stanley kusper, jr. deposition transcript

1

2 STATE OF ILLINOIS ) ) SS. 3 COUNTY OF C O O K )

4 IN THE CIRCUIT COURT OF 5 COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION 6

7 EDWARD X. CLINTON, P.C., ) ) 8 Plaintiff/ ) Counterdefendant, ) 9 ) Case No. vs. ) 11 CH 19310 10 ) KUSPER AND RAUCCI ) 11 CHARTERED, ) Defendant/ ) 12 Counterplaintiff. )

13

14 The discovery deposition of

15 STANLEY T. KUSPER, JR., taken before

16 Cathleen M. Baker, CSR, a notary public

17 within and for the County of Cook and State

18 of Illinois, on June 30, 2011, at the hour

19 of 1:00 o'clock p.m., at 444 North Michigan

20 Avenue, Suite 2600, Chicago, Illinois.

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1 APPEARANCES:

2 MR. DENNIS C. WALDON 3 LAVIN & WALDON 444 North Michigan Avenue, Suite 2600 4 Chicago, Illinois 60611 (312) 670-4260 5 (312) 670-4275 facsimile [email protected] 6 appeared on behalf of 7 plaintiff/counterdefendant;

8 MR. EDWARD X. CLINTON, JR. 9 LAW OFFICES OF EDWARD X. CLINTON, P.C. 30 North LaSalle Street, Suite 3400 10 Chicago, Illinois 60602 (312) 357-1515 11 (312) 201-0737 [email protected] 12

13 Appeared on behalf of the plaintiff/counterdefendant; 14

15 MR. STEWART T. KUSPER KUSPER & RAUCCI CHARTERED 16 30 North LaSalle Street, Suite 3400 Chicago, Illinois 60602 17 (312) 332-5000 (312) 332-4663 facsimile,

18 [email protected]

19 appeared on behalf of defendant/counterplaintiff. 20

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1 I N D E X

2 WITNESS: Stanley T. Kusper, Jr. PAGE

3 Examination by Mr. Waldon 4

4

5 PLAINTIFF'S EXHIBITS 6 No. 1 18 7 GroupNo. 2 24 8 No. 3 29 9 No. 4 35 10 No. 5 41 11 No. 6 43 12 No. 7 45 13 No. 8 49 14

No. 9 60 15 No. 10 64 16 No. 11 67 17 No. 12 70 18 No. 13 21 19

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1 (Witness sworn.)

2 STANLEY T. KUSPER, JR.,

3 called as a witness, having been first duly

4 sworn, was examined and testified as

5 follows:

6 EXAMINATION

7 BY MR. WALDON

8 Q. Would you state your name and

9 address for the record, please?

10 A. Stanley T, middle initial,

11 Kusper, K-u-s-p-e-r, Jr. My home address

12 is 1040 North Lake Shore Drive, Apartment

13 23A, Chicago, Illinois, 60611.

14 Q. Let the record reflect that

15 this deposition is taken pursuant to notice

16 and all applicable rules.

17 Mr. Kusper, have you been

18 deposed before?

19 A. Yes.

20 Q. How many times?

21 A. I have no recollection of that.

22 A few.

23 Q. So you know how depositions

24 work. Did you discuss your testimony today

page 5

1 with anyone other than your counsel?

2 A. No.

3 Q. Did you review any documents in

4 anticipation of your deposition today?

5 A. Yes.

6 Q. What did you review?

7 A. Pleadings, exhibits.

8 Q. Exhibits to the pleadings?

9 A. Exhibits to the pleadings and

10 other exhibits that were introduced at

11 other deps.

12 Q. Okay. Anything else?

13 A. I can't recall. I don't think

14 so.

15 Q. For the record, what is your

16 occupation?

17 A. I am an attorney.

18 Q. Would you summarize your

19 education, please?

20 A. How far back do you want me to

21 go?

