diaz deposition in atpac case

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

ATPAC, INC.,

Plaintiffs,

vs. No. 2:10-CV-00294- WBS-KJM APTITUDE SOLUTIONS, INC., et al., Pages 1 - 359

Defendants. ____________________________/

VIDEOTAPED DEPOSITION OF

GREGORY J. DIAZ

VOLUME I

FRIDAY, MAY 27, 2011

NOTICING ATTORNEY: MICHAEL THOMAS

REPORTED BY: JOANIE MURAKAMI, CSR NO. 5199

1 APPEARANCES2

3 For the Plaintiffs:4 DOWNEY BRAND LLP

BY: MICHAEL J. THOMAS, ATTORNEY AT LAW5 MICHAEL A. SCHAPS, ATTORNEY AT LAW

(a.m. session only)6 621 Capitol Mall, 18th Floor

Sacramento, California 95814-47317 (916) 444-10008

9 For the Defendant:10 Pillsbury, Winthrop, Shaw, Pittman LLP

BY: JOHN S. POULOS, ATTORNEY AT LAW11 2600 Capitol Avenue, Suite 300

Sacramento, California 95816-593012 916.329.470013

14 Also Present:15 MICHAEL SWEET, VIDEOGRAPHER

SACRAMENTO LEGAL VIDEO16

DAVE KRUGLE17

18

--oOo--19

20

21

22

23

24

25

1 INDEX OF EXAMINATION

2 Page No.

3 Examination by Mr. Thomas 7

4 Afternoon Session 174

5 Reporter's Certificate 359

6

7 --oOo--

8

9 INDEX OF EXHIBITS

10

11 NUMBER DESCRIPTION PAGE

12 EXHIBIT 370 Article from campaign website 48

13 EXHIBIT 371 e-mail string, 2 pages 121



16 EXHIBIT 374 e-mail dated 6/13/2008 from Tom McGrath 140

17

EXHIBIT 375 Information Systems Steering18 Board Meeting Agenda,

June 19, 2008, 5 pages 14419

EXHIBIT 376 e-mail sent April 1, 2008 to20 Diaz from Weir with attachment,

5 pages 15621

EXHIBIT 377 e-mail string with attachment,22 10 pages 160

23 EXHIBIT 378 e-mail sent July 29, 2008 from Balzer, with attachments,

24 18 pages 164

25

1 INDEX OF EXHIBITS

2

3 NUMBER DESCRIPTION PAGE

4 EXHIBIT 379 e-mail sent 9/8/2008 from McCluskey with attachment,

5 5 pages 167

6 EXHIBIT 380 e-mail string 174

7 EXHIBIT 381 Resolution No. 08-564, 48 pages 187


9 EXHIBIT 383 e-mail sent November 19, 2008 from McCluskey 203

10

EXHIBIT 384 e-mail string, 2 pages 20511






EXHIBIT 390 e-mail sent November 2, 200817 to Diaz from Sandever 245

18 EXHIBIT 391 Resolution No. 05-44, 21 pages 254


20 EXHIBIT 393 e-mail sent February 13, 2009 from Sandever 284

21


EXHIBIT 395 e-mail sent January 7, 200923 from Shulman 302

24 EXHIBIT 396 e-mail string 303


1 INDEX OF EXHIBITS

2

3 MARKED DESCRIPTION PAGE

4 EXHIBIT 398 e-mail sent January 7, 2008 from Shulman to Diaz, with attachment,

5 2 pages 304


7 EXHIBIT 400 Letter dated January 8, 2009 to Long and Weir from Diaz 317

8



EXHIBIT 403 Handwritten document, 7 pages 34811



EXHIBIT 406 e-mail sent June 18, 200914 to Diaz from Jamison 354

15

16 --oOo--

17

18 UNANSWERED QUESTIONS

19 Page 140, Line 7

20 Page 306, Line 22

21 Page 319, Line 3

22 Page 319, Line 9



25

1 BE IT REMEMBERED that on FRIDAY, MAY 27, 2011

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

3 Offices of Downey Brand, LLP, 621 Capitol Mall,

4 18th Floor, Sacramento, California, 95814-4731, before

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

6 personally appeared

7 GREGORY J. DIAZ,

8 called as a witness, after having been first duly sworn

9 by the Certified Shorthand Reporter to tell the truth,

10 the whole truth and nothing but the truth, testified as

11 follows:

12 THE VIDEOGRAPHER: My name is Michael Sweet. I

13 will be videotaping this proceeding on behalf of

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

15 Sacramento, California.

16 The date is May 27th, 2011. The time on the

17 video monitor is 9:28 a.m. Our location is 621 Capitol

18 Mall, 18th floor, Sacramento, California. We are here

19 in the matter of AtPac versus Aptitude.

20 This is the deposition of Gregory Diaz. The

21 noticing attorney is Michael Thomas. The court reporter

22 is Joanie Murakami of Marcus Deposition Reporter. This

23 is a single-track recording. Overlapping voices cannot

24 be separated. Private discussions on the record will

25 also be recorded.

1 Would counsel please identify yourselves, your

2 firms, and those you represent?

3 MR. THOMAS: I'm Mike Thomas from the Downey

4 Brand Law Firm. I represent AtPac, Inc. I'm here with

5 my colleague, Mike Schaps, and client representative,

6 Dave Krugle.

7 MR. POULOS: John Poulos, Pillsbury firm, for

8 the defendants and the witness Gregory Diaz.

9 THE VIDEOGRAPHER: Would you please swear in

10 the witness?

11 (The witness was then sworn in by the Court

12 Reporter.)

13 EXAMINATION BY MR. THOMAS

14 Q Good morning, sir. Please state your full name

15 and spell it for the record.

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

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

18 Q And what's your current residence address, sir?

19 A 18656 Mustang Valley Place, Grass Valley,

20 California, 95949.

21 Q And how long have you been at that address,

22 approximately?

23 A Nine years.

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

25 set in December of 2011 in this case.

1 Do you plan to be at that address through the

2 end of 2011, at least?

3 A Right now, yes.

4 Q You have no plans to move at the moment?

5 A Not at the moment.

6 Q What's your current work address?

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

8 City, California, 95959.

9 Q And what's at that location?

10 A The Eric Rood Administrative Center. It's the

11 Administrative Center for the County of Nevada.

12 Q And where are you currently employed or where

13 do you work?

14 A I work at 950 Maidu Avenue, Nevada City,

15 California, 95959.

16 Q And you're the elected Clerk-Recorder for

17 Nevada County; is that right?

18 A That's correct.

19 Q And when were you first employed as the

20 Clerk-Recorder for Nevada County?

21 A June 26th, 2007. I'm pretty sure it's 26th.

22 Q And at that point in time, had you been elected

23 or were you appointed?

24 A Appointed.

25 Q Okay. And the Board of Supervisors appointed

1 you?

2 A That's correct.

3 Q And who did you replace, if you know?

4 A Kathleen Smith.

5 Q And then at some point after 2007, you were

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

7 A At some point. The election was June 8th,

8 2010, and I was sworn in January 2011. I think it was

9 January 3rd, 2011 --

10 Q Okay.

11 A -- to begin the term.

12 Q Before beginning work for Nevada County, in

13 September of 2007, where did you work?

14 A Where?

15 Q Yeah.

16 A Unemployed.

17 Q Unemployed. At what business or occupation did

18 you work --

19 A Before that?

20 Q -- before 2007?

21 A Exigent, Inc.

22 Q And what is Exigent?

23 A It's a company that has recorder software,

24 competitor of AtPac.

25 Q This is a software company, Exigent?

1 A Yes.

2 Q Okay. And what was your location of employment

3 for Exigent?

4 A I have no idea. It was in Danville, the

5 office, California. I think it was Danville.

6 Q And when did you last work for Exigent?

7 A That was September 2006.

8 Q So between September 2006 and September 2007,

9 you were unemployed?

10 A No. I got sworn in and appointed on June 26th,

11 2007.

12 Q Okay.

13 A So from September 2006 until June 2007,

14 unemployed.

15 Q Okay. And when did you first start working for

16 Exigent?

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

18 2005 -- I think it was October 2004, and that's just a

19 guess. Don't have my records in front of me.

20 Q Right. Okay. Let me go --

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

22 trying to deceive, or whatever. It's just my best

23 guess.

24 Q Fair enough. And what was your position at

25 Exigent when you first started in approximately

1 October 2004?

2 A Vice president, regional manager, sales.

3 Q You listed three things: Vice president,

4 regional manager and sales?

5 A Uh-huh. Well --

6 Q Were those three different responsibilities you

7 had?

8 A No, it was all the same. You know these

9 companies, it really boils down to sales.

10 Q And sales of what?

11 A Of the recorder software for county recorders.

12 Q And what regions in the country did Exigent --

13 A It was --

14 Q If I may finish?

15 A Uh-huh.

16 Q In what regions of the country did Exigent

17 market its software products?

18 A Nationally.

19 Q And did you have a particular region that you

20 were responsible for?

21 A Western.

22 Q Which included what? What states?

23 A California, Oregon, Washington, Nevada,

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

25 Q Do you know how many customers, approximately,

1 Exigent had while you worked there?

2 A No. I don't have that handy.

3 Q You don't have an estimate?

4 A Huh-uh.

5 Q Do you have an estimate in terms of a range?

6 A In terms of what?

7 Q A range. For example, somewhere between 50 and

8 150 customers or more than 500 customers, something like

9 that? Do you have that ability to estimate?

10 A I would say between 50 and 100.

11 Q All right. Now, have you ever been deposed

12 before?

13 A No.

14 Q Let me explain the process. You probably

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

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

17 You understand you've been given an oath?

18 A Yes.

19 Q And that oath places you under penalty of

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

21 Do you understand that?

22 A Yes.

23 Q And you understand that it would be a crime not

24 to tell the truth in this deposition; yes?

25 A Yes.

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

2 clear record of what's said here today. One thing we

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

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

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

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

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

8 be careful not to start talking until you finished an

9 answer. I will do my best to do that today. There may

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

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

12 the question before you begin providing an answer.

13 Will you do that for me today?

14 A Yes.

15 Q It's also important --

16 A With the same caveat that you have.

17 Q Exactly. We'll do our best.

18 A We'll do our best.

19 Q Thank you.


21 Q And it's also important that the communications

22 we have today be audible because the court reporter

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

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

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

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

2 transcript. So will you do your best to provide audible

3 answers?

4 A Yes.

5 Q Thank you. Is there any reason you can't give

6 your best, most truthful and accurate testimony here

7 this morning and today?

8 A No.

9 Q Okay. There's not any medication or any other

10 substance that would prevent you from understanding my

11 questions clearly?

12 A No.

13 Q Or from answering truthfully and accurately?

14 A No.

15 Q Okay. Do you -- strike that.

16 Did you meet with counsel in preparation for

17 your deposition today?

18 A Yes.

19 Q And who did you meet with?

20 A John Poulos and Meredith Nikkel.

21 Q And when did that meeting take place?

22 A Thursday, May 26th, 2011.

23 Q Which is yesterday?

24 A Yes.

25 Q How long did the meeting last, approximately?

1 A Seven hours.

2 Q During the deposition, I may ask you for events

3 that happened in the past. Pretty much everything I'm

4 going to ask you today is about events that happened in

5 the past and I am entitled to your very best

6 recollection of events or conversations that may have

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

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

9 entitled to whatever your recollection is.


11 A Uh-huh.

12 Q All right.

13 A Yes. Yes.

14 Q Thank you. And you'll provide that to me

15 during this deposition; yes?

16 A Yes.

17 Q Okay. On the other hand, I don't want you

18 making baseless guesses about things, and so if I ask

19 you for information and you have no ability to provide

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

21 want you to do that, either.

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

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

24 recollections, even if they're faint recollections,

25 about events in the past.

1 You'll do that?

2 A Yes.

3 Q In addition, I would ask that you -- strike

4 that.

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

6 reasonable estimates, even if you don't have precise

7 dates, numbers or times about past events.

8 If you have a reasonable estimate about when

9 something happened or what was said or the time frame

10 something occurred in, I'm entitled to reasonable

11 estimates.


13 A Yes.

14 Q Okay. Now, during this meeting with counsel

15 yesterday, did you review documents?

16 A Yes.

17 Q Okay. About how many documents did you review?

18 A 50.

19 Q Were they in a binder?

20 A Yes. Most were.

21 Q Did you bring any documents with you to the

22 deposition today?

23 A No.

24 Q Did you bring any documents to the meeting with

25 counsel yesterday?

1 A No.

2 Q Other than reviewing the binder of documents

3 with counsel yesterday, did you review any other

4 documents at any other time in preparation for your

5 deposition?

6 A No.

7 Q Did you do anything, other than meet with

8 counsel yesterday, to prepare for your deposition?

9 A I'm sorry. Could you repeat that?

10 Q Sure. Did you do anything to prepare for your

11 deposition other than meet with counsel yesterday?

12 A Oh. No.

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

14 Counsel at all in preparation --

15 A Yesterday --

16 Q No --

17 A -- in preparation?

18 Q -- at any point in time in preparation for your

19 deposition.

20 A No.

21 Q When was the last time you spoke with Mike

22 Jamison?

23 A May 26th, 2011.

24 Q And what were those discussions?

25 MR. POULOS: Well, I'll object to the extent it

1 calls for attorney-client privileged information. Are

2 you just asking about the general substance of it?

3 MR. THOMAS: Yeah, just generally.

4 MR. POULOS: Generalities as opposed to what

5 was said.

6 Do you understand the difference? You can give

7 him a topic but not any specific discussions.

8 THE WITNESS: Let's see. The discussions with

9 Mike were: One of the Pillsbury attorneys is here. If

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

11 Another was: We'd love to have you for lunch.

12 We're bringing lunch in. If you want to come here at

13 12:30, you're welcome.

14 Then later on, in the afternoon, I asked

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

16 meet Mr. Poulos: Come on over.

17 I think that's it.

18 BY MR. THOMAS:

19 Q Okay. And where was the meeting yesterday with

20 counsel?

21 A In the Eric Rood Administrative Center.

22 Q And that's where you generally work on a

23 day-to-day business --


25 Q -- day-to-day basis?

1 A That's correct.

2 Q And that's been the case since you were first

3 employed at Nevada County; is that true?

4 A That's correct.

5 Q And did the documents you looked at with

6 counsel, did they tend to refresh your recollection

7 about past events?

8 A Some.

9 Q Which ones?

10 A I can't recall.

11 Q You have no recollection whatsoever?

12 A Of which documents refresh my --

13 Q Recollection, yes.

14 A No, I really can't specifically recall exactly

15 which documents.

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

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

18 e-mail, but there were a couple where: Oh, yeah, this

19 happened. I remember this.

20 Q Okay. Were these e-mails then that involved

21 you as either a sender or a recipient?

22 A Most of them, I was cc'd on. As a matter of

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

24 Q Bulk of what e-mails?

25 A The e-mails that I viewed yesterday.

1 Q And what events did those e-mails refresh your

2 recollection about, specifically?

3 A Don't know.

4 Q You have no recollection?

5 A No recollection. If I saw the e-mail, I could

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

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

8 deposition prep.

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

10 about the e-mail. I'm asking you to tell me what events

11 your recollection was refreshed about.

12 A Yeah. And I just -- I'm trying to get across,

13 I can't remember the specific events. There were a lot

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

15 e-mails did stir -- stir the memory.

16 Q Okay. When you say "specific events," how

17 about generally? What general events did these e-mails

18 refresh your recollection on?

19 A General events?

20 Q Yeah.

21 A None.

22 Q Could have been anything?

23 A Pardon?

24 Q Could have been anything in the past?

25 A I'm getting lost and confused now.

1 Specifically, I can't tell you specific moments.

2 Generally, the whole case, I have a general

3 understanding of what this case is about, so none of

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

5 about.

6 Q Okay.

7 A I don't know if you can understand that

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

9 Q Now, circling back to your past employment at

10 Exigent, you said you were the VP regional manager and

11 sales were your areas of responsibility; is that true?

12 A Yes.

13 Q All right. And what specifically were your job

14 functions?

15 A Oh, go round up county recorders and see if

16 they're interested in the product.

17 Q What else?

18 A Making presentations to the county recorders.

19 Q Presentations of what?

20 A Of the software product that we're selling,

21 which are recorders systems for county recorders,

22 correspondence with possible customers, attending

23 conferences, trade shows to get the product out there,

24 working on literature, sales literature.

25 Q Did you have any role with respect to actually

1 implementing or installing Exigent software in any

2 counties?

3 A No.

4 Q Did Exigent actually implement or install its

5 software in any counties while you were employed there?

6 A Don't know. Don't remember. I want to say

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

8 details --

9 Q So if I were to ask --

10 A -- because I was not part of the installation

11 team.

12 Q Well --

13 A Never saw 'em.

14 Q Well, was your objective to sell software and

15 bring new customers to the table?

16 A Yes.

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

18 during the year or more you worked at --

19 A Yeah, because there were no sales.

20 Q Excuse me, sir. If you could let me finish my

21 question.

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

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

24 worked there?

25 A Correct.

1 Q Is there a question?

2 MR. POULOS: No. He just asked a question.

3 MR. THOMAS: Sure.

4 Q What were your accomplishments at Exigent, if

5 any?

6 A Accomplishments? Well, we didn't have any

7 sales.

8 Oh, I would like to think I pushed the product

9 to the forefront for a lot of the county recorders to

10 consider.

11 Q Did Exigent -- strike that.

12 To your knowledge, did Exigent make

13 developments and improvement in its product, its

14 software products, while you were the vice president of

15 Exigent?

16 A Yes.

17 Q Okay. What were those changes or improvements?

18 A Not being a real technical person, the platform

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

20 net platform.

21 Q What's that?

22 A Don't know. Couldn't tell you.

23 Q You never asked?

24 A Yeah, I asked.

25 Q And did anyone tell you?

1 A Yeah, they told me.

2 Q Who?

3 A Who told me?

4 Q Yeah.

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

6 head of the development team.

7 Q Curt what? What's his name?

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

9 Q All right. You don't recall right now?

10 A No. Curt -- yeah, Ehlers, E-H-L-E-R-S.

11 Q And as a vice president of sales for Exigent,

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

13 explain to customers the change to the dot net platform?

14 MR. POULOS: Objection. Lacks foundation.

15 THE WITNESS: Do I have to answer it?

16 MR. POULOS: Yeah. Actually, he didn't explain

17 this to you but he asks questions.

18 THE WITNESS: Uh-huh.

19 MR. POULOS: From time to time, I might

20 interpose objections.


22 MR. POULOS: Unless I instruct you not to

23 answer --

24 THE WITNESS: Oh. Okay.

25 MR. POULOS: -- you have to answer the

1 question, if you can.

2 THE WITNESS: Okay.

3 MR. POULOS: But let me just finish one other

4 thing.

5 THE WITNESS: Yeah.

6 MR. POULOS: And that is that if you do answer

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

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

9 THE WITNESS: Right. Right.

10 MR. POULOS: -- you can ask a clarifying

11 question.

12 THE WITNESS: No, not particularly, was not a

13 need for me to explain technology.

14 BY MR. THOMAS:

15 Q And you're the one who demonstrated software

16 technology to potential customers, correct?

17 A You know, the answer would be yes. Now, in the

18 particular room with our demonstrations, am I talking?

19 Am I up there with a pointer showing prospective

20 customers how it works? No.

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

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

23 appointments, who's able to coordinate, bringing the

24 product to the County? Yes.

25 Q So you were just a scheduler of appointments,

1 essentially, as the vice president?

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

3 that, sure.

4 Q And you were the vice president to perform that

5 function at Exigent; yes?

6 A Yeah. Yeah. I think that's probably accurate.

7 Q Did you have a secretary to help you with that?

8 A No. Huh-uh.

9 Q And who did you report to at Exigent?

10 A Alex Maxwell.

11 Q And did you say you started at Exigent in

12 October '04?

13 A Yes.

14 Q Is that about right?

15 A Yeah, about right.

16 Q And you finished up in about September of '06?

17 A Uh-huh.

18 Q True?

19 A Uh-huh.

20 Q Okay. And so nearly two years, you worked at

21 Exigent?

22 A Uh-huh.

23 Q All right. And during the entire time, did you

24 report to Alex Maxwell?

25 A Yes.

1 Q And what position did he hold in the company,

2 to your knowledge?

3 A He was president. And again, I believe, I'm

4 not sure if it was president or CEO.

5 Q Okay. And why did you leave Exigent?

6 A Got laid off.

7 Q Laid off by who?

8 A Alex Maxwell.

9 Q And at the point in time when you were laid off

10 by Exigent, were any other employees laid off at the

11 same time?

12 A Three others.

13 Q Who?

14 A I don't know.

15 Q Well, how do you know others were laid off?

16 A Because I was told that.

17 Q By who?

18 A By Alex Maxwell.

19 Q And what exactly was the term he used when he

20 let you know you were being let go?

21 A He says: We're terminating your employment.

22 We're having a sale. The company is going to be sold in

23 ten days and you, along with three other individuals,

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

25 company was sold a couple weeks later to ACS.

1 Q What is ACS?

2 A I believe it stands for Affiliated Computer

3 Services.

4 Q Do you know what that company does?

5 A Not entirely. I understand it's a large

6 company.

7 Q Do you know --

8 A I imagine it's computer services.

9 Q Did you ever seek employment with that company?

10 A No.

11 Q And so when you said you were laid off,

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

13 did he?

14 A He didn't use those words, no.

15 Q And why did you use those terms with me then?

16 A Because it was dumping salary for the sale as

17 opposed to nonperformance, or whatever other words you

18 want to use.

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

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

21 your knowledge?

22 A 35. I think it was less than 50. Between 35

23 and 50.

24 Q And you would know that because you were the

25 vice president of Exigent; yes?

1 A No.

2 Q It wasn't important to know how big the company

3 was when you were vice president?

4 A No, not for me.

5 Q You didn't care?

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

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

8 forefront of what I needed to know was getting into the

9 County offices.

10 Q Well, wasn't part of the information you needed

11 to know was how robust Exigent was for purposes of

12 marketing the product to potential customers? Wasn't

13 that important?

14 A Yeah, I guess it was.

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

16 no, it didn't matter?

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

18 one of my big selling points.

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

20 didn't concern yourself with; yes?

21 A The size of Exigent?

22 Q Right.

23 A Yeah, I didn't concern myself with that.

24 Q Did you tell any of the potential customers of

25 Exigent that you thought the size of Exigent was a

1 negative aspect of the company that should deter them

2 from buying the software?

3 A Did I say that to prospective customers?

4 Q Yes.

5 A That's your question?

6 Q Yeah.

7 A No.

8 Q Why not?

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

10 looking for customers.

11 Q Well, you were always truthful with customers,

12 right?

13 A Sure.

14 Q Are you a truthful person?

15 A Yes.

16 Q Is it ever your practice to misrepresent

17 things?

18 A No.

19 Q Do you think it's okay to make

20 misrepresentations?

21 A Sometimes.

22 Q Sometimes, it's okay?

23 A Sure.

24 Q When I say "misrepresentations," I mean lie.

25 It's okay to lie sometimes?

1 A Sure.

2 Q Okay. When is it okay?

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

4 situation where if I tell the truth, perhaps an intruder

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

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

7 about rectifying the situation or diffusing the

8 situation.

9 I think there are some situations, albeit

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

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

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

13 do it.

14 Q Do you consider this lawsuit to be a quandary?

15 A A quandary?

16 Q Yeah. You used --

17 A What is "quandary"?

18 Q Oh. Let me ask you. You used the word

19 "quandary" about --

20 A Oh. Okay.

21 Q -- 30 seconds -- let me finish.

22 A Oh. Uh-huh.

23 Q You used the word "quandary" about 30 seconds

24 ago.

25 What does that mean?

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

2 tough situation.

3 Q Okay. Is this lawsuit a quandary for you?

4 A No. Or -- or, you know, let me take that back.

5 Perhaps. It depends on, you know, there are many

6 definitions of "quandary" but it's unfortunate.

7 Q And when you're in a quandary, your testimony

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

9 MR. POULOS: Objection. Misstates the

10 witness's testimony.

11 THE WITNESS: Oh. Come on. No. No.

12 BY MR. THOMAS:

13 Q I actually thought that's what you said.

14 A This is not an extreme situation.

15 Q Okay.

16 A I thought I was trying to be clear about

17 extreme situations. This is not extreme.

18 Q Okay.

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

20 Q All right. Understood. I misunderstood you,

21 obviously.

22 A Yeah. Yeah. Yeah.

23 Q But I understand you now.

24 All right. That's helpful. So before you

25 worked at Exigent, where did you work before then?

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

2 Q And when did you -- strike that.

3 When did you last work for AMCAD?

4 A I think it was '04, that October '04. I went

5 straight from AMCAD to Exigent.

6 Q Okay. So just so we have kind of a clear

7 timeline, approximately October of 2004 is when you

8 would have --

9 A Approximately.

10 Q -- last worked for AMCAD?

11 Excuse me. Yeah, AMCAD.

12 All right. And when did you first start

13 working for AMCAD?

14 A I think it was February 2002. And again, this

15 is approximate dates.

16 Q Fair enough.

17 A Best of my recollection.

18 Q I appreciate that. So you worked for AMCAD --

19 A No. No. I'm sorry.

20 Q Fair enough.

21 A I take it back.

22 Q Yeah.

23 A It was September 2002.

24 Q Okay. I appreciate that. And so you worked

25 for AMCAD for approximately two years.

1 A Yes.

2 Q Fair enough?

3 A Yes.

4 Q All right. And when you first started at

5 AMCAD, what was your position?

6 A Vice president. Almost the same title. Vice

7 president, regional manager for the western states, I

8 believe, was my title.

9 Q Vice president, regional manager. And --

10 A For the western states. They were clear about

11 that. That was my area.

12 Q And who did you report to?

13 A Ronald Corneilson.

14 Q Can you spell his last name, please, if you

15 know?

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

17 Q All right. Now, did you report to him the

18 entire time you worked at AMCAD?

19 A Yes.

20 Q Okay. And what was his position with the

21 company?

22 A He was CEO.

23 Q Okay. And why did you leave AMCAD?

24 A Travel. Too much travel.

25 Q What does that mean? You didn't like the

1 travel involved in the work? Too much of it?

2 A Yeah. I was gone from my home approximately

3 three weeks out of four during the month. My wife is

4 retired. I didn't want to leave her there three weeks

5 out of four, not being at home.

6 Q Yeah. That sounds tough.

7 A Their headquarters were Washington, DC.

8 Q Okay. Did you have a regional sales office you

9 worked out of?

10 A I had a little space in my garage that I worked

11 out of --

12 Q Okay. Fair enough.

13 A -- which was considered the regional office.

14 Q That was the regional office of AMCAD.

15 So at AMCAD, you were making sales calls

16 similar to the ones you discussed about Exigent?

17 A Yes.

18 Q All right. What were your responsibilities as

19 the vice president of AMCAD?

20 A Contacting counties, contacting county

21 recorders. I was very involved with electronic

22 recording at that time. It was an area that was

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

24 electronic recording.

25 AMCAD also asked me to participate in a couple

1 installs, so I did participate in a couple installs.

2 Q And what counties were those installs?

3 A No idea.

4 Q Were they in California?

5 A No. One was in North Carolina and one was in

6 Colorado.

7 Q And what was your role in those installs for

8 AMCAD?

9 A Trainee --

10 Q You were --

11 A -- might be the best word.

12 Q You were just a trainee?

13 A Absolutely correct. Go down to Carolina for

14 three weeks with the install team and learn what you

15 can.

16 Q Okay.

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

18 apprentice, we can say.

19 Q So other than being trained by others on two

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

21 for AMCAD was essentially just scheduling meetings

22 and --

23 A Trying to make sales.

24 Q -- trying to make sales?

25 A And the first part of making sales is getting

1 through the door.

2 Q And once you get through the door, though, your

3 job was to arrange for presentations of product,

4 correct?

5 A Correct.

6 Q And participate in those meetings?

7 A Correct.

8 Q Demonstrating product?

9 A Correct.

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

11 those meetings --

12 A No.

13 Q -- as the vice president of AMCAD?

14 A No.

15 Q Who was?

16 A It was a fellow named Ryan Schoenfeld.

17 Q And what's his position?

18 A And this guy named Jim Brown. Don't know

19 exactly. I think Ryan might have been director of

20 sales.

21 Q Okay. And --

22 A Could I --

23 Q If you want to clarify something, please do.

24 A I've been a county recorder for 12 years. I

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

1 level playing field with the other recorders. So it's

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

3 and when I talk to recorders, it was mostly about

4 recording business, work flow in the office, indexing

5 rules.

6 I talked about the nuts and bolts of

7 functionality that a county recorder needs and I had

8 credibility from being a county recorder for 12 years.

9 When the demo of the product came, the

10 technical demos of the product, that was not really my

11 role at that time. So I just want to clarify that.

12 Q So for example, you had no role when it comes

13 to like actually customizing software for a particular

14 customer?

15 A No. But -- well, if a customer said, in the

16 State of Missouri, "This is how we handle marriage

17 licenses," I'm going to understand that.

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

19 is how Missouri handles it. I want to know our

20 functionality and whether our functionality can handle

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

22 have to write some more code to handle the functionality

23 that Missouri requires."

24 Was I writing code? Was I with the techs? Did

25 I even understand how to write code? No, but I do

1 understand the functionality and what the state statutes

2 require.

3 Q When you say "code," what is that?

4 A Code?

5 Q Yeah. You used the word "code."

6 A I don't know. That's what all the techies say,

7 "code," so I guess I say it.

8 Q What --

9 A It's programming. I think it's something that

10 makes software programs go. I don't know.

11 Q You're not sure?

12 A Not sure. To this date, if you ask me what a

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

14 answer.

15 Q So when you said "code," you meant computer

16 program code?

17 A Yes. Uh-huh. Uh-huh.

18 Q And it wasn't important for you to understand

19 what "computer program code" is --

20 A Huh-uh.

21 Q -- as the vice president of a company that

22 sells computer programs?

23 A Huh-uh. No. I was never asked to sit down and

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

25 the job.

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

2 all of the responsibilities you had as a vice president

3 of AMCAD?

4 A Yes.

5 Q During the sales pitches you would make to

6 various counties as a vice president of AMCAD, was it

7 your practice to explain the benefits of AMCAD software?

8 A Yes.

9 Q And so you had to understand what AMCAD

10 software did to explain those benefits; yes?

11 A I had to understand the functionality, yes.

12 Q How the software worked generally; yes?

13 A The functionality as opposed to how that

14 functionality was achieved.

15 Q Well, did you ever have to use the software to

16 show it to a client?

17 A No.

18 Q So you've never used AMCAD software, true?

19 Never once.

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

21 think I sat down and played around with it.

22 Q Other than that?

23 A In front of a client? No, huh-uh.

24 Q You've never demonstrated any functionality to

25 a client on a computer terminal --

1 A Huh-uh.

2 Q -- for AMCAD?

3 A No.

4 Q You never did that for Exigent?

5 A No.

6 Q How many times were you present when others

7 demonstrated functionality of AMCAD software?

8 A Don't know. I can't tell you how many demos I

9 was involved with.

10 Q Was AMCAD -- this is clerk-recorder software

11 for AMCAD as well; yes?


13 Q Okay. And do you know how many customers AMCAD

14 had, approximately, when you were a vice president of

15 AMCAD?

16 A 50, 55 counties.

17 Q Spread out through the --

18 A Maybe 60.

19 Q Spread out through the country?

20 A Mostly east of the Mississippi.

21 Q Were any in California?

22 A At the time I started with AMCAD, no. When I

23 left AMCAD, we did get Ventura County.

24 Q When you say when you left AMCAD, do you mean

25 before or after you left?

1 A Before I left AMCAD, we had Ventura County.

2 Q What is e-recording?

3 A E-recording is a acronym for electronic

4 recording.

5 Q What is that?

6 A Electronic recording is the act of delivering a

7 document in a digital or digitized state to the county

8 recorder for recordation.

9 Q And do you know if all counties in California

10 currently do electronic recording?

11 A Do I know if all counties?

12 Q Yeah.

13 A All counties do not --

14 Q Okay.

15 A -- do electronic recording.

16 Q Do you have an understanding of which counties

17 do currently, in California, do electronic recording?

18 A I used to.

19 Q If you know.

20 A I used to because there were two. Orange

21 County and San Bernardino County began actually in the

22 late '90s. There's a couple companies now that have

23 been certified by the state and I believe one of those

24 companies is called Certain. I don't know how many

25 counties Certain has but I believe one or two of their

1 counties have begun to record electronically.

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

3 companies --

4 A I know Orange and San Bernardino, they're doing

5 it. Got that, two, but then what I'm saying is I'm not

6 quite sure how many more. I do know -- I think Kern is,

7 Kern County. They're a Certain customer, and I'm not

8 sure if any other Certain customers have begun


10 Q Does Nevada County do electronic recording?

11 A No.

12 Q Why not?

13 A Why not?

14 Q Yeah.

15 A It's something that I have decided not to

16 implement at this time.

17 Q Why was that? Why did you make that decision?

18 A There were other priorities.

19 Q What were those?

20 A Other parts of my job.

21 Q Specifically, what were they?

22 A Elections.

23 Q All right.

24 A And transforming the recorder's office into a

25 much more efficient operation.

1 Q And when did you make that decision to forego

2 or not to do electronic recording in Nevada County?

3 A When?

4 Q Yes.

5 A This is sort of a dynamic state, from the time

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

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

8 preparing our house for electronic recording.

9 Electronic recording, the statutes does involve

10 an additional fee. If you're an elected official, you

11 need to be careful when you're asking for additional

12 fees from the constituents.

13 Q And how is it you're aware what other counties

14 are doing in terms of e-recording? Do you communicate

15 with other clerk-recorders?

16 A Yes.

17 Q Generally, it's a group of people, you

18 generally talk to one another; yeah?

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

20 frontline, was my association with AtPac and Dave and

21 Jim. We did a lot of good things in the '90s. You're

22 probably aware they were a client of mine for many,

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

24 electronic recording. I was on the forefront of quite a

25 few things, very active in the County Recorders

1 Association to the point of being elected president,

2 went through the chairs, going through the chairs again,

3 been head of their legislative committee, work with our

4 lobbyist for the County Recorders Association and it

5 helps me do my job better.

6 Q And in addition to the things you just

7 identified --

8 A Uh-huh.

9 Q -- for approximately four years --

10 A Uh-huh.

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

12 A Two companies.

13 Q -- two software companies --

14 A Uh-huh.

15 Q -- correct?

16 A Yes.

17 Q That sold software to clerk-recorders, correct?

18 A Yes. Yes.

19 Q Now, have you heard that Fresno County does

20 electronic recording?

21 A No.

22 Q You mentioned there were a couple of companies

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

24 A Uh-huh.

25 Q Do you remember that testimony?

1 A Yeah.

2 Q And you mentioned Certain is one of them. What

3 was the other?

4 A Yes. The other is called Secure.

5 Q Secure?

6 A Uh-huh.

7 Q And do you know what Secure is? It's another

8 software company?

9 A Not quite sure the composition of Secure. It's

10 a little complicated because I believe it was developed

11 by a private company and Orange County bought the rights

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

13 describe Secure.

14 Q Okay.

15 A But again, it's a certified portal for

16 electronic recording in the State of California.

17 Q And who's the current clerk-recorder software

18 vendor for Nevada County?

19 A Aptitude Solutions.

20 Q Okay. Do you know if Aptitude is certified by

21 the state to do e-recording?

22 A They are not.

23 Q Do you know why that is?

24 A I have no idea.

25 Q Have you ever talked to them about that?

1 A Not recently.

2 Q When -- strike that.

3 A When did I last talk to them about this?

4 Q Yes. Yes.

5 A After they installed in 2009. Around

6 July 2009.

7 Q What is Certain?

8 A What is it?

9 Q Yeah.

10 A I believe it's a software company. I'm going

11 to have to describe it as a software company. They

12 built a portal for the delivery of electronic documents.

