did not occur

to me that Paragraph 2.4, from Exhibit E, attached to

Resolution Number 05.44 would be relevant to this

document.

Just never occurred to me.

wasn't on top of that, sir.

the --

MR. POULOS:

THE WITNESS:

-- 2005 Reso had something to do

with this 2008 form from IT.

BY MR. THOMAS: Q

Wasn't on top of that, that

For the record --

I guess just

Well, you understood the 2005 Resolution was in

fact the contract that was binding and in force at the

time --

I --

-- you signed Exhibit 211, correct?

I'm not arguing with you, correct.

22 23

I just did

not put them together. MR. POULOS:

And for the record, the witness

has been pointing to Exhibit 211 in the binder.

BY MR. THOMAS:

Page 262 1 2

Now, after you signed this, what did you do

with it, Exhibit 211?

I gave it back to Abby Kelly.

And do you know what she did with it?

No, I don't absolutely know.

I could

speculate.

I don't want you to speculate.

Okay.

Did Ms. McCluskey ever tell you what she did

with it?

No.

And you understand that an account was created

pursuant to this NCSP 102 document you signed, right?

I became aware of that, yes.

I mean you expected there to be one when you

signed it, right?

Yes.

People -- when you sign a document --

When it was created, no one came and told me:

Now we have an account open.

21 22

I became aware of it once that was done, yes. Q

Could you turn to Exhibit 213 in your binder?

If you could, these are notes that Dan Evers created

when he was employed with Nevada County.

Have you ever read these?

Page 263 1

No.

All right.

I have.

Can you turn to the fifth page of Mr. Evers'

chronology?

6 7

You've heard of Dan Evers, right?

And there's some dates, and the bottom date is 4 November 2008.

Do you see that?

I'm sorry.

Do you see that, sir?

Yes.

Are you with me?

Yes.

And he's recording various conversations and

activity.

Uh-huh.

And you see November 4, that's two days after

The -- yes.

Patty Sandever wrote you an e-mail telling you that

potentially, they would be at the County the following

week, right?

Okay.

If you look at the third paragraph he wrote, it

says:

Yes.

It says:

"As per Russ's request."

"I held off creating the ER recorder

Page 264 1

McCluskey."

3 4

All right.

Can you please read into the record

the balance of that paragraph?

"McCluskey instructed that I create an

ambiguous ER dash recorder login which, in parentheses,

which begot" --

Surely, you've heard the word "isphydoux" by

now.

You've heard the word "isphydoux" by now, haven't

you?

No?

what?

Not really. Isphydoux.

Okay.

"Which begot" -- it's I --

Okay.

"When I asked McCluskey why the nonstandard

format; i.e., parentheses, IS versus VN, she told me

that this was agreed upon by Phil Russ and Gregory Diaz

and herself during previous conversations and that they

didn't trust AtPac to know that Aptitude was logging

into the system.

further details."

See Russ, Diaz and McCluskey for

All right.

Now, tell me about your discussions

with Mr. Russ and Ms. McCluskey regarding the IS versus

VN.

MR. POULOS:

THE WITNESS:

Objection.

Lacks foundation.

I don't even remember having a

discussion with Marie and Russ about -- what's this

Page 265 1

called -- IS -- what do you call it -- IS Fildo?

don't recall having a conversation with Phil and Marie

about nonstandard formats; i.e. IS versus VN, that we

didn't trust AtPac.

BY MR. THOMAS:

No.

The answer is no.

So you don't recall that discussion?

No.

Oh.

It never happened, you say?

I don't recall it ever happening.

Okay.

Never happened.

That's different.

Do you -- you just

don't recall one way or the other?

I don't recall.

Okay.

So it might have happened.

You're just

not sure as you sit here today?

No.

I'm sure it didn't happen.

Oh.

Well, that's different testimony then.

So --

Well, we'll go with that one then.

You do recall it.

You do recall it but you're

saying it didn't happen?

No, it didn't happen.

You recall it didn't happen?

I don't remember a conversation where, what

Marie said, that ISO, whatever, was agreed upon by Phil

Russ and me and herself, no.

Page 266 1

Well, let me ask you a more basic question.

Did you have a discussion with Marie about making sure

that the account given to Aptitude would be named

something that would be difficult to detect by AtPac?

No.

You're sure?

I'm sure.

Okay.

lying.

So if Mr. Russ says otherwise, he's

That's your testimony?

That's my testimony.

And if Mr. Evers testifies, under penalty of

perjury, that Ms. McCluskey said that to him --

Uh-huh.

-- then Ms. McCluskey lied to him.

That's your

testimony?

That's my testimony.

And that he just made these notes up on

November 4th, 2008 and he's lying?

Yeah.

Did you trust AtPac as of November 4th, 2008?

I don't understand the question.

22 23 24 25

What do you

mean "trust AtPac"? Q

Did you trust AtPac?

What do you mean?

not understandable about that? A

What do you mean "trust AtPac"?

What's

Page 267 1

Did you trust AtPac?

I don't trust anybody.

Okay.

I don't know.

Well, the answer's no?

The answer's no.

So the statements -- the conversation that's

No.

attributed to both you and Mr. Russ and Ms. McCluskey is

consistent with the fact that at the time, you didn't

trust AtPac --

11 12 13

MR. POULOS:

Objection.

BY MR. THOMAS: Q

-- yes? MR. POULOS:

Misstates the witness's testimony.

Misstates the document.

BY MR. THOMAS:

It's a new question.

Could you repeat the question?

The fact that you didn't trust AtPac, as of

I'm not stating anything.

November 4th, that's consistent with the comments that

Mr. Evers was told by Ms. McCluskey that you, Russ and

McCluskey didn't trust AtPac, right?

MR. POULOS:

THE WITNESS:

Objection.

Same objection.

If that's how you want to

categorize that, that's fine.

Yes.

Page 268 1

BY MR. THOMAS:

Why didn't you trust AtPac?

I don't trust anybody.

So there's nothing about AtPac that was unusual

5 6

or different that would cause you to distrust AtPac? A

People have preferences in this world and one

of my preferences was not being endearing to AtPac.

Let's put it that way.

What do you mean "endearing"?

Didn't like the company.

customer service.

Didn't like Dave Krugle.

AtPac.

Didn't like the

Didn't like the functionality. Didn't like the company, okay?

Isn't that clear?

I don't know.

Well, it's clear now, or should be clear.

When did you form that feeling about AtPac?

Dealing with Wayne Long and Kirk Weir.

Because

before that, I had years and years of good relationships

with that company, years and years.

and Wayne Long came in, I didn't like 'em, didn't like

anything about the new direction with the company.

we got together an RFP process and we got a new vendor,

which is my right as the clerk-recorder in Nevada

County.

And when Kirk Weir

Now, when you said you had years and years of

Page 269 1

good relations with that company, you've already

testified that in 2002, Jim McCauley and Jim Maclam

essentially dissed you --

Yeah.

-- at a public conference.

Yeah.

Didn't that upset you then?

Of course, but that has nothing to do with my

9 10

tenure as clerk-recorder coming in in 2007 and working with AtPac.

Really.

Are you sure?

Really.

I'm sure.

Are you sure you didn't think to yourself --

Because I'm a professional.

I didn't mean to talk over you.

Okay.

Well, I'm a professional.

You're

talking about a personal exchange.

personal exchanges into a professional relationship.

I have many professional relationships that

I do not bring my

were fine and I don't like the people, but

professionally, they work.

And as a professional, it was your view that

the terms and binding conditions of the AtPac license

were boilerplate, right?

Absolutely, they're boilerplate.

Page 270 1

And binding on the County --

Absolutely.

-- right?

4 5 6 7

What did you mean by "boilerplate" then? A

You see exhibits like this in many, many

contracts. Q

And so you were comfortable -- you were

experienced in seeing contracts that provided for

software vendors to counties, clerk-recorder software

vendors, providing that their software and all portions

of their software were proprietary and confidential.

You've seen these provisions before.

testimony, right?

That's your

Yes.

In many contracts?

Yes.

And so you were familiar with them?

Yes.

And you understood that they restricted the

County's ability to disclose AtPac software to anyone,

right?

22 23 24 25

MR. POULOS:

Objection.

Calls for a legal

conclusion. THE WITNESS: BY MR. THOMAS:

No, not to those specifics, no.

Page 271 1

Really?

This -- when I read Exhibit 211, I believe it

is --

Yeah.

-- it did not occur to me that there could be a

The Dan Evers --

conflict with Paragraph 2.2 and 2.4 contained in

Exhibit 391.

I missed that.

I think I've mentioned that a few times.

You see it now, though, of course, right?

With your help, yes.

Okay.

Do you have Exhibit 5 in front of you, sir? Sorry.

I thought you did.

Yes.

There you go.

You got Exhibit 5 in front of

you?

Yes.

And what is this document?

Let's see.

John,

please.

13 14

Now, let's turn to Exhibit 5.

It's a document from Tom McGrath to

Kathy Barale.

Copied to you, right?

I was cc'd.

You received this e-mail, of course, right?

Oh, yeah.

Uh-huh, uh-huh, uh-huh.

Page 272 1

And it's January 2nd, 2009?

Yes, that's what it says.

Was the big election you talked about, was that

over by January 2nd?

Yes, it was.

Okay.

Yes, uh-huh.

And let's turn down to the fourth paragraph

And you read this e-mail; yes?

that Tom McGrath wrote.

Uh-huh.

And you knew Tom McGrath was a vice president

12 13 14 15 16 17

of technology for Aptitude, right? A

I always knew him as vice president.

I did not

see that he was vice president of technology. Q

Okay.

And read into the record the first

sentence of that fourth paragraph. A

Uh-huh.

"Regarding data access, both Placer

and Nevada County's have provided Aptitude Solutions

with read-only access of AtPac images and data files."

Okay.

I thought Placer and Nevada have provided

What did you think when you read that?

Aptitude with read-only access of AtPac images and data

files.

And did that concern you?

No.

Page 273 1

Well, were you concerned that the contract

between AtPac and Nevada County prohibited the County of

Nevada from disclosing --

Didn't.

-- disclosing AtPac's data files to Nevada --

6 7

Didn't.

to Aptitude? A

No.

MR. POULOS:

Calls for a legal conclusion.

Objection.

Lacks foundation.