22 Q. Oh, high school.

23 A. Weber High School, Archbishop

24 Weber High School, Chicago; University of

page 6

1 Illinois undergraduate, Bachelor of Arts

2 1957; Northwestern University School of

3 Law, Juris Doctor 1960.

4 Q. Are you licensed in Illinois?

5 A. Yes.

6 Q. Any other states?

7 A. No other states, no.

8 Q. What has been your area of

9 practice?

10 A. Oh, it's been varied over the

11 course of the 51 years. I do principally

12 now labor law, governmental law, education

13 law, EEOC work, Illinois human rights work,

14 collective bargaining agreements,

15 personnel.

16 Q. Have you ever done any real

17 estate work?

18 A. Yes.

19 Q. Would you summarize for the

20 record your political experience and

21 positions?

22 A. On November 1, 1961, I became

23 the assistant attorney at the Board of

24 Election Commissioners at the City of

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1 Chicago. In 1963, I believe somewhere

2 around April or May, I became the acting

3 attorney for the Board of Election

4 Commissioners of the City of Chicago. In

5 1964, I became full counsel there. In

6 1969, I filled a vacancy and became a

7 member of the Board of Election

8 Commissioners and chairman. That lasted

9 until March of 1973, when I was appointed

10 by the County Board to fill a vacancy in

11 the Office of County Clerk of Cook County;

12 and I successfully held that office until

13 1990.

14 Q. And during that time, were you

15 a member or affiliated with any law firm?

16 A. I had a brief tenure with the

17 law firm of McCoy, Ming and Black. That

18 lasted for less than a year. And I

19 practiced law then on my own.

20 Q. Starting in 1990?

21 A. No, no, no. During the tenure

22 of my public life, did you ask?

23 Q. Yes.

24 A. I had an affiliation with

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1 McCoy, Ming and Black for less than a year;

2 and then after that, it was just my sole

3 practice.

4 Q. Have you as an individual been

5 a party to any lawsuit?

6 A. Yes.

7 Q. When was that?

8 A. Back in the late '50s,

9 something like '59, '60, I was involved in

10 a personal injury case. I was a plaintiff.

11 Q. Anything else as an individual?

12 A. Well, when you are in public

13 life, you get sued in your official

14 capacity and your individual capacity. I

15 was involved in about 25,000 cases with me

16 as an individual.

17 Q. Other than in your official

18 capacity?

19 A. I don't believe so.

20 Q. As an attorney have you ever

21 been the subject of any disciplinary

22 proceeding?

23 A. No. Well, let me correct. I

24 am sorry. During one campaign, one of my

page 9

1 opponents brought a charge against me

2 before the ARDC, which was dismissed.

3 Q. What is your current firm?

4 A. Kusper and Raucci Chartered,

5 R-a-u-c-c-i, Chartered.

6 Q. So Raucci?

7 A. Raucci.

8 Q. I have heard it a number of

9 ways.

10 MR. STEWART T. KUSPER: Yes.

11 Mr. Clinton, Sr. was pronouncing it

12 incorrectly, but I left it alone.

13 BY MR. WALDON:

14 Q. When did that firm start?

15 A. In the '70s.

16 Q. And briefly over the years,

17 what has been the size? Has it fluctuated?

18 Has it been small? What's the largest it's

19 been, just in summary?

20 A. Depends on your definition of

21 "small." We have been somewhere -- well,

22 when Andy Raucci and I started it, it was

23 the two of us. It got up to at one point,

24 I believe, ten; and we are now seven.

page 10

1 Q. And at times, to shorten

2 things, if I say KRC, can we use that as

3 Kusper and Raucci Chartered?

4 A. Fine.

5 Q. Are there officers and/or

6 directors of KRC?

7 A. Yes.

8 Q. And who are they?

9 A. I am all of it.

10 Q. Are you the decision maker on

11 all issues at KRC?

12 A. Well, I was, with my partner

13 Andy Raucci. We were equal partners at the

14 time. I was president. He was secretary.