13 Q Did you know that AtPac was the first Certain

14 customer to do e-recording in California?

15 A No. That's great news.

16 Q Why is that great?

17 A Why is it great?

18 Q Why do you think that's great?

19 A I don't know. The first customer of anything

20 seems to be pretty successful.

21 Q It's important to be --

22 A I just -- I think this whole line of

23 questioning is not important, not relevant, and if you

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

25 get.

1 Q What kind of answers?

2 A Truthful answers.

3 Q So if I continue, you'll continue to be

4 truthful?

5 A Yeah.

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

7 under oath, right?

8 A Well, you did the whole song and dance about

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

10 Q Right. I just didn't understand your last

11 comment when you said if you keep down this line of

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

13 to get.

14 A Yeah. Well, I'm answering these things

15 truthfully. I'm not trying to deceive anyone and you're

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

17 They're pretty clear answers. Pretty clear answers.

18 MR. THOMAS: Now, can I have the large

19 document? Let's mark this next in order. It's kind of

20 big but let's just be complete. Go ahead and mark it.

21 (Exhibit No. 370 was marked for

22 identification.)

23 BY MR. THOMAS:

24 Q Okay. For the record, I've just marked as

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

1 witness.

2 Mr. Poulos and I agreed that we would leave a

3 gap between the last exhibit marked in the last

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

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

6 one more exhibit to the last deposition. Fair enough?

7 MR. POULOS: Yep.

8 BY MR. THOMAS:

9 Q Okay. Mr. Diaz, do you have Exhibit 370 in

10 front of you?

11 A Yes.

12 Q What is this?

13 A So a little story about Greg Diaz which was on

14 my campaign website.

15 Q Okay. And have you reviewed this before?

16 A Yes.

17 Q Okay. And did you write it?

18 A Most of it, yes.

19 Q Okay. Who else wrote parts of it?

20 A Another person on my campaign team and we just

21 wrote this together.

22 Q Okay. And you reviewed it and made sure it was

23 truthful and accurate; yes?

24 A Yes.

25 Q You were careful to do that?

1 A Yes.

2 Q In the fifth paragraph, it says: It took us --

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

4 A Yes, uh-huh.

5 Q Please read that paragraph.

6 A "It took us about eight years to build our

7 house. That's when we started looking at whether we

8 could live here full-time. I took a job with Placer

9 County, and with it, a big pay cut. I later worked for

10 AMCAD, LLC, a nationwide imaging and document management

11 solutions provider, as vice president and general

12 manager for their western regional operations

13 customizing, testing, training and implementing land

14 information systems and voting systems for 30 counties

15 nationwide. Then in 2007, I became clerk-recorder for

16 Nevada County."

17 Q And you used the word "land information

18 systems."

19 What is that?

20 A Land information systems? Oh. Land

21 information systems.

22 Q Yes. What does that mean?

23 A County recorder systems.

24 Q When you say "systems," you mean computer

25 software; yes?

1 A Yes.

2 Q And did you write that portion?

3 A Yes.

4 Q Okay. Now, you mentioned that you worked for

5 Placer County.

6 A Yes.

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

8 question.

9 Where did you work before you worked at AMCAD?

10 A Placer County.

11 Q Okay. And when did you last work for Placer

12 County?

13 A September 2002, I believe, the same time I

14 joined AMCAD.

15 Q Okay. And when did you start working for

16 Placer County?

17 A February 2002.

18 Q All right. And what was your position in

19 Placer County when you first started there?

20 A Recording manager.

21 Q And did you keep that position the entire time

22 you were there?

23 A Yes.

24 Q And what was the recording manager position?

25 What did you do?

1 A I oversaw the recorder operations.

2 Q And what were those operations?

3 A Recording documents, indexing documents,

4 archiving documents, supplying copies, transfer tax

5 administration. Things we do in a county recorder's

6 office.

7 Q Okay. And did the -- in your oversight of

8 recording operations, were there any software products

9 used by Placer County at that time to perform recording

10 operations?

11 A Sure. AtPac.

12 Q So when you were the manager of recording in

13 Placer County, overseeing recording operations, that was

14 done using AtPac software, correct?

15 A Correct.

16 Q And who did you report to?

17 A Jim McCauley was the County Clerk-Recorder for

18 Placer County.

19 Q Do you know if he still is?

20 A Yes, he is.

21 Q And why did you leave Placer County?

22 A I had wanted to explore an opportunity in the

23 private sector with AMCAD.

24 Q What was your relationship with Mr. McCauley?

25 Was it a good one?

1 A Yeah.

2 Q Did Mr. McCauley ever express any performance

3 issues with your performance as the --

4 A With me?

5 Q As the --

6 A No.

7 Q -- manager of recording?

8 A Well, yes. Yes.

9 Q As the manager of recording in Placer County?

10 A Yeah.

11 Q What were those?

12 A Great job. The best.

13 Q He was happy with your work?

14 A Absolutely.

15 Q Okay. At all times?

16 A At all times.

17 Q Have you ever heard anything to the contrary

18 from anyone else?

19 A No. Now, when I left, he didn't like that.

20 Q Oh, really?

21 A But during the time I was employed, which I

22 believe was your question --

23 Q Yeah. What did he say about your departure?

24 You said he didn't like that.

25 A I believe he said -- he said: Good luck. I

1 understand. If you ever change your mind, you're

2 welcome back, all the -- the --

3 Q The niceties of a person departing?

4 A A lot of the things that you hear, yeah.

5 Q I understand. Okay. Was your work in Placer

6 County the first time you had managed recording using

7 AtPac software?

8 A No.

9 Q Okay. And when was the first time you did

10 that?

11 A 1989 in San Francisco County --

12 Q And what was your position?

13 A -- before Mr. Krugle came.

14 Q What was your position in San Francisco when

15 you started in 1989 working with AtPac software?

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

17 became the assistant recorder at that time.

18 Q In San Francisco?

19 A In San Francisco.

20 Q And at that time, San Francisco was using AtPac

21 software?

22 A Yes.

23 Q For clerk-recorder functionality?

24 A No, for recorder functionality. I would assist

25 the assistant recorder. The consolidation of the county

1 clerk with the county recorder occurred in '92.

2 Q And you talked about your work in Placer County

3 starting in September of 2002. Where did you work

4 before that?

5 A City and County of San Francisco.

6 Q Okay. And when did you last work for City and

7 County of San Francisco?

8 A February 2002, or maybe it was January, you

9 know.

10 Q Judy shortly before you started at Placer?

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

12 City and started working with Placer. I believe that

13 was toward the end of January and I actually started in

14 Placer in February of 2002.

15 Q Okay. And you started working for San

16 Francisco City and County when?

17 A In 1985, in the City Attorney's Office.

18 Q And you became the assistant clerk-recorder in

19 1990, approximately?

20 A No. No. I became the assistant recorder --

21 Q Understood.

22 A -- in 1990. The clerk and the recorder were

23 not consolidated in '90. The consolidation took place

24 in '92.

25 Q Did you like working -- excuse me.

1 Did you like working at Placer County?

2 A Sure.

3 Q Was it a pleasant work experience for you or a

4 good one?

5 A Yeah, it was fine.

6 Q It sounds like you have good memories of

7 working in Placer County; yes?

8 A Yeah, I have good memories of all my time in

9 the public sector.

10 Q Okay.

11 A Horrible memories of the private.

12 Q So let me ask you this, sir. You mentioned

13 being unemployed for a period of time. When was that?

14 A Uh-huh. That was from Exigent. I believe it

15 was September 2006 until my appointment in June 2007.

16 Q And did you look for work at all during that

17 point in time?

18 A Yep.

19 Q Okay.

20 A You're required to if you're collecting

21 Unemployment.

22 Q I understand. So you were receiving -- you

23 weren't unemployed because you wanted to be unemployed.

24 You were interested in working hard for someone; yes?

25 A Yes.

1 Q Okay. Why didn't you go back to Placer County?

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

3 employment in Placer County at the time.

4 Q Why did you think that?

5 A McCauley stopped speaking to me after I left.

6 Q Oh. Really.

7 A Uh-huh.

8 Q Tell me: How do you know?

9 A Because he didn't speak to me. What do you

10 mean how do I know?

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

12 to you?

13 A Absolutely.

14 Q Oh. Well, do you have any understanding of why

15 that was?

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

17 dog. He was very disappointed. Very, very

18 disappointed.

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

20 time, right?

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

22 Q So did you -- when you became unemployed from

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

24 with Placer.

25 A Afterward?

1 Q After you lost your job from Exigent.

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

3 Placer.

4 Q Why not?

5 A Because the guy wasn't speaking to me.

6 Q So you learned that he wasn't speaking to you

7 when?

8 A When I was with AMCAD.

9 Q Okay. And how did you learn that?

10 A We attended recorder conferences.

11 Q Okay.

12 A And Mr. McCauley was a recorder who also

13 attended the conferences.

14 Q And your testimony is, sir, that he was so

15 thrilled with your work for him --

16 A Uh-huh.

17 Q -- that when you left --

18 A Uh-huh.

19 Q -- he flipped and actually began to have an

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

21 A That's what I felt, uh-huh.

22 Q -- from that point forward?

23 A Yes.

24 MR. POULOS: You got to let him finish --

25 THE WITNESS: Okay. Sorry.

1 MR. POULOS: -- before you answer.

2 MR. THOMAS: It is important. We both need to

3 be careful, okay?

4 MR. POULOS: So --

5 BY MR. THOMAS:

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

7 clean question.

8 It's your testimony that Mr. McCauley was

9 thrilled with you when you were employed there; thought

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

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

12 then flipped and developed an extreme dislike for you

13 and refused to talk to you from that point forward.

14 MR. POULOS: I'm going to object to the extent

15 it misstates the witness's testimony but go ahead.

16 THE WITNESS: Yeah.

17 BY MR. THOMAS:

18 Q Why did you leave Placer County to go -- you

19 went from Placer to AMCAD, yes?

20 A Uh-huh.

21 Q Why did you make that move?

22 MR. POULOS: Objection. Asked and answered.

23 THE WITNESS: I think the biggest reason was a

24 desire to go to the private sector and a salary.

25 BY MR. THOMAS:

1 Q It had nothing to do with Mr. McCauley

2 expressing dissatisfaction with your performance at

3 Placer?

4 A At that time? No, no, not at all.

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

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

7 Q Did you ever hear from Mr. McCauley, after you

8 finished working in Placer, that he was dissatisfied

9 with your performance at Placer?

10 A No.

11 Q Did you ever ask him: Why won't you talk to

12 me?

13 A Yes.

14 Q And what did he say?

15 A Nothing.

16 Q He just turned away and turned his back and

17 walked away?

18 A Yeah. He and Jim Maclam, uh-huh.

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

20 who's Jim Maclam?

21 A He was the founder and president of AtPac.

22 Q Okay. And when you say he and Jim Maclam

23 turned and walked away --

24 A Uh-huh.

25 Q -- when did that happen?

1 A I can't tell you exactly.

2 Q Well, generally. It happened after you left --

3 A Generally --

4 Q -- Placer.

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

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

7 Q And what exactly happened there that you

8 recall?

9 A I approached them, said: Guys, what's going

10 on? And they walked right by me.

11 Q And when you say: Guys, what's going on, what

12 did you mean by that? What were you --

13 A Why are you giving me the cold shoulder after

14 we've been very good friends socially and professionally

15 for quite a few years.

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

17 both of them; yes?

18 A Correct.

19 Q And so is it your testimony that Jim Maclam was

20 also giving you the cold shoulder?

21 A Oh, absolutely.

22 Q And did that also happen only after you left

23 Placer County?

24 A Yes, when I became a competitor of his.

25 Q So when did you first reach out to try to

1 communicate with Jim Maclam after you left Placer

2 County?

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

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

5 Q And how many months after your departure from

6 Placer was that?

7 A Let's see. October, November, December. Eight

8 weeks.

9 Q Okay. So shortly after you left?

10 A Yes.

11 Q And the last time before that you had talked to

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

13 welcome back any time?

14 A Correct.

15 Q And the very next time you talked to him was at

16 this conference, right?

17 A I didn't talk to him. Well, yes, I did. I

18 said "Hey, Guy" -- yeah. Yes.

19 Q And you said to him: Guys, what's going on,

20 right?

21 A Right, uh-huh.

22 Q So I don't understand why you would have said

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

24 McCauley.

25 A Because I had heard Jim McCauley was very upset

1 with me going to the private sector.

2 Q Okay. Who told you that?

3 A I don't know.

4 Q You heard that from someone?

5 A The county recorders is a small group, a very

6 small group.

7 Q Yes.

8 A So it may have been Phil Schmidt from Ventura

9 who I was friends with. It may have been Craig Kramer

10 from Sacramento. It may have been -- there were a

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

12 and wanted to keep in touch with me.

13 Q Who was that?

14 A Those ladies?

15 Q Yeah.

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

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

18 would they e-mail you? At home or at the office?

19 A Yeah, at home.

20 Q Okay. And did you have --

21 A Or call.

22 Q What's your e-mail address at home?

23 A Right now, it's [email protected].

24 Q And what was it after?

25 A I have no idea -- what was it when? That's

1 what it is now, my e-mail now. I don't know what my

2 e-mail was nine years ago.

3 Q When did you first establish the alpaca e-mail

4 you just listed?

5 A I don't know.

6 Q Do you have an estimate?

7 A Three years ago.

8 Q Do you use that to communicate with some

9 clerk-recorder staff?

10 A Sometimes, yeah.

11 Q Even from -- staff from other counties; yes?

12 A Yes. That's what I assume you meant.

13 Q Including Placer County?

14 A Yeah, maybe, one or two times maybe.

15 Q Okay. And let me ask you, sir, what efforts

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

17 case, to provide materials or documents to the lawyers

18 representing you and Nevada County?

19 A No effort.

20 Q No effort whatsoever?

21 A Huh-uh.

22 Q Okay. Did anyone ask you to?

23 A No. Search my personal e-mail account? No.

24 Huh-uh.

25 MR. THOMAS: Okay. I can tell you want to take

1 a break.

2 MR. POULOS: If it's okay.

3 MR. THOMAS: Let's take a break. That's fine.

4 MR. POULOS: How long --

5 THE VIDEOGRAPHER: Going off the record at

6 10:37 a.m.

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

8 THE VIDEOGRAPHER: Back on the record at

9 10:47 a.m.

10 BY MR. THOMAS:

11 Q Mr. Diaz, we take breaks sometimes during the

12 deposition. You understand that even though the court

13 reporter doesn't readminister the oath, the same oath

14 you gave this morning applies all during the day. You

15 understand that?

16 A Yes.

17 Q Okay. Sir, would you have any objection to our

18 review of employment records of yours from Placer County

19 which discuss the circumstances of your departure or

20 performance reviews? Would you have any reason to

21 object to us looking at those?

22 A No.

23 Q You have no -- nothing to hide there,

24 obviously, right?

25 A No.

1 Q So you would consent to us looking at your

2 Placer County employment records?

3 A Sure.

4 MR. POULOS: You can send us the form.

5 BY MR. THOMAS:

6 Q Now, at some point, you worked with AtPac

7 software at Placer County, and then you left Placer

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

9 worked as the vice president of two software companies,

10 and then you were unemployed for a period of time and

11 then you were appointed at Nevada County.

12 MR. POULOS: Objection. Compound.

13 BY MR. THOMAS:

14 Q Do I have that right?

15 MR. POULOS: Objection. Compound. But go

16 ahead.

17 BY MR. THOMAS:

18 Q Do I have that right?

19 A Yes.

20 Q Okay. And then your appointment in Nevada

21 County, that reunited you with working with AtPac

22 software again?

23 A Yes.

24 Q The last time you had worked with it was in

25 Placer County?

1 A Yes.

2 Q Okay. Now, how long after you joined Nevada

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

4 A Yes.

5 Q Okay. How long after your appointment did you

6 begin communications with Aptitude Solutions about

7 Aptitude -- about Aptitude potentially providing

8 clerk-recorder software to Nevada County?

9 MR. POULOS: Objection, to the extent it lacks

10 foundation, but go ahead.

11 THE WITNESS: How long after I started did I

12 talk to Aptitude about providing software services?

13 BY MR. THOMAS:

14 Q Or potentially providing software services.

15 A Probably -- probably early 2008.

16 Q That's your best estimate as you sit here

17 today?

18 A Yeah. There was a conference where pretty much

19 all the software vendors, I had mentioned to them: Look

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

21 response, I welcome your response.

22 Q Okay. So --

23 A So I mean I talked to every software vendor for

24 a couple conferences. It took a while to get the RFP

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

1 uh-huh.

2 Q And to your knowledge, when did Jim Maclam pass

3 away?

4 A I don't know.

5 Q Was it before or after you were appointed

6 clerk-recorder in Nevada County?

7 A I think he had passed away before.

8 Q Okay.

9 A To my knowledge.

10 Q And you had worked with him for many years

11 before he passed away?

12 A I worked with him for many, many years.

13 Q Did you go to his funeral?

14 A No.

15 Q Why not?

16 A I didn't want to.

17 Q Why didn't you want to?

18 A I don't know. I didn't want to.

19 Q And so after you were appointed clerk-recorder

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

21 clerk-recorder software? How long after your

22 appointment?

23 Let me ask a clean question. I'm sorry.

24 That's like three questions.

25 How long after your appointment in Nevada

1 County, as clerk-recorder, did you begin considering

2 replacing AtPac as the county's clerk-recorder software

3 provider?

4 A How long after my appointment?

5 Q Yes.

6 A Two minutes.

7 Q Immediately.

8 A Immediately. And it was not -- it was not to

9 replace the existing provider. Right after I got

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

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

12 needs, was to go through an RFP process. It was not

13 ordained from the beginning that AtPac was going to be

14 replaced.

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

16 and they told staff, in my office: Oh, he wants to

17 replace us, and that's far from the truth. That was not

18 the intent.

19 The intent was to see if we could do better in

20 terms of having a software provider and providing me

21 efficiencies in the office.

22 I have an understanding of how personnel is

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

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

25 Pretty clear.

1 Q And what do you mean by that specifically in

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

3 A There were 12 full-time people in the office

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

5 documents a day.

6 Q All right.

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

8 for 12 years and we were averaging 900 to a thousand

9 documents a day with approximately, on the recorder

10 side, approximately 20 people. So that said to me right

11 away, there's some inefficiencies in Nevada County.

12 Q Okay. So your experience in San Francisco that

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

14 strike that.

15 Based on that experience, you perceive that

16 there might be something that could be done with the

17 software that would assist in facilitating office

18 efficiency?

19 A My guess was --

20 MR. POULOS: Objection. Vague and ambiguous.

21 THE WITNESS: Okay. My guess was it would

22 probably be prudent to go out and see.

23 BY MR. THOMAS:

24 Q What other software vendors might be available

25 in place of AtPac?

1 A No. What other software vendors could provide

2 me with the functionality that I think Nevada County

3 needed.

4 Q And give you the efficiencies that you didn't

5 think were there in Nevada County when you arrived?

6 A Correct.

7 Q Okay. Now, you compared -- you mentioned San

8 Francisco.

9 Did you -- was it your perception that was far

10 more efficient than Nevada County when you first arrived

11 at Nevada County given the number of transactions and

12 the number of employees?

13 A I felt the use of the AtPac software in San

14 Francisco was a lot better than what it was in Nevada

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

16 replace AtPac.

17 I thought AtPac worked well in San Francisco

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

19 well, and that happens. That happens if you go and see

20 recorder offices. Offices can have similar software,

21 exactly the same type of software, and you could see

22 efficiencies in one work flow compared to another work

23 flow.

24 Q Okay. So -- and you were the assistant

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

1 strike that.

2 Were you the assistant recorder in San

3 Francisco when you left San Francisco?

4 A No, I was the County Clerk-Recorder for San

5 Francisco when I left San Francisco.

6 Q Okay. Were you -- was that an elected position

7 or was that --

8 A That was appointed.

9 Q -- when you were appointed.

10 Okay. For how long did you hold that position?

11 A From '95 until 2002.

12 Q Okay. So for seven years.

13 A For seven years.

14 Q And during that entire seven year period, you

15 used -- your office used the AtPac software?

16 A Correct.

17 Q All right. And that office was structured and

18 managed under your direction and control?

19 A Correct.

20 Q Okay. And so when you joined Nevada County --

21 A Uh-huh.

22 Q -- you saw inefficiencies with the way the

23 Nevada County office was structured and used the AtPac

24 software.

25 A Yes.

1 Q Right?

2 A Yes.

3 Q And so -- and you remembered the higher

4 efficiency in San Francisco when you were in San

5 Francisco using the AtPac software.

6 A Yes.

7 Q So why didn't you implement whatever protocols

8 and procedures you had in San Francisco using the AtPac

9 software in Nevada County?

10 A Four years is a long time in technology and it

11 was also a long time in terms of legislative

12 requirements for county recorder offices.

13 All of a sudden, there were requirements for

14 redaction. Electronic recording was coming up. There

15 was automatic indexing that was on the horizon,

16 automatic redaction that was on the horizon, so there

17 was functionality, four years later, when I went into

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

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

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

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

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

23 what I've missed for four years. Let's get these

24 companies together. Let's talk about the base system.

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

1 a third party usage for some of the functionality, et

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

3 Q You talked about e-recording on the horizon,

4 right?

5 A Well, e-recording began -- it popped up in the

6 mid-'90s. '96, '97, it popped up as a serious topic for

7 California recorders.

8 Q But your testimony is e-recording popping up

9 between the time -- during the time frame you worked for

10 private entities --

11 A Uh-huh.

12 Q -- between 2002 and 2006 --

13 A Yeah, uh-huh.

14 Q -- was the reason you wanted to look at new

15 recording software in Nevada County?

16 A One of the reasons, yes.

17 Q But your testimony's also that e-recording

18 popped up in 1996, right?

19 A Yes, they did, uh-huh.

20 Q So what did you mean when you said that came up

21 in the four-year period before 2007?

22 A I lost you here.

23 Q You said e-recording, the fact that that issue

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

25 consider replacing or changing the software used in

1 Nevada County.



4 BY MR. THOMAS:

5 Q Isn't that one of the reasons you say you

6 wanted to --

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

8 Q And did you ask AtPac whether they were

9 certified to do e-recording?

10 A Absolutely.

11 Q And they were, right?

12 A Not that I know of, not at that time.

13 Q Well, your testimony's what? They said: No,

14 we're not?

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

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

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

18 back-end vendor --

19 Q What did that --

20 A -- and they would not be in the business of

21 delivering electronic documents.

22 Q What does that mean, "in the business of

23 delivering electronic documents"?

24 A When electronic recording popped up, in '97,

25 there was a task force assembled by the Attorney

1 General, lots of discussions, models from other states.

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

3 2006. It may have been 2005.

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

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

6 up until 2005.

7 In the recorder's office, when a document is

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

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

10 archived. Those are the functions inside the recorder's

11 office.

12 Generally in real life, a submitter is going to

13 be on the other side of the desk submitting a document

14 to the recorder. Once that document has been submitted

15 or delivered, to the recorder, then that document will

16 go through the AtPac software, and AtPac described

17 themselves as being a back-end system. They kick in

18 once the document has been received by the county

19 recorder.

20 They told me they were not in the delivery

21 business, being a person here, delivering the document,

22 to the county recorder. That's the gist of the

23 California legislation that was enabled in 2005. I

24 believe it was called the Electronic Recording Delivery

25 Act.

1 Q I see.

2 A Because there has to be software, if a document

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

4 software to deliver that image, or template, if you

5 will, to the recorder.

6 Q Uh-huh.

7 A They told me they're not in the business of

8 delivering.

9 Q Okay.

10 A Sorry for the long-winded answer but --

11 Q No. No problem.

12 A -- I wanted to try to be clear.

13 Q Yes. And Aptitude is not in the business of

14 delivering documents, either, right?


16 Q Okay. And neither is AMCAD?


18 Q And neither is Exigent?


20 Q Were any of the counties that -- or strike

21 that.

22 Were any of the software vendors that

23 participated in a Request for Proposal issued by Nevada

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

25 delivering documents as you've just testified, to your

1 knowledge?

2 A To the best of my recollection, I believe

3 Aptitude, in different states, was involved with


5 There's a company called Record Fusion that was

6 involved with electronic recording. I think that's it.

7 Those two.

8 Q Well, I asked you earlier -- go ahead.

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

10 very different from California, like night and day, so

11 the hurdles associated with complying with the

12 California statutes were not there in these other

13 states. Almost like night and day.

14 But the question was, if I recollect the

15 question properly, were any other companies involved

16 with electronic recording, and I believe those two were

17 and other states under different statutes, under

18 different conditions, under different logistics.

19 Q So when you -- strike that.

20 So none of the software vendors that Nevada

21 County asked to respond to the Request for Proposal, in

22 2008, none of them, to your knowledge, were doing

23 electronic recording in California.

24 A Correct.

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

1 electronic recording in California, to respond to the

2 Request for Proposal?

3 A Who were doing electronic recording in

4 California?

5 Q Yes.

6 A Why didn't I ask?

7 Q Or why didn't --

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

9 Purchasing handled RFP. I don't handle that.

10 Q Did you ever suggest to purchasing that they

11 should ask, at least some software vendors who were

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

13 A Yeah, I think so. Yes.

14 Q Who did you tell them to ask?

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

16 because obviously, the incumbent vendor was going to get

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

18 purchasing because they asked: Who do you think would

19 be interested in responding?

20 Q And your statement that obviously AtPac would

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

22 list to purchasing of potential vendors for the RFP;

23 yes?

24 A Yes. They asked me who, who else would -- do

25 you think will be interested.

1 Q Who said who else do you think would be

2 interested?

3 A Mary Ross.

4 Q Okay.

5 A That's my recollection.

6 Q When did she say that to you?

7 A I don't know. On or around the time they were

8 beginning to issue the RFP. I was not in purchasing.

9 Q Well, then, why was she talking to you about

10 potential vendors?

11 A Because it's my department. I think it was

12 more of a courtesy thing.

13 Q What was a courtesy thing?

14 A Do you know of any other vendors. Purchasing,

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

16 they look for departments to assist them a lot of times

17 with information.

18 Q And they asked you for information on potential

19 bidders on the RFP --

20 A Yeah --

21 Q -- process?

22 A -- who do you think -- who do you think might

23 want to bid, yes.


25 BY MR. THOMAS:

1 Q We need to be careful not to talk over one

2 another.

3 A Okay.

4 Q And you provided a list to purchasing?

5 A Yes.

6 Q And the list you provided did not include

7 AtPac, correct?

8 A Right, uh-huh.

9 Q Did you ever talk to AtPac about the RFP

10 before?

11 A AtPac?

12 Q Let me ask a better question.

13 A Uh-huh.

14 Q Did you ever tell AtPac that there was an RFP

15 process before it was issued?

16 A I don't think so.

17 Q Okay. Did you ever talk to Aptitude about the

18 RFP process before the RFP issued?

19 A Yeah. I had mentioned that before. I talked

20 to all the prospective vendors to look out for an RFP

21 coming from our county.

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

23 potential RFP or prospective RFP --

24 A Uh-huh.

25 Q -- was AtPac?

1 A Yeah. Jackie Pollard talked to them for me.

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

3 was there with AtPac. They always wanted to go through

4 Jackie.

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

6 my question because --

7 A Okay.

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

9 A Okay.

10 Q Before the RFP was issued by Nevada County --

11 A Uh-huh.

12 Q -- in 2008 --

13 A Uh-huh.

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

15 right?

16 A Yes.

17 Q Okay. And before the RFP was issued, you

18 talked personally with a number of software vendors

19 telling them to be on the lookout for the RFP.

20 A Yes.

21 Q And you talked to Aptitude specifically,

22 correct?

23 A Well, I talked to all of them.

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

25 A Was Aptitude one of the vendors I spoke to?

1 Yes.

2 Q Yes. And when you say you talked to all

3 vendors --

4 A All who were at the conference, who came to the

5 conferences. I don't think I talked to every single

6 vendor in the United States that had recording software

7 but I talked to the vendors who showed up in California

8 at the county recorder conferences.

9 Q But you never talked to AtPac about the RFP

10 before the RFP issued, correct?

11 A Correct.

12 Q And the list you gave to purchasing for people

13 you thought should get a copy of the RFP --

14 A Uh-huh.

15 Q -- did not include AtPac, correct?

16 A Uh-huh. Correct. Yeah.

17 Q Was AtPac at the conference you've referred to?

18 A Yeah. Uh-huh.

19 Q Why didn't you talk to AtPac at that

20 conference?

21 A Because they had lousy customer service. They

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

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

24 trust from day one, and everything in my confidential

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

1 so I was well aware that AtPac knew intimately and more

2 than any other company about the RFP, what we were

3 looking for, timelines, because unbeknownst to me, when

4 I asked my people to be confidential, Jackie Pollard was

5 not, and AtPac got all that information.

6 Q Okay.

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

8 mind. They had more information than anyone else.

9 Q Now, as a Clerk-Recorder for Nevada County,

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

11 with the services it needed by its vendors, yeah?

12 That's one of your responsibilities?

13 A Say that again? I'm sorry.

14 Q Let me ask a better question. Where are the

15 communications between you and AtPac telling AtPac its

16 customer service is lousy?

17 I haven't seen a single piece of correspondence

18 to that effect, sir. Why is there no such

19 communication?


21 THE WITNESS: Don't know why. I felt I didn't

22 need to write a letter to that effect. We had a couple

23 meetings and I told them.

24 BY MR. THOMAS:

25 Q Who did you meet with?

1 A Kirk Weir and Wayne Long.

2 Q What did you tell them?

3 A I told them customer service is terrible and I

4 told them to start going through me with anything

5 instead of going through Jackie Pollard, and if there is

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

7 talk to me.

8 Q Now, tell me, sir, what specifically were the

9 customer service concerns you had?

10 A I don't know. I don't remember.

11 Q You don't remember?

12 A I don't remember. Most of it, generally, was

13 they didn't talk to me. They talked to Jackie Pollard.

14 Q And that irritated you?

15 A Absolutely. If Jackie wants to run for

16 clerk-recorder, she can.

17 And the vendor, when they work for me, they

18 need to understand that they deal with me. They don't

19 deal with one of my subordinates, especially after I ask

20 them not to deal with one of my subordinates.

21 Q And the fact that there's no communications

22 from you to AtPac identifying with any precision at

23 all -- strike that.

24 You have no explanation why you never wrote to

25 AtPac to explain that you thought their customer service

1 was terrible?

2 A No explanation. I just didn't want to. I

3 didn't feel I had to.

4 Q Now, earlier, you testified that you knew that

5 AtPac had received information about the 2008 Request

6 for Proposal from the clerk-recorder's office.

7 A Uh-huh.

8 Q Who told you that?

9 A Jackie Pollard.

10 Q What did she say to you?

11 A She says: AtPac's well aware of the RFP and

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

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

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

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

16 better, I'm going to do better."

17 Q And so when did Jackie tell you that AtPac was

18 well aware?

19 A I don't know. I don't know.

20 Q Did she tell you -- well, AtPac certainly

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

22 issued it yet, right?

23 A I would think not.

24 Q What evidence do you have, other than your

25 allegation that Jackie Pollard told you AtPac was aware

1 of the RFP --

2 A Uh-huh.

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

4 was aware of the RFP?

5 A None, except through hearsay.

6 Q And who is Jackie Pollard?

7 A She was the recording manager in Nevada County.

8 I think that was her title. I'm not quite sure.

9 Q She reported to who?

10 A Me.

11 Q Did you --

12 A But I felt like she reported to AtPac. But

13 anyway, technically, she reported to me.

14 Q Now, you were the recording manager in Placer

15 County, right?

16 A Correct.

17 Q Did you ever have communications with AtPac,

18 when you were the recording manager in Placer County,

19 that used AtPac software?

20 A Yes.

21 Q Why?

22 A Why --

23 Q Yeah.

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

25 manager.

1 Q Okay.

2 A And if there was a glitch, maybe in the

3 indexing module or cashiering module, I would take care

4 of it and that was my job.

5 Q And you could communicate with AtPac about

6 issues --

7 A Sure.

8 Q -- with the software?

9 A Sure.

10 Q And when you say you would take care of it,

11 what did you mean?

12 A Take care of what?

13 Q I don't know. You said if there was a glitch

14 maybe in the index module or cashiering module --

15 A Oh. I would take care of it, what does that

16 mean --

17 Q Yeah.

18 A -- I would take care of it? I would sit down

19 and make the necessary calls to get the correct people

20 to fix the problem.

21 Q Calls to who? AtPac?

22 A AtPac. Calls could have involved the County IT

23 people, the department IT people.

24 Q How often did you talk with AtPac when you were

25 the --

1 A Don't know.

2 Q You got to let me finish the question.

3 A I thought you were finished. Sorry. I thought

4 you were finished.

5 Q It's okay. How often did you talk with AtPac

6 when you were the recording manager in Placer County?

7 A Don't know.

8 Q Frequently?

9 A No.

10 Q Did Jim McCauley ever scold you for talking to

11 AtPac when you were the recording manager in Placer

12 County?

13 A He scolded me for something and I wasn't sure

14 if it was AtPac or not.

15 Q What did he scold you for?

16 A I don't remember.

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

18 you were the recording manager in Placer County, why did

19 you think it was improper for AtPac to communicate with

20 Jackie Pollard in Nevada County when she was recording

21 manager in Nevada County?

22 A Jim McCauley had his way of running the office.

23 I have my way of running the office. My way of running

24 the office is: AtPac, you talk to me.

25 This was the beginning of our relationship as

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

2 done --

3 Q You wanted to be --

4 A -- at that time.

5 Q You wanted to be the point of contact?

6 A Absolutely.

7 Q And was that your desire all the way through

8 the point in time AtPac ceased providing software in

9 Nevada County?

10 A Absolutely. Why do you think I'm cc'd on

11 everything? I do not want to be blindsided by anything.

12 Q Oh. Well, that begs the question I actually

13 have to ask you.

14 A Uh-huh.

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

16 everything," what do you mean by that?

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

18 don't want to be blindsided by issues.

19 Q No, sir. Your testimony is it was your desire

20 to be the primary point of contact with AtPac at all

21 times; yes?

22 A At all times in Nevada County, yes.

23 Q So if there was any communication with AtPac,

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

25 A Uh-huh.

1 Q Not cc'd to you?

2 A Yeah.

3 Q Right?

4 A Well, it depends on what the issues are.

5 Q Oh.

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

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

8 point here is being informed. There are a lot of ways

9 to be informed.

10 Q So when I asked you about your experience with

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

12 you forgot about the one instance where he scolded you;

13 is that right?

14 A Well, someone scolds somebody, I don't know

15 what that has to do with praise. I praise my kids all

16 the time, but you know what? Once in a while, I have to

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

18 Q And just because you had to scold someone

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

20 A Well, for me.

21 Q Uh-huh. So what was your opinion of Jackie

22 Pollard?

23 MR. POULOS: I'll object. It's irrelevant but

24 go ahead.

25 BY MR. THOMAS:

1 Q You disliked her?

2 MR. POULOS: You can answer.

3 (Conference off the record.)

4 MR. POULOS: Yeah. Why don't we go off the

5 record for two seconds.

6 MR. THOMAS: Okay.


8 11:19 a.m.

9 (Discussion off the record.)


11 11:20 a.m.

12 BY MR. THOMAS:

13 Q Now, you said you were -- you learned that

14 AtPac communicated with Jackie Pollard at certain times

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

16 A Quite a bit. Very frequently.

17 Q Okay. And you would acknowledge that AtPac

18 would have a reason to communicate with the recording

19 manager --

20 A Absolutely.

21 Q -- of Nevada County.

22 But something about these communications that

23 irritated you on some level; yes?