BY MR. THOMAS:

You weren't?

Huh-uh.

Why not?

It didn't occur to me that this situation could

in fact have an effect on the signed contract with

AtPac.

Okay.

Well, did it concern you that

Mr. McGrath had told you, in this e-mail, that he had

access to AtPac's data files when Kirk Weir had written

you a memo, or written the County a memo, which was

provided to you, which specifically stated that AtPac

considered its database structures and its data files

proprietary?

It did not concern me.

Why not?

Page 274 1 2

I'm not concerned about the welfare of AtPac.

That's not my job.

Okay.

And I was not concerned because I saw no

evidence at all or did it appear to me at all that

anyone, me, IT staff, staff of my department, was

attempting to knowingly and willingly do any wrongdoing

to AtPac.

fact, as I mentioned before in my testimony, we wanted

I saw nothing like that.

And as a matter of

to make sure that we had a suitable contract with AtPac.

That's why we put forth the effort to come up with a

professional services contract that AtPac and the County

could agree upon.

14 15

Well, when you read this e-mail from Tom

McGrath on January 2nd --

Uh-huh.

-- where he told you that Nevada County had

provided Aptitude Solutions with read-only access to

AtPac images and data files --

Uh-huh.

-- did you tell that to AtPac?

No.

Why not?

I saw no reason to.

To your knowledge, nobody from the County told

Page 275 1

AtPac that, correct?

To my knowledge.

Did that concern you?

No.

Didn't you think you should be telling AtPac

that you had given its competitors access to its data

files?

MR. POULOS:

THE WITNESS:

MR. POULOS:

speculation.

BY MR. THOMAS:

Objection.

Lacks foundation.

No. Vague and ambiguous.

Calls for

Why not?

Didn't -- didn't match the pieces.

You match them now, though, right?

With your help, and we can continue to go over

these same questions and I'll keep on giving you the

same answers.

My -- my focus was:

injury to AtPac.

correctly.

vendor and do our thing.

23 24 25

Let's make sure there's no

Let's make sure this is done

AtPac can leave.

We can acquire a new

Could you get Exhibit 336, please?

That's in

the new binder. No, that's the binder without the tabs.

It's

Page 276 1

supposed to be one that doesn't have the sticker on it.

2 3

Actually, guys, you know what?

Yeah, let's just -- I just want to authenticate 336.

MR. POULOS:

it.

BY MR. THOMAS:

7 8

I'm okay.

I brought this stuff from -- I got

I got it right here.

Okay.

Sir, would you please take a look at

Exhibit 336?

I'd like you to confirm that this is an e-mail

of January 9th that you were cc'd on.

this e-mail?

Did you receive

Yes.

And it's an e-mail that's forwarded to you.

It's originally from Kirk Weir to Marie McCluskey.

Yes.

Okay.

Uh-huh. And this is an e-mail where Mr. Weir is

indicating that there's some more hours that would be

anticipated for the conversion.

Do you see that?

Yes.

And then there's also a statement that he

suggests -- and it's in the middle of the last large

paragraph -- it says:

the NTE -- I believe that means "not to exceed" --

amount to 20,000.

My suggestion is that you revise

Page 277 1

Do you see that?

Yes.

And do you remember that testimony?

about these -- this earlier.

You talked

Do you remember that?

Yes.

And is this what caused you to decide that you

weren't going to move forward with AtPac in the personal

services agreement?

No.

I believe there was a subsequent e-mail where

What was it then?

we talked about the deliverable date.

the deliverable date, not so much the money.

I was prepared to go forth with the 15,000.

prepared to go forth with the 20,000.

It was all about The money, I was

It was the delivery, and we never got a firm

answer on the deliverable, and that was the straw that

broke the camel's back.

19 20 21 22 23 24 25

Okay.

So sometime after this e-mail is when

the straw broke the camel's back? A

I believe so.

AtPac, we did ask for a more

date certain and we weren't able to get a date certain. Q

Can you look at the last sentence of the large

paragraph? A

Yeah.

"We also believe we can shoot for the 30

Page 278 1

business days from execution due date."

2 3 4 5

To me, that was not a certain deliverable. And after this e-mail, is it your testimony

that you told AtPac:

I don't think I told them that but it was

relayed.

date certain.

8 9 10 11

I relayed it to the IT team that we need a

Okay.

And do you know if they communicated

that to AtPac? I don't really know.

I have not seen any

document where that was communicated to AtPac.

12 13

We need a date certain?

MR. THOMAS:

Dave, can I have the next stack?

One moment, sir.

Can we break for a minute?

MR. POULOS:

We've been going about an

hour-and-a-half.

17 18

Sure.

THE VIDEOGRAPHER:

Going off the record at

4:21 p.m.

(Recess taken at 4:21 p.m. to 4:33 p.m.)

(Exhibit No. 392 was marked for

identification.)

THE VIDEOGRAPHER:

23 24 25

Back on the record at

4:33 p.m. MR. POULOS: BY MR. THOMAS:

Thank you.

Page 279 1 2 3 4 5 6

All right.

What exhibit do you have in front

of you, sir? A

I have an e-mail that I sent to my personal

e-mail address at home. Q

All right.

And this is an e-mail from you at

work to you at home?

Yes.

And that's the Mustang Valley Alpaca --

Yes.

-- gmail.com account?

Uh-huh.

That's your home account?

Yes.

Okay.

And it says "questions for story."

And

then below that is an e-mail you wrote to -- who's Dave

Moller?

A reporter at the Union.

Okay.

A reporter at the Union.

Okay.

And then who is L. Kellar?

And then if we go down in the chain of

this e-mail, it looks like there's an e-mail from

Mr. Moller to you that says "questions for story."

Yes.

Okay.

Mr. Moller?

And did you receive that e-mail from

Page 280 1

Yes.

And apparently, he's asking questions about

this lawsuit.

Yes.

Okay.

Yes.

Okay.

Yes.

Okay.

Yes.

-- e-mail to Mr. Moller?

Yes.

Okay.

Yes.

Okay.

And you understood this e-mail would be

And so you understood it was important

Yes. MR. THOMAS:

Okay.

MR. KRUGLE:

392.

What exhibit number was

that?

21 22

And did you write this e-mail --

to be accurate?

19 20

And did you send him this e-mail?

used to write a newspaper article?

And then you then responded to him.

BY MR. THOMAS: Q

Okay.

All right.

Mr. Diaz, let me ask you --

I'm done with that exhibit, sir -- with respect to

Aptitude, have you talked to Aptitude about this

Page 281 1

lawsuit?

Yes.

Okay.

Yes.

Okay.

Paul Miller.

And what were your discussions?

8 9

Outside the presence of counsel?

And who have you spoken with?

What were your

discussions with Mr. Miller? A

Varied.

Discussions were -- it would still be

nice to understand what the lawsuit's about, since

plaintiff has not described damages, so we talk about

what the other side, what their damages really are.

talk about costs.

motivation behind the lawsuit.

all parties concerned, in terms of reputation, from the

County to AtPac to Aptitude.

We talk about the political We talk about damage to

We talk about the fact that there was just no

intent by any of the defendants to do any wrongdoing to

AtPac.

Let's see.

What else do we talk about?

talk about the attorneys, the style of the attorneys.

We talk about possible settlement, how things could be

resolved.

We talk about many things.

Okay.

And when you say you talk about damages,

what were those discussions?

Page 282 1

We have not seen how AtPac has been damaged.

AtPac seems to be, for a year now, really delaying this

forensics examination of the server and we talk about it

would really be nice to know how AtPac has been damaged,

and that seems to both of us to be a pretty essential

element in trying to resolve this litigation.

Is that something you're interested in doing?

Resolving the litigation?

Yeah.

Absolutely.

And has anyone -- strike that.

Have you and Mr. Miller discussed the existence

of an account on the ER recorder server that gave

Aptitude access to AtPac software?

that?

No.

Okay.

Have you discussed

Have you read any deposition testimony

given in this case?

No.

Are you aware that Dan Evers has testified that

the account created under your authorization gave

Aptitude access to every part of AtPac's proprietary

confidential software?

that?

MR. POULOS:

Are you aware he testified to

I'm going to object.

Lacks

Page 283 1

foundation.

2 3 4

THE WITNESS:

No.

BY MR. THOMAS: Q

Okay.

And are you aware that there's testimony

that there were multiday file transfers from AtPac

server to Aptitude server in June of 2009 using the

account that was created under your authorization?

you aware of that?

10 11

Are

No. MR. POULOS:

Same objections.

BY MR. THOMAS:

Never heard that before?

Never heard that before.

Have you heard that a court has made a ruling

granting issue sanctions against you?

MR. POULOS:

THE WITNESS:

Objection.

That lacks foundation.

There were some sanctions.

didn't know they were against Gregory Diaz.

they were against the attorneys.

BY MR. THOMAS:

I thought

What sanctions are you aware of?

$20,000 sanction.

Are you aware of other sanctions the court has

issued as a result of the destruction of the AS-Nevada

server during the lawsuit?

Page 284 1

No.

You don't know about that?

No.

Are you aware of -- do you have any explanation

for why there were multiday file transfer protocol

sessions --

No.

-- between the Aptitude, AS-Nevada server,

using the isphydoux account that was created under your

authorization?

transfer sessions?

12 13

Do you have any explanation for those

MR. POULOS:

Lacks foundation.

Calls for speculation.

THE WITNESS:

MR. POULOS:

ambiguous.

BY MR. THOMAS:

Objection.

No. Misstates the record.

Vague and

Well, do you have any explanation for why there

would be file transfer protocol sessions initiated from

Aptitude server to AtPac server in June of 2009?

MR. POULOS:

THE WITNESS:

(Exhibit No. 393 was marked for

identification.)

BY MR. THOMAS:

Same objections. No.

Page 285 1

Sir, do you have Exhibit 393?

Yes.

And --

4 5 6

MR. POULOS:

You're not listed on this e-mail.

BY MR. THOMAS: Q

Yeah, I don't see you listed, either. But could you turn -- point your attention to

the second to the last paragraph.

the e-mail, February 13, 2009?

You see the date of

Uh-huh.

And do you see it's from Patty Sandever to

others inside Aptitude?

Yes.

And you know Patty Sandever, right?

Yes.

You talk to her from time to time?

Yes.

Okay.