15 But now with the advent of his retirement

16 some nine years ago, I guess, in the advent

17 of Stewart joining the firm, I still have a

18 two-share majority of the stock, but we

19 jointly make decisions.

20 Q. Jointly you and Stewart, the

21 gentleman to your right?

22 A. That's correct.

23 Q. Is Stanley Kusper, III, an

24 attorney in your firm?

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1 A. Yes.

2 Q. And what is his area of

3 practice?

4 A. Whatever we ask him to do, Jack

5 of all trades.

6 Q. Specifically with regard to

7 potential sub-tenants -- well, withdrawn.

8 KRC is in Suite 3400 at 30 North LaSalle in

9 Chicago, correct?

10 A. Correct.

11 Q. With regard to sub-tenants or

12 potential sub-tenants for Suite 3400, who

13 decides on whether to accept them or not?

14 A. I do. Or I did. It would now

15 be, "We would." But I used to. Stewart,

16 my son Stewart, has only been a member of

17 the firm since, I believe, September

18 the 15th of 2010.

19 Q. 9-15-10, okay. With regard to

20 KRC's staff, people working for you who are

21 not attorneys, over the years, what has

22 been the range of people, non-attorneys,

23 working for KRC?

24 A. Four, five maximum.

page 12

1 Q. And how many at the present

2 time, non-attorney employees of KRC?

3 A. Four, I believe.

4 Q. And is Donna Carlson one of

5 those?

6 A. Yes.

7 Q. And is Pamela, whose name

8 starts with a "G," one of those?

9 A. Graniczny, G-r-a-n-i-c-z-n-y.

10 Q. And who are the other two, for

11 the record?

12 A. Then there is Pam, whose last

13 name I always mispronounce.

14 MR. STEWART T. KUSPER:

15 Prokaski, P-r-o-k-a-s-k-i.

16 BY MR. WALDON:

17 Q. How long has she been with the

18 firm?

19 A. Approximately, a little longer

20 than Stewart, so mid-2010.

21 Q. And who is the fourth staff

22 person?

23 A. Our receptionist Maria.

24 Q. What's Maria's last name?

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1 A. Gonzalez? No, it's not

2 Gonzalez. Can't tell you.

3 Q. How long has she been with the

4 firm?

5 A. Very short period of time.

6 Q. With regard to Pamela G., what

7 are her duties?

8 A. Assistant, secretarial, right

9 arm.

10 Q. Right arm to you?

11 A. Um-hum.

12 Q. That's a "yes"?

13 MR. STEWART T. KUSPER: You got

14 to answer out loud in words.

15 THE WITNESS: Yes. I am sorry.

16 That's correct.

17 BY MR. WALDON:

18 Q. When did Donna Carlson start

19 with KRC, approximately? You can make it a

20 year.

21 A. Nine, ten years ago.

22 Q. And what is her job description

23 and duties?

24 A. Office manager.

1 Q. How long has she held that

2 position?

3 A. Ever since we hired her.

4 Q. In the time that she has been

5 the office manager of KRC, have you ever

6 heard any complaints about her from any of

7 your sub-tenants?

8 A. Yes.

9 Q. And can you generalize or can

10 you recall specifics about those

11 complaints?

12 MR. STEWART T. KUSPER: Object

13 to the form of the question. It's very

14 overbroad and vague. You can answer if you

15 understand it.

16 THE WITNESS: Generally,

17 tenants, sub-tenants complain when she

18 enforces the rules or asks for overdue rent

19 or any other matters that she deems

20 appropriate to bring to my attention -- to

21 our attention now.

22 BY MR. WALDON:

23 Q. Have you ever received any

24 complaints about Donna from other KRC staff

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1 people?

2 A. I can't recall any.

3 Q. Have you ever received any

4 complaints about Donna from any other KRC

5 attorneys?