24 A Yes.

25 Q And what was it that irritated you?

1 A There were quite a few fixes, functionality

2 issues, that I became aware of after the fact. That's

3 what irritated me, not the issues themselves.

4 I'm sure Jackie had been doing things for a

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

6 for Jackie and AtPac. Maybe she didn't understand what

7 I was saying. Maybe she didn't want to understand.

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

9 a different mode of communication because I want to be

10 informed before the fact, not after the fact.

11 Q So your primary irritation with communication

12 between Ms. Pollard and AtPac was your assertion that

13 you weren't copied on certain communications?

14 A My primary irritation was I was not informed

15 and I believe things were misrepresented to me.

16 Q And who made -- what was misrepresented to you?

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

18 Quite a few things, actually.

19 Q Quite a few things were misrepresented to you?

20 A Uh-huh. Uh-huh.

21 Q By who?

22 A Jackie Pollard.

23 Q And you have no recollection of what those

24 things are?

25 A Specifically, no.

1 Q Or generally.

2 A Generally?

3 Q Yeah.

4 A Yeah. What AtPac was doing.

5 Q In terms of providing clerk-recorder

6 functionality?

7 A Correct, or fixing issues, or if something went

8 down, I would learn after the fact. I like to know if

9 something goes down when it goes down.

10 Q Yeah. And for that reason, you're careful to

11 review correspondence that's copied to you; yes?

12 A Yeah.

13 Q Because it's important not to be surprised,

14 right?

15 A Not to be blindsided. For me, it is, that's

16 correct.

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

18 communications --


20 Q -- involving the clerk-recorder?


22 Q And those cc's are meaningful because you read

23 them; yes?

24 A Yes.

25 Q And if you don't understand them, you call

1 someone?

2 A And they're meaningful because the employees

3 have complied with what I've asked them to do.

4 Q So earlier, when you said you wanted to be the

5 primary point of contact with AtPac --

6 A Uh-huh.

7 Q -- you didn't really mean that, did you. What

8 you meant is you just want to be copied on

9 communications with AtPac; yes?

10 A No. I wanted to be the primary point of

11 contact.

12 Q Okay. So whenever there was a need to

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

14 that. You would do that directly; yes?


16 witness's testimony. Lacks foundation.

17 THE WITNESS: No, I wouldn't -- on some

18 occasions, yes. On some occasions, no.

19 BY MR. THOMAS:

20 Q Okay. Why, earlier, did you testify that you

21 received only positive feedback from Jim McCauley?

22 A Because that's true.

23 Q Except for when he scolded you, right?

24 A I look at that as positive feedback. I -- I'm

25 not a negative person. I know you can't learn if you're

1 thinking everything and everyone is negative.

2 Q All right. So when you provided the list of

3 vendors for the RFP to the purchasing department in

4 2008, you had already become irritated with Jackie

5 Pollard's communications with AtPac that weren't copied

6 to you, right?

7 A Uh-huh.

8 Q And --

9 A Yes. Yes.

10 Q And you also --

11 A I was more -- sorry.

12 Q You were more what?

13 A Sorry. I didn't want to interrupt. Sorry.

14 Q No. That's fine. You were more what?

15 A More irritated with AtPac.

16 Q Oh. Tell me. Why?

17 A Because they would continue to go through

18 Jackie Pollard.

19 Q And who is "they"?

20 A AtPac.

21 Q Who at AtPac?

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

23 Q And how did you know that?

24 A Because I could see and observe it after the

25 fact.

1 Q How? Give me a specific instance of you seeing

2 and observing after the fact communications between Dave

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

4 A It wasn't communications. It was issues.

5 There would be a time when the indexing module would be

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

7 Two weeks down the road, a staff member would

8 say: Wow, yesterday was really rough. Indexing was

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

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

11 staff, in an innocuous comment about how rough the prior

12 day was. I found out that way that there was a little

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

14 time and time again before, with Jackie Pollard: If

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

16 know about it, will you? Would that be possible,

17 Jackie? Would that be something that would be okay with

18 you, Jackie?

19 Jackie replied: Yes. No problem.

20 Two weeks later, I find out after the fact that

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

22 occasion.

23 Q And why did that cause you irritation with

24 AtPac? Why was it their -- weren't they just responding

25 to a customer, Ms. Pollard?

1 A They were.

2 Q And so why do you blame AtPac for Ms. Pollard

3 not communicating with you?

4 A Because AtPac, to me, they just have poor

5 customer service.

6 Q Right.

7 A And I had talked to AtPac about things. Now,

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

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

10 thought that was more the question.

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

12 mostly annoyed with AtPac?

13 A Because I was mostly annoyed with AtPac because

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

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

16 Nevada County.

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

18 more annoyed with Jackie Pollard?

19 A Well, I was talking about your specific

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

21 at both of them. Maybe that will work better.

22 Q So after these instances where you claim that

23 you found out after the fact that AtPac had assisted

24 Ms. Pollard in whatever request she made concerning

25 clerk-recorder software --

1 A Uh-huh.

2 Q -- why didn't you send any written

3 communications to AtPac telling them that they shouldn't

4 work directly with Ms. Pollard or anything to that

5 effect?

6 A Just didn't do it. No reason.

7 Q And there's no evidence that these instances

8 occurred other than your statement today; yes?

9 A You can talk to Jackie Pollard. If she decides

10 to be truthful, there's plenty of evidence. You can

11 talk to AtPac.

12 Q Who, within the clerk recorder's office, if

13 anyone, told you they thought AtPac had poor customer

14 service?

15 A Who?

16 Q Yeah.

17 A In the clerk recorder's office?

18 Q Yeah.

19 A Told me they thought that AtPac had poor

20 customer service?

21 Q Yes, if anyone.

22 A Eileen Moody. Angie Bain. A lady named Sonya.

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

24 Jean Roberts. They did communicate with me complaining

25 about AtPac's customer service.

1 Q Okay.

2 A There are some people from the IT department,

3 too. I'm not quite sure but they complained about Dave

4 Krugle on quite a few occasions.

5 Q Who was the primary IT department person

6 assigned to --

7 A There wasn't one. Nevada County has

8 centralized IT --

9 Q Okay.

10 A -- and...

11 Q Have you heard of -- are you familiar with

12 E-recorder server in Nevada County?

13 A I'm familiar with that term.

14 Q Yeah. You understand --

15 A Have I seen it? Do I know what it is? No.

16 Q Well, you understood it's the server that has

17 AtPac software; yes?

18 A That's my understanding.

19 Q And --

20 A My understanding, that's not the only server,

21 but that's one of the servers.

22 Q And you knew that when you were clerk-recorder,

23 right?

24 A Yes. Not from the get-go. On June 27th, I did

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

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

2 that fact.

3 Q Well, you knew there was a server in Nevada

4 County that had the AtPac software, obviously?

5 A Yes.

6 Q Okay. And you knew that server contained

7 software that allowed AtPac software to provide the

8 features it provided --

9 A Yes.

10 Q -- to the clerk-recorder's office?

11 A Yes.

12 Q And that software also had features that house

13 and store databases, right?


15 Calls for speculation.

16 THE WITNESS: Yeah, I didn't really know that.

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

18 BY MR. THOMAS:

19 Q Well, you knew clerk-recorder software is

20 database software, right?

21 A I never really heard it described that way as

22 database software.

23 Q Well, clerk-recorder software allows for the

24 recording --

25 A Uh-huh.

1 Q -- storage and retrieval of data and databases.

2 A Uh-huh.

3 Q "Yes"?

4 A Okay. Yeah.

5 Q Well, you knew that because you were the vice

6 president of two companies --

7 A Yeah.

8 Q -- that provided that service?

9 A Yeah. Yeah. I just never heard it termed that

10 way.

11 Q But you agree with that, right?

12 A I agree with that. I --

13 Q Okay.

14 A When you asked if it was, you know, database

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

16 Q But you agree with that, correct?

17 A Sure.


19 BY MR. THOMAS:

20 Q And you knew AtPac's databases were stored on

21 servers within the county's computers, right?

22 A Yes.

23 Q So when did you notify the Nevada County

24 contracting department about AtPac's alleged substandard

25 performance, if ever?

1 A I never did.

2 Q Why not?

3 A No reason to. It's not their responsibility.

4 It's not purchasing's responsibility.

5 Purchasing's responsibility goes more toward

6 procurement.

7 Q But once a contract is let with a vendor, then

8 it's the job of the department to ensure contract

9 compliance?

10 A Say that again.

11 Q Once -- strike that.

12 Is it your understanding that it was your job

13 to oversee and track whether AtPac was performing with

14 its contractual obligations?

15 A Yeah.

16 Q Okay. And you never reported to purchasing

17 that AtPac was providing poor customer service, right?

18 A Right.

19 Q That's your allegation.

20 A Right.

21 Q And you --

22 A I probably mentioned it, but no, never formally

23 charged AtPac with poor customer service.

24 Q And you never formally charged AtPac itself

25 with poor customer service?

1 A Correct.

2 Q Now, specifically what was so poor about

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

4 A Yeah. If I recall, it was hard, at times, to

5 identify a point person or one person to deal with

6 issues. There were timeliness issues with getting some

7 of the fixes done.

8 Q Anything else?

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

10 Q Do you ever remember getting those types of

11 complaints from customers when you worked at AMCAD?


13 THE WITNESS: Customer service issues?

14 BY MR. THOMAS:

15 Q Yeah.

16 A I think once in a while, sure.

17 Q Sure. And timeliness issues, when you were at

18 AMCAD, right? You heard customer complaints about

19 responsiveness?

20 A It was hearsay. That was not my responsibility

21 to deal with issues and host counties.

22 Q Now, if there were communications between

23 Aptitude and Nevada County personnel that aren't copied

24 to you, clerk-recorder communications, that would be

25 contrary to your directives, correct?

1 A Uh-huh.

2 Q Because you have informed all of your staff

3 that they are to copy you on all communications with

4 Aptitude; is that true?


6 THE WITNESS: No, that's not true.

7 BY MR. THOMAS:

8 Q Really. Why haven't you sent out that

9 directive since you want to be informed of everything

10 and never blindsided?

11 A Because there are some issues that I'm aware of

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

13 Let me know what's wrong. If there's a problem with the

14 fix, let me know. Otherwise, you're going to let me

15 know when it's done.

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

17 on communications with Aptitude?

18 A No, I don't do --

19 Q Have you ever been blind copied or bcc'd on

20 communications with Aptitude?

21 A No.

22 Q Have you now identified for me the sum total of

23 things you can remember, according to your allegation

24 today, that were AtPac customer service issues?

25 A You know, there seem to have been some

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

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

3 from IT. Again, what they were, I can't recall.

4 Q Now, have you received complaints from your

5 staff regarding the timeliness of Aptitude's response to

6 concerns regarding its software?

7 A Couple times, yes, sure.

8 Q Just only two?

9 A That I can remember, only two.

10 Q Two, you can remember?

11 A Uh-huh.

12 Q And have you -- have you received any

13 communications from your staff that Aptitude has more

14 than one point of contact for issues --

15 A No.

16 Q -- or concerns?

17 A No.

18 Q So with respect to AtPac, can you recall a

19 specific single customer service problem as you sit here

20 today?

21 Let me re-ask that. I'm going to fix that

22 question.

23 With respect to the service provided by AtPac

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

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

1 example of a customer service problem?

2 A Yes. Now, I cannot give you the time and the

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

4 indexing module.

5 The ladies -- and I believe it was a

6 verification issue. Indexing comes in two parts: Entry

7 and verification, and I remember it was very difficult

8 to come to conclusion with this issue, more difficult

9 than I ever remember in my years with dealing with

10 AtPac.

11 Calls were made. Someone else had to be

12 notified, and then you notify that person, and then

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

14 a good instance of poor customer service, that I

15 remember.

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

17 A Yeah, right now. The only other part is after

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

19 issues about functionality. There were some talks about

20 automated indexing, about redaction, and those talks

21 were held with Jackie Pollard --

22 Q We have to --

23 A -- not with me.

24 Q I'm sorry, sir.

25 A That's okay.

1 MR. THOMAS: I don't mean to interrupt. He has

2 to take a break because of his tape.


4 11:30 -- 11:40 a.m. End of disc one.

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


7 11:47 a.m. Beginning of disc two.

8 BY MR. THOMAS:

9 Q Earlier, sir, you testified about an incidence

10 where it was difficult to come to a conclusion on an

11 issue and you thought that was an instance of poor

12 customer service by AtPac.

13 Do you have any explanation why no e-mails

14 concerning that instance have been produced in this

15 case?

16 A No.

17 Q Were there e-mails about that issue?

18 A No. I don't know. None were sent by me or

19 received by me.

20 Q And who, within your office, handled that issue

21 besides you?

22 MR. POULOS: Objection. Vague.

23 BY MR. THOMAS:

24 Q Who, within your office, was dealing with

25 AtPac --

1 A I believe it --

2 Q -- concerning the instance of poor customer

3 service you've alleged?

4 A I believe it was --


6 THE WITNESS: -- Jackie Pollard and Eileen

7 Moody.

8 BY MR. THOMAS:

9 Q Now, when I asked you if that was the only

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

11 discussions you had with Kirk and Wayne about

12 functionality.

13 Do you remember that testimony?

14 A Yes.

15 Q Were you talking about customer service issues

16 or software functionality issues?

17 A All of the above.

18 Q Well, my question was specific, though, to

19 customer service issues.

20 A Yes.

21 Q Okay. So what is it about the functionality

22 that you thought was a customer service issue when you

23 talked to Kirk and Wayne?

24 A I don't understand your question.

25 Q Let me clarify. I want to make sure we have a

1 clear record.

2 I asked you to give me any single instance of

3 customer service you could remember.

4 A Uh-huh.

5 Q And you testified to about that one issue.

6 A Uh-huh.

7 MR. POULOS: I think that misrepresents the


9 MR. THOMAS: That's what we're trying to

10 clarify.

11 THE WITNESS: Uh-huh. Uh-huh.

12 BY MR. THOMAS:

13 Q You gave me one example where you thought it

14 took too long to come to issue --

15 A Uh-huh.

16 Q -- and different points of contact where it

17 happened.


19 Q I asked you if that was the only one you can

20 remember.

21 A Uh-huh.

22 Q And is it?

23 A Specifically, with specifics, yes, except I

24 think I mentioned I spoke with Kirk Weir and Wayne Long

25 and ask that I be apprised of situations, upcoming

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

2 Now, in that conversation, we talked about

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

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

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

6 Q It's your testimony that after you talked to

7 them about that, that they --

8 A That they --

9 Q -- failed to do so?

10 A Absolutely.

11 Q Is it your testimony they were e-mailing Jackie

12 Pollard without copying you?

13 A Yeah. I think I know that, uh-huh, yes.

14 Q Was it your instruction to them that if they

15 received a request or a directive from Jackie Pollard,

16 they were to not do anything until you confirmed it? Is

17 that your testimony?

18 A No.

19 Q So what were they to do when they got a

20 directive or a request from Jackie Pollard? Do nothing?

21 A They were to comply with that.

22 Q Okay. So were you critical if AtPac complied

23 with Jackie Pollard's directive?

24 A No.

25 Q What else were they supposed to do if Jackie

1 Pollard asked AtPac to do something?

2 A Pretty much comply with that.

3 Q Okay. Do you have any criticism for them not

4 doing that?

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

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

7 enhancements, if there were -- if there was

8 functionality that we may be proposing or thinking about

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

10 and those issues were discussed with Jackie Pollard.

11 You just came back asking me when Jackie

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

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

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

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

16 to Jackie Pollard first.

17 Q Now -- now what instances are you aware of

18 where AtPac discussed enhancements that excluded you

19 from the communication?

20 A Cannot give you the specifics.

21 Q What instances are you aware of where AtPac

22 discussed functionalities with Jackie Pollard --

23 A Cannot --

24 Q -- excluded you from those communications?

25 A Cannot give you the specifics.

1 Q Or generally?

2 A Cannot give you generally.

3 Q Now, with respect to the -- strike that.

4 What effort did you make -- we already know you

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

6 connection with this litigation and the document

7 requests we made.

8 What efforts did you make to search

9 documents -- search for documents in connection with

10 request for documents by AtPac in this case?

11 A I went through what I believe are the normal

12 search parameters and produced e-mails twice, one

13 pursuant to Public Record Act requests that were

14 plentiful before the litigation, and then the exact same

15 requests after the litigation was filed.

16 Q Okay. And you said normal search parameters?

17 A Yeah. That's all I am. I'm not a techie. I

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

19 the normal search parameters.

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

21 off your word. You're not a tech --

22 A A techie. You know, I know some people who are

23 more adept at searching than I.

24 Q Who's that?

25 A I would think Steve Monaghan, he probably does

1 more. Kathy Barale, Marie McCluskey. I would think Dan

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

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

4 You have to give me a minute.

5 Q And when you say "techie" --

6 A Or IT personnel might be a better phrase.

7 Q Okay. Well, let me ask you this. What did you

8 do to search for documents or communications in response

9 to either Public Records Act requests or requests for

10 production in the lawsuit?

11 A That question is hard for me to answer because

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

13 for.

14 If I was searching for records or any e-mails

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

16 will put in the name of Patty Sandever. I would search

17 all my files. I would search my inbox. That's what I

18 do to search.

19 Q Well, how did you know what to search for when

20 you did this normal search parameter search?

21 A Because I was told by County Counsel: Greg, we

22 need all the e-mails.

23 MR. POULOS: I don't want you to reveal

24 communications from attorneys.


1 MR. THOMAS: I actually think those

2 communications would have been at the time when they

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

4 objection --

5 MR. POULOS: Yeah. I don't -- I don't care

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

7 search for documents is fair.

8 BY MR. THOMAS:

9 Q I want to know what you searched for,

10 specifically. What did you search for?

11 A E-mails between myself and Aptitude or Aptitude

12 personnel.

13 Q E-mails between yourself and Aptitude?

14 A Uh-huh, or Aptitude personnel, yeah.

15 Q Is that all you searched for?

16 A I don't know. There might have been a couple

17 other requests. Don't recall.

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

19 you looked for in connection with discovery in this

20 litigation?

21 A Yeah.

22 Q You never looked through file folders looking

23 for paper, copies of documents, correct?

24 MR. POULOS: Objection. That misstates the


1 THE WITNESS: No, I looked through file

2 folders. I just don't have a lot.

3 BY MR. THOMAS:

4 Q Well, when I asked --

5 A The ones that I did, yeah.

6 Q Well, when I asked you if looking through your

7 e-mail for communications between Aptitude was the sum

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

9 you say you did more?

10 A I don't know.

11 MR. POULOS: Objection. Misstates testimony.

12 THE WITNESS: I guess I just didn't remember to

13 say that with my couple file folders. My apologies.

14 BY MR. THOMAS:

15 Q Okay. It's just something you forgot?

16 A Yes. My apologies.

17 Q All right. So, now, let me get a recap.

18 Searching your recollection --

19 A Yeah.

20 Q -- tell me everything you did to search for

21 either documents or electronic documents or anything

22 else in this litigation.

23 A Okay. I went through file folders and did an

24 electronic search.

25 Q What file folders did you look through?

1 A I don't know. They were folders in my cabinet.

2 Q You don't know what they were?

3 A I think one was labeled RFP. I believe one was

4 labeled Electronic Recording. I believe one was labeled

5 County Recorders Association of California. Yeah,

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

7 Q And you looked through those folders?

8 A Yes.

9 Q What did you do when you looked through them?

10 Did you make copies of everything in them?

11 A If there was correspondence between myself and

12 Aptitude, I would make copies --

13 Q Okay.

14 A -- yes.

15 Q So even with respect to the paper documents,

16 you limited what you gathered to correspondence between

17 yourself and Aptitude; yes?

18 A I limited it to anything that said Aptitude, I

19 will pull. If I wasn't sure, I had assistance and

20 decisions were made there.

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

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

23 of what you gathered, right?

24 A Yeah. There was a request to look for AtPac,

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

1 yeah.

2 Q How did you search for e-mail?

3 A I just put in the name of a person or company

4 and see what popped up.

5 Q And what search terms did you use?

6 A Just the name of the companies and the people.

7 Q Can you list them for me, please?

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

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

10 Richard Sandblade, the term AtPac, Aptitude, Paul

11 Miller, Tom McGrath, Patty Sandever, Alana Wittig. To

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

13 into the little search box.

14 Q And when did you do that?

15 A When?

16 Q Yeah.

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

18 did that.

19 Q Well, generally, do you have an estimate?

20 A No, I don't. Whenever I was told to do it, I

21 believe it was done before litigation. It was a couple

22 months before the litigation was filed, and then when

23 you all started all this discovery stuff. You probably

24 have a better idea of when than I.

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

1 you searched for all those search terms back before the

2 litigation?

3 A Yeah. There was some Public Record Requests

4 Acts and I was asked to search.

5 Q And my -- but the question is more specific.

6 A Uh-huh.

7 Q You specifically did the search with all the

8 search terms you've now listed back before the

9 litigation started, correct?

10 A No. No. Because before -- actually, yeah, I

11 will have to say yes. Yes. Uh-huh.

12 Q Okay.

13 A Yeah.

14 Q So do you have any explanation then of why

15 communications between Ms. Wittig and you weren't

16 produced until late in 2010 to AtPac?


18 BY MR. THOMAS:

19 Q Do you have any explanation for that?

20 A No. Do you?

21 Q Could it be that you didn't do those search

22 terms until much later?

23 A Absolutely not.

24 Q When I asked you about what you had done to

25 search, and you said: I looked for anything. I limited

1 it to communications between me and Aptitude.

2 A Uh-huh.

3 Q Do you remember that testimony?

4 A Uh-huh.

5 Q Why was it -- you just forgot about all this

6 searching and the search terms?

7 A I'm sorry. Can you repeat that question?

8 Q Why is it when I asked you the total of your

9 searching, you specifically said: I limited it to

10 communications between me and Aptitude. Why did you

11 testify to that?


13 THE WITNESS: That's what I thought was the

14 truthful answer.

15 BY MR. THOMAS:

16 Q Well, are communications -- then why would you

17 have been searching for the word "Sandblade"?

18 MR. POULOS: Objection. Already asked and

19 answered.

20 THE WITNESS: He's an employee of AtPac.

21 BY MR. THOMAS:

22 Q Yeah. Isn't he?

23 A Yeah.

24 Q And so why would you search for that if you

25 were limiting your search to communications between you

1 and Aptitude?

2 A I think I said to my recollection. And then

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

4 request for AtPac as well. Isn't that how it went?

5 MR. THOMAS: Now, let's mark this next in

6 order.

7 MR. POULOS: 371.


9 identification.)

10 THE WITNESS: Thank you.

11 BY MR. THOMAS:

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

13 A Yes.

14 Q And what is this document?

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

16 Miller to Gregory Diaz.

17 Q And did you receive this e-mail?

18 A It looks like I did, yes.

19 Q Okay. When you see an e-mail with your name on

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

21 received this e-mail, right?

22 A Uh-huh.

23 Q Now, did you have any discussions with

24 Mr. Miller concerning Aptitude's interest in expanding

25 its market share or developing a market share in

1 California?


3 THE WITNESS: Yeah, I probably will have to say

4 yes, in the context of us issuing an RFP.

5 BY MR. THOMAS:


7 A Look out for an RFP from Nevada County. The

8 response was: We're very interested and we will be

9 looking out for that.

10 Q And he specifically told you they were

11 interested in developing business in California, right?

12 A Not at that time. He told me they were very

13 interested in responding to Nevada County's RFP.

14 Q When was this communication with Paul Miller

15 you recounted?

16 A I don't know.

17 Q Was it before or after this e-mail?

18 A It was before this e-mail.

19 Q All right. And did you -- it says that you'll

20 receive a hard copy later this week.

21 Do you see that?

22 A Yes, uh-huh.

23 Q Did you receive a hard copy? It's a letter to

24 you.

25 A You know, I probably did. I don't remember

1 receiving.

2 Q If you could turn to the third paragraph of the

3 attachment to the e-mail.

4 A Uh-huh. Uh-huh.

5 Q Do you see it says: California represents the

6 single largest market in the US for our business?

7 A Yes.

8 Q And you understood he's referring to

9 clerk-recorder software?

10 A That's my --


12 THE WITNESS: That's my understanding when I

13 read this letter.

14 BY MR. THOMAS:

15 Q Yes. And do you agree with that statement that

16 California is the single largest market for

17 clerk-recorder software?

18 A I don't know. I never agreed nor disagreed.

19 It's just a statement.

20 Q My question is: As you sit here today, is that

21 a true statement?

22 A I don't know.

23 Q You don't know. You never learned that when

24 you were working as a vice president of two

25 clerk-recorder software companies?

1 A Well, because of my experience in the private

2 sector is exactly why I don't know. On the face of it,

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

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

5 millions and millions of documents out of play for

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

7 Texas has 200-something counties. I don't know.

8 Q Okay. Sir, are you aware of any other e-mails

9 you received from any other clerk-recorder vendors

10 discussing the Request for Proposal process in Nevada

11 County other than Aptitude?


13 THE WITNESS: Yes.

14 BY MR. THOMAS:

15 Q Which others?

16 A Exigent, Soft Tech, AMCAD. I think DFM. I

17 mean I got letters, brochures, information from all the

18 vendors.

19 Q Specifically discussing your upcoming

20 procurement?

21 A Absolutely. As soon as they knew, material was

22 sent to me, yeah.

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

24 question was before you issued the Request for Proposal.

25 A Yeah, but this is before the RFP process.

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

2 been provided to our office?

3 A They weren't e-mails.


5 BY MR. THOMAS:

6 Q Why weren't those written materials provided to

7 my office?

8 A Because --

9 MR. POULOS: Same objection.

10 THE WITNESS: -- I didn't have a request to

11 produce those documents.

12 BY MR. THOMAS:

13 Q Now, the next sentence in that third paragraph

14 says: We are actively speaking with multiple counties

15 within California.

16 A Uh-huh.

17 Q Do you see that?

18 A Yes.

19 Q Do you know what counties --

20 A No.

21 Q -- at the time?

22 A No. I take that back. San Francisco, I do

23 know.

24 Q Because it says so in the next sentence?

25 A Humboldt County, I do know. Just those two.

1 Q Okay. And at this point in time, did you know

2 they were pursuing Placer County?

3 A No.

4 Q Okay. You eventually learned that, right?

5 A Yes.

6 Q Okay.

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

8 Q Since this particular e-mail, have you had

9 discussions with personnel from Aptitude about their

10 business plans and expanding their customer base in

11 California?

12 A Since this e-mail?

13 Q Yeah.

14 A Yes.

15 Q And what have those communications been?

16 A Status reports on how they're doing in

17 California.

18 Q And do you know why it is you receive status

19 reports from Aptitude about other customers of theirs or

20 other marketing efforts of theirs?

21 A They volunteered the information.

22 MR. POULOS: Objection. Calls for speculation.

23 BY MR. THOMAS:

24 Q They volunteered the information.

25 Have you ever seen any business plans by

1 Aptitude for the California market?

2 A No.

3 Q Have they ever explained to you what their

4 business plans are --

5 A No.

6 Q -- in California?

7 A No.

8 Q What was your pre-RFP interaction with

9 Aptitude?


11 THE WITNESS: I thought I already answered. My

12 interaction was obviously looking at their product, like

13 I routinely do at our conferences for all the vendors,

14 and then informing all the vendors, if they were

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

16 Nevada County.

17 BY MR. THOMAS:

18 Q And what pre-Request for Proposal interaction

19 did your staff have with Aptitude?

20 A I don't know.

21 Q Why don't you know? Wouldn't they have copied

22 you on those e-mails or communications?

23 A If they did, they would have.

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

25 apparently, you're not aware of any communication your

1 staff had with Aptitude before the RFP.

2 A Correct.


4 identification.)

5 BY MR. THOMAS:

6 Q Sir, do you have Exhibit 372? Do you have

7 Exhibit 372, sir?

8 A Yes. I'm sorry.

9 Q What is this document?

10 A It's from me to Dee Murphy about an RFI

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

12 me enclosing the attached RFI used by San Francisco

13 County.

14 Q Okay. And it says -- so you received this

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

16 Ms. Murphy; is that right?

17 A Yes.

18 Q Who is Ms. -- who is Dee Murphy?

19 A She was a paralegal working for the County.

20 Q And why did you send an e-mail from Patty

21 Sandever to Dee Murphy?

22 A Because Dee Murphy was involved with

23 creating -- actually, she was involved in the RFP

24 process in Nevada County.

25 Q Okay. And that's why you sent this e-mail to

1 her?

2 A Yes.

3 Q Okay. And what was -- let's look at the e-mail

4 from Ms. Sandever to you.

5 Do you see that?

6 A Yes.

7 Q It says, "It was great speaking with you

8 yesterday."

9 A Yes.

10 Q "As promise attached please find an RFI

11 template we created."

12 Do you see that?

13 A Yes. Uh-huh.

14 Q And what was this RFI template that -- when she

15 says "we," that means Aptitude; yes?

16 A Yes.

17 Q Okay. And what was this RFI template that

18 Aptitude created that they sent to you?

19 A I don't know.

20 Q And then she says, "I have also attached the

21 RFI used by San Francisco County which we recently

22 responded to."

23 A Uh-huh.

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

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

1 their requirements."

2 Do you see that?

3 A Yes.

4 Q And so let me ask you this. Was the RF -- was

5 the RFP in Aptitude at all -- strike that.

6 Was the RFP in Nevada County for clerk-recorder

7 software --

8 A Uh-huh.

9 Q -- issued in 2008 --

10 A Uh-huh.

11 Q -- was that in any way modeled after or

12 developed using the RFI template that Ms. Sandever

13 provided to you?

14 A I don't think so.

15 Q How do you know?

16 A Because Nevada County has their own template

17 for the RFP.

18 Q So Nevada County didn't need --

19 A And --

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

21 A Can we go back to the other statement because I

22 wasn't finished my response.

23 Q I'm sorry. Go ahead, sir.

24 A That's okay. That's okay. Nevada County has

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

1 Dee Murphy, County Counsel, was a comparison of

2 functionality between a large county and a smaller

3 county.

4 The RFP itself, Nevada County has its own

5 template or so I'm to believe from Mary Ross.

6 Q Why did you forward this e-mail from

7 Ms. Sandever to Dee Murphy?

8 A Pursuant to Dee's request. Doesn't it say "as

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

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

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

12 Sandever, do you?

13 A No.

14 Q So how did Dee know that you received that

15 document from Patsy Sandever?


17 BY MR. THOMAS:

18 Q You would have had to have told her.

19 A I'm pretty sure I told her, yeah.

20 Q And what does "as promised" mean? That means

21 you promised to give it to her, right?

22 A Yeah.

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

24 A No.

25 Q You use the word "as promised" repeatedly in

1 your e-mail, don't you?

2 A In my e-mails?

3 Q Uh-huh.

4 A Repeatedly?

5 Q Yeah.

6 A Yeah. Sometimes.

7 Q What does it mean when you use it? It means

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

9 and then you do it?

10 A Yes.

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

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

13 that Aptitude gave you --

14 A No.

15 Q -- are you?

16 A No.

17 Q Now, did you ask Dee Murphy to use the Aptitude

18 RFI to develop the Request for Proposal in Nevada

19 County?

20 A No.

21 Q Did Nevada County issue an RFI --

22 A No.

23 Q -- at any point in time? It only issued an

24 RFP.

25 A Correct.

1 MR. POULOS: Objection.

2 BY MR. THOMAS:

3 Q What's an RFI, sir?

4 A It's, my understanding, it means Request for

5 Information.

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

7 before a Request for Proposal or an RFP?

8 A Sometimes.

9 Q Okay. That's not something you did in Nevada

10 County in 2008?

11 A No, we did not.

12 Q Okay. Who selected Aptitude as the vendor for

13 Nevada County?

14 A I did, pursuant to a recommendation from an

15 evaluation task force that was set up by purchasing.

16 Q And who was on that task force?

17 A I don't know. I don't have all the names in

18 front of me.

19 Q Were you on it?

20 A Yes.

21 Q Who else was on it, that you recall?

22 A I don't know. I don't have all the names in

23 front of me.

24 Q Well, can you recall anyone who was on the task

25 force?

1 A Let's see. There was a lady named Teresa. I

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

3 name. Mary Ross. I believe there was a guy named Phil

4 Russ. I forget. There was a list of names.

5 Q How many people were on this task force?

6 A I believe it was six.

7 Q And you were one of the six?

8 A Yes. Or probably better termed evaluation

9 committee.

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

11 Do you have that in front of you?

12 A I do.

13 Q She says: "Please let me know if there's

14 anything else I can help you with."

15 Do you see that?

16 A Yes.

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

18 responding to?

19 A I don't recall.

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

21 A Yeah, I know what it means. It's a

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

23 being chummy with the elected official.

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

25 with Ms. Sandever, is it?

1 A No. I've known Patty for many years.

2 Q Okay. Then the next sentence says: "I look

3 forward to seeing you again soon."

4 Do you see that?

5 A Yes.

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

7 before; is that true? You see the first sentence?

8 A I don't think so, no, that's not true.

9 MR. THOMAS: All right. Mark this next in

10 order.


12 identification.)

13 BY MR. THOMAS:

14 Q All right. Sir, do you have Exhibit 373?

15 A Yes.

16 Q And this is another e-mail chain. Did you send

17 this e-mail, the one at the top?

18 A Yes.

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

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

21 A I -- yes.

22 Q You believe so?

23 A I believe so.

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

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

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

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

3 Let's look at the second page. There's a third

4 page that I'm not interested in.

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

6 you see the bottom number, it says NV 000504?

7 A Yes.

8 Q Okay. And you're on that page. So the first

9 e-mail at the bottom half of the page is from

10 Ms. Sandever to you, correct?

11 A Yes.

12 Q And you received that e-mail, right?

13 A Yes.

14 Q And she's referring to the Aptitude

15 certification status with the California DOJ?

16 A Yes.

17 Q And that refers to e-recording, right?

18 A Yes.

19 Q And Aptitude never did get certified with the

20 DOJ, correct?

21 A Yes.

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

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

24 e-recording, are you? You don't know one way or the

25 other?

1 A At this time?

2 Q Yeah.

3 A Oh, I do. They were not certified.

4 Q Okay. Do you know now whether they are?

5 A Yes.

6 Q What do you know?

7 A That they're not certified.

8 Q That AtPac's not certified for e-recording?

9 A Correct.

10 Q Now, with respect to the next sentence, it

11 says: As stated previously, we are committed to meeting

12 all certification requirements for ERDS.

13 What is ERDS?

14 A Electronic Recording Delivery System.

15 Q And then it says: "And Nevada County's

16 requirements for electronic recording."

17 Do you see that?

18 A Yes.

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

20 June 2008, it was your intention to move Nevada County

21 and include electronic recording?

22 A Still is.

23 Q Okay. Oh, it is?

24 A Absolutely.

25 Q Okay. And at some point, was it your intention

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

2 that the vendors provide e-recording? Did you ever

3 have --

4 A My intention was down the road, that vendor

5 would be in a position to supply electronic recording

6 services to us.

7 Q Okay. And this e-mail with Ms. Sandever, this

8 is before the Request for Proposal process, right?

9 A Oh, boy. This date seems like it's right in

10 the middle of the process.

11 Q Okay. Let's turn to the first page.

12 A Uh-huh.

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

14 Do you see that?

15 A Yeah.

16 Q Five --

17 A Now, that was before the process, yeah.

18 Q Okay.

19 A Uh-huh.

20 Q And she's referring to her making the short

21 list in San Francisco RFI.

22 Do you see that?

23 A Yes.

24 Q And do you know why she told you that?

25 A Why?

1 Q Yeah.

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

3 for Nevada County.

4 Q And let me ask you this. Why did you forward

5 that e-mail on to Dee Murphy?