And she's an Aptitude sales

representative?

Yes.

Kind of like the sales rep that you say you

were at other software companies?

Yes.

And she says:

"I know from my conversation

with Greg Diaz this week, he's very interested in

Page 286 1

getting live ASAP.

we may have a good opportunity to get some concessions."

He is also very easy to work with so

Uh-huh.

Did you talk to her about being very interested

in going live ASAP?

Absolutely.

Okay.

And if you look at the first sentence of

her e-mail, it says:

call with Nevada today."

Uh-huh.

It says:

"Can we have a call prior to the

"I am very concerned about putting

off the go-live to mid to late summer."

Do you see that?

Uh-huh.

And -- but the go-live date was put off to

Uh-huh.

midsummer as you testified already, right?

Uh-huh.

And do you recall your discussion with

Ms. Sandever that she's discussing in this e-mail?

MR. POULOS:

THE WITNESS:

conversation" -- no.

BY MR. THOMAS:

Hold on. Paragraph four, "I know from my

You don't recall that conversation --

No idea.

Page 287 1

-- with Ms. Sandever?

No.

Is there any limit to how many extensions of

time you would have given to Aptitude Solutions?

5 6

MR. POULOS:

Objection.

Vague.

BY MR. THOMAS:

Before you moved on to another vendor?

I suppose there would be a limit.

And do you see, she says:

"We may have a good

opportunity to get some concessions"?

Yes.

Do you see that?

Yes.

Do you know what she was referring to there?

I don't.

She says you're very easy to work with, so

"we," being Aptitude, may have a good opportunity to get

some concessions.

I see that.

Does that concern you at all that someone talks

about you that way?

A little bit, yes.

What does it make -- why does it concern you?

Because I don't know what it means.

How do you interpret it?

Page 288 1 2 3 4 5 6

I don't know.

I don't know what it means.

just doesn't look good. Q

It looks like she's saying you're a pushover,

doesn't it? A

Yeah.

Uh-huh.

That could be an

interpretation, uh-huh.

Were you?

A pushover?

Yeah.

I have never heard anyone categorize me as

such.

13 14 15

Except for Ms. Sandever.

That's how you

interpret her e-mail, right? A

Well, she says I'm easy to work with and you

could interpret it as me being a pushover.

16 17

I don't see any phrase where she says Greg Diaz is a pushover, do you?

No, I didn't see the word "pushover."

Yeah.

But that's how interpreted it and I think you

21 22

agreed with me. A

Yeah.

And it could be also that being easy to

work with, if there are some concerns from the new

vendor, they're able to come and talk with me.

that is a credible interpretation as well.

I think

Page 289 1

MR. THOMAS:

Could you get the letter?

MR. KRUGLE:

Which letter?

MR. THOMAS:

The category -- next in order.

Oh, I did it again.

Can I have a clean copy,

John?

Next in order, please.

(Exhibit No. 394 was marked for

identification.)

9 10 11

BY MR. THOMAS: Q

All right.

Sir, do you have Exhibit 394 in

front of you?

Yes.

And what is this document?

It's a document from Marie McCluskey to Kathy

Barale and Greg Diaz.

"For your information, here's the AtPac

response to the BSC server for data export work.

don't quite understand or get his drift about the

contract being an agreement, not a dictation."

And did you receive this e-mail?

It says that I did, uh-huh.

Okay.

And do you see the e-mail below, it's

Ms. McCluskey to Mr. Weir.

Yes.

-- the first page.

It's at the bottom of the --

Page 290 1

Uh-huh.

And she's asking for followup on the contract

language to finalize this week.

Do you see that?

Yes.

So as of January 6, 2009, the County was still

interested in entering into a professional services

agreement with AtPac --

Yes.

-- for the migration.

11 12

Okay.

the same day, correct, on the 6th up at the top?

13 14

And then Mr. Weir responded to her, on

Actually, above that, sir, but you're free to look at the whole document.

I'm right here.

Oh.

So you see on the 6th, Ms. McCluskey followed

I'm sorry.

Yes.

up with Mr. Weir and asked him about the status of the

contract, right, on the 6th?

Yes.

And then Mr. Weir wrote back at about a half

hour later.

Do you see that?

Yes.

Telling her that he's home sick that day?

Yes.

Page 291 1 2

And then at the -- his last comment is:

think 30 business days gets us closer."

Yes.

And you understood he was referring to the time

frame until which AtPac could provide the data elements

for the migration.

You understood that, right?

No.

30 days?

No, I did not understand that.

What did you understand "I think 30 business

days get us closer" meant?

that.

speculation, that type of thing.

16 17

I didn't really have too much an opinion on I don't -- I don't put a lot of stock into

Well, let's go back to Ms. McCluskey's e-mail

to Kirk, okay?

Sure.

So that's on the second page.

Sure.

And if you look about three-quarters of the way

down her e-mail, it says:

sponsors."

"I talked to project

Uh-huh.

And it says -- you're the project sponsor,

Page 292 1

right?

Uh-huh.

Okay.

And --

-- received --

Okay.

-- received an agreement on changing the

contract language to provide 30 business days for

delivery of the first full export --

Uh-huh.

-- right?

Uh-huh.

And Mr. Weir's response, even though he's home

sick, I think he says:

closer.

I think 30 business days gets us

Okay.

And what does that mean?

My question is:

Did you understand that

Mr. Weir was referring to the 30 business days

referenced in Ms. McCluskey's e-mail?

No.

What did you think he was referring to?

I -- I didn't know.

Did you ask?

Page 293 1

No.

Okay.

No.

Why not?

This is speculation to me.

Why not?

Didn't it matter to you?

Right now, when I

got this, I am understanding that Marie is working with

AtPac to develop language that would be suitable to the

County and AtPac so we could develop a professional

services agreement.

This is making the contract, if you

will --

Uh-huh.

-- almost like making sausage.

13 14 15

I don't get

into a lot of details with making sausage. Q

All right.

Now, that was January 6, a

Tuesday --

Yes.

-- right?

Okay.

Could you turn to Exhibit 24?

Uh-huh.

And this is -- what is this Exhibit 24?

This is a proposed letter to AtPac telling

AtPac that Nevada County will be extracting the County's

official records and clerk records' data.

Okay.

Uh-huh.

And this is one day after Kirk Weir's --

Page 294 1 2

-- letter telling Ms. McCluskey's he's home

sick and he'll follow up with --

Right.

-- to her e-mail, right?

Uh-huh.

So what happened between January 6th, at

12:59 p.m. --

Uh-huh.

-- and Ms. Barale's e-mail to you of 12:53 p.m.

the next day --

Uh-huh.

-- that caused Nevada County to draft this

letter?

Nothing.

Okay.

When you say "nothing," why did

Ms. Barale draft this letter, to your knowledge?

Which letter?

Exhibit 24.

-- right here?

Yeah.

Attach -- because discussions occurred before

This e-mail --

January 6th about extracting the data ourselves.

And when did those take place?

The discussions did not occur between the 6,

12:59 p.m. and the 7, 12:53 p.m.

Page 295 1 2 3

I see.

Well, as of January 6th, was the County

still interested in contracting with AtPac? A

On that date, I believe we were strongly

considering, and had probably made the decision, we

would like to go in a different direction.

When was that decision made?

Again, I couldn't tell you exactly.

What was the reason for the change in position?

The head of IT, Steve Monaghan, approached me

and County Counsel and explained to us that in his

opinion --

MR. POULOS:

Okay.

But wait a second.

I don't

want you to review -- I don't want you to disclose

conversations that were made directly by Mr. Monaghan to

County Counsel.

16 17 18

THE WITNESS:

Okay.

BY MR. THOMAS: Q

Well, if he's telling you his opinion about a

technical issue and counsel happened to be there, I

don't think that's seeking legal advice, so I think I'm

entitled to that.

22 23

It absolutely was. MR. POULOS:

They're talking about going

forward on an agreement, or something, I mean -- if you

and Mr. Monaghan were present in a conversation to

Page 296 1

County Counsel, about how to proceed with the contract,

I'm going to instruct you not to answer that --

THE WITNESS:

MR. POULOS:

THE WITNESS:

Okay.

BY MR. THOMAS:

8 9

-- or reveal those communications

here.

6 7

Okay.

Were there any e-mails regarding that subject

with County Counsel?

Not that I recall.

Any other correspondence with County Counsel?

Not that I recall.

Did you ever take any notes of any meetings

with County Counsel?

15 16

When?

During my tenure from June 2007 till

now?

In connection with the migration project, yeah.

Yeah, probably.

Okay.

They're in my notebook.

Have you produced them?

Absolutely.

Your notebook is what?

Yes.

All right.

Where are those notes?

It's a bound notebook?

So it's your testimony that by

Page 297 1

January -- by January 6th, Nevada County had already

decided, because you learned from Mr. Monaghan, that

Nevada County had already decided not to use AtPac for

the professional services agreement?

5 6

MR. POULOS: testimony.

7 8

Objection.

Misstates the

Lacks foundation.

THE WITNESS:

No.

BY MR. THOMAS:

Well, let's look at Exhibit 394 again.

Yes.

Ms. McCluskey is following up with Kirk Weir.

You see that?

Uh-huh.

And she's asking him that -- she says:

"I'd

like to get the contract language finalized this week."

Uh-huh.

So she believes the County is still working

toward a contract with AtPac, right?

Uh-huh.

Was it?

I believe at this time, Marie was.

But you weren't.

We decided on January 7th.

Uh-huh.

You asked me if we

decided on January 6th to send a letter and it was not

the 6th.

It was the 7th.

Page 298 1

So as of --

That's why I replied no.

Okay.

So what caused you to make the decision?

So you made the decision to abandon the contract with

AtPac.

There was no contract.

You made the decision to abandon an effort to

contract with AtPac on what date?

January 7th.

Okay.

January 7th?

Because on January 6th, Marie McCluskey

was telling AtPac she was trying to form a contract.

Uh-huh.

Now, why did you tell me earlier that sometime

before January 6th --

Uh-huh.

-- the decision had really already been made

not to pursue a contract with AtPac?

MR. POULOS:

Objection.

witness's prior testimony.

BY MR. THOMAS:

You didn't say that?

MR. POULOS:

THE WITNESS:

24 25

Misstates the

Did not. No.

BY MR. THOMAS: Q

All right.