6 A At this time, I believe correspondence from

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

8 I think. I think. I believe.

9 Q Well, on August 19, 2008, County Counsel asked

10 you to forward this to Dee Murphy; yes?

11 MR. POULOS: Objection. Calls for

12 attorney-client communications.

13 BY MR. THOMAS:

14 Q That's your explanation of why you sent it to

15 Dee Murphy?

16 A Yes.

17 MR. POULOS: You need to -- if I object and

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

19 we're not going to --

20 THE WITNESS: You said you'll tell me not to

21 answer.

22 MR. POULOS: Right. I was just about to before

23 you --


25 MR. POULOS: -- answered the question.

1 THE WITNESS: Okay. Okay.

2 MR. POULOS: So --

3 THE WITNESS: Yeah. Okay.

4 MR. POULOS: -- questions to and from

5 attorneys, off limits.

6 BY MR. THOMAS:

7 Q What was the general issue, without getting

8 into any specifics at all, of why County Counsel wanted

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

10 2008, August 2008, before the RFP or during the RFP?

11 MR. POULOS: If you can answer that without

12 revealing communications from attorneys --

13 THE WITNESS: I can't.

14 MR. POULOS: Okay. Then don't answer.


16 identification.)

17 BY MR. THOMAS:

18 Q Sir, I put in front of you Exhibit 374. Do you

19 have that?

20 A Yes.


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

23 The "to" line is blank. It appears to be "Eileen" is

24 Eileen Moody in our office.

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

1 right?

2 A Yeah. Yeah. Uh-huh.

3 Q When you print e-mail, usually the person who

4 prints it, the name ends up at the top.

5 Do you see that?

6 A I see that. I did not know that.

7 Q So this e-mail refers to questions about

8 fictitious business names that Tom McGrath is asking of

9 Eileen Moody.

10 Do you see that?

11 A I do.

12 Q And you were informed of these communications,

13 right, generally?

14 A No.

15 Q Oh. You didn't know these discussions were

16 taking place?

17 A Between Tom and Eileen, no.

18 Q This is a surprise to you?

19 A This e-mail, yes.

20 Q And so she did this on her own without your

21 approval?


23 BY MR. THOMAS:

24 Q Oh. Did you approve of her communicating with

25 Tom McGrath about fictitious business name questions?

1 A No. No.

2 Q How did Tom McGrath know to communicate with

3 her?


5 THE WITNESS: No idea.

6 BY MR. THOMAS:

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

8 you didn't know Aptitude was asking questions of your

9 staff about how to do fictitious business names?

10 A Yeah, that's my testimony.

11 Q Okay. And did you know that, before the RFP,

12 Aptitude did not have California fictitious business

13 name functionality?


15 THE WITNESS: I had an idea that they may not

16 have had fictitious business name, that nomenclature.

17 BY MR. THOMAS:

18 Q Functionality?

19 A They had dba functionality. Dba, doing

20 business as functionality is very similar, if not

21 exactly the same, as FBN functionality. That's a

22 difference in nomenclature.

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

24 Mr. McGrath would be asking Eileen Moody questions about

25 it?

1 A Nope.

2 Q You have no explanation?

3 A No explanation.

4 Q And then if you look at the last sentence in

5 the e-mail --

6 A Uh-huh.

7 Q -- it says: "I have developers working on this

8 now."

9 A Uh-huh.

10 Q "Any information you can provide would be

11 greatly appreciated."

12 A Uh-huh.

13 Q Do you know if your staff was helping any

14 software companies develop functionality before the RFP

15 process other than helping Aptitude?


17 THE WITNESS: No, I don't know.

18 MR. POULOS: Lacks foundation.

19 BY MR. THOMAS:

20 Q Did you instruct your staff to work with any

21 potential --

22 A No.

23 Q -- vendors before the RFP process?

24 MR. POULOS: Slow down.

25 THE WITNESS: No.

1 MR. THOMAS: I gave you the wrong one. I have

2 a highlighted section. I'm going to do this.

3 Do you have a clear one? There we go. It's

4 the same document. Sorry, John.

5 MR. POULOS: No problem. 375.


7 identification.)

8 BY MR. THOMAS:

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

10 A Yes.

11 Q All right. And what is this document, if you

12 know?

13 A The County has a committee called the ISSB

14 Committee, Information System Steering Board Committee.

15 They wanted a report from me about the procurement of

16 another recording system.

17 Q And why did they want that? What did they say?

18 A Why? I don't know why. This is a -- an

19 internal procedure done by Information Systems. Why

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

21 know.

22 Q And turn to the second page.

23 A Uh-huh.

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

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

1 Do you see that?

2 A Yes.

3 Q What is this document?

4 A It's a Project Evaluation and Prioritization

5 Criteria document.

6 Q And can you turn through the balance of this

7 exhibit, the next four pages?

8 A Uh-huh.

9 Q Is that -- do those four pages comprise the

10 balance of this document you called Project Evaluation?

11 A Yes.

12 Q All right. And who prepared this document?

13 A Greg Diaz prepared pages one, the first

14 paragraph under project scope, and then I worked with

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

16 organizational role, project responsibility, project

17 milestones, the three of us worked on. Expected

18 benefits was mine. Expected cost was mine. Resource/

19 staffing requirements, mine. And the community of

20 interest chart, mine.

21 Q All right. Let's turn back to -- actually,

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

23 evaluation.

24 You said you prepared the entire first page?

25 A Yes.

1 Q If we could turn just up to the second page,

2 did you prepare the bullets at the top of the second

3 page, also?

4 MR. POULOS: Just so the record's clear --

5 THE WITNESS: Yes.

6 MR. POULOS: -- the first page is actually the

7 second page of the exhibit.

8 MR. THOMAS: Yeah.


10 BY MR. THOMAS:

11 Q So you prepared the entire first page?

12 A Yeah, uh-huh.

13 Q And in part, the bullets on the top of the

14 second page?

15 A Uh-huh.

16 Q Okay. And in terms -- if you go down to the

17 bottom of the first page, it says: "In addition to

18 standard recorder system core functions" --

19 A Uh-huh.

20 Q -- "the new system must support the following

21 critical core functions."

22 A Uh-huh.


24 A Yes.

25 Q It says "Built in image redaction."

1 A Yes.

2 Q What does that mean?

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

4 the ability to redact specifically Social Security

5 numbers to comply with California legislation.

6 Q What did you mean by "built in"?

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

8 or that redaction feature would be part of the core

9 system.

10 Q And currently --

11 A As opposed to using a third party. I'm sorry.

12 Sorry.

13 Q Well, does Aptitude currently use a third party

14 for redaction?

15 A Yes.

16 Q So Aptitude does not comply with that new

17 system requirement that you listed at the bottom of --

18 A They do comply because they also have the

19 built-in redaction. There's manual redaction, which is

20 built in. There's automated redaction, which is

21 provided by a third party.

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

23 A Yeah.

24 Q -- you have "electronic document handling

25 including document receipt, recording, archive," et

1 cetera.

2 Do you see that?

3 A Yes.

4 Q And that's something you ultimately elected not

5 to require as part of the RFP, correct?

6 A Correct.

7 Q Did AtPac ever, while it was the vendor for

8 Nevada County, did you ever ask AtPac to provide

9 redaction services or software?

10 A I think I did ask for how are we going to

11 address this legislation.

12 Q And what did AtPac --

13 A So that's a different -- that's a different

14 response to the actual question, so I guess the answer

15 is no.

16 Q What did AtPac --

17 A What I did ask is how are you going to comply

18 with the legislation.

19 Q Did AtPac -- AtPac, you understood, had

20 software product that provided for redaction. You

21 understood that, right?

22 A No.

23 Q Okay. Did AtPac ever send you a proposal to

24 provide redaction services?

25 A Yes, I think they did. Yeah, I think they did.

1 Q And did you understand they had a software

2 product that provided that, or through a third party,

3 could provide that?

4 A I believe it was through a third party.

5 Q Like what Aptitude now does, correct?

6 A Yes. Well, no, no, because Aptitude has the

7 manual redaction. AtPac doesn't have the manual

8 redaction built in. Everything is done by a third

9 party.

10 Q So when you said built-in image redaction, you

11 were referring only to the manual redaction?

12 A Correct.

13 Q So you weren't requiring automated redaction at

14 all?

15 A Correct.

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

17 that, I see.

18 A Yes.

19 Q You have a cost estimate. It says: "The scope

20 of the project to purchase and implement new recording

21 system software meeting mandatory statutory requirements

22 by September 30, 2008" --

23 A Uh-huh.

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

25 year of implementation."

1 Do you see that?

2 A Yes.

3 Q And how did you arrive at that number?

4 A I have no idea.

5 Q Okay. Was it a number you arrived at that you

6 developed?

7 A Yeah, I think it was.

8 Q And was the money for this particular project,

9 did that come out of -- I've seen documents referring to

10 a particular fund.

11 Can you tell me what that fund is that was used

12 to fund the clerk-recorder software?

13 A The recorder's authorized to set up three

14 dedicated or special funds. Some people call them trust

15 funds. One fund is called the modernization fund. It's

16 a dollar for each page that gets recorded, and

17 obviously, that's for modernization in the office.

18 There's another fund called micrographics.

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

20 to be used solely for micrographics efforts in the

21 office.

22 Q Okay.

23 A And we have a redaction fund, a dollar per doc

24 to enable recorders to redact Social Security numbers.

25 Q Okay.

1 A The money came from the first two trust funds

2 that I mentioned, modernization and micrographics.

3 Q Okay. When you say "the money," are you

4 referring to the money that was ultimately used to

5 procure the Aptitude software?

6 A Yes.

7 Q Okay. And that money was earmarked for use for

8 modernizing the technology in the clerk-recorder's

9 office; is that right?

10 A Yes.

11 Q Okay. Now, there were specific documents which

12 describe the restrictions on those funds. Was there

13 some documents that you're aware that describe what

14 those funds can't --

15 A No.

16 Q -- can and can't be used for?

17 A No.

18 Q Okay. Does anything describe what those funds

19 are restricted to being used for?

20 A Yes.

21 Q What's that?

22 A I believe it's Government Code 27361, you will

23 find the verbiage.

24 Q Okay. And so those funds --

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

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

2 Q Okay.

3 A -- so -- and statute. It describes how the

4 funds are to be used.

5 Q Okay. And those are funds that are separate

6 and apart from the County's general fund?

7 A Correct.

8 Q I see. Have you heard of litigation where

9 those -- some counties have run into disputes about

10 using those funds for general fund purposes?

11 A Yes.

12 Q What county, if you know?

13 A I don't know.

14 Q If we look at the list of names on the

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

16 Bate Stamp number, do you have that?

17 A Yes.

18 Q Your name is by clerk-recorder, project

19 sponsor.

20 A Yes.

21 Q It also says you're recorder office SME. What

22 is that?

23 A I don't know.

24 Q You don't know what SME means?

25 A No.

1 MR. POULOS: Where do you see that? Oh. Okay

2 I got you.

3 THE WITNESS: I don't know.

4 BY MR. THOMAS:

5 Q The page where you have the cost estimate of

6 $140,000, on the next page, that said software license

7 cost.

8 Do you see that?

9 A Yes.

10 Q And you also have annual maintenance and

11 technical support cost, 25,000.

12 Do you see that?

13 A Yes. Yes.

14 Q Do you know where you developed that number or

15 how that number was arrived at?

16 A I believe it was very similar to what we were

17 paying AtPac.

18 Q Okay. So you were looking for an annual

19 maintenance cost that was essentially the same as what

20 you were paying AtPac?

21 A Yes.

22 Q Okay. And what about the software license

23 cost? Do you have a sense of whether that was the same

24 as what had been paid to AtPac?

25 A No. I -- no.

1 Q Were you aware that the County had renewed its

2 license with AtPac periodically over the years before

3 you joined the County?

4 A Yes.

5 Q And did anyone ever tell you why the County did

6 that?

7 A No.

8 Q That was 375.

9 Exhibit 321, please, in the binders. One

10 moment, Mr. Diaz.

11 (Interruption in proceedings.)

12 BY MR. THOMAS:

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

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

15 at the bottom, it says "Expected Benefits."

16 Do you see that?

17 A Yes.

18 Q The first one, "The internal Nevada County

19 departments will have access to recorder documents at no

20 cost to them for hardware or software" --

21 A Yes.

22 Q -- that was an internal issue between County

23 departments?

24 A Yes.

25 Q Okay. Do you know, with respect to this AtPac

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

2 were the Nevada County departments being charged for

3 access to the AtPac software?

4 A I don't know.

5 Q Okay. The next bullet point says: "Nevada

6 County will have a system that enacts the Social

7 Security transaction legislation."

8 What's that?

9 A That should be actually "truncation

10 legislation."

11 What's that? California has enabling

12 legislation that says a document submitted for

13 recording, the recorder should truncate the first five

14 digits of a Social Security number.

15 Q Okay. And then the next expected benefit is

16 that Nevada County can offer e-recording.

17 Do you see that?

18 A Yes.

19 Q Okay. Those were benefits that you felt -- did

20 you feel the County did not already have those benefits

21 that you listed in this document from the AtPac

22 software?


24 THE WITNESS: No, not particularly.

25 BY MR. THOMAS:

1 Q When you say "not particularly," do you mean

2 the County did have the benefits from AtPac or it did

3 not?

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

5 could have realized some of these expected benefits.

6 MR. THOMAS: All right. Let's turn to next in

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


9 identification.)

10 BY MR. THOMAS:

11 Q Sir, do you have 376 in front of you? Do you

12 have 376, sir?

13 A Oh. I'm sorry. Yes.

14 Q And this is -- what is this document?

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

16 from Kirk Weir to me. Attached is a letter from Kirk

17 Weir to me.

18 Q And this is from April 2008?

19 A Yes.


21 A Yes.

22 Q And if you look at the first paragraph of the

23 letter, it says: "As requested, at our February 14th

24 meeting, we have specifically addressed," and then

25 there's four little bullet points.

1 Do you see that?

2 A Yes.

3 Q And do you see what the last bullet point says?

4 A Yes.

5 Q It says -- this is referring to redaction

6 services AtPac is offering; is that correct?

7 A Yes.

8 Q And did you ever respond to this proposal --

9 A I don't know.

10 Q -- and take AtPac up on its offer to provide

11 redaction services?

12 A I don't recall responding to it.

13 Q Do you know why you didn't?


15 THE WITNESS: No, I don't know why I didn't.

16 BY MR. THOMAS:

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

18 is to you and Eileen Moody, correct?

19 A Eileen was cc'd, correct.

20 Q Okay. And so this is an instance where AtPac

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

22 directly --

23 A Yes.

24 Q -- right? Did you evaluate this proposal?


1 THE WITNESS: Yes.

2 BY MR. THOMAS:

3 Q And what was your conclusion?

4 A Pretty mediocre proposal was my conclusion.

5 Q And is that why you didn't respond?

6 A Probably.

7 Q What was mediocre about it?

8 A I don't know. Just seemed to me to be --

9 didn't knock my socks off.

10 Q Okay.

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

12 Q You don't know?

13 A No.

14 MR. THOMAS: Okay. 321, please. You don't

15 have exhibits from yesterday, do you?

16 THE REPORTER: No.

17 MR. KRUGLE: We have a second book.

18 MR. THOMAS: John, this is a previously marked

19 exhibit.

20 MR. POULOS: Okay.

21 MR. THOMAS: With your stipulation, I don't

22 have a sticker version of it. Can I put that in front

23 of the witness and rely on that?

24 MR. POULOS: That's fine.

25 BY MR. THOMAS:

1 Q Mr. Diaz, do you have in front of you

2 Exhibit 321?

3 A Yes.

4 Q And what is this e-mail?

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

6 vendors, in my opinion, should receive the RFP.

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

8 A Yes.

9 Q All right. And what did you say in your e-mail

10 to her? Specifically what does it say?

11 A Marie, comma, as promised, comma, here is some

12 vendors that should receive our RFP.

13 Q Okay. You did not say to her: Here are some

14 other vendors, correct?

15 A Correct.

16 Q Thank you. And you sent that e-mail, right?

17 A Yes.

18 Q Did you expect Ms. McCluskey to send out,

19 electronically, Request for Proposals to vendors?

20 A No.

21 Q Did you expect someone to affirmatively send

22 out RFPs to vendors? Was that your intention?

23 A No. I don't know how purchasing dealt with

24 RFPs. Some counties, they get sent out. Most counties,

25 it's just posted. Notification is given to vendors that

1 there's a posting.

2 Q And do you know how --

3 A But I don't know Nevada County purchasing. I'm

4 sorry. I don't know. Excuse me.

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

6 did you tell her: Here are some vendors that should

7 receive our RFP?

8 A No idea. That's just how I wrote it.

9 Q Do you know if the RFP in Nevada County

10 actually was affirmatively e-mailed or communicated to

11 any vendors?

12 A I don't know. I don't know how purchasing did

13 it.


15 identification.)

16 BY MR. THOMAS:

17 Q What exhibit do you have in front of you, sir?

18 MR. POULOS: 377.

19 BY MR. THOMAS:

20 Q Thank you. Do you have 377 in front of you?

21 A Yes.

22 Q And do you know what this document is?

23 A It appears to be an e-mail from Sandy Balzer

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

25 fusion, L. Cook @ AMCAD. The subject: County of Nevada

1 Recording System Request for Proposals.

2 So the Nevada County purchasing agent on behalf

3 of Nevada County clerk-recorder is requesting sealed

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

5 interested providers of a recording system.

6 So this appears to be an e-mail to prospective

7 responders of the Nevada County recording system Request

8 for Proposal and what the terms are for the response and

9 how the response should be packaged to the County.

10 That's what I'm getting from this first

11 paragraph.

12 Let's see. On the second page, I see

13 recipient, a line. I see a bc: Gregory Diaz.

14 Q What is that?

15 A It looks like a blind copy to me.

16 Q Well, were you blind copied on the e --

17 A I guess I was.

18 Q Okay. And did you read it?

19 A I don't remember it.

20 Q You didn't want to be blindsided, right? So

21 you looked at it, correct?

22 MR. POULOS: Objection. Mischaracterizes the


24 THE WITNESS: You know.

25 BY MR. THOMAS:

1 Q Actually, I don't know.

2 A I saw -- oh. Okay. I don't know if I read it

3 or not. It's obvious, from the first paragraph, this is

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

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

6 The first paragraph pretty much informed me of

7 what I needed to be informed of.

8 Q Well, were you concerned when you looked at

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

10 list?

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

12 looking at the list. The first paragraph told me what I

13 needed to know. Fine. That's not my area. That's not

14 my call. It's purchasing. It's not my call.

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

16 exhibit --

17 A Because --

18 Q -- on 321 --

19 A Yes.

20 Q -- were you making a list of vendors to respond

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

22 A Because I was asked what vendors do you think

23 should get this, so I replied.

24 Q All right. Thank you, sir.

25 A Whether they accepted my recommendation or not,

1 I don't know.

2 Q And that's the list you excluded AtPac from,

3 correct?

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

5 the existing vendor and the existing vendor always gets

6 it.

7 Q Except in this case?

8 A I guess so, or so AtPac said. But that's not

9 my responsibility.

10 Q Let's look at Exhibit 370 --

11 A Not my responsibility.

12 Q Let's look at Exhibit 377.

13 A Okay.

14 Q Do you have the second page?

15 A Yep.

16 Q I said that AtPac didn't receive the proposal,

17 and you said: Well, that's what AtPac said.

18 A That's what they say. I'm sure I believe 'em,

19 you know.

20 Q Are you aware of any evidence to suggest AtPac

21 received the Request --

22 A No.

23 Q -- for Proposal --

24 A No.

25 Q -- when other vendors received it?

1 MR. POULOS: Let him finish.

2 BY MR. THOMAS:

3 Q The answer's --

4 A No.

5 Q -- no? I'm done with 377.


7 identification.)

8 BY MR. THOMAS:

9 Q What is Exhibit 378, sir?

10 A Looks like an e-mail and purchasing is sending

11 prospective sponsors an addendum to the Request for

12 Proposal.

13 Q Okay. And so this is -- there's a modification

14 of some kind to the RFP that was communicated to the

15 potential vendors; yes?

16 A I don't think so. It's not a modification --

17 Q Okay. What was it?

18 A -- to the RFP. I believe it was a revision for

19 the proposed due date --

20 Q Okay.

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

22 different things.

23 Q Okay. And do you know why the due date was

24 changed on July 29th, 2008?

25 A Yeah. Because AtPac sent me a notice of

1 termination and everyone in the County was worried about

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

3 believe. I know of no other reason why it would have

4 been sent.

5 Q And so --

6 A You know what? Can I amend an earlier answer?

7 MR. POULOS: Sure.

8 THE WITNESS: Is that okay?

9 BY MR. THOMAS:

10 Q Well, you're under oath. If you want to

11 clarify something you said, you can.

12 A Yeah.

13 Q Just understand, I can comment on it in front

14 of the jury.

15 A You said --

16 Q Sir, just understand when you make changes to

17 your testimony, lawyers in the case can comment upon

18 that --

19 A I understand.

20 Q -- to a jury. It may affect your credibility.

21 A I understand.

22 Q All right.

23 A When I mentioned to you earlier I didn't know

24 of any evidence that AtPac had received this or had

25 knowledge of the RFP, during my years in the private

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

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

3 a subscription service which would alert them to RFPs

4 being issued by the County.

5 Q Okay. Looking at Exhibit 378, sir --

6 A Okay.

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

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

9 She's in the purchasing group --

10 A Yes.

11 Q -- at Nevada County?

12 A Uh-huh.

13 Q This was cc'd to you, right?

14 A Uh-huh.

15 Q And do you see AtPac as an addressee of this

16 e-mail?

17 A No.

18 Q Why not? Why wasn't it?

19 A You could ask purchasing. I don't know.

20 Q Did that concern you --

21 A No.

22 Q -- that they weren't?

23 A No.

24 Q Why not?

25 A It's not my gig. This is purchasing's gig.

1 Q You didn't care?

2 A Nope.

3 MR. THOMAS: Next in order.


5 identification.)

6 BY MR. THOMAS:

7 Q Do you have Exhibit 379, sir? Do you have

8 that?

9 A Yes. Uh-huh. Sorry.

10 MR. POULOS: Do you have an extra copy?

11 MR. THOMAS: I'm sorry.

12 MR. POULOS: No problem.

13 BY MR. THOMAS:

14 Q Do you have Exhibit 379, sir?

15 A Yes.


17 A Looks like a document from Marie to me, Marie,

18 Mary and Phil Russ, with evaluation worksheets attached

19 to this.


21 A Yes, uh-huh.

22 Q Okay. And what was -- it says Primary

23 Evaluation Team: Greg, Mary, Phil and Marie.

24 A Uh-huh.

25 Q What is that group? What's "Primary Evaluation

1 Team" mean?

2 A I don't know.

3 Q Okay. And turning to the attachments, are any

4 of these attachments your writing? Do any of them have

5 your writing?

6 A No.

7 Q Okay. And if we turn to the third page of the

8 exhibit, it's Bate Stamped Page 441.

9 A 441. Yes. Uh-huh.

10 Q Okay. This is an RFP. It appears to be a

11 score sheet.

12 Do you see that?

13 A Yes.

14 Q Did you ever fill out a score sheet like this

15 during the RFP process?

16 A I don't remember doing it.

17 Q Okay. You understand every time I talk about

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

19 the Nevada County Clerk-Recorder RFP in 2008.

20 You understand that, right?

21 A Yes.

22 Q Okay. And you've known that every question

23 I've asked, right?

24 A Yes.

25 Q I just want to make sure there's no

1 miscommunication.

2 Did you score the vendors that responded to the

3 RFP in any way?

4 A Yes.

5 Q How did you --

6 A I think so.

7 Q How did you do that?

8 A I don't recall. It just seems to me there was

9 another template that we used to score, other than this

10 one.

11 Q All right. And if you look at the core

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

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

14 Ms. McCluskey?

15 A Yes.

16 Q Do you see the core features, standard

17 functions?

18 A Yes.

19 Q And she lists 15 out of a possible 15. Do you

20 see that?

21 A I see ten. It says total possible points, in

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

23 Am I reading from the wrong column here? I'm

24 on page, at the bottom, 442.

25 Q Interesting.

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

2 MR. POULOS: Different dates. One of them is

3 for 9/22. The other one's 9/7.

4 MR. THOMAS: I see. I see. Yeah. Thank you.

5 Okay. So you're on --

6 MR. POULOS: They're both McCluskey.

7 BY MR. THOMAS:

8 Q You're on 442?

9 A Yes.

10 Q So looking at Bate Stamp Page 441, can you do

11 that, please?

12 A Oh. 441?

13 Q Turn to the other page.

14 A Uh-huh. Here, I see 15. I'm sorry.

15 Q Yeah. You see 15 for core features and

16 standard functions.

17 Do you see that?

18 A Yes. Uh-huh.

19 Q Now, one of the core features and standard

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

21 of the core features and standard functions of

22 clerk-recorder software in September of 2008 was bond

23 paper tracking functionality, correct?

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

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

1 definite correct.

2 Q And do you know whether Aptitude Solutions had

3 bond paper tracking on September -- in September of

4 2008?

5 A I don't know. I would have to go back and look

6 at the evaluation worksheets.

7 Q Do you know whether Aptitude Solutions had

8 fictitious business name functionality for California

9 counties in 2008?

10 A I believe their response indicated that they

11 did.

12 Q No. That wasn't my question.

13 A Uh-huh.

14 Q Did Aptitude actually have fictitious business

15 name functionality in 2008 for California?

16 A I can't distinguish the questions. If they

17 tell me they did --

18 Q My question --

19 A -- who am I to say that they didn't? I did not

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

21 California so it's hard to know. There's no where I

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

23 not.

24 If they said they did, then we, as the

25 evaluation team, took 'em for their word.

1 Q And you have a specific recollection of

2 Aptitude telling you they had California fictitious

3 business name functionality in their software,

4 clerk-recorder software in 2008. They told you that?

5 A No, they didn't tell me that. I believe it was

6 part of their response.

7 Q Do you recall the exhibit we looked at earlier

8 in June of 2008 where Eileen Moody --

9 A Yep.

10 Q -- was answering questions of Aptitude about

11 fictitious business name functionality?

12 A Yeah.

13 Q So at that point in time, you understood

14 Aptitude did not have fictitious business

15 name California --

16 A Sure looks like it, yes.

17 Q -- California functionality, right?

18 A Yes.

19 Q And so do you think it was -- your testimony

20 then is you assumed Aptitude developed the functionality

21 in just the two months between June and August 2008?

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

23 It was in the response.

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

25 their software, though?

1 A They did. They came back and demonstrated

2 their software.

3 Q And how did you score fictitious business name

4 functionality?

5 A I would have to look at the score sheet.

6 Q How would you have scored bond paper tracking

7 functionality for Aptitude if it did not have it when

8 they demonstrated their software?

9 A I don't know.

10 MR. THOMAS: I actually can -- I don't know

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

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

13 for lunch.

14 MR. POULOS: It's up to you. She's hungry.

15 MR. THOMAS: Normally, the court reporter needs

16 a break because she's working harder than anybody.

17 THE WITNESS: Your call. I'm just --

18 MR. THOMAS: Let's just take a lunch break and

19 return in one hour. Is that all right? It's up to you

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


22 1:04 p.m.

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

24 ---oOo---

25

1 AFTERNOON SESSION

2 (The appearance of all parties having been

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

4 proceedings resumed at 2:07 p.m.)

5 --oOo--

6 (Exhibit Nos. 380 and 381 were marked for

7 identification.)


9 2:07 p.m.

10 EXAMINATION (RESUMED) BY MR. THOMAS

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

12 you?

13 A Yes.

14 Q And is this an e-mail that you sent?

15 A Yes.

16 Q Okay. And down below, it's an e-mail from

17 Carolyn --

18 A Crnich.

19 Q -- Crnich.

20 A Sorry to interrupt.

21 Q It says: "I hope you are all settled in with

22 your new recording system."

23 So she's written this to you after you're

24 working with Aptitude; is that true?

25 A Yes.

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

2 the Aptitude system, right?

3 A Correct.

4 Q When did the County of Nevada go-live with the

5 Aptitude clerk-recorder software?

6 A We went live with Aptitude solely on July 1st.

7 Q And -- go ahead, sir.

8 A If I could clarify, we went live running dual

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

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

11 we solely used Aptitude.

12 Q And you said you went live running dual systems

13 for a reason.

14 What was that reason?

15 A If there were some glitches in Aptitude, we

16 could still record documents through the AtPac system

17 while we pay attention and fix the glitches in the new

18 system.

19 Q So the County continued to -- strike that.

20 The County of Nevada continued to use the AtPac

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

22 that true?

23 A Yes.

24 Q Before the end of June 2009, to your knowledge,

25 did you ever notify AtPac that you believed it was in

1 breach of its contract or license agreement with the

2 County?


4 it calls for a legal conclusion but go ahead.

5 THE WITNESS: Could you repeat the question?

6 I'm sorry.

7 BY MR. THOMAS:

8 Q Sure. It's a question about what you said to

9 AtPac.

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

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

12 you believed AtPac was in breach of its agreement with

13 Nevada County?


15 THE WITNESS: Not that I can recall.

16 BY MR. THOMAS:

17 Q And before the end of June 2009, are you aware

18 of anyone else within Nevada County sending notice to

19 AtPac declaring or stating that AtPac was in breach of

20 its agreement with Nevada County?

21 A Not that I can recall.

22 Q Okay. Now, at some point, was there -- there

23 was a schedule in place for the implementation of the

24 Aptitude software, correct?

25 A Yes.

1 Q And at one point, did the schedule call for the

2 Aptitude software to go-live in approximately April of

3 2009?

4 A I don't recall that at all.

5 Q What do you recall? You don't recall there

6 being a change in the schedule with respect to when

7 Aptitude solution software would go-live in Nevada

8 County?

9 A I recall two, maybe three changes in the

10 schedule. The specific dates, I can't recall, but it

11 was certainly extended from our initial discussions.

12 Q Okay. And when you say "extended," what was

13 extended?

14 A The go-live date.

15 Q And how many times was the go-live date

16 extended?

17 A I can't specifically recall. It seems to me

18 two or three times.

19 Q Did you become aware, that at some point in

20 time, Placer County was also working to implement the

21 Aptitude Solutions software in the beginning of 2009?

22 A I don't think it was in the beginning of

23 2009 --

24 Q When was it?

25 A -- that I had knowledge of that.

1 Q When did you become aware that Aptitude

2 Solutions was working with Placer County to implement

3 its software?

4 A Cannot give you a specific date. Generally, I

5 believe it was Spring 2009.

6 Q And how did you become aware of that?

7 A Well, someone told me. Who it was, I don't

8 recall, unless it came from Aptitude. It might have

9 been Patty Sandever who told me.

10 Q And did you ever talk to Jim McCauley about the

11 Aptitude software that was being provided or at least

12 attempted in Placer County?


14 BY MR. THOMAS:

15 Q Let me ask a different question.

16 Did you ever talk to Jim McCauley about

17 Aptitude Solutions efforts in Placer County?

18 A Yes.

19 Q When did you have those discussions?

20 A Don't know. Don't remember. He --

21 Q Did you ask him?

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

23 of Director's meeting for the California Recorders

24 Association of California informing me that he had some

25 problems with Aptitude.

1 He felt Aptitude was or had breached their

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

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

4 guess they had a signed contract. Aptitude was in

5 breach of contract and he was going to go with another

6 vendor but he came to me with that.

7 Q And what was your response?

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

9 to that effect.

10 Q Did you ask him any details about that?

11 A No.

12 Q Did that concern you at all since that was a

13 vendor you were working with, also?

14 A No.

15 Q Why not?

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

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

18 get concerned about, Jim McCauley's relationship with

19 Aptitude.

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

21 were concerned about Jim McCauley's relationship with

22 Aptitude.

23 My question is: Did the fact that Jim McCauley

24 was telling you he believed Aptitude breached its

25 contract in Placer County give you any concern that

1 Aptitude may not be able to perform in Nevada County?

2 A No.

3 Q Why not?

4 A Because I'm there in charge in Nevada County.

5 Q And how would that change whether or not

6 Aptitude was able to comply with Nevada County's

7 requirements?

8 A Because I just pay attention to the compliance

9 in Nevada County, and to that date, things had been

10 going along fine.

11 Q Well, to that date, had you already pushed the

12 schedule back in Nevada County?

13 A Oh, I think so. Yeah, I think so.

14 Q Well, how was that going along fine?


16 THE WITNESS: How was that --

17 BY MR. THOMAS:

18 Q Is delay of the schedule --

19 A Uh-huh.

20 Q -- okay?

21 A No. The delay of the schedule mostly came from

22 AtPac's behavior with stonewalling getting the data

23 dictionary from them so we can do the conversion.

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

25 you referred to before, that --

1 A Uh-huh.

2 Q -- you attribute delays in the schedule to

3 AtPac's behavior?

4 A Mostly, yeah, uh-huh.

5 Q And specifically what?

6 A The e-mails about AtPac being able to hand over

7 some exports, the data structure, and the terms were

8 constantly changing, and we basically had to wait and

9 see if negotiations could be successful with AtPac.

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

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

12 Q And when you say -- you said something about

13 data dictionary.

14 What is a data dictionary?

15 A Yeah, that's what I call it. I guess it's a

16 data structure so that elements, or our data, the

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

18 new structure.

19 Q And I'd like to get some definitions here. You

20 talked about data structure and then you said elements.

21 First of all, what is data structure?

22 A I have no idea. That's what they call it. I

23 think data structure, my limited knowledge would be

24 there are fields in the software program containing

25 different data elements. A data element could include

1 the recorder document number, the date of recording, the

2 title of the document, the grantor name, the grantee

3 name. Those are the data elements that have to fit into

4 a software program to enable search of the records.

5 Q Okay. Those are the data elements and data

6 structure --

7 A That's my understanding of what a data element

8 is, yes, sir.

9 Q Yes. And is the structure the organization of

10 those data elements?

11 A My understanding is -- yes. Sorry.

12 Q Is the data structure the organization of those

13 data elements inside the software and how they're

14 organized?

15 A That's my understanding, yes.

16 Q Okay. Have you heard the word "data schema"

17 before?

18 A Yes.

19 Q And what does that mean to you?

20 A Data dictionary.

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

22 for data structure?

23 A In my, again, limited understanding, yes.

24 Q And that's different than a data element which

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

1 A Yes.

2 Q And you talked about terms were constantly

3 changing, something to that effect. What were you

4 referring to?

5 A AtPac felt initially they needed hundreds of

6 hours to supply that information to the County.

7 Q How many hundreds?

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

9 believe the first e-mail talked about a hundred hours

10 and $15,000 to give us that information.

11 And then there was an e-mail talking about we

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

13 $20,000, and then I believe in a second e-mail or maybe

14 subsequent -- subsequent correspondence, they were

15 talking about 30 business days to have this completed or

16 30 business days would be a rough estimate for when we

17 could get it completed.

18 So the negotiation for working with AtPac was a

19 little unsteady during that time.

20 Q Who was involved in those negotiations, to your

21 knowledge?

22 A I believe it was Marie McCluskey, Steve

23 Monaghan and County Counsel was involved as well.

24 Q What about you?

25 A I was there but not really negotiating with

1 'em.

2 Q So any information you have --

3 A Yes.

4 Q -- about comments or statements made by AtPac

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

6 what you're saying?

7 A Yes, for this negotiation.

8 Q And when you say "this negotiation," what was

9 the negotiation? Was it a contract negotiation?

10 A Yes. It was a negotiation to set up a

11 professional services contract with AtPac to provide the

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

13 also the data structures, schema, dictionary, whatever

14 term we would like to use.

15 Q Well, isn't it true you were in discussions

16 with AtPac regarding a professional services contract to

17 provide the data elements?

18 A We have the data elements.

19 Q Where?

20 A That was embedded in AtPac's software.

21 Q And weren't you in negotiations with AtPac so

22 as to potentially have AtPac extract the data elements

23 and provide them to the Aptitude Solutions company so

24 that it could import the data elements into its data

25 structure? Isn't that what was going on? I have that

1 right, don't I?

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

3 could be.

4 Q Well --

5 A I was under the impression it was the schema,

6 if it was given to the County, the whole migration

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

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

9 have been done by AtPac. That would have been done by

10 the County and the new vendor.

11 AtPac would not be a major player in the

12 migration. AtPac would just give us a schema and then

13 the County and the new vendor undertakes the task of

14 migrating those elements from the old system to the new

15 system. That's my understanding.

16 Q Where did you get that understanding since you

17 weren't in the discussions?

18 A As far as being around recorder offices for

19 18 years.

20 Q So, for example, it's your understanding that

21 the County -- you owned Aptitude Solutions data schema.

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

23 County, right?

24 A I don't know where that came from. I didn't

25 say that.

1 Q Well --

2 A We entered into a contract with Aptitude for

3 Aptitude to install their software products in our

4 county to enable us to record documents, to enable the

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

6 et cetera.

7 Q Is it your testimony that you consider --

8 strike that.

9 Did Aptitude -- excuse me. Strike that.

10 Did AtPac ever tell you that it was willing to

11 provide its data schema to Aptitude?

12 A Well, maybe. I think so.

13 Q Really. When did that happen?

14 A During the negotiations for a professional

15 services contract. It was either to Aptitude or to the

16 County.

17 Q But you weren't in those discussions, right?

18 A The technical discussions, no.

19 Q How many data migrations have you been involved

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

21 MR. POULOS: At Nevada County or anywhere?

22 MR. THOMAS: In his career.

23 THE WITNESS: In my career? For a whole

24 complete new system, or doesn't it matter? Modules

25 would count?

1 BY MR. THOMAS:

2 Q From one vendor to another.

3 A To another? I think four.

4 Q Please look at Exhibit 381. I don't know if I

5 asked you this already, but you wrote Exhibit 380,

6 correct, the e-mail?

7 A The top -- the top e-mail, I wrote. The bottom

8 e-mail, I did not write.

9 Q But you sent the e-mail at the top which

10 included the one at the bottom, correct?

11 A Yes.

12 Q All right. Let's go to Exhibit 381, and I'd

13 like you to tell me what this is.

14 A This is a resolution authorizing execution of a

15 contract with Aptitude Solutions for a recorder system.

16 Q Okay. And is this the current contract that

17 Nevada County has with Aptitude?

18 A Yes.

19 Q Okay. And the contract itself is attached to

20 the resolution.

21 Do you see that?

22 A Yes.

23 Q Can you turn to Page 2087? I'd just like you

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

25 A Yes, it is.

1 Q And then there are certain initials, like turn

2 to 2091.

3 Are your initials somewhere on there?

4 A Yes.

5 Q Initials for licensee?

6 A Yes.

7 Q Okay. And there's a fee summary. Do you see

8 that box?

9 A Yes.

10 Q And it says OnCore License Fee, 125,000.

11 A Yes.

12 Q It says Annual Maintenance Fee, 25,000.

13 A Yes.

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

15 license fee and the maintenance fee for the Aptitude

16 software?

17 A Yes.

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

19 its duration; do you know?

20 A No.

21 Q Don't you have an understanding, as a

22 clerk-recorder, how long the software contract lasts?

23 A No. Someone will tell me when it gets

24 critical.

25 Q Did you understand it was a five-year term?

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

2 Q All right. What would be typical on a

3 clerk-recorder software environment for software? Would

4 it typically be a multiyear contract?


6 THE WITNESS: Typically, it would be multiyear,

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

8 BY MR. THOMAS:

9 Q Okay. And then this resolution is passed on

10 November 18th, 2008; is that true?

11 A Yes.

12 Q Okay. And that's when the Aptitude contract

13 was confirmed by the Board of Supervisors?

14 A Yes.

15 Q And it also says, in the resolution, it talks

16 about software provided through Aptitude Solutions by

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

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

19 229,428.

20 Do you see that?

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

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

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

24 respectfully disagree.

25 When we're talking about Aptitude and Mentis,

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

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

3 Q And what does Mentis Technology Solutions refer

4 to?

5 A What does it refer to?

6 Q Yeah. What is Mentis Technology Solutions?

7 A Mentis Technology Solutions is a company that

8 provides us with the aiINDEX and aiREDACT software.

9 Q I see. So that's some functionality that's

10 provided outside the OnCore product?

11 A The base OnCore product, that's correct.

12 Q Okay. And the total number, the $229,000

13 number, is the sum of the Aptitude contract price plus

14 additional fees for the Mentis-related components?


16 Q And are those fees paid directly to Mentis or

17 to Aptitude; do you know?

18 A To my knowledge, those fees are paid to

19 Aptitude.

20 Q Okay. Do you know why that is?


22 Q Have you ever signed a contract with Mentis,

23 that you know of?

24 A Yes. This contract.

25 Q Okay. Is Mentis a party to this contract

1 somewhere?

2 A I don't believe so.

3 Q So when did you sign a contract with Mentis?

4 A Sorry. I take that back. This contract I

5 signed enabled us to use the Mentis product.

6 Q And if you could turn --

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

8 Mentis, but it enables us to use --

9 Q If you could turn to Page 2096. Do you see the

10 fee summary?

11 A Yes.

12 Q So these are additional fees in addition to the

13 OnCore fees we looked at earlier?

14 A Yes.

15 Q Okay. And do you see the aiREDACT license fee

16 of 7,448 or 7,044?

17 A Yes.

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

19 a one-time fee? Do you have a sense of that?

20 A It's a yearly fee.

21 Q Okay. Do you remember what the yearly fee was

22 at Aptitude -- excuse me. Strike that.

23 Do you remember what the yearly fee was

24 proposed by AtPac when it provided your proposal for

25 redaction services?

1 A No. That may have been on one of the other

2 documents that you produced but I don't remember that

3 yearly fee.

4 Q And is this redaction fee listed on Page 2096,

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

6 that the automated redaction?

7 A That's the automated redaction.

8 Q Do you remember seeing one of the objectives

9 for this particular project, the implementation of the

10 software project in Nevada County, that you wanted the

11 redaction software to have -- to be embedded in the

12 clerk recorder software? Do you remember that?

13 A Yes.

14 Q But this is -- your testimony is now that you

15 were referring only to the manual redaction, not the

16 automated redaction. That's your testimony?

17 A Correct.

18 Q Does the clerk recorder's office prepare a --

19 strike that.

20 Does the clerk recorder's office have

21 accounting records for the financial transactions it

22 engaged in?

23 A Yes.

24 Q Okay. And I'm not so much talking about with

25 the public on transactions. I'm talking about things

1 like, you know, paying software license fees and the

2 like.

3 Are there accounting records for the

4 clerk-recorder's office in that respect?

5 A Yes.

6 Q And where are those kept?

7 A In my department.

8 Q Do they have a particular name or they're just

9 clerk-recorder office accounting records? I mean do you

10 have a name for them?

11 A I have an administrative assistant by the name

12 of Abby Kelly who does that work. I have not gone into

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

14 files.

15 Q I see. Do you have a sense that this contract

16 is at least a three-year contract? When I say "a

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

18 County Aptitude Solutions Software License Agreement.

19 A I'm sorry. What page?

20 Q Actually, I don't have a page. It's just a

21 question.

22 Do you have a sense that this contract is at

23 least for a three-year term?

24 A Yes.

25 Q Okay. Do you believe it's at least a four-year

1 term?

2 A Yeah, I think so.

3 Q Okay. Do you believe it's at least a five-year

4 term?

5 A Perhaps. Again, I'm not sure what that is.

6 Q Okay. That's all I have for that.

7 A It looks like three years, huh?

8 Q Oh. You found something, Mr. Diaz. Where are

9 you?

10 A Perhaps. I'm on Page 2101.

11 Q All right. And this is, if you turn to page

12 2100, that's a Software Maintenance Agreement.

13 Do you see that?

14 A Uh-huh.

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

16 A Uh-huh.

17 Q -- and this says that the term of the agreement

18 shall remain in effect for a period ending on the date

19 immediately prior to the third annual anniversary date

20 of the maintenance agreement effective date.

21 Do you see that?

22 A Yes.

23 Q Does that suggest to you it was a three-year

24 term?

25 A Yes.

1 Q Okay. And do you know if, at the end of the

2 three-year term, Aptitude Solutions would have to pay

3 another initial software fee if it wants to continue

4 using the software?

5 A I don't know.

6 Q You don't know. Is that important for you to

7 know that?

8 A Yes.

9 Q But you don't know?

10 A Yes.

11 Q All right. That's all I have for that right

12 now.

13 So are you aware of any other contract between

14 Nevada County and Aptitude Solutions other than the

15 software license agreement attached to the resolution at

16 Exhibit 381?

17 A I had a small contract with Aptitude, along

18 with 21 other vendors, when I hosted the 2009 Annual

19 County Recorders Association of California Conference.

20 When the vendors signed up, they obviously had

21 to pay. We entered into a very informal contract, if

22 you will: You get to have this space for the conference

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

24 per vendor for that space. That was something entered

25 into with Aptitude, again, along with the other 21

1 vendors who attended our conference.

2 Q Okay. But other than that small informal

3 contract, you're not aware of any other contracts

4 between Nevada County --

5 A No. No.

6 Q -- and Aptitude other than Exhibit 381?

7 A Correct.

8 MR. THOMAS: Okay.


10 identification.)

11 BY MR. THOMAS:

12 Q All right. Do you have Exhibit 382?

13 A Yes.

14 Q And you sent this e-mail?

15 A Yes.

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

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

18 A Yes.

19 Q All right. And if we turn -- this looks like

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

21 Do you notice that, when I say "the

22 contract" --

23 A Yes.

24 Q -- the Aptitude contract?

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

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

2 Marie.

3 Do you see that?

4 A Yes.

5 Q And you understand that's Marie McCluskey?

6 A Yes.

7 Q What was her role with respect to the Aptitude

8 project?

9 A I believe she was named as project manager.

10 Q Okay. And it looks like Mr. McGrath says: I

11 understood that the board has approved the contract and

12 we are ready to move forward. Here's what we'll need

13 from AtPac.

14 Do you see that?

15 A Yes.

16 Q So does this essentially indicate to you that

17 once the contract was signed, Aptitude was providing

18 information that it wanted from AtPac to the County?

19 A I'm sorry. I'm sorry. Could you repeat that,

20 please?

21 Q Do you understand this to be Mr. McGrath's

22 request from the County of what Aptitude wanted from

23 AtPac?

24 A Yes.

25 Q Okay. And then if you look at the e-mail above

1 that, Ms. McCluskey responds to him and says: I'll

2 submit your request to AtPac.

3 A Uh-huh.

4 Q Okay. Do you know how Mr. McGrath understood

5 the board had approved the contract?


7 THE WITNESS: No.

8 BY MR. THOMAS:

9 Q Did you tell him that the board had approved

10 the contract?

11 A Don't think so, no.

12 Q Do you know who did?

13 A No.

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

15 contract is approved, I notice.

16 You have no knowledge of how he knew that?

17 A No.

18 Q Okay. All right. And you see under the

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

20 of the first page, where it says: Here's what we'll

21 need?

22 A Yes.

23 Q It says: File/field layout, field layout for

24 all document image and administrative data exports --

25 A Yes.

1 Q -- should include field name, size and format

2 for each file.

3 A Yes.


5 And is it your understanding Ms. McCluskey

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

7 her e-mail above.

8 Do you know if she did that?

9 A I don't know.

10 Q Okay. You forward this e-mail on to two

11 people: Christine Peters and Krista Pyzer.

12 A Yes.

13 Q Who are they?

14 A They are recorder staff.

15 Q Why did you send this e-mail to them?

16 A I have no idea. I was trying to remember that.

17 Q If you look at about the eighth line down in

18 Ms. McCluskey's e-mail, she says: This is a migration

19 plan.

20 Do you see that?

21 A Yes.

22 Q It says: This is a migration plan because the

23 current production system does not meet Aptitude

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

25 system which is what the County had originally planned

1 when we submitted the RFI.

2 Do you see that?

3 A Yes.

4 Q Do you know: Was that news to you that

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

6 County's equipment?

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

8 that.

9 Q So during the Request for Proposal process, did

10 Aptitude Solutions then represent to you that it would

11 be able to use the County's existing equipment since

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

13 A Yes.

14 Q And does it trouble you that Aptitude made that

15 misrepresentation to you?


17 THE WITNESS: I don't see it as a

18 misrepresentation. The Aptitude is using the County's

19 equipment.

20 BY MR. THOMAS:

21 Q No. My question is about the County's current

22 equipment.

23 Did Aptitude -- it's a surprise to you -- the

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

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

1 the County's current production system, and that would

2 be the system in place in 2008, correct?

3 A Yes.

4 Q And that's news to you today.

5 A Yeah.

6 Q Okay. So during the proposal process, Aptitude

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

8 existing equipment, correct?



11 THE WITNESS: You know, I believe they

12 represented to us that they would need more space,

13 server space than what was currently provided to AtPac,

14 so I know that.

15 I know they needed more server space, so I

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

17 me.

18 BY MR. THOMAS:

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

20 use the existing equipment?

21 A Yes.



24 BY MR. THOMAS:

25 Q Wasn't one of the objectives identified, in the

1 Request for Proposal, that the vendors use the existing

2 County equipment?

3 A Yeah. Yeah.

4 Q And Aptitude Solutions didn't meet that

5 objective, correct?


7 THE WITNESS: Yeah. They needed more space.

8 BY MR. THOMAS:

9 Q And different equipment, right?

10 A Not that I know of. I believe it was a space

11 issue with the servers. That's my recollection.

12 Q Do you know what kind of server AtPac used as

13 of 2008?


15 Q Did you pay for a new server to house the AtPac

16 software sometime during your tenure, "you" being your

17 department?

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

19 Q It sounds like you --

20 A Can I clarify?

21 Q Yes, please.

22 A I did pay for space on a County server, called

23 a virtual server, and we share that server with other

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

25 server.

1 Q My question was: Did you pay for a new server

2 to house the AtPac software sometime before 2008?

3 A Under my tenure, no.

4 Q All right. Did you talk to Tom McGrath about

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

6 McCluskey?

7 A No.

8 MR. THOMAS: Okay. I'm done with Exhibit 382.


10 identification.)

11 BY MR. THOMAS:

12 Q Please identify Exhibit 383.

13 A This is an e-mail from Marie McCluskey to Dave

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

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

16 CRiis information.

17 Q And you received this e-mail?

18 A Yes.

19 Q Okay. And do you understand this is an e-mail

20 where Ms. McCluskey forwarded on to AtPac the request

21 being made by Aptitude?

22 A No.

23 Q Okay. What did you understand this e-mail to

24 be?

25 A CRiis information.

1 Q Okay. Look at the substance of the e-mail. It

2 says: "In preparation for the upcoming system change

3 and data conversion, Nevada County requests the

4 following information from AtPac."

5 A Uh-huh.

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

7 A Uh-huh.

8 Q "Field layout for all documents"?

9 A Uh-huh.

10 Q If I refer you back to the bottom of

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

12 A Uh-huh.

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

14 Tom McGrath to Marie?

15 A Uh-huh.

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

17 ask AtPac for?

18 A Yes, uh-huh.

19 Q And then she relays that request to AtPac,

20 those pieces of information?

21 A Oh. Okay. Yes. Yes. Okay. I'm sorry. No,

22 it is an e-mail to AtPac, yes. I see that. Uh-huh

23 uh-huh.

24 Q Right. And so this is Ms. McCluskey asking

25 AtPac for the information --

1 A Uh-huh.

2 Q -- Aptitude had asked --

3 A Uh-huh.

4 Q -- the County to ask for, right?

5 A Okay. Yes.

6 Q And you understood that?

7 A Yes.

8 Q You understood that at the time, right?

9 A Yes.

10 Q Of course. You paid attention to this. This

11 was important business?

12 A Didn't pay too much attention to this.

13 Q Oh, really?

14 A No.

15 Q It wasn't important to you?

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

17 don't micromanage. Great. An e-mail's being sent to

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

19 MR. THOMAS: All right.


21 identification.)

22 BY MR. THOMAS:

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

24 Ms. Pyzer and Ms. Peters?

25 MR. POULOS: I think you misspoke.


2 MR. POULOS: 383, you meant.

3 THE WITNESS: I'm trying to remember that.

4 MR. THOMAS: Yes. Thank you. Actually, 382.

5 Q You sent Exhibit 382 to Ms. Pyzer and

6 Ms. Peters, right?

7 A Yes.

8 Q And you wouldn't have sent that unless it was

9 important, right?

10 A Right. Right.

11 MR. POULOS: No, I think --

12 THE WITNESS: I think it's probably for

13 informational purposes.

14 BY MR. THOMAS:

15 Q No. All right. All e-mails are informational,

16 right?

17 A Yeah. Uh-huh.

18 Q I mean every e-mail's about providing

19 information; don't you agree?

20 A Yes, uh-huh.

21 Q All right. So let's look at Exhibit 384. Do

22 you have that now, sir?

23 A Yes, I do.

24 Q All right. And this is also another e-mail

25 that you sent --

1 A Right. Yes.

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

3 A Yes.

4 Q And what is this?

5 A I don't know. I'm reading this.

6 What is this? This seems to be a letter from

7 AtPac to Marie McCluskey. McCluskey -- frankly, this is

8 the beginning of the stonewalling by AtPac for us to get

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

10 paragraph: "Finally, please clarify if it is your

11 intention that your earlier message constitutes a 60-day

12 notice of cancellation as called for in our County

13 contract."

14 MR. THOMAS: I hate to interrupt you, sir, but

15 can we change the tape right now, please?

16 MR. POULOS: He has to change the tape.


18 2:50 p.m. End of disc two.

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


21 2:55 p.m. Beginning of disc three.

22 BY MR. THOMAS:

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

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

25 you have that in front of you?

1 A Yes.

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

3 A Yes.

4 Q Right. It says -- please read the second

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

6 A "I hope you will accept this prompt response as

7 an indication of our commitment to provide an

8 appropriate level of cooperation during the conversion

9 to the new recording system."

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

11 e-mail to Mr. Weir --

12 A Yes.

13 Q Actually, to Dave Krugle and Linda Reed of

14 AtPac, do you see that?

15 A Yes.

16 Q That was at 1:31 p.m. Do you see that?

17 A Yes.

18 Q And then Mr. Weir's response was within about

19 40 minutes of that.

20 A Yes.

21 Q Okay. And the second paragraph, can you please

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

23 Ms. McCluskey?

24 A "I hope you will accept this prompt response as

25 an indication" --

1 Q I'm sorry. I think you --

2 A I thought you said the second paragraph.

3 Q I did, but I meant to say the third. Sorry to

4 interrupt you.

5 A That's okay.

6 Q Please read the third paragraph in --

7 A Sure.

8 Q -- Exhibit 384.

9 A "I have discussed the various options outlined

10 in your original message with our solutions support vice

11 president, Dave Krugle. Unfortunately, the alternate

12 method you described, which involves read-only access,

13 does not appear to be workable with the CISAM data place

14 employed by CRiis. There are a lot of issues and tasks

15 that will need to be planned for."

16 Q Okay. And you read that at the time?

17 A Yes.

18 Q All right. And had you understood that one of

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

20 access to the AtPac databases?

21 A To the extent that I read her paragraph, in her

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

23 Q All right. And turning to the fourth paragraph

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

25 record?

1 A "As you may already be aware, this is an

2 extremely busy time for AtPac and its other customers,

3 nearly all of whom require another set of new marriage

4 forms and many will also be implementing day forward

5 redaction by 11/09."

6 Q And as of November 2008, that fourth paragraph,

7 you just read, is that consistent with your recollection

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

9 time? Let me strike that.

10 Were you aware, in November of 2008, that

11 nearly all clerk-recorders would require a new set of

12 marriage forms in California?

13 A Yes.

14 Q Why was that?

15 A I forget which legislation it was that was

16 passed.

17 Q But did it have to do with same sex marriage,


19 A I don't know. It may have.

20 Q And then Mr. Weir also says that many

21 clerk-recorders will also be implementing day forward

22 redaction by 11/09.

23 Do you see that?

24 A Yes.

25 Q And that was a true statement, also, right?

1 A I believe so, yes.

2 Q So you would agree that the fourth paragraph of

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

4 It was a true statement?

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

6 Q All right. Did you talk about this e-mail with

7 Ms. McCluskey?

8 A No.

9 Q Okay. You forwarded it to others within the

10 clerk recorder's office?

11 A Yes.

12 Q Can you now please turn to Exhibit 21? That's

13 in an existing binder, sir. I'll put that in front of

14 you.

15 Here's another e-mail. Do you have Exhibit 21

16 in front of you?

17 A Yes.


19 A Yes.

20 Q And the attachment?

21 A Yes.

22 Q Okay. And do you remember reading this e-mail

23 at the time and the attachment?

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

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

1 I did read it.

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

3 document attached to the e-mail, the third numbered

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

5 A Yes, uh-huh.

6 Q Can you please read that first sentence into

7 the record?

8 A "Third: The format and structure of our data

9 files is proprietary so we will need to create exports

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

11 files in CRiis. We will also have to document each of

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

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

14 a particular type group, in parentheses, subset of the

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

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

17 wasn't being truthful in that statement, this paragraph

18 you just read?

19 A Yeah, because during my time in the private

20 sector, I had never seen an outgoing vendor express

21 these type of concerns to an incoming vendor.

22 Q You'd only been involved in four --

23 A Yes.

24 Q -- conversions?

25 A Right. I'm just saying I had never seen it so

1 it was puzzling to me.

2 Q And for at least two of the four years, you

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

4 successful sale, so --

5 A Right.

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

7 any change of vendors, right?

8 A Correct.

9 Q Because you didn't sell a single customer?

10 A Not a single one.

11 Q So you understood AtPac's position that the

12 format and structure of its data files was proprietary

13 no later than November 20th, 2008, correct?


15 THE WITNESS: I read this e-mail and that's

16 what they said.

17 BY MR. THOMAS:

18 Q Right. And did you talk to anyone about that?

19 A About what?

20 Q About the fact that AtPac said the format and

21 structure of its data files is proprietary, about that.

22 A Yeah, I think I spoke with Marie about that.


24 A "Marie, what are you going to do?"

25 Q Okay. What did she say?

1 A I don't recall.

2 Q You didn't give her direction. You asked her

3 what she would do?

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

5 I don't have enough knowledge to give anyone direction

6 on IT matters.

7 As a department head here, it appeared there

8 was a concern by AtPac and the proprietary nature of

9 their files, and I asked Marie to consult with Steve

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

11 Q Well, AtPac was still proposing to assist you

12 with migrating its --

13 A Uh-huh.

14 Q -- or the data, correct?

15 A Yeah.

16 Q All right. So --

17 A And I was prepared to pay the money.

18 Q Okay. What money?

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

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

21 this.

22 Q And you remember that being a not to exceed

23 contract price, right? So AtPac didn't want actually

24 15,000. They were willing to move forward with a

25 contract that would not exceed 15,000. Do you remember

1 that?

2 A No, I don't. I just remember 15,000. I don't

3 remember if it was not to exceed. I just remember

4 15,000 and I remember telling IT, Marie and Steve

5 Monaghan: Okay. We can do that. We'll do that.

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

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

8 not something you have personal knowledge of, hearing

9 that from AtPac, right?

10 A I read it --

11 Q All right.

12 A -- on an e-mail from AtPac.

13 Q Okay. So you said -- you talked to Steve

14 Monaghan trying to fix this. What did you do to fix the

15 fact that AtPac --

16 A I didn't say I talked to Steve Monaghan. I

17 spoke with Marie McCluskey, who was the project manager,

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

19 what we need to do to get the migration started.

20 Q Okay. And what did you do with respect to the

21 information Kirk Weir said that the format and structure

22 of the data files is proprietary?

23 A What did I do with that?

24 Q Yeah.

25 A Nothing.

1 Q Did that impact the way you moved forward in

2 any way?

3 A Yes.

4 Q How?

5 A There was an issue with AtPac about proprietary

6 files that we had to solve.

7 Q And how did you solve it?

8 A I asked Marie to huddle up with her boss and

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

10 Q And what was the solution?

11 A The initial solution was we will pay AtPac 15

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

13 information to us.

14 Q All right. And what was -- apparently, you say

15 that was the initial solution. What other solution was

16 there?

17 A AtPac came back saying they couldn't do it for

18 15 grand and they wanted 20 grand to do it and AtPac

19 came back with a date uncertain as to when they could

20 accomplish it. That's my recollection of the e-mails

21 that I read.

22 Q Okay. So you said there was an initial

23 solution.

24 What was the other solution?

25 A The other solution was we will pay 20 grand if

1 I can get a date certain.

2 Q Okay. Was that the only other solution?

3 A Well, the last solution was Steve Monaghan

4 represented to me, with County Counsel, that they could

5 work with the new vendor to accomplish this without

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

7 Q And when did that discussion take place?

8 A I have no idea.

9 Q And did Steve Monaghan represent to you -- so

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

11 could work with the new vendor to accomplish this. What

12 is "this"?

13 A To accomplish migrating these Della (phonetic)

14 elements from the old system to the new system.

15 Q And did he tell you that he could do that

16 without disclosing the format and structure of Atpac's

17 data files to Aptitude?

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

19 did he tell you he could do that without disclosing to

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


22 Compound.

23 THE WITNESS: I don't recall if he used those

24 exact words.

25 BY MR. THOMAS:

1 Q Well, words to that effect. Is that what he

2 said to you?

3 A Yes.

4 Q Okay. I'm done with Exhibit 21.

5 A Sir, do I give this back to you?

6 Q You can just --

7 A I'm sorry.


9 identification.)

10 BY MR. THOMAS:


12 A Uh-huh.

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

14 A Yes.

15 Q This is where you're forwarding the memo or

16 letter --

17 A Uh-huh.

18 Q -- from Kirk Weir?

19 A Uh-huh.

20 Q You thought it was important enough to forward

21 on to Krista and Christine?

22 A Yeah. I believe they were being point people

23 for me, if you will.

24 Q Oh. What do you mean by that? Point people

25 for what?

1 A For the upcoming migration from the old vendor

2 to the new vendor at this time.

3 Q When you say "point people," what does that

4 mean?

5 A If I need information or if I need to recall

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

7 assured that it was forwarded to Christine and Krista

8 and they would have the information.

9 Q Do they both still work for the County?

10 A Yes.

11 Q Did you talk to them to prepare for your

12 deposition?

13 A No.

14 MR. THOMAS: Okay. 386.


16 identification.)

17 BY MR. THOMAS:

18 Q Exhibit 386.

19 MR. POULOS: Do you have an extra?

20 MR. THOMAS: Sorry, John.

21 Q What is Exhibit 386, sir?

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

23 Q And this is also forwarding the very same memo

24 from Kirk Weir that you forwarded to your point people

25 in your office, right?

1 A Yes.

2 Q Why did you send this as a separate e-mail

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

4 A Krista, Christine are staff members of my

5 office. Mike is County Counsel. I don't send the same

6 e-mail to all three. I don't consider them to be

7 providing me with similar services.

8 Q Can we get Exhibit 130, please?

9 So Mr. Diaz, when you said that you thought

10 AtPac told you it was willing to provide its data

11 structure and schema, and that's what you were

12 contracting for AtPac to do, do you remember that

13 testimony?

14 A The personal services contract?

15 Q Yes.

16 A Yes.

17 Q Isn't that directly contradictory to Kirk

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

19 the format and structure of the data files is

20 proprietary?

21 A No.

22 Q Why not? How's that not directly the opposite

23 of what you said?

24 A What did I say?

25 Q What did you say? Go ahead and tell me again

1 since you're under oath. Just go ahead.

2 A We were negotiating a personal services

3 contract.

4 Q Yes.

5 A So AtPac could give us the information we

6 needed without infringing upon AtPac's proprietary

7 files.

8 This letter right here, with the other letter

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

10 County, most importantly, the format and structure of

11 our data files is proprietary.

12 Q Yes.

13 A So I respectfully disagree. This is not

14 contradictory. This is in fact in keeping with our

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

16 be any violation. AtPac's concerned about a violation.

17 I call my folks and say: Get this fixed because we

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

19 communications began to formulate a personal services

20 contract that would be suitable to both the County, the

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

22 understand. Why do you say they're contradictory?

23 Q So you didn't disagree with AtPac's position

24 that the format and structure of its data files was

25 proprietary.

1 A I believe I mentioned before, I had no reason

2 to disagree with that statement. If they say so, fine.

3 Q All right.

4 A And that's why we wanted to pursue a personal

5 services contract so we would not infringe upon these

6 proprietary files.

7 Q Okay. Do you have Exhibit 130 in front of you,

8 sir?

9 A Yes.

10 Q Sir, you're not suggesting that because the

11 County and Aptitude did not ultimately reach agreement

12 on a personal services agreement, that the County had

13 the right to infringe AtPac's intellectual property

14 rights, are you?

15 MR. POULOS: Objection. Calls for a legal

16 conclusion, plus I think you misspoke in your question.

17 MR. THOMAS: All right. Let me restate it.

18 Q Sir, you're not suggesting that because the

19 County and AtPac ultimately did not enter into a

20 personal services agreement, that that gave the County

21 the right and Aptitude the right to infringe AtPac's

22 proprietary rights in its data file structures, are you?

23 MR. POULOS: Object to the extent it calls for

24 a legal conclusion and it calls for speculation, but if

25 you can answer it, go ahead.

1 THE WITNESS: No.

2 BY MR. THOMAS:

3 Q You're not saying that?

4 A No.

5 Q And do you have Exhibit 130 in front of you?

6 A Yes.

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

8 this document, Exhibit 130?

9 A Let's see. It's a document -- it seems to

10 summarize an intro technical meeting which was held

11 before the migration.

12 Q Okay. And it says you were one of the

13 participants. Were you?

14 A I guess I was. It says so, so I guess I was.

15 Q The bottom of page one talks about data

16 exports.

17 Do you see that?

18 A Yes.

19 Q It says: "Marie provided a briefing on the

20 status of the AtPac data exports and the required change

21 for a professional services contract with AtPac to

22 fulfill the data export requirements."

23 Did I read that correctly?

24 A Yes.

25 Q "Marie reported the data exports will not be

1 available before January 15th."


3 A 2009.

4 Q Thank you. It says: "This delays the data

5 conversion and requires the County to be specific about

6 data export/extract requirements for AtPac to deliver."

7 Do you see that?

8 A Yes.

9 Q Do you remember discussing that during this

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

11 A No.

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

13 Data exports and the required change for a professional

14 services contract.

15 Do you see that?

16 A Yes.

17 Q What was that referring to, if you recall?

18 A Don't recall.

19 Q Do you recall the substance of any of this

20 meeting as it related to data exports?

21 A No.

22 Q Did you ever tell Aptitude that AtPac was

23 concerned about the proprietary nature of its data

24 files?

25 A No.

1 Q Why not?

2 A Because I believe those concerns were relayed

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

4 try to repeat what Marie had already said to Aptitude.

5 Q I see. So you believe Aptitude received that

6 information. It just wasn't from you?

7 A Correct.

8 Q Okay. All right. Can we turn to Exhibit 131?

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

10 Are you a sender or recipient of this? Have

11 you ever seen this e-mail before? I actually thought

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

13 past it.

14 A No, I don't.

15 Q We'll move past it.

16 A Okay.

17 Q Can you turn to Exhibit 134, please, in your

18 binder?

19 A Yes. Yes.

20 Q Looking at this e-mail, did you receive this

21 e-mail?

22 A Yes. It says that I did, yes.

23 Q All right. And right below the numbered

24 paragraphs, it says: After the process mapping work

25 session, Aptitude was providing Nevada County a copy of

1 the processing work sessions and a summary of

2 discoveries and differences between the current AtPac

3 system and the new Aptitude system.

4 Do you see that?

5 A Yes.

6 Q Did you explain differences between the AtPac

7 system and the Aptitude system to Aptitude?

8 A No.

9 Q How did Aptitude know differences between its

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

11 your knowledge?


13 MR. POULOS: Objection. Let me finish.

14 THE WITNESS: Sorry.


16 BY MR. THOMAS:

17 Q Have you ever seen instances, or did you see

18 instances, before AtPac left Nevada County, where

19 Aptitude personnel sat at terminal screens looking at

20 how the AtPac software worked?

21 A Yes.

22 Q How many instances did that happen to your

23 knowledge? Strike that.

24 On how many instances did you observe that,

25 Aptitude personnel working at a terminal where AtPac

1 software was displayed and being used?

2 A Three, four times.

3 Q During the migration process?

4 A During the migration process.

5 Q And who was involved in that work? You saw it

6 happen. Who was at the terminal?

7 A I saw Tom McGrath and I saw Alana Wittig.

8 Q Was anyone from Nevada County with them?

9 A No.

10 Q Were these terminals within Nevada County's

11 work space or were they the public terminals?

12 A The public terminals.

13 Q Did you ever see Nevada County -- strike that.

14 Did you ever see Aptitude Solutions personnel

15 sitting at or working at a terminal that was not a

16 public terminal where AtPac software was displayed?

17 A I don't know. I saw Aptitude personnel sitting

18 behind a terminal that was not a public terminal. I was

19 not privy to what they were looking at. I did not go

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

21 at --

22 Q And this was --

23 A -- so I don't know.

24 Q This was in the clerk recorder's office?

25 A Correct.

1 Q Was it a terminal that, to your knowledge,

2 could have been displaying AtPac software?

3 A To my knowledge, it could have.


5 BY MR. THOMAS:

6 Q Could you turn to Exhibit 140 in your binder,

7 please?

8 MR. POULOS: Give me a chance to object.

9 THE WITNESS: Okay. Okay.

10 BY MR. THOMAS:

11 Q 140. It looks like this is an e-mail that's

12 cc'd to you. Do you see that --

13 A Yes.

14 Q -- dated December 24, 2008?

15 A Yes.


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

18 Q All right. You have no reason to disagree with

19 that?

20 A No.

21 Q All right. And it says: "Marie: Alana

22 informed us of your decision to move forward with an

23 AtPac professional services contract to provide data

24 exports needed for conversion."

25 Do you see that?

1 A Yes.

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

3 intention to enter into a professional services contract

4 with AtPac?

5 MR. POULOS: Objection. Misstates the evidence

6 and the document. I think you misspoke, Mike.

7 MR. THOMAS: I'll say it again.

8 Q So as of December 24th --

9 MR. POULOS: Yeah.

10 BY MR. THOMAS:

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

12 Nevada County, to enter into a contract for professional

13 services with AtPac to provide data exports?

14 A Yes.

15 Q And you understood that contract was intended

16 to be one in which AtPac would provide data elements to

17 the County and Aptitude for insertion into Aptitude

18 software; is that true?


20 THE WITNESS: No.

21 BY MR. THOMAS:

22 Q What was your understanding then of the

23 purpose?

24 A My understanding was this professional services

25 contract would be suitable to both the County and to

1 AtPac for AtPac to provide the County whatever it is the

2 County wanted.

3 Q Anything the County wanted?

4 A No, whatever it was the County wanted for the

5 migration of data elements from one system to another.

6 Q And that contract was never entered into,

7 correct?

8 A Correct.

9 Q Who broke off the discussions regarding the

10 negotiation between AtPac and Nevada County concerning

11 the professional services agreement?

12 A I think the County did.


14 identification.)

15 BY MR. THOMAS:


17 A Yes.

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

19 received?

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

21 Q And you would have received the e-mail chain

22 attached to it as well, correct?

23 A Yes.

24 Q And you believe you received this e-mail,

25 right?