So what happened on January 7th

Page 299 1

that you made the -- well, who made the decision to

pursue -- strike that.

3 4

Who made the decision to no longer pursue a professional services agreement with AtPac?

I did.

All right.

Because I'd had several conversations with

The buck stops with me. And why did you make that decision?

Steve Monaghan.

Monaghan and County Counsel, and out of those

We had a conversation with Steve

conversations came the decision to extract without

entering into a professional services contract with

AtPac.

Extract what?

We will be extracting the County's official

Data elements?

records and clerk records data from the AtPac CRiis

system data files.

Well, this letter was written -- this is a

draft letter by Ms. Barale.

Exhibit 24?

Do you see that,

It attached -- Kathy sent this to Tom, Rob

Shulman, who was County Counsel, Debra Russell, and Greg

Diaz.

Why is the letter for your signature?

Why is it for my signature?

Right.

Page 300 1

Because I'm the department head.

Did you help in writing the content of this

particular version of the letter?

Yes.

Okay.

And what part did you help develop or

write?

Most of it.

Okay.

Yes, but this was not the letter sent to AtPac.

Understood.

Okay.

The letter was modified slightly from this

13 14 15

And this was written when?

On the 7th?

point in time, right? A

I don't know if it was modified slightly but it

was modified --

All right.

-- yes.

And did you have any of those discussions with

Steve Monaghan, outside the presence of counsel, as to

how he thought --

Huh-uh.

-- you could extract data?

No.

And the discussion entailed extracting data

without violating AtPac's intellectual property rights.

Page 301 1

Was that the discussion?

MR. POULOS:

conclusion.

ambiguous.

BY MR. THOMAS:

Objection.

Calls for a legal

Calls for speculation.

Vague and

You have no answer?

Yes, uh-huh.

The answer is -- and how did he explain that

the County can do that?

I don't remember.

Okay.

But the last sentence seemed to be key in terms

13 14

Do you have the next exhibit?

of informing AtPac how we were looking at the approach. Q

And as you sit here today, you understand that

Aptitude Solutions -- excuse me -- the County didn't do

what was set forth in the letter.

MR. POULOS:

THE WITNESS:

Objection.

You know that, right? Lacks foundation.

Actually, I don't know that.

BY MR. THOMAS:

Okay.

Ask her what?

Whether the County complied with what was in

You never asked Ms. Barale?

the January 8th letter to AtPac.

No, I never asked Ms. Barale.

Never cared?

Page 302 1

MR. POULOS:

THE WITNESS:

Objection.

Argumentative.

No, I did care.

BY MR. THOMAS:

Why didn't you ask then?

Don't know.

MR. THOMAS:

(Exhibit No. 395 was marked for

identification.)

9 10 11

Okay.

Let's mark next in order.

BY MR. THOMAS: Q

I'd just like you to authenticate this

document, 395, sir.

MR. POULOS:

Do you have one?

MR. THOMAS:

Apparently not.

I'm sorry, John.

I apologize.

MR. POULOS:

THE WITNESS:

It's all right. I'm sorry.

how I can authenticate this.

Rob Shulman.

BY MR. THOMAS:

I don't understand

This was an e-mail from

And it lists you as a recipient?

Yes.

You received this e-mail?

Sure.

And this indicates your County Counsel was

Sure.

involved in assisting and drafting the letter to AtPac?

Page 303 1

Yes.

I'm done with that.

Can you turn to Exhibit 25, please?

And this

is another e-mail dated January 7th from Mr. Shulman to

you.

Do you see that?

Yes.

And it looks like he's made some changes to the

letter.

Yes.

And he's proposing them to you.

Do you see that?

Yes.

And it has -- the first paragraph, is that the

paragraph he added, the underlined paragraph?

To my knowledge, yes.

Okay.

To my knowledge, yes.

And the last paragraph?

MR. THOMAS:

(Exhibit No. 396 was marked for

identification.)

Okay.

BY MR. THOMAS:

What exhibit do you have in front of you, sir?

Exhibit 396.

And what is that?

Page 304 1

It's an e-mail from Greg Diaz to Rob Shulman,

cc Kathy Barale, and the subject is revision to letter

to AtPac, and the content says:

revision.

Thanks.

Rob, excellent

Greg.

Now, this is an e-mail you sent in response to

the Exhibit 25 red line changes he sent to you, right?

Correct.

All right.

Yes.

And you sent that e-mail --

MR. THOMAS:

(Exhibit No. 397 was marked for

identification.)

-- 396.

BY MR. THOMAS:

Okay.

Yes.

And you sent Exhibit 397, did you?

17 18

You have Exhibit 397 in front of you?

e-mail that you sent? A

Yes.

MR. THOMAS:

(Exhibit No. 398 was marked for

identification.)

22 23

All right.

BY MR. THOMAS: Q

It looks like on Exhibit 398 --

MR. POULOS:

Do you have one?

MR. THOMAS:

I'm sorry, John.

It's an

Page 305 1

BY MR. THOMAS:

What is Exhibit 398?

It's an e-mail from Rob Shulman to Greg Diaz.

Steve Monaghan and Kathy Barale are copied.

Indemnification Agreement.

6 7 8 9 10 11 12 13

And tell me about that.

Subject is

Why were you provided

with an indemnification agreement? A

We were not provided with an indemnification

agreement. Q

No.

Mr. Shulman provided you with an

indemnification agreement. A

Yeah, the County drafted an indemnification

agreement.

Why?

Because Aptitude Solutions and the County

agreed to have an indemnification agreement.

Why?

Why did they agree?

I think the bottom line is

the County felt that the way they would be approaching

the migration would be fine and they would be in a

position to indemnify Aptitude if in fact there was some

harm to AtPac.

23 24 25

So was Aptitude -- Aptitude's the one who asked

for an indemnification agreement, right? A

I don't know that for a fact.

Page 306 1 2 3 4

It's possible that the County just volunteered

it for no reason? A

I presume Aptitude asked for an indemnification

agreement.

I don't know that for a fact.

Did you ever talk to --

They did not ask me for an indemnification

7 8 9 10

agreement. Q

And do you know why Aptitude asked for an

indemnification agreement? A

Aptitude felt that -MR. POULOS:

Objection.

Do you know what Aptitude felt?

BY MR. THOMAS:

What were you told, sir?

I'm thinking.

MR. POULOS:

THE WITNESS:

18 19 20

Calls for speculation.

You're speculating. Oh.

Okay.

BY MR. THOMAS: Q

Were you told why Aptitude asked for an

indemnity agreement?

Yes.

What were you told?

MR. POULOS:

Unless you were told by County

Counsel.

don't want you to answer the question.

If you were told by County Counsel, then I

Page 307 1 2 3

THE WITNESS:

Okay.

Can't answer.

BY MR. THOMAS: Q

Other than what you told by County Counsel, you

have no idea why Aptitude asked for an indemnity

agreement.

Well, I have an idea but that's speculation.

Other than County Counsel, did anyone tell you

that Aptitude was concerned that the process you were

proposing, together, to extract data would potentially

infringe AtPac's rights and that's why they wanted an

indemnity agreement?

Huh-uh.

Well, then, why do you think they wanted an --

why do you think Aptitude wanted an indemnity agreement?

15 16

MR. POULOS:

THE WITNESS:

MR. POULOS:

Oh.

I'm sorry.

You need to say -- you need to

answer because it's showing up as uh-huh.

THE WITNESS:

MR. POULOS:

THE WITNESS:

sorry.

BY MR. THOMAS:

said huh-uh.

You didn't get that, right?

Oh.

Okay.

No. What was your last question?

I'm

Why did you understand Aptitude was asking for

Page 308 1

an indemnity agreement?

MR. POULOS:

THE WITNESS:

4 5 6 7

No, I don't want you to. I don't know.

BY MR. THOMAS: Q

Well, you signed the agreement, right,

indemnity agreement? A

Yes.

8 9

What was your speculation?

MR. THOMAS:

All right.

break here and change the tape.

THE WITNESS:

THE VIDEOGRAPHER:

We need to take a

5:06 p.m.

Okay. Going off the record at

End of disc three.

(Recess taken from 5:06 p.m. to 5:12 p.m.)

(Exhibit No. 399 was marked for

identification.)

THE VIDEOGRAPHER:

5:12 p.m.

BY MR. THOMAS:

Back on the record at

Beginning of disc four.

All right.

Yes.

And this is an e-mail that you wrote to

Do you have Exhibit 399, sir?

Mr. Shulman; yes?

Yes.

On January 7, 2009?

Yes.

Page 309 1 2

And it looks like it has an attachment.

see the indemnification agreement attached it to?

Yes.

And it says:

Do you

Rob, thanks for the agreement.

We made a couple of revisions.

Thanks.

Greg.

Do you see that?

Yes.

You wrote that?

Yes.

Who's "we"?

Couldn't tell you.

Were you with Tom McGrath that week?

I don't know.

Did Tom McGrath have input into this agreement,

to your knowledge?

I don't know.

Okay.

18 19 20

And did you participate then in making

changes to the indemnification agreement? A

It appears that I did.

I said that we made,

yeah, uh-huh.

And what changes did you make?

I'm trying to see.

I don't want to do a red line comparison right

now, but if you can quickly see a change.

know, the answer is you don't know.

If you don't

Page 310 1

MR. POULOS:

Do you -- if you have one --

MR. THOMAS:

No.

THE WITNESS:

Exhibit 398 and 399.

BY MR. THOMAS: Q

All right.

about this?

changes?

I don't see the change between

You don't see any changes.

How

Without further study, you don't see any

No.

Okay.

All right.

What I want you to do,

though, is look at the exhibit attached to 399.

Do you have that in front of you?

Yes, uh-huh.

Why don't we look at Paragraph C.

Actually,

you can open up the other one as well, focus just on

Paragraph C, in the "whereas clauses."

Do you see that?

Paragraph C, yes.

All right.

21 22

just thought maybe you knew.

It's not a trick question.

And can you read that into the

record from Exhibit 399? A

"Aptitude Solutions, Inc. can accomplish a

conversion if the County extracts the data from AtPac's

CRiis system data files and puts the data into flat

files without in any way using AtPac's definition or

Page 311 1

schema information and without using or preserving

AtPac's tables and their current format for future use."

Okay.