1 A Yes.

2 Q All right. And you see it's from Ms. Barale --

3 A Yes.

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

5 A Yes.

6 Q It says: "We are concerned that if AtPac gets

7 wind of us combining forces with Placer, that they may

8 increase their fees regarding the data extractions."

9 Do you see that?

10 A Yes.

11 Q So you certainly knew, no later than

12 December 31, that Aptitude was working with Placer,

13 right? December 31, 2008, right?

14 A Yes.

15 Q You knew before that, right? This wasn't your

16 first notice of that, was it?

17 A Pretty, pretty much it was.

18 Q All right. Let's turn to the e-mail below that

19 at the bottom of the page.

20 Do you see that?

21 A Uh-huh.

22 Q It's to Kathy from Tom McGrath.

23 A Uh-huh.

24 Q And it says, in the second full paragraph --

25 can you read the first sentence in?

1 A "Regarding the database and image structures at

2 Nevada and Placer, they are certainly similar if not

3 identical."

4 Q Okay. And you received that e-mail containing

5 that statement from Tom McGrath of Aptitude on

6 December 31, 2008; yes?

7 A Yes.

8 Q All right. Now, you had already been told by

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

10 database structures for AtPac software were proprietary,

11 correct?

12 A Yes.

13 Q Okay. Didn't this statement from Mr. McGrath

14 concern you that he knew and was able to assess the

15 database and image structures at Nevada and Placer

16 County and comment that they are similar if not

17 identical? Didn't that concern you?

18 A No.

19 Q Why not?

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

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

22 that Tom has been working with Placer. I don't know

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

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

25 database and image structure at Nevada and Placer are

1 certainly similar.

2 I have no reason to think or this sentence did

3 not ring any red bells that there was a concern

4 anyplace.

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

6 McGrath would know what the database structures in

7 Nevada County were?


9 Calls for speculation. Vague and ambiguous.

10 THE WITNESS: My thinking at the time is Tom

11 was in Placer and he viewed it.

12 BY MR. THOMAS:

13 Q Viewed what?

14 A He viewed the database and image structures in

15 Placer County.

16 Q Yes. And he also refers -- and he compares

17 them to the database and image structures in Nevada

18 County, correct?

19 A Yes.

20 Q So what was your understanding of how

21 Mr. McGrath was aware of the database structures in

22 Nevada County as of December 31, 2008?



25 THE WITNESS: I guess I just don't understand.

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

2 the database and image structures in Nevada County.

3 BY MR. THOMAS:

4 Q And how did he become familiar with them? Why

5 did you assume that?

6 A Well, we had a contract in place. Migration

7 efforts were beginning, and as part of the migration

8 efforts, I assume Tom McGrath, as the lead technical

9 person for Aptitude, was viewing database and image

10 structures in Nevada.

11 Q And didn't that concern you given that Kirk

12 Weir had already told you, approximately a month or more

13 before, that AtPac considered its database structures to

14 be proprietary?

15 A No, I didn't put that together.


17 THE WITNESS: Sorry. No, I didn't put that

18 together.

19 BY MR. THOMAS:

20 Q Do you see now what Mr. McGrath is saying would

21 conflict with the proprietary concerns of Mr. Weir?


23 THE WITNESS: Not really.

24 MR. POULOS: Vague.


1 BY MR. THOMAS:

2 Q Why not?

3 A I just don't have that type of understanding to

4 specifically see how they conflict.

5 Q Well, Mr. Weir told you that he believed the

6 database structures of AtPac's software were

7 proprietary, correct?


9 THE WITNESS: Where is that?

10 BY MR. THOMAS:

11 Q Oh. I'm sorry. You must have forgotten. It's

12 an e-mail you sent to three different people.

13 A You said database structure?

14 Q Yes.

15 A Okay. Yep, you're right. Didn't get that,

16 because it says the format structure of our data files

17 is proprietary.

18 Q Yes.

19 A This says the database and image structures are

20 certainly similar.

21 Q Yeah. So Mr. Weir informed you that the format

22 and structure of the data files is proprietary, correct?

23 A Say that again. I'm sorry.

24 Q Oh. Mr. Weir told you the format and structure

25 of the data files is proprietary.

1 A Yeah.

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

3 Mr. Weir, right?

4 A Right. That was written to Marie, right.

5 Q And about 40 days later, Mr. McGrath writes an

6 e-mail that you receive --

7 A Uh-huh.

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

9 able to compare the database image and structures --

10 excuse me -- the database and image structures in

11 Placer.

12 A Uh-huh.

13 Q And that didn't concern you at all?

14 A At all.

15 MR. POULOS: Objection. Asked and answered,

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

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

18 MR. THOMAS: Well, he told Marie and Marie told

19 you.

20 MR. POULOS: Well, the letter certainly, as you

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

22 you, told you."

23 MR. THOMAS: Let me restate it.

24 Q Kirk Weir wrote a letter to the County, Marie

25 McCluskey, that you received on November 20th, telling

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

2 files is proprietary.

3 A Uh-huh.

4 Q On December 31, you receive an e-mail which

5 contains a statement by Tom McGrath --

6 A Uh-huh.

7 Q -- which reveals that he has compared the

8 database structures in Nevada and Placer County,

9 correct?

10 A Uh-huh.

11 Q And you didn't have any concern with that given

12 Kirk Weir's statement to you?

13 A No. I didn't put them together, no.

14 Q You didn't put them together?

15 A No.

16 Q You've been a clerk-recorder in this business

17 for what? 20 years?

18 A Yeah. For a while. I don't know what that has

19 to do with the price of fish, though.

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

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

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

23 A Right.

24 Q Exhibit 336. I'll come back to that. Do you

25 have Exhibit 28 in your binder, please, sir? It's the

1 first one.

2 Do you have Exhibit 28, sir?

3 A Yes.

4 Q And please identify that, for the record.

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

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

7 Greg Diaz were cc'd. Subject: Initial Copy of AtPac

8 Data.

9 Q And you received this e-mail?

10 A It says that I did so I must have.

11 Q Did you read it?

12 A I think I did.

13 Q Okay.

14 A Skimmed it.

15 Q Sir, you went to law school, correct?

16 A Yes.


18 identification.)

19 MR. POULOS: 388.

20 BY MR. THOMAS:

21 Q Do you have 388 in front of you?

22 A Yes.

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

24 background, your undergraduate degree is in what?

25 A History and education.

1 Q Okay. And you -- did you graduate from law

2 school?

3 A No.

4 Q Okay. You finished -- you stopped at some

5 point during what year?

6 A What year of law school?

7 Q Yes.

8 A Third year.

9 Q All right. Do you have Exhibit 388 in front of

10 you?

11 A Yes.

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

13 from November 19th. Strike that. It's a different

14 e-mail.

15 So you have Exhibit 388. You forwarded this

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

17 Do you see that?

18 A Yes.

19 Q All right. And if you could turn down to the

20 e-mail from Tom McGrath to Ms. McCluskey. Do you have

21 that?

22 A Yes.

23 Q Okay. And that's dated November 19th, right?

24 A Yes.

25 Q Okay. And did you read that e-mail, too?

1 A I'm sure that I did.

2 Q Okay. Can you look down into the second

3 paragraph of Mr. McGrath's e-mail?

4 A Uh-huh.

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

6 says "during."

7 Can you read that into the record?

8 A Yeah. "During my recent visit to your County,

9 however, I found the AtPac schema to be somewhat

10 different from the one encountered at our prior

11 project."

12 Q Okay. Do you know what prior project he was

13 referring to?

14 A No.

15 Q Okay. Did the fact that he informed you that

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

17 concern to you?

18 A No.


20 BY MR. THOMAS:

21 Q Why not?

22 A I leave it up to my migration team. If they

23 have concerns, they voice those concerns to me.

24 They did not voice concerns to me about this

25 sentence so I didn't have any concerns about this

1 sentence.

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

3 express a concern, you have no concern?



6 THE WITNESS: As long as my project manager,

7 for this particular project, has not approached me with

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

9 concerns.

10 BY MR. THOMAS:

11 Q And do you know how it is that Tom McGrath had

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

13 A Do I know how Tom --

14 Q Yes.


16 THE WITNESS: No.

17 BY MR. THOMAS:

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

19 speculation.

20 Do you know when Tom McGrath visited the County

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

22 date?

23 A I do not have the specific dates for when he

24 visited Nevada County.

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

1 that -- strike that.

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

3 is Tom McGrath would have had knowledge of AtPac's

4 schema?

5 A No.

6 Q And you forwarded that e-mail on. You thought

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

8 correct?

9 A Yes. May I say something?

10 MR. POULOS: Yes.

11 THE WITNESS: May I say something?

12 BY MR. THOMAS:

13 Q Do you want to clarify an answer?

14 A Yes.

15 Q What answer?

16 A Why these e-mails were forwarded to Krista and

17 Christine.

18 Q Sure. You told me already, they're your point

19 people.

20 A If I could, please.

21 Q Fair enough.

22 A I'm in the middle of conducting the largest

23 election Nevada County ever had. That was the

24 November 8th, 2008 election. We have a canvas that goes

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

1 particular situation, we had a congressional race that

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

3 a postelection, manual audit, which involved hours,

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

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

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

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

8 through the largest canvas the County has ever had and

9 to get through a very rare postelection manual audit and

10 a congressional district race. Just want to clarify.

11 Q Okay. So what exhibit do you have in front of

12 you?

13 A I have 388.

14 Q 388. And what is that? That's the --

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

16 and Christine.


18 identification.)

19 BY MR. THOMAS:

20 Q Please look at Exhibit 389. That's the

21 original e-mail you received from Ms. McCluskey. Do you

22 see that? Excuse me.

23 MR. POULOS: I think we're messed up here.

24 BY MR. THOMAS:

25 Q Exhibit 388, do you have that?

1 A Yes.

2 Q And that is the e-mail you forwarded on?

3 A Yes.

4 Q Okay. And then let's go to 389.

5 A Okay.

6 Q Do you have that?

7 A Yes.

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

9 McGrath actually says "Marie" in the introduction or

10 salutation.

11 Do you see that?

12 A Yes.

13 Q Or the greeting. But this is an e-mail you

14 received, Exhibit 389, correct?

15 A Yes.

16 Q All right. Thank you. I want to set these

17 aside for one moment.

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

19 MR. POULOS: You actually handed me one, Mike,

20 and then didn't mark it.

21 MR. THOMAS: Maybe we haven't marked this.

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

23 That's 386, John.

24 MR. POULOS: It is?

25 MR. THOMAS: Yeah.


2 identification.)

3 BY MR. THOMAS:

4 Q Please take a look at Exhibit 390, sir.

5 All right. Do you have 390?

6 A Yes.

7 Q And did you receive this e-mail from

8 Ms. Sandever?

9 A Yes.

10 Q And it's on Sunday, November 2nd. Do you see

11 that?

12 A Yes.

13 Q Okay. Please read into the record her first

14 paragraph to you.

15 A "Since this week is extremely busy for you and

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

17 our support box on your network, we will have to

18 reschedule our trip to evaluate your data."

19 Q Okay. When she said "evaluate your data," what

20 did you understand that to mean?


22 THE WITNESS: I understood that to mean an

23 evaluation of our data.

24 BY MR. THOMAS:

25 Q Well, what did that mean, though?

1 A That's all it meant to me.

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

3 area this week.

4 Do you see that in the next paragraph?

5 A Yes.

6 Q Did in fact Aptitude Solutions' staff -- you

7 understand they did visit Nevada County that first week

8 of November.

9 Do you recall that?

10 A No.

11 Q And then the next sentence, in the second

12 paragraph, says: "Of course, if Marie and anyone in the

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

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

15 Wednesday."

16 Do you see that?

17 A Yes.

18 Q Do you know if that happened?

19 A I don't know.

20 Q Can we get Exhibit 211, please?

21 All right. Do you have Exhibit 211 in front of

22 you, sir?

23 A Yeah. Yes.

24 Q All right. And could you identify this

25 document? What is this?

1 A This is an NCSP-102 A1 Vendor End User Security

2 Affidavit.

3 Q Do you understand this is a form that's filled

4 out to create a vendor login account?

5 A That was what was told to me, yes.


7 A Marie McCluskey, I believe.

8 Q And what did she say specifically about this

9 document?

10 A Sign it.

11 Q She provided this to you?

12 A I don't think so. I think Abby Kelly, from my

13 office, my administrative assistant, asked me to sign

14 this.

15 Q And can you turn to Page 2121?

16 A Yes.

17 Q Is your signature --

18 A Yes.

19 Q -- under -- that's under "Authorized

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

21 A Yes.

22 Q And that is your signature?

23 A Yes.

24 Q Okay. And did you read this document?

25 A No.

1 Q You signed it without reading it?

2 A Yes.

3 Q Do you do that frequently?

4 A Yes.

5 Q Why do you do that?

6 A Because I trust my people when they describe to

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

8 Q Okay.

9 A And if I have concern, I read. If I don't, I

10 don't read.

11 Q And how do you know if there are concerns if

12 you don't read it?

13 A This is an IT form and my sister department is

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

15 could have a login, and with that information being

16 provided to me, I did not have a concern.

17 Q All right.

18 A It's overseen by IT.

19 Q All right. And what did Abby Kelly tell you

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

21 A I don't think Abby said anything about it. She

22 said: Greg, here is the form that needs to be signed

23 for the new vendor to have access.

24 Q Have access to what?

25 A I believe it's access to County information.

1 Q Okay. Did you -- what information?

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

3 would be information that would be germane to the

4 migration from the new vendor to the old vendor.

5 Q And what information, specifically?

6 A I don't know everything but I would imagine a

7 lot of the information would be the data elements that

8 we have in AtPac software.

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

10 what you mean. I don't want you to guess or speculate

11 in this deposition.

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

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

14 for the migration.

15 Q Did your thoughts include your obligations to

16 be careful not to disclose AtPac's intellectual property

17 to third parties?

18 A That --


20 conclusion.

21 THE WITNESS: No.

22 BY MR. THOMAS:

23 Q You understood the County had an obligation to

24 protect and prevent the disclosure of AtPac's

25 intellectual property to third parties, correct?


2 THE WITNESS: At this time?

3 BY MR. THOMAS:

4 Q At all times.

5 A Yeah. I'll give that a yes. Uh-huh.

6 Q Did you think about that when you signed this

7 form?

8 A Absolutely not.

9 Q Did you understand this form was providing

10 Aptitude Solutions with access to the server that housed

11 AtPac's proprietary software?


13 Calls for a legal conclusion.

14 THE WITNESS: Just didn't think that far, no.

15 BY MR. THOMAS:

16 Q But you understand that now right?



19 BY MR. THOMAS:


21 A Not really.

22 Q Did you read the part above your signature, at

23 least the page that you signed, or no?

24 A I did.

25 Q And it says what?

1 A The part -- what? Above my signature? What

2 does it say?

3 Q Anywhere on this page. Did you read any of

4 this page?

5 A I read the second paragraph. It says: "We

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

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

8 need read-only access to the current land record data

9 for conversion purposes."

10 Q Okay. And what did you understand that to

11 mean?

12 A I understand this to mean a very standard and

13 typical step before the migration of data from an old

14 vendor to a new vendor.

15 Q How many times, in Nevada County, have you ever

16 filled out a form which gave one vendor an account to

17 another vendor's server?

18 A How many times?


20 THE WITNESS: Once.

21 BY MR. THOMAS:

22 Q This one time?

23 A Yes.

24 Q And how many times, in your experience as a

25 vice president for clerk-recorder software companies,

1 did you become aware of a county giving your employer a

2 password to a server which housed a competitor's

3 software?



6 THE WITNESS: I think only once.

7 BY MR. THOMAS:

8 Q Really?

9 A In North Carolina.

10 Q Really?

11 A Yes.

12 Q And did both software vendors approve of that?

13 A I can't say I really know that --

14 Q Did you --

15 A -- but yeah.

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

17 your recollection is what? That both vendors were aware

18 in North Carolina?

19 A Yes.

20 Q Okay. In this instance, did you ever tell

21 AtPac that you had authorized the creation of an account

22 giving Aptitude a password to the server that housed

23 AtPac's software?

24 A No.

25 Q Why not?

1 A Why should I?

2 Q Did you ever --

3 A This was -- I signed this form so that there

4 could be a login for the new vendor.

5 I don't speculate and think that wrongdoing is

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

7 Q In filling out this form, you understood the

8 intent was to give Aptitude Solutions' access to the

9 server that housed AtPac software.

10 You understood that?


12 THE WITNESS: No. I understood this paragraph

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

14 this support server was not AtPac's server. It was

15 Aptitude's server.

16 BY MR. THOMAS:

17 Q That's the first half of the sentence.

18 A Okay. "And need read-only access to the

19 current land record data for conversion purposes."

20 Q And where --

21 A That's read-only access.

22 Q And where was the land record data when you

23 filled out this form? That was on the server that

24 housed AtPac software, correct?

25 A Absolutely.

1 Q You understood that?

2 A At the time that I signed?

3 Q Yes.

4 A No, I'm not thinking about all that: Wow,

5 there might be a problem here signing this form because

6 the server containing our land information has something

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

8 about the concern with proprietary information until

9 this letter was forwarded to me which came well after me

10 signing this form.

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

12 A Yeah.

13 Q -- that's Exhibit 211 --

14 A Yeah.

15 Q -- the County was under contract with AtPac,

16 right?

17 A Uh-huh.

18 Q There was a Software License Agreement --

19 A Uh-huh.

20 Q -- correct?

21 A Yeah.


23 identification.)

24 MR. POULOS: What exhibit is this?

25 THE WITNESS: 391.

1 BY MR. THOMAS:

2 Q Did you ever read that contract?

3 A Yes.

4 Q When?

5 A I don't recall.

6 Q Did you read it before or after you filled out

7 the exhibit? Strike that.

8 Did you read the AtPac contract before or after

9 you authorized the creation of an account for Aptitude

10 to a server housing AtPac software?

11 A Before.

12 Q Okay. And can you turn to the Program License

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

14 through.

15 It looks like this, sir. There's an Exhibit E

16 at the top. There you go.

17 Did you read Exhibit E before you signed

18 Exhibit 211, which is the authorization for Aptitude to

19 have an account?

20 A Yes.

21 Q And when did you read that, specifically?

22 A I don't know.

23 Q And did you discuss this Program License

24 Agreement with anyone when you read it?


1 Q Who did you discuss it with?

2 A I don't know.

3 Q Did you ever provide this agreement, this AtPac

4 Nevada County License Agreement to Aptitude?

5 A Did I provide this to Aptitude?

6 Q Yes.

7 A No.

8 Q Do you know if anyone else did from the County?

9 A I don't know.

10 Q Okay. If you turn to page two of the Program

11 License Agreement, do you have that?

12 A Yes.

13 Q All right. Do you see the numbered paragraphs

14 starting with paragraph number two?

15 A Yes.

16 Q And did you read Paragraph 2.2, proprietary

17 rights, nondisclosure?

18 A Yes.

19 Q Now, when you told me the first notice you had

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

21 was Kirk Weir's November 20th memo --

22 A Yes.

23 Q -- 2008.

24 A Yeah.

25 Q But you had read this AtPac contract before

1 then.

2 A Yes.

3 Q And you read Paragraph 2.2 before then.

4 A Yes.

5 Q And you see Paragraph 2.2 is titled Proprietary

6 Rights?

7 A Yes.

8 Q So you understood AtPac did have concerns with

9 respect to proprietary rights before you received Kirk

10 Weir's memo on November 20th, correct?

11 A Yes.

12 Q So why did you say your first notice was when

13 you received Kirk Weir's memo?

14 A I consider this to be a lot of boilerplate

15 material and I approached it as boilerplate material. I

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

17 Mr. Weir's letter at all. And again, in my ignorance,

18 if you will, with intellectual property, the proprietary

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

20 document setting up the new vendor to begin a migration.

21 The new vendor and the County authorizes the

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

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

24 and exhibits that the County had with AtPac and to zero

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

1 anything to do with this form that was submitted to me

2 for signature for a new vendor to have login rights.

3 Q And that's your testimony, notwithstanding the

4 fact that you've already testified that once purchasing

5 enters into and forms a contract with a vendor --

6 A Uh-huh.

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

8 ensure compliance with that contract, correct?


10 it calls for a legal conclusion but go ahead.

11 THE WITNESS: Yeah, I suppose.

12 BY MR. THOMAS:

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

14 Paragraph 2.4.

15 Do you see that?

16 A Yes. Uh-huh.

17 Q It says Licensee -- you went to law school.

18 You know that's the County, right? The licensee is the

19 county licensing the software, right?

20 A Yes, uh-huh.

21 Q Right?

22 A Uh-huh.

23 Q It says: Licensee shall notify licensor

24 immediately --

25 A Uh-huh.

1 Q -- of known or suspected --

2 A Uh-huh.

3 Q -- unauthorized use --

4 A Uh-huh.

5 Q -- access --

6 A Uh-huh.

7 Q -- or possession of the package --

8 A Uh-huh.

9 Q -- or any part thereof?

10 A Uh-huh.

11 Q Okay. You understood that you had authorized

12 access to the server housing AtPac software when you

13 signed Exhibit 211?

14 A Uh-huh.


16 conclusion. Lacks foundation.

17 BY MR. THOMAS:

18 Q You understood that, correct, sir?

19 A Understood what? Paragraph 2.4?

20 Q No. My question. You understood, when you

21 signed Exhibit 211, you've already testified that you

22 understood it gave access to the land records --

23 A Uh-huh.

24 Q -- data that was contained --

25 A Uh-huh.

1 Q -- on the server --

2 A Uh-huh.

3 Q -- that housed AtPac software?

4 A Correct.

5 Q So you granted and approved a password to the

6 server that housed AtPac software; yes?


8 THE WITNESS: Yes.

9 BY MR. THOMAS:

10 Q All right. And you also, before you did that,

11 read this contract between -- the license agreement

12 between Nevada County and AtPac and you read

13 Paragraph 2.4. You were aware of Paragraph 2.4,

14 correct?

15 A Absolutely.

16 Q And that specifically required you to

17 immediately notify AtPac of any known or suspected

18 unauthorized access.


20 BY MR. THOMAS:

21 Q Right?

22 A Right.

23 Q And you never did that. You never notified

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

25 A I did not.

1 Q Why not?

2 A Never occurred to me to do so.

3 Q Because you considered this boilerplate.

4 That's your testimony.

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

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

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

8 Resolution Number 05.44 would be relevant to this

9 document. Just never occurred to me. I guess just

10 wasn't on top of that, sir. Wasn't on top of that, that

11 the --

12 MR. POULOS: For the record --

13 THE WITNESS: -- 2005 Reso had something to do

14 with this 2008 form from IT.

15 BY MR. THOMAS:

16 Q Well, you understood the 2005 Resolution was in

17 fact the contract that was binding and in force at the

18 time --

19 A I --

20 Q -- you signed Exhibit 211, correct?

21 A I'm not arguing with you, correct. I just did

22 not put them together.

23 MR. POULOS: And for the record, the witness

24 has been pointing to Exhibit 211 in the binder.

25 BY MR. THOMAS:

1 Q Now, after you signed this, what did you do

2 with it, Exhibit 211?

3 A I gave it back to Abby Kelly.

4 Q And do you know what she did with it?

5 A No, I don't absolutely know. I could

6 speculate.

7 Q I don't want you to speculate.

8 A Okay.

9 Q Did Ms. McCluskey ever tell you what she did

10 with it?

11 A No.

12 Q And you understand that an account was created

13 pursuant to this NCSP 102 document you signed, right?

14 A I became aware of that, yes.

15 Q I mean you expected there to be one when you

16 signed it, right?

17 A Yes.

18 Q People -- when you sign a document --

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

20 Now we have an account open.

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

22 Q Could you turn to Exhibit 213 in your binder?

23 If you could, these are notes that Dan Evers created

24 when he was employed with Nevada County.

25 Have you ever read these?

1 A No.

2 Q All right. You've heard of Dan Evers, right?

3 A I have.

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

5 chronology?

6 And there's some dates, and the bottom date is

7 4 November 2008.

8 Do you see that?

9 A I'm sorry. The -- yes.

10 Q Do you see that, sir?

11 A Yes.

12 Q Are you with me?

13 A Yes.

14 Q And he's recording various conversations and

15 activity.

16 A Uh-huh.

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

18 Patty Sandever wrote you an e-mail telling you that

19 potentially, they would be at the County the following

20 week, right?

21 A Okay.

22 Q If you look at the third paragraph he wrote, it

23 says: "As per Russ's request."

24 A Yes.

25 Q It says: "I held off creating the ER recorder

1 login to Aptitude until after talking with Marie

2 McCluskey."

3 All right. Can you please read into the record

4 the balance of that paragraph?

5 A "McCluskey instructed that I create an

6 ambiguous ER dash recorder login which, in parentheses,

7 which begot" --

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

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

10 you? No?

11 A Not really. Okay. "Which begot" -- it's I --

12 what? Isphydoux. Okay.

13 "When I asked McCluskey why the nonstandard

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

15 that this was agreed upon by Phil Russ and Gregory Diaz

16 and herself during previous conversations and that they

17 didn't trust AtPac to know that Aptitude was logging

18 into the system. See Russ, Diaz and McCluskey for

19 further details."

20 Q All right. Now, tell me about your discussions

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

22 VN.


24 THE WITNESS: I don't even remember having a

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

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

2 don't recall having a conversation with Phil and Marie

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

4 didn't trust AtPac. No. The answer is no.

5 BY MR. THOMAS:

6 Q So you don't recall that discussion?

7 A No. No. Never happened.

8 Q Oh. It never happened, you say?

9 A I don't recall it ever happening.

10 Q Okay. That's different. Do you -- you just

11 don't recall one way or the other?

12 A I don't recall.

13 Q Okay. So it might have happened. You're just

14 not sure as you sit here today?

15 A No. I'm sure it didn't happen.

16 Q Oh. Well, that's different testimony then.

17 So --

18 A Well, we'll go with that one then.

19 Q You do recall it. You do recall it but you're

20 saying it didn't happen?

21 A No, it didn't happen.

22 Q You recall it didn't happen?

23 A I don't remember a conversation where, what

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

25 Russ and me and herself, no.

1 Q Well, let me ask you a more basic question.

2 Did you have a discussion with Marie about making sure

3 that the account given to Aptitude would be named

4 something that would be difficult to detect by AtPac?

5 A No.

6 Q You're sure?

7 A I'm sure.

8 Q Okay. So if Mr. Russ says otherwise, he's

9 lying. That's your testimony?

10 A That's my testimony.

11 Q And if Mr. Evers testifies, under penalty of

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

13 A Uh-huh.

14 Q -- then Ms. McCluskey lied to him. That's your

15 testimony?

16 A That's my testimony.

17 Q And that he just made these notes up on

18 November 4th, 2008 and he's lying?

19 A Yeah.

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

21 A I don't understand the question. What do you

22 mean "trust AtPac"?

23 Q Did you trust AtPac? What do you mean? What's

24 not understandable about that?

25 A What do you mean "trust AtPac"?

1 Q Did you trust AtPac?

2 A I don't trust anybody.

3 Q Okay.

4 A I don't know. No.

5 Q Well, the answer's no?

6 A The answer's no.

7 Q So the statements -- the conversation that's

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

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

10 trust AtPac --


12 BY MR. THOMAS:

13 Q -- yes?

14 MR. POULOS: Misstates the witness's testimony.

15 Misstates the document.

16 BY MR. THOMAS:

17 Q It's a new question. I'm not stating anything.

18 A Could you repeat the question?

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

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

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

22 McCluskey didn't trust AtPac, right?

23 MR. POULOS: Objection. Same objection.

24 THE WITNESS: If that's how you want to

25 categorize that, that's fine. Yes.

1 BY MR. THOMAS:

2 Q Why didn't you trust AtPac?

3 A I don't trust anybody.

4 Q So there's nothing about AtPac that was unusual

5 or different that would cause you to distrust AtPac?

6 A People have preferences in this world and one

7 of my preferences was not being endearing to AtPac.

8 Let's put it that way.

9 Q What do you mean "endearing"?

10 A Didn't like the company. Didn't like the

11 customer service. Didn't like the functionality.

12 Didn't like Dave Krugle. Didn't like the company, okay?

13 AtPac. Isn't that clear?

14 Q I don't know.

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

16 Q When did you form that feeling about AtPac?

17 A Dealing with Wayne Long and Kirk Weir. Because

18 before that, I had years and years of good relationships

19 with that company, years and years. And when Kirk Weir

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

21 anything about the new direction with the company. So

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

23 which is my right as the clerk-recorder in Nevada

24 County.

25 Q Now, when you said you had years and years of

1 good relations with that company, you've already

2 testified that in 2002, Jim McCauley and Jim Maclam

3 essentially dissed you --

4 A Yeah.

5 Q -- at a public conference.

6 A Yeah.

7 Q Didn't that upset you then?

8 A Of course, but that has nothing to do with my

9 tenure as clerk-recorder coming in in 2007 and working

10 with AtPac.

11 Q Really. Are you sure?

12 A Really. I'm sure.

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

14 A Because I'm a professional.

15 Q I didn't mean to talk over you.

16 A Okay. Well, I'm a professional. You're

17 talking about a personal exchange. I do not bring my

18 personal exchanges into a professional relationship.

19 I have many professional relationships that

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

21 professionally, they work.

22 Q And as a professional, it was your view that

23 the terms and binding conditions of the AtPac license

24 were boilerplate, right?

25 A Absolutely, they're boilerplate.

1 Q And binding on the County --

2 A Absolutely.

3 Q -- right?

4 What did you mean by "boilerplate" then?

5 A You see exhibits like this in many, many

6 contracts.

7 Q And so you were comfortable -- you were

8 experienced in seeing contracts that provided for

9 software vendors to counties, clerk-recorder software

10 vendors, providing that their software and all portions

11 of their software were proprietary and confidential.

12 You've seen these provisions before. That's your

13 testimony, right?

14 A Yes.

15 Q In many contracts?

16 A Yes.

17 Q And so you were familiar with them?

18 A Yes.

19 Q And you understood that they restricted the

20 County's ability to disclose AtPac software to anyone,

21 right?


23 conclusion.

24 THE WITNESS: No, not to those specifics, no.

25 BY MR. THOMAS:

1 Q Really?

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

3 is --

4 Q Yeah. The Dan Evers --

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

6 conflict with Paragraph 2.2 and 2.4 contained in

7 Exhibit 391. I think I've mentioned that a few times.

8 I missed that.

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

10 A With your help, yes.

11 Q Okay. Now, let's turn to Exhibit 5. John,

12 please.

13 Do you have Exhibit 5 in front of you, sir?

14 Sorry. I thought you did.

15 A Yes.

16 Q There you go. You got Exhibit 5 in front of

17 you?

18 A Yes.


20 A Let's see. It's a document from Tom McGrath to

21 Kathy Barale.

22 Q Copied to you, right?

23 A I was cc'd.

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

25 A Oh, yeah. Uh-huh, uh-huh, uh-huh.

1 Q And it's January 2nd, 2009?

2 A Yes, that's what it says.

3 Q Was the big election you talked about, was that

4 over by January 2nd?

5 A Yes, it was.

6 Q Okay. And you read this e-mail; yes?

7 A Yes, uh-huh.

8 Q And let's turn down to the fourth paragraph

9 that Tom McGrath wrote.

10 A Uh-huh.

11 Q And you knew Tom McGrath was a vice president

12 of technology for Aptitude, right?

13 A I always knew him as vice president. I did not

14 see that he was vice president of technology.

15 Q Okay. And read into the record the first

16 sentence of that fourth paragraph.

17 A Uh-huh. "Regarding data access, both Placer

18 and Nevada County's have provided Aptitude Solutions

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

20 Q Okay. What did you think when you read that?

21 A I thought Placer and Nevada have provided

22 Aptitude with read-only access of AtPac images and data

23 files.

24 Q And did that concern you?

25 A No.

1 Q Well, were you concerned that the contract

2 between AtPac and Nevada County prohibited the County of

3 Nevada from disclosing --

4 A Didn't. Didn't.

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

6 to Aptitude?

7 A No.



10 BY MR. THOMAS:

11 Q You weren't?

12 A Huh-uh.

13 Q Why not?

14 A It didn't occur to me that this situation could

15 in fact have an effect on the signed contract with

16 AtPac.

17 Q Okay. Well, did it concern you that

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

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

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

21 provided to you, which specifically stated that AtPac

22 considered its database structures and its data files

23 proprietary?

24 A It did not concern me.

25 Q Why not?

1 A I'm not concerned about the welfare of AtPac.

2 That's not my job.

3 Q Okay.

4 A And I was not concerned because I saw no

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

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

7 attempting to knowingly and willingly do any wrongdoing

8 to AtPac. I saw nothing like that. And as a matter of

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

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

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

12 professional services contract that AtPac and the County

13 could agree upon.

14 Q Well, when you read this e-mail from Tom

15 McGrath on January 2nd --

16 A Uh-huh.

17 Q -- where he told you that Nevada County had

18 provided Aptitude Solutions with read-only access to

19 AtPac images and data files --

20 A Uh-huh.

21 Q -- did you tell that to AtPac?

22 A No.

23 Q Why not?

24 A I saw no reason to.

25 Q To your knowledge, nobody from the County told

1 AtPac that, correct?

2 A To my knowledge.

3 Q Did that concern you?

4 A No.

5 Q Didn't you think you should be telling AtPac

6 that you had given its competitors access to its data

7 files?


9 THE WITNESS: No.

10 MR. POULOS: Vague and ambiguous. Calls for

11 speculation.

12 BY MR. THOMAS:

13 Q Why not?

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

15 Q You match them now, though, right?

16 A With your help, and we can continue to go over

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

18 same answers.

19 My -- my focus was: Let's make sure there's no

20 injury to AtPac. Let's make sure this is done

21 correctly. AtPac can leave. We can acquire a new

22 vendor and do our thing.

23 Q Could you get Exhibit 336, please? That's in

24 the new binder.

25 No, that's the binder without the tabs. It's

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

2 Actually, guys, you know what? I'm okay.

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

4 MR. POULOS: I brought this stuff from -- I got

5 it. I got it right here.

6 BY MR. THOMAS:

7 Q Okay. Sir, would you please take a look at

8 Exhibit 336?

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

10 of January 9th that you were cc'd on. Did you receive

11 this e-mail?

12 A Yes.

13 Q And it's an e-mail that's forwarded to you.

14 It's originally from Kirk Weir to Marie McCluskey.

15 A Yes. Uh-huh.

16 Q Okay. And this is an e-mail where Mr. Weir is

17 indicating that there's some more hours that would be

18 anticipated for the conversion.

19 Do you see that?

20 A Yes.

21 Q And then there's also a statement that he

22 suggests -- and it's in the middle of the last large

23 paragraph -- it says: My suggestion is that you revise

24 the NTE -- I believe that means "not to exceed" --

25 amount to 20,000.

1 Do you see that?

2 A Yes.

3 Q And do you remember that testimony? You talked

4 about these -- this earlier. Do you remember that?

5 A Yes.

6 Q And is this what caused you to decide that you

7 weren't going to move forward with AtPac in the personal

8 services agreement?

9 A No.

10 Q No. What was it then?

11 A I believe there was a subsequent e-mail where

12 we talked about the deliverable date. It was all about

13 the deliverable date, not so much the money. The money,

14 I was prepared to go forth with the 15,000. I was

15 prepared to go forth with the 20,000.

16 It was the delivery, and we never got a firm

17 answer on the deliverable, and that was the straw that

18 broke the camel's back.

19 Q Okay. So sometime after this e-mail is when

20 the straw broke the camel's back?

21 A I believe so. AtPac, we did ask for a more

22 date certain and we weren't able to get a date certain.

23 Q Can you look at the last sentence of the large

24 paragraph?

25 A Yeah. "We also believe we can shoot for the 30

1 business days from execution due date."

2 To me, that was not a certain deliverable.

3 Q And after this e-mail, is it your testimony

4 that you told AtPac: We need a date certain?

5 A I don't think I told them that but it was

6 relayed. I relayed it to the IT team that we need a

7 date certain.

8 Q Okay. And do you know if they communicated

9 that to AtPac?

10 A I don't really know. I have not seen any

11 document where that was communicated to AtPac.

12 MR. THOMAS: Dave, can I have the next stack?

13 One moment, sir.

14 Can we break for a minute?

15 MR. POULOS: Sure. We've been going about an

16 hour-and-a-half.


18 4:21 p.m.

19 (Recess taken at 4:21 p.m. to 4:33 p.m.)


21 identification.)


23 4:33 p.m.

24 MR. POULOS: Thank you.

25 BY MR. THOMAS:

1 Q All right. What exhibit do you have in front

2 of you, sir?

3 A I have an e-mail that I sent to my personal

4 e-mail address at home.

5 Q All right. And this is an e-mail from you at

6 work to you at home?

7 A Yes.

8 Q And that's the Mustang Valley Alpaca --

9 A Yes.

10 Q -- gmail.com account?

11 A Uh-huh.

12 Q That's your home account?

13 A Yes.

14 Q Okay. And it says "questions for story." And

15 then below that is an e-mail you wrote to -- who's Dave

16 Moller?

17 A A reporter at the Union.

18 Q Okay. And then who is L. Kellar?

19 A A reporter at the Union.

20 Q Okay. And then if we go down in the chain of

21 this e-mail, it looks like there's an e-mail from

22 Mr. Moller to you that says "questions for story."

23 A Yes.

24 Q Okay. And did you receive that e-mail from

25 Mr. Moller?

1 A Yes.

2 Q And apparently, he's asking questions about

3 this lawsuit.

4 A Yes.

5 Q Okay. And then you then responded to him.

6 A Yes.

7 Q Okay. And did you send him this e-mail?

8 A Yes.

9 Q Okay. And did you write this e-mail --

10 A Yes.

11 Q -- e-mail to Mr. Moller?

12 A Yes.

13 Q Okay. And you understood this e-mail would be

14 used to write a newspaper article?

15 A Yes.

16 Q Okay. And so you understood it was important

17 to be accurate?

18 A Yes.

19 MR. THOMAS: Okay. What exhibit number was

20 that?

21 MR. KRUGLE: 392.

22 BY MR. THOMAS:

23 Q Okay. All right. Mr. Diaz, let me ask you --

24 I'm done with that exhibit, sir -- with respect to

25 Aptitude, have you talked to Aptitude about this

1 lawsuit?

2 A Yes.

3 Q Okay. Outside the presence of counsel?

4 A Yes.

5 Q Okay. And who have you spoken with?

6 A Paul Miller.

7 Q And what were your discussions? What were your

8 discussions with Mr. Miller?

9 A Varied. Discussions were -- it would still be

10 nice to understand what the lawsuit's about, since

11 plaintiff has not described damages, so we talk about

12 what the other side, what their damages really are. We

13 talk about costs. We talk about the political

14 motivation behind the lawsuit. We talk about damage to

15 all parties concerned, in terms of reputation, from the

16 County to AtPac to Aptitude.

17 We talk about the fact that there was just no

18 intent by any of the defendants to do any wrongdoing to

19 AtPac.

20 Let's see. What else do we talk about? We

21 talk about the attorneys, the style of the attorneys.

22 We talk about possible settlement, how things could be

23 resolved. We talk about many things.

24 Q Okay. And when you say you talk about damages,

25 what were those discussions?

1 A We have not seen how AtPac has been damaged.

2 AtPac seems to be, for a year now, really delaying this

3 forensics examination of the server and we talk about it

4 would really be nice to know how AtPac has been damaged,

5 and that seems to both of us to be a pretty essential

6 element in trying to resolve this litigation.

7 Q Is that something you're interested in doing?

8 A Resolving the litigation?

9 Q Yeah.

10 A Absolutely.

11 Q And has anyone -- strike that.

12 Have you and Mr. Miller discussed the existence

13 of an account on the ER recorder server that gave

14 Aptitude access to AtPac software? Have you discussed

15 that?

16 A No.

17 Q Okay. Have you read any deposition testimony

18 given in this case?

19 A No.

20 Q Are you aware that Dan Evers has testified that

21 the account created under your authorization gave

22 Aptitude access to every part of AtPac's proprietary

23 confidential software? Are you aware he testified to

24 that?

25 MR. POULOS: I'm going to object. Lacks

1 foundation.

2 THE WITNESS: No.

3 BY MR. THOMAS:

4 Q Okay. And are you aware that there's testimony

5 that there were multiday file transfers from AtPac

6 server to Aptitude server in June of 2009 using the

7 account that was created under your authorization? Are

8 you aware of that?

9 A No.

10 MR. POULOS: Same objections.

11 BY MR. THOMAS:

12 Q Never heard that before?

13 A Never heard that before.

14 Q Have you heard that a court has made a ruling

15 granting issue sanctions against you?

16 MR. POULOS: Objection. That lacks foundation.

17 THE WITNESS: There were some sanctions. I

18 didn't know they were against Gregory Diaz. I thought

19 they were against the attorneys.

20 BY MR. THOMAS:

21 Q What sanctions are you aware of?

22 A $20,000 sanction.

23 Q Are you aware of other sanctions the court has

24 issued as a result of the destruction of the AS-Nevada

25 server during the lawsuit?

1 A No.

2 Q You don't know about that?

3 A No.

4 Q Are you aware of -- do you have any explanation

5 for why there were multiday file transfer protocol

6 sessions --

7 A No.

8 Q -- between the Aptitude, AS-Nevada server,

9 using the isphydoux account that was created under your

10 authorization? Do you have any explanation for those

11 transfer sessions?



14 THE WITNESS: No.

15 MR. POULOS: Misstates the record. Vague and

16 ambiguous.

17 BY MR. THOMAS:

18 Q Well, do you have any explanation for why there

19 would be file transfer protocol sessions initiated from

20 Aptitude server to AtPac server in June of 2009?

21 MR. POULOS: Same objections.

22 THE WITNESS: No.


24 identification.)

25 BY MR. THOMAS:

1 Q Sir, do you have Exhibit 393?

2 A Yes.

3 Q And --

4 MR. POULOS: You're not listed on this e-mail.

5 BY MR. THOMAS:

6 Q Yeah, I don't see you listed, either.

7 But could you turn -- point your attention to

8 the second to the last paragraph. You see the date of

9 the e-mail, February 13, 2009?

10 A Uh-huh.

11 Q And do you see it's from Patty Sandever to

12 others inside Aptitude?

13 A Yes.

14 Q And you know Patty Sandever, right?

15 A Yes.

16 Q You talk to her from time to time?

17 A Yes.

18 Q Okay. And she's an Aptitude sales

19 representative?

20 A Yes.

21 Q Kind of like the sales rep that you say you

22 were at other software companies?

23 A Yes.

24 Q And she says: "I know from my conversation

25 with Greg Diaz this week, he's very interested in

1 getting live ASAP. He is also very easy to work with so

2 we may have a good opportunity to get some concessions."

3 A Uh-huh.

4 Q Did you talk to her about being very interested

5 in going live ASAP?

6 A Absolutely.

7 Q Okay. And if you look at the first sentence of

8 her e-mail, it says: "Can we have a call prior to the

9 call with Nevada today."

10 A Uh-huh.

11 Q It says: "I am very concerned about putting

12 off the go-live to mid to late summer."

13 Do you see that?


15 Q And -- but the go-live date was put off to

16 midsummer as you testified already, right?

17 A Uh-huh.

18 Q And do you recall your discussion with

19 Ms. Sandever that she's discussing in this e-mail?

20 MR. POULOS: Hold on.

21 THE WITNESS: Paragraph four, "I know from my

22 conversation" -- no.

23 BY MR. THOMAS:

24 Q You don't recall that conversation --

25 A No idea.

1 Q -- with Ms. Sandever?

2 A No.

3 Q Is there any limit to how many extensions of

4 time you would have given to Aptitude Solutions?


6 BY MR. THOMAS:

7 Q Before you moved on to another vendor?

8 A I suppose there would be a limit.

9 Q And do you see, she says: "We may have a good

10 opportunity to get some concessions"?

11 A Yes.


13 A Yes.

14 Q Do you know what she was referring to there?

15 A I don't.

16 Q She says you're very easy to work with, so

17 "we," being Aptitude, may have a good opportunity to get

18 some concessions.

19 A I see that.

20 Q Does that concern you at all that someone talks

21 about you that way?

22 A A little bit, yes.

23 Q What does it make -- why does it concern you?

24 A Because I don't know what it means.

25 Q How do you interpret it?

1 A I don't know. I don't know what it means. It

2 just doesn't look good.

3 Q It looks like she's saying you're a pushover,

4 doesn't it?

5 A Yeah. Uh-huh. That could be an

6 interpretation, uh-huh.

7 Q Were you?

8 A A pushover?

9 Q Yeah.

10 A I have never heard anyone categorize me as

11 such.

12 Q Except for Ms. Sandever. That's how you

13 interpret her e-mail, right?

14 A Well, she says I'm easy to work with and you

15 could interpret it as me being a pushover.

16 I don't see any phrase where she says Greg Diaz

17 is a pushover, do you?

18 Q No, I didn't see the word "pushover."

19 A Yeah.

20 Q But that's how interpreted it and I think you

21 agreed with me.

22 A Yeah. And it could be also that being easy to

23 work with, if there are some concerns from the new

24 vendor, they're able to come and talk with me. I think

25 that is a credible interpretation as well.

1 MR. THOMAS: Could you get the letter?

2 MR. KRUGLE: Which letter?

3 MR. THOMAS: The category -- next in order.

4 Oh, I did it again. Can I have a clean copy,

5 John?

6 Next in order, please.


8 identification.)

9 BY MR. THOMAS:

10 Q All right. Sir, do you have Exhibit 394 in

11 front of you?

12 A Yes.


14 A It's a document from Marie McCluskey to Kathy

15 Barale and Greg Diaz.

16 "For your information, here's the AtPac

17 response to the BSC server for data export work. I

18 don't quite understand or get his drift about the

19 contract being an agreement, not a dictation."


21 A It says that I did, uh-huh.

22 Q Okay. And do you see the e-mail below, it's

23 Ms. McCluskey to Mr. Weir. It's at the bottom of the --

24 A Yes.

25 Q -- the first page.

1 A Uh-huh.

2 Q And she's asking for followup on the contract

3 language to finalize this week.

4 Do you see that?

5 A Yes.

6 Q So as of January 6, 2009, the County was still

7 interested in entering into a professional services

8 agreement with AtPac --

9 A Yes.

10 Q -- for the migration.

11 Okay. And then Mr. Weir responded to her, on

12 the same day, correct, on the 6th up at the top?

13 Actually, above that, sir, but you're free to

14 look at the whole document. I'm right here.

15 A Oh. I'm sorry. Yes.

16 Q So you see on the 6th, Ms. McCluskey followed

17 up with Mr. Weir and asked him about the status of the

18 contract, right, on the 6th?

19 A Yes.

20 Q And then Mr. Weir wrote back at about a half

21 hour later.

22 Do you see that?

23 A Yes.

24 Q Telling her that he's home sick that day?

25 A Yes.

1 Q And then at the -- his last comment is: "I

2 think 30 business days gets us closer."

3 A Yes.

4 Q And you understood he was referring to the time

5 frame until which AtPac could provide the data elements

6 for the migration.

7 You understood that, right?

8 A No.

9 Q 30 days?

10 A No, I did not understand that.

11 Q What did you understand "I think 30 business

12 days get us closer" meant?

13 A I didn't really have too much an opinion on

14 that. I don't -- I don't put a lot of stock into

15 speculation, that type of thing.

16 Q Well, let's go back to Ms. McCluskey's e-mail

17 to Kirk, okay?

18 A Sure.

19 Q So that's on the second page.

20 A Sure.

21 Q And if you look about three-quarters of the way

22 down her e-mail, it says: "I talked to project

23 sponsors."

24 A Uh-huh.

25 Q And it says -- you're the project sponsor,

1 right?

2 A Uh-huh.

3 Q Okay.

4 A And --

5 Q -- received --

6 A Okay.

7 Q -- received an agreement on changing the

8 contract language to provide 30 business days for

9 delivery of the first full export --

10 A Uh-huh.

11 Q -- right?

12 A Uh-huh.

13 Q And Mr. Weir's response, even though he's home

14 sick, I think he says: I think 30 business days gets us

15 closer.

16 A Okay.

17 Q Okay.

18 A And what does that mean?

19 Q My question is: Did you understand that

20 Mr. Weir was referring to the 30 business days

21 referenced in Ms. McCluskey's e-mail?

22 A No.

23 Q What did you think he was referring to?

24 A I -- I didn't know.

25 Q Did you ask?

1 A No.

2 Q Okay. Why not? Didn't it matter to you?

3 A No.

4 Q Why not?

5 A This is speculation to me. Right now, when I

6 got this, I am understanding that Marie is working with

7 AtPac to develop language that would be suitable to the

8 County and AtPac so we could develop a professional

9 services agreement. This is making the contract, if you

10 will --

11 Q Uh-huh.

12 A -- almost like making sausage. I don't get

13 into a lot of details with making sausage.

14 Q All right. Now, that was January 6, a

15 Tuesday --

16 A Yes.

17 Q -- right?

18 Okay. Could you turn to Exhibit 24?

19 A Uh-huh.

20 Q And this is -- what is this Exhibit 24?

21 A This is a proposed letter to AtPac telling

22 AtPac that Nevada County will be extracting the County's

23 official records and clerk records' data.

24 Q Okay. And this is one day after Kirk Weir's --

25 A Uh-huh.

1 Q -- letter telling Ms. McCluskey's he's home

2 sick and he'll follow up with --

3 A Right.

4 Q -- to her e-mail, right?

5 A Uh-huh.

6 Q So what happened between January 6th, at

7 12:59 p.m. --

8 A Uh-huh.

9 Q -- and Ms. Barale's e-mail to you of 12:53 p.m.

10 the next day --

11 A Uh-huh.

12 Q -- that caused Nevada County to draft this

13 letter?

14 A Nothing.

15 Q Okay. When you say "nothing," why did

16 Ms. Barale draft this letter, to your knowledge?

17 A Which letter? This e-mail --

18 Q Exhibit 24.

19 A -- right here?

20 Q Yeah.

21 A Attach -- because discussions occurred before

22 January 6th about extracting the data ourselves.

23 Q And when did those take place?

24 A The discussions did not occur between the 6,

25 12:59 p.m. and the 7, 12:53 p.m.

1 Q I see. Well, as of January 6th, was the County

2 still interested in contracting with AtPac?

3 A On that date, I believe we were strongly

4 considering, and had probably made the decision, we

5 would like to go in a different direction.

6 Q When was that decision made?

7 A Again, I couldn't tell you exactly.

8 Q What was the reason for the change in position?

9 A The head of IT, Steve Monaghan, approached me

10 and County Counsel and explained to us that in his

11 opinion --

12 MR. POULOS: Okay. But wait a second. I don't

13 want you to review -- I don't want you to disclose

14 conversations that were made directly by Mr. Monaghan to

15 County Counsel.


17 BY MR. THOMAS:

18 Q Well, if he's telling you his opinion about a

19 technical issue and counsel happened to be there, I

20 don't think that's seeking legal advice, so I think I'm

21 entitled to that.

22 A It absolutely was.

23 MR. POULOS: They're talking about going

24 forward on an agreement, or something, I mean -- if you

25 and Mr. Monaghan were present in a conversation to

1 County Counsel, about how to proceed with the contract,

2 I'm going to instruct you not to answer that --


4 MR. POULOS: -- or reveal those communications

5 here.


7 BY MR. THOMAS:

8 Q Were there any e-mails regarding that subject

9 with County Counsel?

10 A Not that I recall.

11 Q Any other correspondence with County Counsel?

12 A Not that I recall.

13 Q Did you ever take any notes of any meetings

14 with County Counsel?

15 A When? During my tenure from June 2007 till

16 now?

17 Q In connection with the migration project, yeah.

18 A Yeah, probably.

19 Q Okay. Where are those notes?

20 A They're in my notebook.

21 Q Have you produced them?

22 A Absolutely.

23 Q Your notebook is what? It's a bound notebook?

24 A Yes.

25 Q All right. So it's your testimony that by

1 January -- by January 6th, Nevada County had already

2 decided, because you learned from Mr. Monaghan, that

3 Nevada County had already decided not to use AtPac for

4 the professional services agreement?


6 testimony. Lacks foundation.

7 THE WITNESS: No.

8 BY MR. THOMAS:

9 Q Well, let's look at Exhibit 394 again.

10 A Yes.

11 Q Ms. McCluskey is following up with Kirk Weir.

12 You see that?

13 A Uh-huh.

14 Q And she's asking him that -- she says: "I'd

15 like to get the contract language finalized this week."

16 A Uh-huh.

17 Q So she believes the County is still working

18 toward a contract with AtPac, right?


20 Q Was it?

21 A I believe at this time, Marie was.

22 Q But you weren't.

23 A We decided on January 7th. You asked me if we

24 decided on January 6th to send a letter and it was not

25 the 6th. It was the 7th.

1 Q So as of --

2 A That's why I replied no.

3 Q Okay. So what caused you to make the decision?

4 So you made the decision to abandon the contract with

5 AtPac.

6 A There was no contract.

7 Q You made the decision to abandon an effort to

8 contract with AtPac on what date? January 7th?

9 A January 7th.

10 Q Okay. Because on January 6th, Marie McCluskey

11 was telling AtPac she was trying to form a contract.

12 A Uh-huh.

13 Q Now, why did you tell me earlier that sometime

14 before January 6th --

15 A Uh-huh.

16 Q -- the decision had really already been made

17 not to pursue a contract with AtPac?


19 witness's prior testimony.

20 BY MR. THOMAS:

21 Q You didn't say that?

22 MR. POULOS: Did not.

23 THE WITNESS: No.

24 BY MR. THOMAS:

25 Q All right. So what happened on January 7th

1 that you made the -- well, who made the decision to

2 pursue -- strike that.

3 Who made the decision to no longer pursue a

4 professional services agreement with AtPac?

5 A I did. The buck stops with me.

6 Q All right. And why did you make that decision?

7 A Because I'd had several conversations with

8 Steve Monaghan. We had a conversation with Steve

9 Monaghan and County Counsel, and out of those

10 conversations came the decision to extract without

11 entering into a professional services contract with

12 AtPac.

13 Q Extract what? Data elements?

14 A We will be extracting the County's official

15 records and clerk records data from the AtPac CRiis

16 system data files.

17 Q Well, this letter was written -- this is a

18 draft letter by Ms. Barale. Do you see that,

19 Exhibit 24?

20 A It attached -- Kathy sent this to Tom, Rob

21 Shulman, who was County Counsel, Debra Russell, and Greg

22 Diaz.

23 Q Why is the letter for your signature?

24 A Why is it for my signature?

25 Q Right.

1 A Because I'm the department head.

2 Q Did you help in writing the content of this

3 particular version of the letter?

4 A Yes.

5 Q Okay. And what part did you help develop or

6 write?

7 A Most of it.

8 Q Okay. And this was written when? On the 7th?

9 A Yes, but this was not the letter sent to AtPac.

10 Q Understood.

11 A Okay.

12 Q The letter was modified slightly from this

13 point in time, right?

14 A I don't know if it was modified slightly but it

15 was modified --

16 Q All right.

17 A -- yes.

18 Q And did you have any of those discussions with

19 Steve Monaghan, outside the presence of counsel, as to

20 how he thought --

21 A Huh-uh.

22 Q -- you could extract data?

23 A No.

24 Q And the discussion entailed extracting data

25 without violating AtPac's intellectual property rights.

1 Was that the discussion?


3 conclusion. Calls for speculation. Vague and

4 ambiguous.

5 BY MR. THOMAS:

6 Q You have no answer?

7 A Yes, uh-huh.

8 Q The answer is -- and how did he explain that

9 the County can do that?


11 Q Okay. Do you have the next exhibit?

12 A But the last sentence seemed to be key in terms

13 of informing AtPac how we were looking at the approach.

14 Q And as you sit here today, you understand that

15 Aptitude Solutions -- excuse me -- the County didn't do

16 what was set forth in the letter. You know that, right?


18 THE WITNESS: Actually, I don't know that.

19 BY MR. THOMAS:

20 Q Okay. You never asked Ms. Barale?

21 A Ask her what?

22 Q Whether the County complied with what was in

23 the January 8th letter to AtPac.

24 A No, I never asked Ms. Barale.

25 Q Never cared?

1 MR. POULOS: Objection. Argumentative.

2 THE WITNESS: No, I did care.

3 BY MR. THOMAS:

4 Q Why didn't you ask then?

5 A Don't know.

6 MR. THOMAS: Okay. Let's mark next in order.


8 identification.)

9 BY MR. THOMAS:

10 Q I'd just like you to authenticate this

11 document, 395, sir.

12 MR. POULOS: Do you have one?

13 MR. THOMAS: Apparently not. I'm sorry, John.

14 I apologize.

15 MR. POULOS: It's all right.

16 THE WITNESS: I'm sorry. I don't understand

17 how I can authenticate this. This was an e-mail from

18 Rob Shulman.

19 BY MR. THOMAS:

20 Q And it lists you as a recipient?

21 A Yes. Sure.

22 Q You received this e-mail?

23 A Sure.

24 Q And this indicates your County Counsel was

25 involved in assisting and drafting the letter to AtPac?

1 A Yes.

2 Q I'm done with that.

3 Can you turn to Exhibit 25, please? And this

4 is another e-mail dated January 7th from Mr. Shulman to

5 you.

6 Do you see that?

7 A Yes.

8 Q And it looks like he's made some changes to the

9 letter.

10 A Yes.

11 Q And he's proposing them to you.

12 Do you see that?

13 A Yes.

14 Q And it has -- the first paragraph, is that the

15 paragraph he added, the underlined paragraph?

16 A To my knowledge, yes.

17 Q Okay. And the last paragraph?

18 A To my knowledge, yes.

19 MR. THOMAS: Okay.


21 identification.)

22 BY MR. THOMAS:

23 Q What exhibit do you have in front of you, sir?

24 A Exhibit 396.

25 Q And what is that?

1 A It's an e-mail from Greg Diaz to Rob Shulman,

2 cc Kathy Barale, and the subject is revision to letter

3 to AtPac, and the content says: Rob, excellent

4 revision. Thanks. Greg.

5 Q Now, this is an e-mail you sent in response to

6 the Exhibit 25 red line changes he sent to you, right?

7 A Correct.

8 Q All right. And you sent that e-mail --

9 A Yes.

10 MR. THOMAS: -- 396.


12 identification.)

13 BY MR. THOMAS:

14 Q Okay. You have Exhibit 397 in front of you?

15 A Yes.

16 Q And you sent Exhibit 397, did you? It's an

17 e-mail that you sent?

18 A Yes.

19 MR. THOMAS: All right.


21 identification.)

22 BY MR. THOMAS:

23 Q It looks like on Exhibit 398 --

24 MR. POULOS: Do you have one?

25 MR. THOMAS: I'm sorry, John.

1 BY MR. THOMAS:

2 Q What is Exhibit 398?

3 A It's an e-mail from Rob Shulman to Greg Diaz.

4 Steve Monaghan and Kathy Barale are copied. Subject is

5 Indemnification Agreement.

6 Q And tell me about that. Why were you provided

7 with an indemnification agreement?

8 A We were not provided with an indemnification

9 agreement.

10 Q No. Mr. Shulman provided you with an

11 indemnification agreement.

12 A Yeah, the County drafted an indemnification

13 agreement.

14 Q Why?

15 A Because Aptitude Solutions and the County

16 agreed to have an indemnification agreement.

17 Q Why?

18 A Why did they agree? I think the bottom line is

19 the County felt that the way they would be approaching

20 the migration would be fine and they would be in a

21 position to indemnify Aptitude if in fact there was some

22 harm to AtPac.

23 Q So was Aptitude -- Aptitude's the one who asked

24 for an indemnification agreement, right?

25 A I don't know that for a fact.

1 Q It's possible that the County just volunteered

2 it for no reason?

3 A I presume Aptitude asked for an indemnification

4 agreement. I don't know that for a fact.

5 Q Did you ever talk to --

6 A They did not ask me for an indemnification

7 agreement.

8 Q And do you know why Aptitude asked for an

9 indemnification agreement?

10 A Aptitude felt that --


12 Do you know what Aptitude felt?

13 BY MR. THOMAS:

14 Q What were you told, sir?

15 A I'm thinking.

16 MR. POULOS: You're speculating.


18 BY MR. THOMAS:

19 Q Were you told why Aptitude asked for an

20 indemnity agreement?

21 A Yes.

22 Q What were you told?

23 MR. POULOS: Unless you were told by County

24 Counsel. If you were told by County Counsel, then I

25 don't want you to answer the question.

1 THE WITNESS: Okay. Can't answer.

2 BY MR. THOMAS:

3 Q Other than what you told by County Counsel, you

4 have no idea why Aptitude asked for an indemnity

5 agreement.

6 A Well, I have an idea but that's speculation.

7 Q Other than County Counsel, did anyone tell you

8 that Aptitude was concerned that the process you were

9 proposing, together, to extract data would potentially

10 infringe AtPac's rights and that's why they wanted an


12 A Huh-uh.

13 Q Well, then, why do you think they wanted an --

14 why do you think Aptitude wanted an indemnity agreement?

15 MR. POULOS: You didn't get that, right? He

16 said huh-uh.

17 THE WITNESS: Oh. I'm sorry.

18 MR. POULOS: You need to say -- you need to

19 answer because it's showing up as uh-huh.


21 MR. POULOS: No.

22 THE WITNESS: What was your last question? I'm

23 sorry.

24 BY MR. THOMAS:

25 Q Why did you understand Aptitude was asking for

1 an indemnity agreement? What was your speculation?

2 MR. POULOS: No, I don't want you to.


4 BY MR. THOMAS:

5 Q Well, you signed the agreement, right,


7 A Yes.

8 MR. THOMAS: All right. We need to take a

9 break here and change the tape.



12 5:06 p.m. End of disc three.



15 identification.)


17 5:12 p.m. Beginning of disc four.

18 BY MR. THOMAS:

19 Q All right. Do you have Exhibit 399, sir?

20 A Yes.

21 Q And this is an e-mail that you wrote to

22 Mr. Shulman; yes?

23 A Yes.

24 Q On January 7, 2009?

25 A Yes.

1 Q And it looks like it has an attachment. Do you

2 see the indemnification agreement attached it to?

3 A Yes.

4 Q And it says: Rob, thanks for the agreement.

5 We made a couple of revisions. Thanks. Greg.

6 Do you see that?

7 A Yes.

8 Q You wrote that?

9 A Yes.

10 Q Who's "we"?

11 A Couldn't tell you.

12 Q Were you with Tom McGrath that week?

13 A I don't know.

14 Q Did Tom McGrath have input into this agreement,


16 A I don't know.

17 Q Okay. And did you participate then in making

18 changes to the indemnification agreement?

19 A It appears that I did. I said that we made,

20 yeah, uh-huh.

21 Q And what changes did you make?

22 A I'm trying to see.

23 Q I don't want to do a red line comparison right

24 now, but if you can quickly see a change. If you don't

25 know, the answer is you don't know.

1 MR. POULOS: Do you -- if you have one --

2 MR. THOMAS: No. It's not a trick question. I

3 just thought maybe you knew.

4 THE WITNESS: I don't see the change between

5 Exhibit 398 and 399.

6 BY MR. THOMAS:

7 Q All right. You don't see any changes. How

8 about this? Without further study, you don't see any

9 changes?

10 A No.

11 Q Okay. All right. What I want you to do,

12 though, is look at the exhibit attached to 399.

13 Do you have that in front of you?

14 A Yes, uh-huh.

15 Q Why don't we look at Paragraph C. Actually,

16 you can open up the other one as well, focus just on

17 Paragraph C, in the "whereas clauses."

18 Do you see that?

19 A Paragraph C, yes.

20 Q All right. And can you read that into the

21 record from Exhibit 399?

22 A "Aptitude Solutions, Inc. can accomplish a

23 conversion if the County extracts the data from AtPac's

24 CRiis system data files and puts the data into flat

25 files without in any way using AtPac's definition or

1 schema information and without using or preserving

2 AtPac's tables and their current format for future use."

3 Q Okay. When you saw this, did it concern you at

4 all that Tom McGrath has written you an e-mail, more

5 than a month before, telling you he had seen AtPac's

6 data schema?

7 A Again, I didn't put that together.

8 Q But you remember that e-mail now?

9 A Yes.

10 Q And that didn't concern you?

11 A No.

12 Q Because you didn't put the two together?

13 A No. More because of my reliance on the County

14 and the County IT people.

15 Q Well, when you say your reliance, you knew that

16 the County and the County IT people had allowed Tom

17 McGrath to see AtPac's data schema because Tom McGrath

18 said that to you in an e-mail, right?

19 A Right. And Paragraph C is what I was relying

20 upon when the County, Steve Monaghan, first came to me

21 suggesting we can do this extraction without a

22 professional services contract.

23 Q But now looking at this Paragraph C --

24 A Yeah.

25 Q -- where it says AtPac (sic) Solutions can

1 accomplish the conversion if the County -- that means

2 the County of Nevada, right?

3 A Correct.

4 Q -- extracts the data from AtPac's CRiis system

5 data files --

6 A Uh-huh.


8 A Uh-huh.

9 Q And when it says "extracts the data," you

10 understand that to be referring to extracting data

11 elements?

12 A Uh-huh.

13 Q "Yes"?

14 A Yes.

15 Q And so you understand that the agreement was

16 that the County would extract data elements --

17 A Uh-huh.

18 Q -- from AtPac's CRiis system data files --

19 A Right.

20 Q -- right? And you understood that the

21 arrangement was that the County would not provide the

22 data files themselves to Aptitude.

23 A That was my understanding, correct.

24 Q And you understand that was the arrangement

25 that was represented to the Board of Supervisors when

1 they approved the indemnity agreement, right?

2 A Represented to me and to the Board of

3 Supervisors, yes.

4 Q And represented by who? Steve Monaghan?

5 A That's correct.

6 Q And then it says that the County, after

7 extracting the data elements from AtPac's data files,

8 would put those data elements into flat files.

9 That's what this means, right? That was the

10 intent.

11 MR. POULOS: Objection. Vague, but go ahead.

12 BY MR. THOMAS:

13 Q That's what you understand this to mean, right?

14 MR. POULOS: Objection. Vague. Lacks

15 foundation.


17 BY MR. THOMAS:

18 Q Okay. That's Exhibit 399. Okay. I'm done

19 with 399.

20 Now, can you open Exhibit 41? Do you have

21 Exhibit 41?

22 A Yes.

23 Q You see there's a series of e-mails on

24 Exhibit 41.

25 Sir, you see that from Kathy Barale to Phil

1 Russ?

2 A Yes.

3 Q And Kathy Barale was the project manager for

4 the migration at some time after Ms. McCluskey

5 transitioned out.

6 A Yes.

7 Q You knew that, right?

8 A Yes.

9 Q And so on June 18th, 2009, you understood Kathy

10 Barale was a project manager for the Nevada County

11 migration to Aptitude Solutions software.

12 A Yes.

13 Q Okay. And she's writing to Phil Russ. You see

14 that?

15 A Yes.

16 Q And he's another IT person --

17 A Yes.

18 Q -- at the County?

19 A Yes.

20 Q And it says, in this e-mail -- can you read

21 that into the record?

22 MR. POULOS: Which e-mail?

23 MR. THOMAS: The top e-mail.

24 THE WITNESS: "I copied the AtPac dot dat files

25 onto the Aptitude support server, AS-Nevada, as dot txt

1 files. I was given the names of the dot dat files they

2 needed and the names they would like them copied to.

3 I'm not sure what you are referring to regarding

4 extraction of the data into tables. I do not know how I

5 would have extracted the data and placed into tables

6 since that was a large part of the activity Aptitude had

7 been working on for the past six months and we opted to

8 use them for that service."

9 BY MR. THOMAS:

10 Q Okay. Does that e-mail concern you at all in

11 view of the representation made to the Board Of

12 supervisors in the indemnity agreement?


14 THE WITNESS: Yes, but I was not privy to this

15 e-mail on June 18th, 2009.

16 BY MR. THOMAS:

17 Q And why does that concern you?

18 A What concerns me is the first sentence that

19 AtPac dot dat files were copied onto the Aptitude

20 support server which seems to conflict with Paragraph C

21 of the indemnification agreement.

22 Q And then doesn't the next paragraph also

23 conflict? Paragraph C of the indemnity agreement is one

24 in which the County was supposed to extract data from

25 the AtPac data files.

1 A Yes.

2 Q The County was supposed to do the extraction.

3 A Yes.

4 Q Not Aptitude.

5 A I understand that.

6 Q And this e-mail, from Ms. Barale, Exhibit 41,

7 makes very clear that she did not do the extraction of

8 the data from the data files. Aptitude did.


10 document.

11 BY MR. THOMAS:

12 Q Do you see that in this e-mail? You understand

13 that, right?

14 MR. POULOS: Compound.

15 THE WITNESS: You previously asked me if I was

16 concerned about this. I said yes, but I was also not

17 privy to this correspondence at that time.

18 BY MR. THOMAS:

19 Q Did you understand, as of June 2009, that the

20 County had, instead of extracting data elements from

21 AtPac data files, instead had given the data files to

22 Aptitude so that Aptitude --

23 A No.

24 Q -- could extract the data elements? Did you

25 know that?

1 A No.

2 Q Does that concern you, sir, given the promises

3 you made to AtPac and the representations you made to

4 the Board of Supervisors?

5 MR. POULOS: Objection. Compound. Lacks

6 foundation. Vague and ambiguous.

7 THE WITNESS: Yes.

8 BY MR. THOMAS:

9 Q Why does that concern you?

10 A Seems to conflict with Paragraph C in the


12 Q Well, when you say "seems," of course, it

13 conflicts.

14 MR. POULOS: Let me ask: Was this ever

15 executed? Do we know?

16 MR. THOMAS: Oh, yeah.

17 MR. POULOS: The indemnification agreement?

18 You got a final version?

19 MR. THOMAS: Yeah. In fact, I'll try to --


21 identification.)


23 THE WITNESS: I never got a copy of this stuff.

24 MR. POULOS: I don't know why --

25 BY MR. THOMAS:

1 Q Sir, do you have Exhibit 400?

2 A Yes.

3 Q Okay. And what is this document, Exhibit 400?

4 A This is a letter written from me to Wayne Long

5 and Kirk Weir indicating that the County will be

6 extracting the County's official records and clerk

7 records data from AtPac's CRiis system data files.

8 Q All right. And that's your signature on this

9 letter?

10 A Yes.

11 Q And this is the letter you sent AtPac?

12 A Yes.

13 Q Okay. And you also provided this letter to the

14 Board of Supervisors, did you, in connection with the

15 indemnity? Do you know?

16 A I don't know if I did or not. If it said that

17 I did, then I guess I did.

18 Q Now, in this letter, why did you not tell AtPac

19 that you had already granted Aptitude Solutions a

20 password to the server housing AtPac software?


22 THE WITNESS: Didn't feel that it was relevant.

23 This, this letter was drafted by me, yet it went through

24 County Counsel before it was sent out, and again, I

25 relied on County Counsel. Obviously, they did not see

1 the relevance, either, of putting that in there.

2 BY MR. THOMAS:

3 Q Did you tell County Counsel that you had

4 granted Aptitude a password to the server that had AtPac

5 software?

6 MR. POULOS: Objection. Don't answer the

7 question. Calls for attorney-client communications.

8 BY MR. THOMAS:

9 Q Well, do you have reason to know that County

10 Counsel was aware you had done that?

11 MR. POULOS: Same objection. Don't answer

12 that.