When you saw this, did it concern you at

all that Tom McGrath has written you an e-mail, more

than a month before, telling you he had seen AtPac's

data schema?

Again, I didn't put that together.

But you remember that e-mail now?

Yes.

And that didn't concern you?

No.

Because you didn't put the two together?

No.

14 15

More because of my reliance on the County

and the County IT people. Q

Well, when you say your reliance, you knew that

the County and the County IT people had allowed Tom

McGrath to see AtPac's data schema because Tom McGrath

said that to you in an e-mail, right?

Right.

And Paragraph C is what I was relying

upon when the County, Steve Monaghan, first came to me

suggesting we can do this extraction without a

professional services contract.

But now looking at this Paragraph C --

Yeah.

-- where it says AtPac (sic) Solutions can

Page 312 1

accomplish the conversion if the County -- that means

the County of Nevada, right?

Correct.

-- extracts the data from AtPac's CRiis system

data files --

Uh-huh.

Do you see that?

Uh-huh.

And when it says "extracts the data," you

understand that to be referring to extracting data

elements?

Uh-huh.

"Yes"?

Yes.

And so you understand that the agreement was

that the County would extract data elements --

Uh-huh.

-- from AtPac's CRiis system data files --

Right.

-- right?

And you understood that the

arrangement was that the County would not provide the

data files themselves to Aptitude.

That was my understanding, correct.

And you understand that was the arrangement

that was represented to the Board of Supervisors when

Page 313 1 2 3

they approved the indemnity agreement, right? A

Represented to me and to the Board of

Supervisors, yes.

And represented by who?

That's correct.

And then it says that the County, after

Steve Monaghan?

extracting the data elements from AtPac's data files,

would put those data elements into flat files.

9 10

That's what this means, right? intent.

11 12 13

MR. POULOS:

Objection.

Vague.

Lacks

foundation. THE WITNESS:

Yes.

BY MR. THOMAS:

with 399.

20 21

Vague, but go ahead.

That's what you understand this to mean, right?

16 17

Objection.

BY MR. THOMAS:

14 15

That was the

Okay.

That's Exhibit 399.

Okay.

Now, can you open Exhibit 41?

I'm done

Do you have

Exhibit 41?

Yes.

You see there's a series of e-mails on

24 25

Exhibit 41. Sir, you see that from Kathy Barale to Phil

Page 314 1

Russ?

Yes.

And Kathy Barale was the project manager for

the migration at some time after Ms. McCluskey

transitioned out.

Yes.

You knew that, right?

Yes.

And so on June 18th, 2009, you understood Kathy

Barale was a project manager for the Nevada County

migration to Aptitude Solutions software.

Yes.

Okay.

that?

Yes.

And he's another IT person --

Yes.

-- at the County?

Yes.

And it says, in this e-mail -- can you read

And she's writing to Phil Russ.

that into the record?

MR. POULOS:

Which e-mail?

MR. THOMAS:

The top e-mail.

THE WITNESS:

You see

"I copied the AtPac dot dat files

onto the Aptitude support server, AS-Nevada, as dot txt

Page 315 1

files.

needed and the names they would like them copied to.

I'm not sure what you are referring to regarding

extraction of the data into tables.

would have extracted the data and placed into tables

since that was a large part of the activity Aptitude had

been working on for the past six months and we opted to

use them for that service."

BY MR. THOMAS:

I was given the names of the dot dat files they

Okay.

I do not know how I

Does that e-mail concern you at all in

view of the representation made to the Board Of

supervisors in the indemnity agreement?

MR. POULOS:

THE WITNESS:

Objection.

Vague.

Yes, but I was not privy to this

e-mail on June 18th, 2009.

BY MR. THOMAS:

And why does that concern you?

What concerns me is the first sentence that

AtPac dot dat files were copied onto the Aptitude

support server which seems to conflict with Paragraph C

of the indemnification agreement.

conflict?

in which the County was supposed to extract data from

the AtPac data files.

And then doesn't the next paragraph also Paragraph C of the indemnity agreement is one

Page 316 1

Yes.

The County was supposed to do the extraction.

Yes.

Not Aptitude.

I understand that.

And this e-mail, from Ms. Barale, Exhibit 41,

makes very clear that she did not do the extraction of

the data from the data files.

MR. POULOS:

document.

BY MR. THOMAS:

12 13

Aptitude did.

Objection.

Misstates the

Do you see that in this e-mail?

You understand

that, right?

MR. POULOS:

THE WITNESS:

concerned about this.

privy to this correspondence at that time.

BY MR. THOMAS:

Compound. You previously asked me if I was I said yes, but I was also not

Did you understand, as of June 2009, that the

County had, instead of extracting data elements from

AtPac data files, instead had given the data files to

Aptitude so that Aptitude --

No.

-- could extract the data elements?

know that?

Did you

Page 317 1

No.

Does that concern you, sir, given the promises

you made to AtPac and the representations you made to

the Board of Supervisors?

5 6

MR. POULOS: foundation.

7 8

Objection.

Compound.

Lacks

Vague and ambiguous.

THE WITNESS:

Yes.

BY MR. THOMAS:

Why does that concern you?

Seems to conflict with Paragraph C in the

11 12 13

indemnification agreement. Q

Well, when you say "seems," of course, it

conflicts.

14 15

MR. POULOS: executed?

Let me ask:

Was this ever

Do we know?

MR. THOMAS:

Oh, yeah.

MR. POULOS:

The indemnification agreement?

You got a final version?

MR. THOMAS:

(Exhibit No. 400 was marked for

identification.)

MR. THOMAS:

THE WITNESS:

MR. POULOS:

BY MR. THOMAS:

Yeah.

In fact, I'll try to --

Okay. I never got a copy of this stuff. I don't know why --

Page 318 1

Sir, do you have Exhibit 400?

Yes.

Okay.

This is a letter written from me to Wayne Long

And what is this document, Exhibit 400?

and Kirk Weir indicating that the County will be

extracting the County's official records and clerk

records data from AtPac's CRiis system data files.

8 9

All right.

And that's your signature on this

letter?

Yes.

And this is the letter you sent AtPac?

Yes.

Okay.

And you also provided this letter to the

Board of Supervisors, did you, in connection with the

indemnity?

16 17 18

Do you know?

I don't know if I did or not.

If it said that

I did, then I guess I did. Q

Now, in this letter, why did you not tell AtPac

that you had already granted Aptitude Solutions a

password to the server housing AtPac software?

MR. POULOS:

THE WITNESS:

Objection.

Lacks foundation.

Didn't feel that it was relevant.

This, this letter was drafted by me, yet it went through

County Counsel before it was sent out, and again, I

relied on County Counsel.

Obviously, they did not see

Page 319 1

the relevance, either, of putting that in there.

BY MR. THOMAS:

Did you tell County Counsel that you had

granted Aptitude a password to the server that had AtPac

software?

MR. POULOS:

question.

BY MR. THOMAS:

9 10

Objection.

Don't answer the

Calls for attorney-client communications.

Well, do you have reason to know that County

Counsel was aware you had done that?

MR. POULOS:

that.

BY MR. THOMAS:

Same objection.

Don't answer

In this particular letter, why did you not tell

AtPac that Aptitude Solutions had already seen the data

file structure of AtPac's data files?

MR. POULOS:

Calls for speculation.

BY MR. THOMAS:

Objection.

20 21

Okay.

Lacks foundation.

I'm going to ask a different question,

sir.

You remember the earlier e-mails where Tom

McGrath discussed comparing the data file structures in

Nevada and Placer Counties, right?

Yes.

Page 320 1

And that was before January 8th, 2009, correct?

Yes.

Why didn't you mention that in this letter to

AtPac?

Didn't think about it.

You concealed it from AtPac, correct?

7 8

MR. POULOS:

Oh, please.

Objection.

Argumentative.

THE WITNESS:

"Concealed" seems to suggest that

I knowingly decided not to offer up that information.

BY MR. THOMAS:

Yes.

And no, that's not true.

Well, you also saw --

Absolutely not true.

Before January 8, 2009, you saw e-mail from Tom

McGrath indicating that he had seen AtPac's data schema.

He used that term.

You remember that e-mail, right?

Absolutely.

Okay.

And in this particular letter, you

specifically say:

or schema information from AtPac.

We are not asking for any definition

Do you see that?

Yes.

That's a letter you wrote to AtPac?

Uh-huh.

Page 321 1

Uh-huh.

In saying that to AtPac, why didn't you inform

AtPac that Aptitude had already seen AtPac's data

schema?

5 6

MR. POULOS:

Objection.

Asked and answered

multiple times.

MR. THOMAS:

I don't think so.

MR. POULOS:

Vague and ambiguous.

BY MR. THOMAS:

Sir?

I don't know.

Just didn't seem relevant at the

time, and obviously, it wasn't relevant to County

Counsel, also, at the time.

14 15

Now, it's also true, sir, that when you

authorized the creation of the account --

Uh-huh.

-- on the ER recorder server --

Uh-huh.

-- that was before the County had ever even

asked AtPac to consider a professional services

agreement --

Uh-huh.

-- regarding the extraction, right?

Correct.

So whatever your criticisms are of AtPac,

Page 322 1

concerning the professional services agreement that was

being negotiated -- you said you had criticism.

said it was stonewalling.

You

Uh-huh.

That had nothing to do with your decision to

give Aptitude a password to the server housing AtPac

software, correct?

8 9

MR. POULOS:

Objection.

Misstates the witness's testimony.

Lacks foundation.

document.

BY MR. THOMAS:

Misstates the

Vague and ambiguous.

Correct?

Correct.

It's your testimony -- when did you first learn

that -- you would agree the County didn't comply with

the promises in the January 8th letter?

17 18 19

MR. POULOS: BY MR. THOMAS: Q

20 21

24 25

True? MR. POULOS:

Calls for a legal conclusion.

Irrelevant.

22 23

Objection.

THE WITNESS:

The question again, please?

BY MR. THOMAS: Q

You would agree the County did not do what it

promised AtPac it would do in the January 8th, 2009

Page 323 1

letter, correct?

MR. POULOS:

THE WITNESS:

Same objection. I don't know that.

BY MR. THOMAS:

Well, you saw Ms. Barale's e-mail; yes?

Uh-huh.

And she says that Aptitude extracted the data.

You saw that, right?