13 BY MR. THOMAS:

14 Q In this particular letter, why did you not tell

15 AtPac that Aptitude Solutions had already seen the data

16 file structure of AtPac's data files?



19 BY MR. THOMAS:

20 Q Okay. I'm going to ask a different question,

21 sir.

22 You remember the earlier e-mails where Tom

23 McGrath discussed comparing the data file structures in

24 Nevada and Placer Counties, right?

25 A Yes.

1 Q And that was before January 8th, 2009, correct?

2 A Yes.

3 Q Why didn't you mention that in this letter to

4 AtPac?

5 A Didn't think about it.

6 Q You concealed it from AtPac, correct?

7 MR. POULOS: Oh, please. Objection.

8 Argumentative.

9 THE WITNESS: "Concealed" seems to suggest that

10 I knowingly decided not to offer up that information.

11 BY MR. THOMAS:

12 Q Yes.

13 A And no, that's not true.

14 Q Well, you also saw --

15 A Absolutely not true.

16 Q Before January 8, 2009, you saw e-mail from Tom

17 McGrath indicating that he had seen AtPac's data schema.

18 He used that term. You remember that e-mail, right?

19 A Absolutely.

20 Q Okay. And in this particular letter, you

21 specifically say: We are not asking for any definition

22 or schema information from AtPac.

23 Do you see that?

24 A Yes. Uh-huh.

25 Q That's a letter you wrote to AtPac?

1 A Uh-huh.

2 Q In saying that to AtPac, why didn't you inform

3 AtPac that Aptitude had already seen AtPac's data

4 schema?

5 MR. POULOS: Objection. Asked and answered

6 multiple times.

7 MR. THOMAS: I don't think so.

8 MR. POULOS: Vague and ambiguous.

9 BY MR. THOMAS:

10 Q Sir?

11 A I don't know. Just didn't seem relevant at the

12 time, and obviously, it wasn't relevant to County

13 Counsel, also, at the time.

14 Q Now, it's also true, sir, that when you

15 authorized the creation of the account --

16 A Uh-huh.

17 Q -- on the ER recorder server --

18 A Uh-huh.

19 Q -- that was before the County had ever even

20 asked AtPac to consider a professional services

21 agreement --

22 A Uh-huh.

23 Q -- regarding the extraction, right?

24 A Correct.

25 Q So whatever your criticisms are of AtPac,

1 concerning the professional services agreement that was

2 being negotiated -- you said you had criticism. You

3 said it was stonewalling.

4 A Uh-huh.

5 Q That had nothing to do with your decision to

6 give Aptitude a password to the server housing AtPac

7 software, correct?


9 Misstates the witness's testimony. Misstates the

10 document. Vague and ambiguous.

11 BY MR. THOMAS:

12 Q Correct?

13 A Correct.

14 Q It's your testimony -- when did you first learn

15 that -- you would agree the County didn't comply with

16 the promises in the January 8th letter?


18 BY MR. THOMAS:

19 Q True?

20 MR. POULOS: Calls for a legal conclusion.

21 Irrelevant.

22 THE WITNESS: The question again, please?

23 BY MR. THOMAS:

24 Q You would agree the County did not do what it

25 promised AtPac it would do in the January 8th, 2009

1 letter, correct?


3 THE WITNESS: I don't know that.

4 BY MR. THOMAS:

5 Q Well, you saw Ms. Barale's e-mail; yes?

6 A Uh-huh.

7 Q And she says that Aptitude extracted the data.

8 You saw that, right?

9 MR. POULOS: Where -- where does it say that?

10 MR. THOMAS: Well, she said they used Aptitude

11 to extract data.

12 MR. POULOS: Where is that?

13 MR. THOMAS: I'll find it for you, John. If

14 you look at -- it says -- I'm not sure. Do you see

15 that?

16 MR. POULOS: Yeah, I do see that.


18 BY MR. THOMAS:

19 Q Let's read that into the record, sir.

20 MR. POULOS: We've already done that, so we're

21 not going to do that again, but go ahead.

22 MR. THOMAS: She says: I do not know how I

23 would have extracted the data --

24 MR. POULOS: Uh-huh.

25 MR. THOMAS: -- and placed it in the table

1 since that was a large part of the activity Aptitude

2 have been working on for the past six months.

3 MR. POULOS: Yeah, but it doesn't say that

4 Aptitude extracted the data.

5 MR. THOMAS: Are you testifying?

6 MR. POULOS: No. I'm trying to figure out if I

7 was missing something that you were representing.

8 THE WITNESS: You're reading from an e-mail

9 that I never saw, was never copied, and what I saw, if

10 you look down the string of e-mails, what was relevant

11 to me is the last e-mail on this page, or the e-mail

12 dated June 11th from Alana to me, Greg: We received all

13 of our data from your County and txt files. No tables

14 were sent and we had no ability to view the table

15 structures.

16 It was this fact that made the conversion as

17 difficult as it was. Same thing with the images. They

18 were not sent in any tables. The images were sent

19 directly to us in folders. This was the information I

20 was privy to. This does not conflict with the promises

21 made in the indemnification agreement.

22 BY MR. THOMAS:

23 Q So that's nonresponsive to my question.

24 You were concerned about the first paragraph

25 and the second paragraph of Ms. Barale's e-mail?

1 A Today.

2 Q When you read it today?

3 A Today, when I read them today, sure, that would

4 concern me.

5 Q And you would agree her statements conflict

6 with the information Aptitude was providing you in the

7 bottom of the e-mail chain; yes?

8 A Yes.

9 Q Okay. That was a "yes"?

10 A Yes. Yes.

11 Q All right. Now, when did you actually enter

12 into the indemnity agreement with --

13 A I don't recall the date the board approved this


15 Q Does January 13th sound about right to you?

16 A Again, I don't recall. It's in the ballpark.

17 Q Okay. Let's turn to Exhibit 246. Do you have

18 that? I mean you don't, I know, but if Dave could help

19 me.

20 MR. POULOS: 246.


22 THE WITNESS: Thank you.

23 BY MR. THOMAS:

24 Q Tell me what Exhibit 246 is, sir. Just

25 summary. You don't have to read the whole thing.

1 A It appears to be an e-mail from Alana Wittig to

2 Gloria Coutts about the Nevada County indemnification

3 agreement.

4 Q And down below, what do you see? Is there

5 another e-mail below that?

6 A I see an e-mail from Gregory Eckstein to Alana

7 Wittig.

8 Q And can you turn to the attachment?

9 A Uh-huh.

10 Q I'd like you to just confirm, if you know,

11 whether this is the official Nevada County indemnity

12 agreement with Aptitude Solutions bearing your

13 signature.

14 A Yes, it appears to be.

15 Q Okay. And Paragraph C of the official

16 agreement, you see that?

17 A Yes.

18 Q That also says Aptitude Solutions, Inc. can

19 accomplish the conversion if the County -- that's County

20 of Nevada, correct?

21 A Yes.

22 Q -- extracts the data from AtPac's CRiis system

23 data files --

24 A Uh-huh.

25 Q -- and puts the data into flat files.

1 A Uh-huh.

2 Q And that's the same as the exhibit, Paragraph C

3 in the draft we looked at earlier, right?

4 A Yes.

5 Q And that is your signature on the bottom of

6 this indemnity agreement?

7 A Yes.

8 Q Did you ever talk with Mr. Miller about whether

9 or not the defendants were liable in this case?


11 conclusion. Go ahead.


13 BY MR. THOMAS:

14 Q And what was your discussion?

15 A The discussion was there could have been an

16 unauthorized look at AtPac's proprietary data.

17 Q When?

18 A Don't know. Don't know.

19 Q And who said that?

20 A Very high level conversation.

21 Q Him or you or both of you?

22 A I'd say I think I said it and I think Paul said

23 it as well, so both of us.

24 Q Okay. And why did you say that?

25 A Because it appears there could have been an

1 unauthorized look at AtPac's data.

2 Q By who?

3 A Don't know.

4 Q When?

5 A Don't know.


7 A May have been Kathy Barale.

8 Q And why did it appear to you there may have

9 been an unauthorized look at AtPac's proprietary

10 confidential data?



13 THE WITNESS: I think hearsay from Kathy

14 Barale.

15 BY MR. THOMAS:

16 Q So Ms. Barale told you she believed there could

17 have been an unauthorized look at AtPac's proprietary

18 data?

19 A I believe it was Kathy, yes.

20 Q Okay. And what did she say in that regard,

21 specifically?

22 A Just that.

23 Q Did she tell you why she thought that?

24 A No.

25 Q Was that after?

1 A Or maybe she did. Maybe it was about some

2 logs, I guess, people you can find out who accessed

3 what, when. I think that was --

4 Q Okay --

5 A -- sort of the premise of what she was saying

6 to me.

7 Q And when did she tell you that?

8 A I don't know.

9 Q What did Mr. Miller say? Did he agree with

10 you?

11 A He thought there might have been, yeah, uh-huh.

12 Q And why did he think there might have been?

13 A I have no idea. I -- well, I don't want to

14 speculate.

15 Q As you sit here today, you believe there was an

16 unauthorized look at AtPac's proprietary data, correct?



19 THE WITNESS: I wouldn't be surprised.

20 BY MR. THOMAS:

21 Q Why wouldn't that surprise you?

22 A Because of my earlier conversations with Kathy

23 Barale.

24 Q Has anyone told you that Dan Evers testified

25 that on November 4th, Nevada County allowed Tom McGrath

1 and Patty Sandever to come into Nevada County IT

2 department and sit in a windowless locked room, logged

3 into both AS-Nevada and ER recorder for several hours

4 without anyone --

5 A No.

6 Q -- attending them?

7 A No.


9 THE WITNESS: No.

10 BY MR. THOMAS:

11 Q Has anyone told you that -- well, strike that.

12 You've already answered that.

13 Do you have exhibit number --

14 A November 4th --

15 Q Yeah, 2000 --

16 A -- '8.

17 Q That's right.

18 A Election day.

19 Q Yeah. Exactly.

20 A I don't recall anyone from Aptitude being on

21 the premises of the County on election day.

22 MR. THOMAS: Uh-huh. Could we mark that next

23 in order, please?

24 MR. POULOS: You had nothing better to do.

25 /////


2 identification.)

3 MR. THOMAS: What is this? 401?

4 MR. POULOS: 402.

5 MR. THOMAS: Oh. 402?

6 THE REPORTER: 401.

7 Let's go off the record. I don't want to do

8 this on the record.


10 5:37 -- sorry -- 5:38 p.m.


12 identification.)


14 5:39 p.m.

15 BY MR. THOMAS:

16 Q All right. Do you have Exhibit 401 in front of

17 you, sir?

18 A Yes.

19 Q And this is an e-mail you received from Paul

20 Miller?

21 A Yes.

22 Q And you received this -- you're sure you

23 received this from Mr. Miller --

24 A Yes.

25 Q -- January 14th; yes?

1 A Yes.

2 Q It says: "Greg, thank you for shepherding that

3 through."

4 A Uh-huh.

5 Q He's talking about the indemnity agreement?

6 A Yes.

7 Q How is it that you shepherded through the

8 indemnity agreement and yet were never told by Aptitude

9 why they wanted it? Doesn't that seem odd to you?

10 MR. POULOS: Objection. Argumentative. Lacks

11 foundation. Calls for speculation.

12 BY MR. THOMAS:

13 Q Well, let me back up.

14 A So --

15 Q You testified that Aptitude never told you why

16 they wanted the indemnity agreement, correct?

17 A You know, it went through County Counsel.

18 Q Did you shepherd it through?

19 A Sure.

20 Q And then it says: "With this, we will begin in

21 earnest the conversion effort."

22 Do you see that?

23 A Yes.

24 Q You understood that Aptitude was unwilling to

25 proceed until it received the indemnity agreement.

1 A Oh, yes, uh-huh.

2 Q Why was that?


4 THE WITNESS: I -- they wanted this


6 BY MR. THOMAS:

7 Q Who else did you talk to, other than

8 Mr. Miller, about the belief that there may have been a

9 view of AtPac's proprietary data by Aptitude?

10 A County Counsel.

11 Q Anyone else?

12 A Kathy Barale, County Counsel. Yeah, that's it.

13 Q Tom McGrath, did you ever talk to him about

14 that?

15 A No.

16 Q All right. Let's turn to Exhibit 402. Do we

17 have that? Did I hand that to you already? Oh. You

18 have it.

19 Do you have 402 of in front of you?

20 A Yes.

21 Q And what is this, sir?

22 A It's an e-mail from me to Tom indicating the

23 indemnification agreement was ratified by the Board:

24 Sent you and Paul an e-mail yesterday and your e-mail

25 was sent back as being undeliverable. I therefore

1 called and left a message yesterday; left a message

2 today on your cell phone. I also called Patty

3 yesterday. If you have any questions or require

4 additional information, please let me know. Hopefully,

5 we can jump on this.

6 Q Has the County paid Aptitude the $229,000

7 listed in the contract?

8 A When?

9 Q Ever.

10 A Yes.

11 Q Okay. And the County's also paid how many

12 yearly maintenance fees, the $25,000 maintenance fees?

13 A Must be, I think, twice.

14 Q So $50,000 in maintenance fees paid to Aptitude

15 from Nevada County?

16 A Correct.

17 Q Now, is it your understanding that after

18 June 30th -- strike that.

19 Your testimony is that the County continued to

20 use AtPac software through the end of June 2009.

21 A Correct.

22 Q And after that date, you're aware that there

23 was a period of time where the County had refused to

24 allow AtPac to delete and remove the data files from the

25 County's servers. You understand that, right?

1 A No, I don't at all. I have never heard that.

2 Q Really?

3 A Never heard that.

4 Q Have you ever read the complaint in this case?

5 A The complaint from whom to whom about what?

6 Q From me to the United States District Court

7 complaining about you on behalf of AtPac, a complaint, a

8 lawsuit.

9 A Have I read the lawsuit?

10 Q Yeah.

11 A Yeah, I think maybe real quickly. I don't

12 think I --

13 Q Do you know one way or the other whether the

14 County removed --

15 A You were complaining to me about what?

16 Q I never complained to you about anything, sir.

17 A You just said --

18 Q I might have misspoken. If I did, I didn't

19 mean to say what you think I said.

20 Are you aware, one way or the other, whether

21 the County removed AtPac's computer software immediately

22 after the end of the AtPac contract with Nevada County?

23 Do you know?

24 A No.


1 A I can tell you what I do know.

2 Q What do you know?

3 A I know that the County called AtPac and they

4 were to agree on a date so AtPac could come and oversee

5 the removal of the AtPac files.

6 Q And who told you that?

7 A I think it was Steve Monaghan and Kathy Barale.

8 Q Okay. And -- but you don't know when that was,

9 do you?

10 A No, I don't know when that was.

11 Q Okay. So you're not able to confirm that that

12 happened before the end of June 2009, for example?

13 A No, it was after June --

14 Q Okay.

15 A -- 30th, 2009.

16 Q Are you aware of any facts to suggest that

17 anyone from the County ever wrote to Aptitude -- strike

18 that.

19 Are you aware of any facts or evidence that the

20 County wrote to AtPac to confirm that the County had

21 deleted AtPac's computer software from the County

22 system? Did the County ever write to AtPac to tell it

23 that?

24 MR. POULOS: Objection. Inappropriate

25 contention question. Vague, ambiguous.


2 MR. THOMAS: I don't know how much time we have

3 but maybe when there's a little bit more left, I'd like

4 to take a break and confer with you about --

5 MR. POULOS: I think you got 20 minutes.

6 MR. THOMAS: Okay. I have one of those things

7 I want to authenticate that we talked off -- not to

8 him -- off the record.

9 Do you have the first binder with exhibits one

10 through 80-some-odd? Can you get those, please? What

11 I'm interested in is Exhibit 33, John.

12 MR. POULOS: 43?

13 MR. THOMAS: 33, please.

14 MR. POULOS: 33.

15 BY MR. THOMAS:

16 Q All right. Do you have Exhibit 33, sir?

17 A Yes.

18 Q And you see this is an e-mail from Richard

19 Sandblade --

20 A Yes.

21 Q -- on June 8th, 2009?

22 A Yes.

23 Q And you received this e-mail; yes?

24 A Yes.

25 Q All right. And can you please read into the

1 record the second -- first sentence of the second

2 paragraph written by Mr. Sandblade?

3 A "I would like you to please confirm that you

4 are not providing the dot dat files to Aptitude

5 Solutions."

6 Q Okay. And you were -- you received that

7 information on June 8th, correct?

8 A Yes.

9 Q And what did you do with that information?


11 Q What steps did you take to confirm that Nevada

12 County was not providing dot dat files to Aptitude

13 Solutions?


15 Q Do you see the next sentence? It says: "The

16 format of these files is the intellectual property of

17 AtPac."

18 A Yes.

19 Q "And the sharing these files with any

20 organization outside of AtPac" --

21 A Yeah.

22 Q Excuse me -- "outside of Nevada County without

23 the prior written concept of AtPac is strictly

24 prohibited," exclamation point.


1 A Yes.

2 Q And what did you do to confirm that Nevada

3 County was complying with AtPac's request there, if

4 anything?

5 A I just don't remember. We -- I don't know if I

6 called a meeting with Steve Monaghan or not.

7 Q Let's turn to the next exhibit.

8 A Yeah.

9 Q Do you have Exhibit 34 in front of you?

10 A Yeah, uh-huh.

11 Q All right. Is this an e-mail that you wrote?

12 A Oh. I guess we did have a meeting, yeah. So I

13 knew -- I knew this was very alarming to me and I was

14 concerned about that.

15 Q Why was it alarming to you?

16 A We had an indemnification agreement and we laid

17 out how we were going to extract this data. This

18 conflicts with the paragraphs in the indemnification

19 agreement, so it was concerning, so I did call a

20 meeting.

21 Q Well, actually, Mr. Sandblade's statement that

22 he wants you to confirm you're not providing the dot dat

23 files to Aptitude --

24 A Yes.

25 Q -- that's actually what you promised to do in

1 the indemnity agreement and the letter to AtPac, right?

2 You promised not to give Aptitude the data files.

3 A Correct.

4 Q And Mr. Sandblade merely wanted confirmation

5 that the County was doing what it promised, right?

6 A Correct.

7 Q So why did that concern you, because at the

8 time --

9 A Well -- I'm sorry.

10 Q At the time, did you believe the County was not

11 complying with its agreement?

12 A When I saw this e-mail, I wanted to have a

13 meeting to try to get the facts.

14 Q Well, at the time you saw this e-mail, did you

15 already know the County was providing --

16 A No.

17 Q -- AtPac's data files to Aptitude Solutions?

18 A No. No.

19 Q So why did this e-mail concern you, Exhibit 33,

20 if you felt the County was in compliance?

21 A I had not heard that or seen any correspondence

22 that the County was not in compliance until I saw this.

23 Not having any correspondence, evidence,

24 hearsay, that the County was not in compliance led me to

25 believe that the County was in compliance until I saw

1 this e-mail.

2 Q All right. So looking at Exhibit 34, you had

3 had -- you had an urgent impromptu meeting, according to

4 your e-mail, Exhibit 34.

5 Can you turn to Exhibit 34, please? Okay. And

6 what was the substance of the urgent impromptu meeting?

7 Let me ask you this: Did you send Exhibit 34,

8 the e-mail?

9 A Yes.

10 Q Okay. And what was the subject of the meeting?

11 The e-mail from Richard Sandblade?

12 A Yes.

13 Q Okay. And what was the discussion?

14 A Protected --

15 MR. POULOS: What discussion?

16 THE WITNESS: The discussion to address this

17 e-mail.

18 MR. POULOS: Well, you're not to reveal

19 conversations with County Counsel, but go ahead. I mean

20 if you can reveal without...

21 THE WITNESS: The subject of this meeting was

22 are the allegations by Richard Sandblade true.

23 MR. POULOS: Who was in the meeting?

24 THE WITNESS: This is who it was sent to and I

25 think Mike Jamison, Kathy Barale. I know Steve and Phil

1 were there.

2 MR. POULOS: Okay.

3 THE WITNESS: I'm not sure about Debra Russell.

4 MR. THOMAS: All right. So --

5 MR. POULOS: Ask a different question then.

6 BY MR. THOMAS:

7 Q Well, do you know if there was any conclusion

8 reached at the meeting?

9 MR. POULOS: Well, same objections. If it's a

10 conclusion that was reached from legal counsel, you

11 can't reveal that.

12 BY MR. THOMAS:

13 Q So you're not going to testify about what was

14 discussed at that meeting?

15 A Huh-uh.

16 Q You're going to follow his instruction not to

17 testify about the meeting?

18 A I'm going to follow my attorney's instructions?

19 Yes.

20 Q I just have to confirm that on the record.

21 A Yes.

22 Q It's not that I don't believe you.

23 Okay. Let's turn to Exhibit 35. Did you send

24 that -- or did you receive that e-mail, Exhibit 35, from

25 Steve Monaghan?

1 A It appears that I did, and I actually remember

2 this, uh-huh.

3 Q And can we turn to Exhibit 36? Can we -- can

4 you confirm that you received that e-mail from Phil

5 Russ?

6 A Yes.

7 Q Okay.

8 A Don't remember it but it looks like I did.

9 Q And do you remember the earlier e-mail where

10 Ms. Barale said she copied the dot dat files to the

11 Aptitude server and renamed them as txt files?

12 A Yes.


14 BY MR. THOMAS:

15 Q Do you remember Exhibit 41?

16 MR. POULOS: Go back to Exhibit 41.

17 BY MR. THOMAS:

18 Q Yeah. You can look at it.

19 MR. POULOS: Does it say that?


21 BY MR. THOMAS:

22 Q Can you read that, just so we have a

23 foundation, of the first sentence of Exhibit 41?

24 MR. POULOS: It doesn't say renamed.

25 MR. THOMAS: That's fine.

1 THE WITNESS: Again, this is an e-mail that I

2 was not privy to until today.

3 BY MR. THOMAS:

4 Q I understand. What does the first sentence of

5 exhibit --

6 A "I copied the AtPac dot dat files onto the

7 Aptitude support server in, parentheses, AS dash Nevada,

8 as dot txt files."

9 Q Okay. And I'll represent to you she testified

10 that she just renamed them and didn't change them in any

11 way, okay?

12 Assuming that's true, that she did that, which

13 is what she testified to, would that concern you, sir,

14 given the promises made to AtPac?

15 A Yes, it would.

16 Q Why?

17 A Because it's contrary to what we wrote in the


19 Q And it's contrary to the letter you wrote to

20 AtPac on January 8th, 2009, correct?

21 A It's also contrary to that letter, that's

22 correct.

23 MR. THOMAS: All right. Can we go off the

24 record for a moment? I can regroup because I realize

25 we're pretty close to being at least done for today.

1 We'll agree to disagree on whether I can finish today

2 but can we regroup and let me just sort of figure out

3 what I've got? We can talk about authentication. Would

4 that be okay?

5 MR. POULOS: What I'd rather do is let, you

6 know, let him go, finish your questions with him, and I

7 will represent to you, on the record, that I'll enter

8 into a similar stipulation that I did with you with the

9 prior witness, Ms. McCluskey, as to documents received,

10 you know, that were produced by the County, you know, to

11 receive, that kind of thing, on authenticity.

12 MR. THOMAS: Okay. I appreciate that.

13 MR. POULOS: It's a better use of the witness's

14 time, and frankly, your time, because I'm not going

15 to -- where there's no indication -- in my view, you

16 know, there's no basis to litigate or dispute

17 authenticity where there's no indication that something

18 is other than it purports to be. I'll expect the same

19 courtesy from you when the time comes.

20 BY MR. THOMAS:

21 Q May I have you look at Exhibit 40, please? And

22 what is Exhibit 40, sir?

23 A It's an e-mail from Kathy Barale to Frank

24 Barnes, and Alana Wittig and Debra Russell are copied.

25 The subject is AtPac file.

1 Q Okay. What does the first sentence say?

2 A "I have copied the image dot dat file to C,

3 colon, back slash, ER, dash, recorder, underscore,

4 files, back slash, 20090616 on AS dash Nevada. Are

5 there additional problems with any of the image's files

6 previously copied?"

7 Q All right. Did that concern you given it

8 indicates that AtPac dot dat file being copied to the

9 Aptitude server?


11 THE WITNESS: I have never seen this e-mail

12 before today, and if I'm reading this -- well,

13 obviously, I'm reading it right now -- I wouldn't know

14 or assume that AS-Nevada was the Aptitude server.

15 BY MR. THOMAS:

16 Q Okay.

17 A As a matter of fact, I thought AS-Nevada was

18 the County's server.

19 Q AS-Nevada's the server that was scrubbed.

20 A It was the County server, right?

21 Q I don't know.

22 A Of course, it was the County server.

23 Q So the County scrubbed its own server. That's

24 your testimony?

25 A Well, that's my understanding.

1 Q All right. Sir, I would like to -- may I just

2 take a moment --

3 MR. POULOS: Sure.

4 MR. THOMAS: -- to look at a few things off the

5 record?

6 MR. POULOS: That's fine.

7 THE VIDEOGRAPHER: Off the record at 5:57 p.m.



10 6:02 p.m.

11 BY MR. THOMAS:

12 Q Sir, placing before you -- I don't -- I'd just

13 like to know: Are those your notes? Is that your

14 handwriting?

15 A Huh-uh.

16 Q If not, you can just hand it back to me.

17 A No, it doesn't look like my handwriting.

18 Q Thank you, sir. How about -- I've given you

19 another exhibit.

20 A Huh-uh, no.

21 MR. POULOS: Why don't you just show him all of

22 them and see if he recognizes any of them.

23 BY MR. THOMAS:

24 Q There's only two more. I think maybe that's

25 yours. You tell me, sir.

1 A This looks like my handwriting --

2 Q Okay.

3 A -- here. This is not my handwriting here.

4 Q Do you know whose it is?

5 A No, I don't.

6 Q Okay. May I see that, sir?

7 A Sure.


9 identification.)

10 BY MR. THOMAS:

11 Q So Exhibit 403, sir, could you just thumb

12 through that and confirm this is all of your

13 handwriting?

14 A Yes, it looks like my handwriting.

15 Q Okay. All right.

16 A My personal notes.

17 MR. THOMAS: All right. Thank you, sir.


19 identification.)

20 BY MR. THOMAS:

21 Q Take a look at Exhibit 404. Do you have that?

22 A Yes.

23 Q And this is an e-mail you received from Mike

24 Jamison; yes?

25 A Yes.

1 Q And this refers to the issue raised by Richard

2 Sandblade that you were addressing with counsel, right?


4 Q Okay. And did Mr. Monaghan ever tell you that

5 he believed the County has violated Section 2.2 of the

6 AtPac Nevada County contract?

7 A Mr. Monaghan never -- oh.

8 MR. POULOS: I'm going to object if that was in

9 the presence of counsel. If there was any such

10 discussion, I would ask you not to reveal that

11 conversation, but you can go ahead and answer with that

12 admonition.

13 THE WITNESS: Steve Monaghan never told me that

14 he thought the County violated 2.2.

15 BY MR. THOMAS:

16 Q Okay. And did Mr. Jamison ever tell you that

17 in the context of writing you this e-mail?

18 MR. POULOS: Don't answer the question.

19 BY MR. THOMAS:

20 Q You received Exhibit 404 from Mr. Jamison; yes?

21 A Yes.

22 Q And can you look at Exhibit 42 in your binder?

23 And did you send Exhibit 42?

24 A Did I --

25 Q Send Exhibit 42?

1 A Yes, it looks like it.

2 Q And this is referring to the issue raised by

3 Richard Sandblade --

4 A Uh-huh.

5 Q -- again?

6 A Yeah, it appears so, yes.

7 Q Okay. And what did you say?

8 A My thoughts are if AtPac makes no more mention

9 of this, we make no more mention of this. If AtPac does

10 inquire again, we follow your suggestions as outlined in

11 your e-mail.

12 Q Did you ever tell Richard Sandblade, in

13 response to his e-mail, that the County had in fact

14 provided dot dat files to Aptitude?

15 A No.

16 Q Do you know if anyone else did?

17 A I don't know.

18 Q Did you make an effort to communicate with

19 AtPac to tell it the County had done that?

20 A No.

21 Q Why not?

22 A Didn't occur to me to do it. I think this

23 e-mail's pretty clear. My position is if -- no harm --

24 no foul, no harm. If there is a foul, then we'll

25 address it.

1 Q But you never told AtPac that there was a foul,

2 right?

3 A Because -- because I'm not really sure and

4 County Counsel wasn't really sure if there was a foul.

5 Q But you knew that Richard Sandblade wanted to

6 know -- he wanted the County to confirm that it was not

7 providing dot dat files --

8 A Right.

9 Q -- to Aptitude.

10 A Right.

11 Q And you learned the County was providing dot

12 dat files to Aptitude.

13 MR. POULOS: Objection. Misstates the record

14 and the testimony.

15 THE WITNESS: No, because there's this e-mail

16 from Alana Wittig which seems to suggest that they

17 received all of the data from the County in txt files.

18 BY MR. THOMAS:

19 Q Right. And you also --

20 A No tables were sent. We had no ability to view

21 the table structure.

22 Q But you also saw the e-mail from Ms. Barale

23 that said she copied the dat files as txt files.

24 A And I saw that e-mail today. I did not see

25 that e-mail on June 18th, 2009.

1 Q Okay. Understood, sir. Now, I follow.

2 All right. I'm done with 42.


4 identification.)

5 BY MR. THOMAS:

6 Q Sir, I'd like you to look at Exhibit 405. Do

7 you have that?

8 A Yes.

9 Q Okay. And at the bottom half of the page is an

10 e-mail from Debra Russell to you.

11 Do you see that?

12 A No. There's an e-mail from Debra Russell to

13 Dave Krugle where I was cc'd.

14 Q Okay.

15 A I don't see an e-mail from Debra Russell to me.

16 Q Fair enough, sir. Did you receive that cc

17 e-mail?

18 A Yes.

19 Q And this is informing you that Mr. Weir had

20 written to the County asking for AtPac to ensure that

21 the CRiis and other software licensed from AtPac has

22 been removed from the County servers.

23 A Could you repeat your question again? I'm

24 sorry.

25 Q You understood this was letting you know, at

1 least copied you on a correspondence, where you're

2 informed that AtPac was the one who had written to the

3 County asking to remove its software from the County's

4 servers, right?

5 A No. It's when I read this e-mail, I see it to

6 read that it was Debra's understanding, my assistant at

7 the time, that AtPac would like to visit our office to

8 ensure that CRiis and other software licensed from AtPac

9 has been removed from all servers.

10 I don't know how that came to be. This

11 certainly doesn't say that AtPac wrote a letter to set

12 up a visit to the office.

13 Q Well, what does --

14 A It just says AtPac would like to visit our

15 office.

16 Q And what does the first part of the e-mail say?

17 Per the letter --

18 A Per the letter from Mr. Weir to our office.

19 Yeah, you're right. Yeah, uh-huh.

20 Q You're not aware -- strike that.

21 So this informed you that AtPac had asked to

22 come to the County to remove its --

23 A Yeah, I think I mentioned that, too, in earlier

24 testimony, it was my understanding that AtPac was going

25 to coordinate with the County to come to remove their

1 software --

2 Q And did they?

3 A -- after June 30.

4 Q Did anyone -- did anyone tell you that AtPac

5 tried to do that on June 30th?

6 A Well, this says right here: Would you be

7 available on Tuesday, June 30th for this inspection. If

8 not, and then Dave Krugle said to Debra, Tuesday,

9 June 30th works for me, so...

10 Q Do you know what happened on June 30th?

11 A No.



14 identification.)

15 MR. POULOS: This is it? Are we done here?

16 MR. THOMAS: Yeah. Let's put our little -- can

17 we put our stipulation on the record?

18 MR. POULOS: Yeah.

19 BY MR. THOMAS:

20 Q Can you just authenticate this exhibit that's

21 in front of you, sir?

22 A It's an e-mail from Mike Jamison to me.

23 MR. THOMAS: All right. Counsel and I have

24 reached an agreement that there's many, many, many

25 pieces of correspondence here in the deposition room

1 that I would like to ask you questions about; at a bare

2 minimum, have you confirm that they're e-mails you

3 either sent or received or letters you can authenticate

4 as being genuine.

5 We've stipulated we're going to do that off the

6 record and perhaps add them as exhibits to the

7 deposition but maybe not. We don't have to do that.

8 MR. POULOS: Yeah. I just want to make sure

9 that we let Mr. Diaz go.


11 MR. POULOS: And then as I did with

12 Ms. McCluskey, e-mails, documents that were produced by

13 the defendants that bear Mr. Diaz's name, as either

14 something he created or received, I'm willing to

15 stipulate to the authenticity of those documents, and we

16 can, at your pleasure, either add them back as

17 exhibits --

18 MR. THOMAS: Uh-huh.

19 MR. POULOS: -- or we can enter into a

20 stipulation that you can use at trial. I don't really

21 care.

22 (Clarification by reporter.)

23 MR. POULOS: Or we can enter into a stipulation

24 that you may use at trial. I don't have a preference.

25 MR. THOMAS: We'll figure that out off the

1 record.

2 MR. POULOS: Yeah.

3 MR. THOMAS: For now, my intention is to hold

4 the deposition open because I still have more questions

5 for Mr. Diaz, but it's getting late today and I agree to

6 go off the record now.

7 MR. POULOS: And obviously, my position is

8 we're at the seven-hour limit and we'll address whatever

9 else. I'm not asking -- you know,k I understand your

10 position and so we will adjourn for the day.

11 MR. THOMAS: We'll agree to disagree and we'll

12 adjourn for the day. Thank you.

13 MR. POULOS: Thank you.


15 6:14 p.m. End of disc four. End of today's

16 proceedings.

17 (The deposition adjourned at 6:14 p.m.)

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2

3 WITNESS' SIGNATURE

4

5 Please be advised I have read the foregoing

6 deposition, pages 1 through 356, inclusive. I

7 hereby state there are:

8

9 (check one)

10 ______________ no corrections

11 ______________ corrections per attached

12

13 ____________________________________________

14 GREGORY J. DIAZ

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1 WITNESS' CHANGES OR CORRECTIONS

2

3 NOTE: If you are adding to your testimony, print the exact words you want to add. If you are

4 deleting words from your testimony, print the exact words you want to delete. Specify with

5 "Add" or "Delete" and sign this form.

6 Deposition of: GREGORY J. DIAZ Case Title: ATPAC VS. APTITUDE

7 Date of Deposition: May 27, 2011 I, _________________________________, have the following

8 correction to make to my deposition.

9 Page Line Changes/Add/Delete

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25 ____ ____ _________________________________________

1 CERTIFICATE OF REPORTER

2

3 I, JOANIE Y. MURAKAMI, a Certified Shorthand

4 Reporter, hereby certify that the witness in the

5 foregoing deposition, GREGORY J. DIAZ, was by me duly

6 sworn to tell the truth, the whole truth and nothing but

7 the truth in the within-entitled cause; that the

8 testimony of said witness was taken down in shorthand by

9 me, a Certified Shorthand Reporter and a disinterested

10 person, at the time and place herein stated, and that

11 the testimony of the said witness was thereafter reduced

12 to typewriting, by computer, under my direction and

13 supervision.

14 I further certify that I am not of counsel or

15 attorney for either or any of the parties to the said

16 deposition, nor in any way interested in the outcome of

17 this cause, and that I am not related to any of the

18 parties thereto.

19 I hereto declare under penalty of perjury that the

20 foregoing is true and correct. I have hereunto set my

21 hand on June 8th, 2011.

22

23 ________________________________________

24 JOANIE Y. MURAKAMI, CSR NO. 5199

25

diaz deposition in atpac case

Documents

email string

index of examination2

unanswered questions19

michael thomas

diaz volume

to20 diaz

michael sweet

law5 michael