MR. POULOS:

Where -- where does it say that?

MR. THOMAS:

Well, she said they used Aptitude

to extract data.

MR. POULOS:

Where is that?

MR. THOMAS:

I'll find it for you, John.

you look at -- it says -- I'm not sure.

that?

MR. POULOS:

THE WITNESS:

18 19 20 21 22 23

Do you see

Yeah, I do see that. Uh-huh.

BY MR. THOMAS: Q

Let's read that into the record, sir. MR. POULOS:

We've already done that, so we're

not going to do that again, but go ahead. MR. THOMAS:

She says:

I do not know how I

would have extracted the data --

MR. POULOS:

Uh-huh.

MR. THOMAS:

-- and placed it in the table

Page 324 1

since that was a large part of the activity Aptitude

have been working on for the past six months.

3 4

MR. POULOS:

Yeah, but it doesn't say that

Aptitude extracted the data.

MR. THOMAS:

Are you testifying?

MR. POULOS:

No.

I'm trying to figure out if I

was missing something that you were representing.

THE WITNESS:

You're reading from an e-mail

that I never saw, was never copied, and what I saw, if

you look down the string of e-mails, what was relevant

to me is the last e-mail on this page, or the e-mail

dated June 11th from Alana to me, Greg:

of our data from your County and txt files.

were sent and we had no ability to view the table

structures.

difficult as it was.

were not sent in any tables.

directly to us in folders.

was privy to.

made in the indemnification agreement.

BY MR. THOMAS:

24 25

No tables

It was this fact that made the conversion as

We received all

Same thing with the images.

They

The images were sent This was the information I

This does not conflict with the promises

So that's nonresponsive to my question. You were concerned about the first paragraph

and the second paragraph of Ms. Barale's e-mail?

Page 325 1

Today.

When you read it today?

Today, when I read them today, sure, that would

concern me.

And you would agree her statements conflict

with the information Aptitude was providing you in the

bottom of the e-mail chain; yes?

Yes.

Okay.

Yes.

All right.

Yes. Now, when did you actually enter

into the indemnity agreement with --

13 14

That was a "yes"?

I don't recall the date the board approved this

indemnification agreement.

Does January 13th sound about right to you?

Again, I don't recall.

Okay.

that?

me.

Let's turn to Exhibit 246.

MR. POULOS:

246.

MR. THOMAS:

Yeah.

THE WITNESS:

24 25

Do you have

I mean you don't, I know, but if Dave could help

It's in the ballpark.

Thank you.

BY MR. THOMAS: Q summary.

Tell me what Exhibit 246 is, sir.

Just

You don't have to read the whole thing.

Page 326 1

It appears to be an e-mail from Alana Wittig to

Gloria Coutts about the Nevada County indemnification

agreement.

4 5 6 7

And down below, what do you see?

Is there

another e-mail below that? A

I see an e-mail from Gregory Eckstein to Alana

Wittig.

And can you turn to the attachment?

Uh-huh.

I'd like you to just confirm, if you know,

whether this is the official Nevada County indemnity

agreement with Aptitude Solutions bearing your

signature.

Yes, it appears to be.

Okay.

And Paragraph C of the official

agreement, you see that?

Yes.

That also says Aptitude Solutions, Inc. can

accomplish the conversion if the County -- that's County

of Nevada, correct?

Yes.

-- extracts the data from AtPac's CRiis system

data files --

Uh-huh.

-- and puts the data into flat files.

Page 327 1

Uh-huh.

And that's the same as the exhibit, Paragraph C

in the draft we looked at earlier, right?

Yes.

And that is your signature on the bottom of

this indemnity agreement?

Yes.

Did you ever talk with Mr. Miller about whether

or not the defendants were liable in this case?

10 11

MR. POULOS: conclusion.

12 13

Objection.

Calls for a legal

Go ahead.

THE WITNESS:

Yes.

BY MR. THOMAS:

And what was your discussion?

The discussion was there could have been an

unauthorized look at AtPac's proprietary data.

When?

Don't know.

And who said that?

Very high level conversation.

Him or you or both of you?

I'd say I think I said it and I think Paul said

Don't know.

it as well, so both of us.

Okay.

Because it appears there could have been an

And why did you say that?

Page 328 1

unauthorized look at AtPac's data.

By who?

Don't know.

When?

Don't know.

Who told you that?

May have been Kathy Barale.

And why did it appear to you there may have

9 10

been an unauthorized look at AtPac's proprietary confidential data?

MR. POULOS:

witness's testimony.

THE WITNESS:

Barale.

BY MR. THOMAS:

Objection.

Misstates the

I think hearsay from Kathy

So Ms. Barale told you she believed there could

have been an unauthorized look at AtPac's proprietary

data?

I believe it was Kathy, yes.

Okay.

And what did she say in that regard,

specifically?

Just that.

Did she tell you why she thought that?

No.

Was that after?

Page 329 1

Or maybe she did.

Maybe it was about some

logs, I guess, people you can find out who accessed

what, when.

I think that was --

Okay --

-- sort of the premise of what she was saying

to me.

And when did she tell you that?

I don't know.

What did Mr. Miller say?

Did he agree with

you?

He thought there might have been, yeah, uh-huh.

And why did he think there might have been?

I have no idea.

14 15 16

I -- well, I don't want to

speculate. Q

As you sit here today, you believe there was an

unauthorized look at AtPac's proprietary data, correct?

MR. POULOS:

Calls for a legal conclusion.

19 20

THE WITNESS:

Objection.

Lacks foundation.

I wouldn't be surprised.

BY MR. THOMAS:

Why wouldn't that surprise you?

Because of my earlier conversations with Kathy

23 24 25

Barale. Q

Has anyone told you that Dan Evers testified

that on November 4th, Nevada County allowed Tom McGrath

Page 330 1

and Patty Sandever to come into Nevada County IT

department and sit in a windowless locked room, logged

into both AS-Nevada and ER recorder for several hours

without anyone --

No.

-- attending them?

No.

MR. POULOS:

THE WITNESS:

10 11 12

Objection.

Compound.

No.

BY MR. THOMAS: Q

Has anyone told you that -- well, strike that.

You've already answered that.

Do you have exhibit number --

November 4th --

Yeah, 2000 --

-- '8.

That's right.

Election day.

Yeah.

I don't recall anyone from Aptitude being on

21 22 23

Exactly.

the premises of the County on election day. MR. THOMAS:

Uh-huh.

Could we mark that next

in order, please?

MR. POULOS:

/////

You had nothing better to do.

Page 331 1

(Exhibit No. 401 was marked for

identification.)

MR. THOMAS:

What is this?

MR. POULOS:

402.

MR. THOMAS:

Oh.

THE REPORTER:

Let's go off the record.

401?

402?

401. I don't want to do

this on the record.

THE VIDEOGRAPHER:

5:37 -- sorry -- 5:38 p.m.

Going off the record at

(Exhibit No. 402 was marked for

identification.)

THE VIDEOGRAPHER:

5:39 p.m.

BY MR. THOMAS:

Back on the record at

you, sir?

Yes.

And this is an e-mail you received from Paul

All right.

Do you have Exhibit 401 in front of

Miller?

Yes.

And you received this -- you're sure you

received this from Mr. Miller --

Yes.

-- January 14th; yes?

Page 332 1

Yes.

It says:

through."

Uh-huh.

He's talking about the indemnity agreement?

Yes.

How is it that you shepherded through the

"Greg, thank you for shepherding that

indemnity agreement and yet were never told by Aptitude

why they wanted it?

MR. POULOS:

foundation.

BY MR. THOMAS:

Doesn't that seem odd to you? Objection.

Argumentative.

Lacks

Calls for speculation.

Well, let me back up.

So --

You testified that Aptitude never told you why

they wanted the indemnity agreement, correct?

You know, it went through County Counsel.

Did you shepherd it through?

Sure.

And then it says:

"With this, we will begin in

earnest the conversion effort."

Do you see that?

Yes.

You understood that Aptitude was unwilling to

proceed until it received the indemnity agreement.

Page 333 1

Oh, yes, uh-huh.

Why was that?

MR. POULOS:

THE WITNESS:

Objection.

I -- they wanted this

indemnification agreement.

BY MR. THOMAS:

Calls for speculation.

Who else did you talk to, other than

Mr. Miller, about the belief that there may have been a

view of AtPac's proprietary data by Aptitude?

County Counsel.

Anyone else?

Kathy Barale, County Counsel.

Tom McGrath, did you ever talk to him about

that?

No.

All right.

have that?

have it.

Yeah, that's it.

Let's turn to Exhibit 402.

Did I hand that to you already?

Do we

Oh.

You

Do you have 402 of in front of you?

Yes.

And what is this, sir?

It's an e-mail from me to Tom indicating the

indemnification agreement was ratified by the Board:

Sent you and Paul an e-mail yesterday and your e-mail

was sent back as being undeliverable.

I therefore

Page 334 1

called and left a message yesterday; left a message

today on your cell phone.

yesterday.

additional information, please let me know.

we can jump on this.

6 7

If you have any questions or require Hopefully,

Has the County paid Aptitude the $229,000

listed in the contract?

When?

Ever.

Yes.

Okay.

I also called Patty

And the County's also paid how many

yearly maintenance fees, the $25,000 maintenance fees?

Must be, I think, twice.

So $50,000 in maintenance fees paid to Aptitude

from Nevada County?

Correct.

Now, is it your understanding that after

June 30th -- strike that.

19 20

Your testimony is that the County continued to use AtPac software through the end of June 2009.

Correct.

And after that date, you're aware that there

was a period of time where the County had refused to

allow AtPac to delete and remove the data files from the

County's servers.

You understand that, right?

Page 335 1

No, I don't at all.

Really?

Never heard that.

Have you ever read the complaint in this case?

The complaint from whom to whom about what?

From me to the United States District Court

I have never heard that.

complaining about you on behalf of AtPac, a complaint, a

lawsuit.

Have I read the lawsuit?

Yeah.

Yeah, I think maybe real quickly.

12 13 14

I don't

think I -Q

Do you know one way or the other whether the

County removed --

You were complaining to me about what?

I never complained to you about anything, sir.

You just said --

I might have misspoken.

If I did, I didn't

mean to say what you think I said.

Are you aware, one way or the other, whether

the County removed AtPac's computer software immediately

after the end of the AtPac contract with Nevada County?

Do you know?

No.

You don't know?

Page 336 1

I can tell you what I do know.

What do you know?

I know that the County called AtPac and they

were to agree on a date so AtPac could come and oversee

the removal of the AtPac files.

And who told you that?

I think it was Steve Monaghan and Kathy Barale.

Okay.

And -- but you don't know when that was,

do you?

No, I don't know when that was.

Okay.

So you're not able to confirm that that

happened before the end of June 2009, for example?

No, it was after June --

Okay.

-- 30th, 2009.

Are you aware of any facts to suggest that

anyone from the County ever wrote to Aptitude -- strike

that.

Are you aware of any facts or evidence that the

County wrote to AtPac to confirm that the County had

deleted AtPac's computer software from the County

system?

that?

Did the County ever write to AtPac to tell it

MR. POULOS:

contention question.

Objection.

Inappropriate

Vague, ambiguous.

Page 337 1

THE WITNESS:

MR. THOMAS:

I don't know. I don't know how much time we have

but maybe when there's a little bit more left, I'd like

to take a break and confer with you about --

MR. POULOS:

I think you got 20 minutes.

MR. THOMAS:

Okay.

I have one of those things

I want to authenticate that we talked off -- not to

him -- off the record.

Do you have the first binder with exhibits one

through 80-some-odd?

I'm interested in is Exhibit 33, John.

Can you get those, please?

MR. POULOS:

43?

MR. THOMAS:

33, please.

MR. POULOS:

33.

What

BY MR. THOMAS:

All right.

Yes.

And you see this is an e-mail from Richard

Do you have Exhibit 33, sir?

Sandblade --

Yes.

-- on June 8th, 2009?

Yes.

And you received this e-mail; yes?

Yes.

All right.

And can you please read into the

Page 338 1

record the second -- first sentence of the second

paragraph written by Mr. Sandblade?

"I would like you to please confirm that you

are not providing the dot dat files to Aptitude

Solutions."

6 7

Okay.

And you were -- you received that

information on June 8th, correct?

Yes.

And what did you do with that information?

I don't remember.

What steps did you take to confirm that Nevada

County was not providing dot dat files to Aptitude

Solutions?

I don't remember.

Do you see the next sentence?

It says:

"The

format of these files is the intellectual property of

AtPac."

Yes.

"And the sharing these files with any

organization outside of AtPac" --

Yeah.

Excuse me -- "outside of Nevada County without

the prior written concept of AtPac is strictly

prohibited," exclamation point.

Did I read that correctly?

Page 339 1

Yes.

And what did you do to confirm that Nevada

County was complying with AtPac's request there, if

anything?

I just don't remember.

We -- I don't know if I

called a meeting with Steve Monaghan or not.

Let's turn to the next exhibit.

Yeah.

Do you have Exhibit 34 in front of you?

Yeah, uh-huh.

All right.

Oh.

Is this an e-mail that you wrote?

I guess we did have a meeting, yeah.

So I

knew -- I knew this was very alarming to me and I was

concerned about that.

Why was it alarming to you?

We had an indemnification agreement and we laid

out how we were going to extract this data.

conflicts with the paragraphs in the indemnification

agreement, so it was concerning, so I did call a

meeting.

This

Well, actually, Mr. Sandblade's statement that

he wants you to confirm you're not providing the dot dat

files to Aptitude --

Yes.

-- that's actually what you promised to do in

Page 340 1

the indemnity agreement and the letter to AtPac, right?

You promised not to give Aptitude the data files.

Correct.

And Mr. Sandblade merely wanted confirmation

that the County was doing what it promised, right?

Correct.

So why did that concern you, because at the

time --

Well -- I'm sorry.

At the time, did you believe the County was not

11 12 13 14 15

complying with its agreement? A

When I saw this e-mail, I wanted to have a

meeting to try to get the facts. Q

Well, at the time you saw this e-mail, did you

already know the County was providing --

No.

-- AtPac's data files to Aptitude Solutions?

No.

So why did this e-mail concern you, Exhibit 33,

20 21 22 23

No.

if you felt the County was in compliance? A

I had not heard that or seen any correspondence

that the County was not in compliance until I saw this. Not having any correspondence, evidence,

hearsay, that the County was not in compliance led me to

believe that the County was in compliance until I saw

Page 341 1 2

this e-mail. Q

All right.

So looking at Exhibit 34, you had

had -- you had an urgent impromptu meeting, according to

your e-mail, Exhibit 34.

5 6

Can you turn to Exhibit 34, please?

Let me ask you this:

Yes.

Okay.

And what was the subject of the meeting?

The e-mail from Richard Sandblade?

Yes.

Okay.

Protected --

And what was the discussion?

MR. POULOS:

THE WITNESS:

17 18

Did you send Exhibit 34,

the e-mail?

What discussion? The discussion to address this

e-mail. MR. POULOS:

Well, you're not to reveal

conversations with County Counsel, but go ahead.

if you can reveal without...

21 22

THE WITNESS:

I mean

The subject of this meeting was

are the allegations by Richard Sandblade true.

MR. POULOS:

THE WITNESS:

And

what was the substance of the urgent impromptu meeting?

7 8

Okay.

Who was in the meeting? This is who it was sent to and I

think Mike Jamison, Kathy Barale.

I know Steve and Phil

Page 342 1

were there.

MR. POULOS:

THE WITNESS:

MR. THOMAS:

All right.

MR. POULOS:

Ask a different question then.

I'm not sure about Debra Russell. So --

BY MR. THOMAS:

7 8

Okay.

Well, do you know if there was any conclusion

reached at the meeting?

MR. POULOS:

Well, same objections.

If it's a

conclusion that was reached from legal counsel, you

can't reveal that.

BY MR. THOMAS:

13 14

So you're not going to testify about what was

discussed at that meeting?

Huh-uh.

You're going to follow his instruction not to

testify about the meeting?

18 19

I'm going to follow my attorney's instructions?

Yes.

I just have to confirm that on the record.

Yes.

It's not that I don't believe you.

Okay.

Let's turn to Exhibit 35.

Did you send

that -- or did you receive that e-mail, Exhibit 35, from

Steve Monaghan?

Page 343 1 2 3

It appears that I did, and I actually remember

this, uh-huh. Q

And can we turn to Exhibit 36?

Can we -- can

you confirm that you received that e-mail from Phil

Russ?

Yes.

Okay.

Don't remember it but it looks like I did.

And do you remember the earlier e-mail where

Ms. Barale said she copied the dot dat files to the

Aptitude server and renamed them as txt files?

13 14 15

MR. POULOS:

Yeah.

You can look at it.

THE WITNESS:

Go back to Exhibit 41.

BY MR. THOMAS:

MR. POULOS:

Lacks foundation.

Do you remember Exhibit 41?

Objection.

BY MR. THOMAS:

16 17

Yes.

Does it say that? Uh-huh.

BY MR. THOMAS: Q

Can you read that, just so we have a

foundation, of the first sentence of Exhibit 41?

MR. POULOS:

It doesn't say renamed.

MR. THOMAS:

That's fine.

Page 344 1

THE WITNESS:

Again, this is an e-mail that I

was not privy to until today.

BY MR. THOMAS:

4 5 6

I understand.

What does the first sentence of

exhibit -A

"I copied the AtPac dot dat files onto the

Aptitude support server in, parentheses, AS dash Nevada,

as dot txt files."

Okay.

And I'll represent to you she testified

that she just renamed them and didn't change them in any

way, okay?

Assuming that's true, that she did that, which

is what she testified to, would that concern you, sir,

given the promises made to AtPac?

Yes, it would.

Why?

Because it's contrary to what we wrote in the

18 19 20 21 22

indemnification agreement. Q

And it's contrary to the letter you wrote to

AtPac on January 8th, 2009, correct? A

It's also contrary to that letter, that's

correct.

MR. THOMAS:

record for a moment?

we're pretty close to being at least done for today.

All right.

Can we go off the

I can regroup because I realize

Page 345 1

We'll agree to disagree on whether I can finish today

but can we regroup and let me just sort of figure out

what I've got?

that be okay?

We can talk about authentication.

MR. POULOS:

Would

What I'd rather do is let, you

know, let him go, finish your questions with him, and I

will represent to you, on the record, that I'll enter

into a similar stipulation that I did with you with the

prior witness, Ms. McCluskey, as to documents received,

you know, that were produced by the County, you know, to

receive, that kind of thing, on authenticity.

MR. THOMAS:

Okay.

MR. POULOS:

It's a better use of the witness's

I appreciate that.

time, and frankly, your time, because I'm not going

to -- where there's no indication -- in my view, you

know, there's no basis to litigate or dispute

authenticity where there's no indication that something

is other than it purports to be.

courtesy from you when the time comes.

BY MR. THOMAS:

21 22 23

I'll expect the same

May I have you look at Exhibit 40, please?

And

what is Exhibit 40, sir? A

It's an e-mail from Kathy Barale to Frank

Barnes, and Alana Wittig and Debra Russell are copied.

The subject is AtPac file.

Page 346 1

Okay.

"I have copied the image dot dat file to C,

What does the first sentence say?

colon, back slash, ER, dash, recorder, underscore,

files, back slash, 20090616 on AS dash Nevada.

there additional problems with any of the image's files

previously copied?"

All right.

Are

Did that concern you given it

indicates that AtPac dot dat file being copied to the

Aptitude server?

MR. POULOS:

THE WITNESS:

Objection.

Vague.

I have never seen this e-mail

before today, and if I'm reading this -- well,

obviously, I'm reading it right now -- I wouldn't know

or assume that AS-Nevada was the Aptitude server.

BY MR. THOMAS:

Okay.

As a matter of fact, I thought AS-Nevada was

the County's server.

AS-Nevada's the server that was scrubbed.

It was the County server, right?

I don't know.

Of course, it was the County server.

So the County scrubbed its own server.

24 25

your testimony? A

Well, that's my understanding.

That's

Page 347 1 2

All right.

Sir, I would like to -- may I just

take a moment --

MR. POULOS:

Sure.

MR. THOMAS:

-- to look at a few things off the

MR. POULOS:

That's fine.

THE VIDEOGRAPHER:

(Recess taken from 5:57 p.m. to 6:02 p.m.)

THE VIDEOGRAPHER:

record?

6:02 p.m.

BY MR. THOMAS:

Off the record at 5:57 p.m.

Back on the record at

Sir, placing before you -- I don't -- I'd just

like to know:

handwriting?

Are those your notes?

Is that your

Huh-uh.

If not, you can just hand it back to me.

No, it doesn't look like my handwriting.

Thank you, sir.

19 20

How about -- I've given you

another exhibit. A

Huh-uh, no. MR. POULOS:

Why don't you just show him all of

them and see if he recognizes any of them.

BY MR. THOMAS:

24 25

Q yours.

There's only two more. You tell me, sir.

I think maybe that's

Page 348 1

This looks like my handwriting --

Okay.

-- here.

Do you know whose it is?

No, I don't.

Okay.

Sure.

This is not my handwriting here.

May I see that, sir?

(Exhibit No. 403 was marked for

identification.)

10 11

BY MR. THOMAS: Q

So Exhibit 403, sir, could you just thumb

through that and confirm this is all of your

handwriting?

Yes, it looks like my handwriting.

Okay.

My personal notes.

All right.

MR. THOMAS:

(Exhibit No. 404 was marked for

identification.)

All right.

Thank you, sir.

BY MR. THOMAS:

Take a look at Exhibit 404.

Yes.

And this is an e-mail you received from Mike

24 25

Jamison; yes? A

Yes.

Do you have that?

Page 349 1 2

And this refers to the issue raised by Richard

Sandblade that you were addressing with counsel, right?

I believe so, yes.

Okay.

And did Mr. Monaghan ever tell you that

he believed the County has violated Section 2.2 of the

AtPac Nevada County contract?

8 9

Mr. Monaghan never -- oh. MR. POULOS:

I'm going to object if that was in

the presence of counsel.

If there was any such

discussion, I would ask you not to reveal that

conversation, but you can go ahead and answer with that

admonition.

THE WITNESS:

Steve Monaghan never told me that

he thought the County violated 2.2.

BY MR. THOMAS:

16 17

And did Mr. Jamison ever tell you that

in the context of writing you this e-mail?

18 19

Okay.

MR. POULOS:

Don't answer the question.

BY MR. THOMAS:

You received Exhibit 404 from Mr. Jamison; yes?

Yes.

And can you look at Exhibit 42 in your binder?

And did you send Exhibit 42?

Did I --

Send Exhibit 42?

Page 350 1

Yes, it looks like it.

And this is referring to the issue raised by

Richard Sandblade --

Uh-huh.

-- again?

Yeah, it appears so, yes.

Okay.

My thoughts are if AtPac makes no more mention

And what did you say?

of this, we make no more mention of this.

If AtPac does

inquire again, we follow your suggestions as outlined in

your e-mail.

Did you ever tell Richard Sandblade, in

response to his e-mail, that the County had in fact

provided dot dat files to Aptitude?

No.

Do you know if anyone else did?

I don't know.

Did you make an effort to communicate with

AtPac to tell it the County had done that?

No.

Why not?

Didn't occur to me to do it.

e-mail's pretty clear.

no foul, no harm.

address it.

I think this

My position is if -- no harm --

If there is a foul, then we'll

Page 351 1 2 3 4 5

But you never told AtPac that there was a foul,

right? A

Because -- because I'm not really sure and

County Counsel wasn't really sure if there was a foul. Q

But you knew that Richard Sandblade wanted to

know -- he wanted the County to confirm that it was not

providing dot dat files --

Right.

-- to Aptitude.

Right.

And you learned the County was providing dot

dat files to Aptitude.

13 14

MR. POULOS:

Objection.

Misstates the record

and the testimony.

THE WITNESS:

No, because there's this e-mail

from Alana Wittig which seems to suggest that they

received all of the data from the County in txt files.

BY MR. THOMAS:

Right.

No tables were sent.

21 22 23 24 25

And you also -We had no ability to view

the table structure. Q

But you also saw the e-mail from Ms. Barale

that said she copied the dat files as txt files. A

And I saw that e-mail today.

that e-mail on June 18th, 2009.

I did not see

Page 352 1

Okay.

Understood, sir.

Now, I follow.

All right.

(Exhibit No. 405 was marked for

identification.)

5 6 7

BY MR. THOMAS: Q

Sir, I'd like you to look at Exhibit 405.

Yes.

Okay.

And at the bottom half of the page is an

e-mail from Debra Russell to you.

11 12

you have that?

I'm done with 42.

Do you see that? A

No.

There's an e-mail from Debra Russell to

Dave Krugle where I was cc'd.

Okay.

I don't see an e-mail from Debra Russell to me.

Fair enough, sir.

Did you receive that cc

e-mail?

Yes.

And this is informing you that Mr. Weir had

written to the County asking for AtPac to ensure that

the CRiis and other software licensed from AtPac has

been removed from the County servers.

23 24 25

Could you repeat your question again?

I'm

sorry. Q

You understood this was letting you know, at

Page 353 1

least copied you on a correspondence, where you're

informed that AtPac was the one who had written to the

County asking to remove its software from the County's

servers, right?

No.

It's when I read this e-mail, I see it to

read that it was Debra's understanding, my assistant at

the time, that AtPac would like to visit our office to

ensure that CRiis and other software licensed from AtPac

has been removed from all servers.

I don't know how that came to be.

This

certainly doesn't say that AtPac wrote a letter to set

up a visit to the office.

Well, what does --

It just says AtPac would like to visit our

15 16 17 18 19 20

office. Q

Per the letter -A

Per the letter from Mr. Weir to our office.

Yeah, you're right. Q

21 22

And what does the first part of the e-mail say?

Yeah, uh-huh.

You're not aware -- strike that. So this informed you that AtPac had asked to

come to the County to remove its -A

Yeah, I think I mentioned that, too, in earlier

testimony, it was my understanding that AtPac was going

to coordinate with the County to come to remove their

Page 354 1

software --

And did they?

-- after June 30.

Did anyone -- did anyone tell you that AtPac

5 6

tried to do that on June 30th? A

Well, this says right here:

Would you be

available on Tuesday, June 30th for this inspection.

not, and then Dave Krugle said to Debra, Tuesday,

June 30th works for me, so...

Do you know what happened on June 30th?

No.

MR. THOMAS:

(Exhibit No. 406 was marked for

identification.)

MR. POULOS:

This is it?

MR. THOMAS:

Yeah.

19 20 21 22 23

Okay.

Are we done here?

Let's put our little -- can

we put our stipulation on the record?

MR. POULOS:

Yeah.

BY MR. THOMAS: Q

Can you just authenticate this exhibit that's

in front of you, sir? A

It's an e-mail from Mike Jamison to me. MR. THOMAS:

All right.

Counsel and I have

reached an agreement that there's many, many, many

pieces of correspondence here in the deposition room

Page 355 1

that I would like to ask you questions about; at a bare

minimum, have you confirm that they're e-mails you

either sent or received or letters you can authenticate

as being genuine.

We've stipulated we're going to do that off the

record and perhaps add them as exhibits to the

deposition but maybe not.

8 9

MR. POULOS:

We don't have to do that.

Yeah.

I just want to make sure

that we let Mr. Diaz go.

MR. THOMAS:

Yeah.

MR. POULOS:

And then as I did with

Ms. McCluskey, e-mails, documents that were produced by

the defendants that bear Mr. Diaz's name, as either

something he created or received, I'm willing to

stipulate to the authenticity of those documents, and we

can, at your pleasure, either add them back as

exhibits --

MR. THOMAS:

Uh-huh.

MR. POULOS:

-- or we can enter into a

stipulation that you can use at trial.

care.

(Clarification by reporter.)

MR. POULOS:

24 25

Or we can enter into a stipulation

that you may use at trial. MR. THOMAS:

I don't really

I don't have a preference.

We'll figure that out off the

Page 356 1

record.

MR. POULOS:

Yeah.

MR. THOMAS:

For now, my intention is to hold

the deposition open because I still have more questions

for Mr. Diaz, but it's getting late today and I agree to

go off the record now.

MR. POULOS:

And obviously, my position is

we're at the seven-hour limit and we'll address whatever

else.

I'm not asking -- you know,k I understand your

position and so we will adjourn for the day.

MR. THOMAS:

adjourn for the day.

Thank you.

MR. POULOS:

Thank you.

THE VIDEOGRAPHER:

6:14 p.m.

proceedings.

17 18 19 20 21 22 23 24 25

We'll agree to disagree and we'll

End of disc four.

Going off the record at End of today's

(The deposition adjourned at 6:14 p.m.)

Page 357 1

--oOo--

2 3

WITNESS' SIGNATURE

4 5

Please be advised I have read the foregoing

deposition, pages 1 through 356, inclusive.

hereby state there are:

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(check one)

______________

no corrections

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corrections per attached

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____________________________________________

GREGORY J. DIAZ

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--oOo--

Page 358 1

WITNESS' CHANGES OR CORRECTIONS

2 3

NOTE:

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If you are adding to your testimony, print the exact words you want to add. If you are deleting words from your testimony, print the exact words you want to delete. Specify with "Add" or "Delete" and sign this form.

Deposition of: GREGORY J. DIAZ Case Title: ATPAC VS. APTITUDE Date of Deposition: May 27, 2011 I, _________________________________, have the following correction to make to my deposition.

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Changes/Add/Delete

Page 359 1

CERTIFICATE OF REPORTER

2 3

I, JOANIE Y. MURAKAMI, a Certified Shorthand

Reporter, hereby certify that the witness in the

foregoing deposition, GREGORY J. DIAZ, was by me duly

sworn to tell the truth, the whole truth and nothing but

the truth in the within-entitled cause; that the

testimony of said witness was taken down in shorthand by

me, a Certified Shorthand Reporter and a disinterested

person, at the time and place herein stated, and that

the testimony of the said witness was thereafter reduced

to typewriting, by computer, under my direction and

supervision.

I further certify that I am not of counsel or

attorney for either or any of the parties to the said

deposition, nor in any way interested in the outcome of

this cause, and that I am not related to any of the

parties thereto.

I hereto declare under penalty of perjury that the

foregoing is true and correct.

hand on June 8th, 2011.

I have hereunto set my

22 23

________________________________________

JOANIE Y. MURAKAMI, CSR NO. 5199