6 A. I can't recall any.

7 Q. With regard to Pamela G., if I

8 could call her that, to your knowledge,

9 what does she know about the facts or

10 issues relating to this?


12 to the form of the question. It's vague

13 and overbroad. If you understand, you can

14 answer.

15 THE WITNESS: She has knowledge

16 of some of the matters that came up which

17 resulted in some of the actions that we

18 took, yes.

19 BY MR. WALDON:

20 Q. Can you recall any,

21 specifically, that she has knowledge of or

22 had involvement with?

23 A. The urination on the floors of

24 the bathrooms.

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1 Q. Anything else?

2 A. At this time, I can't think of

3 anything else.

4 Q. How long has KRC been in Suite

5 3400 at 30 North LaSalle?

6 A. Forever. About 34 -- 33,

7 34 years.

8 Q. And how many attorney offices

9 are there, ballpark, or exactly if you

10 know, in Suite 3400?


12 to the form of the question. It's vague.

13 Are you talking about now? Are you talking

14 about ever?

15 MR. WALDON: Now.

16 MR. STEWART T. KUSPER: You mean

17 now currently being used by K & R

18 attorneys? You asked a prior question

19 about the fluctuation in attorney numbers,

20 so I am just trying to be precise.

21 BY MR. WALDON:

22 Q. At the current time, how many

23 attorney offices are there in Suite 3400?

24 MR. STEWART T. KUSPER: Still

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1 object to the form of the question. It's

2 still vague the way you have worded it. If

3 you understand, you can answer.

4 THE WITNESS: I believe 18,

5 thereabouts. Could be 17. Could be 19.

6 BY MR. WALDON:

7 Q. Did KRC's -- who is the

8 landlord of KRC, Tishman Spire?

9 A. Tishman Spire.

10 Q. And did KRC sign a master lease

11 with Tishman Spire at some point?

12 A. No.

13 Q. When KRC moved in 34, 33,

14 34 years ago, with whom did it sign a

15 lease?

16 A. I believe that it was

17 Prudential Insurance Company at the time.

18 They had taken the building over from the

19 original developers.

20 Q. And when did Tishman Spire take

21 over?

22 A. When Sam Zell sold his

23 holdings, I believe. This is what, three,

24 four years ago maybe, give or take? Let me

page 18

1 correct that. Somebody came in after Zell

2 sold and then sold to Tishman Spire, so

3 Tishman Spire's been around for a couple,

4 three years maximum.

5 Q. Has the initial lease that KRC

6 signed been amended at any time?

7 A. Yes.

8 Q. How many times?

9 A. Approximately three, maybe four

10 times.

11 Q. And do you refer to that as a

12 master lease?

13 A. Yes.

14 Q. And is it your understanding

15 that in the discovery process in this case,

16 the production of that master lease and

17 amendments has been requested and that the

18 defendant has objected to producing it?

19 A. Yes, I am aware of that.

20 MR. WALDON: Would you mark

21 this as Plaintiff's Exhibit 1, please?

22 (Plaintiff's Exhibit No. 1

23 was marked for

24 identification.)

page 19

1 BY MR. WALDON:

2 Q. Please take a look at what has

3 been marked Plaintiff's Exhibit 1, and tell

4 me if you recognize that as Defendant's

5 Response to Plaintiff's Request for

6 Production of Documents?

7 A. That's the title it bears.

8 Q. If you would turn, please, to

9 -- there is no page number, so one, two,

10 three, fourth page, the request and the

11 response to Number 5. It's at the bottom

12 of the page. See request Number 5 for the

13 master lease and any amendments thereto and

14 then the answer?

15 A. Yes.

16 Q. Do you see that the one

17 objection is that the request is overbroad?

18 Do you see that?

19 A. Yes.

20 Q. How many pages is the master

21 lease and the amendments?

22 A. I haven't looked at that master

23 lease in a long time. The only thing I

24 have been looking at is the amendments to

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1 it. And the amendments run sometimes

2 three, four or five pages. Overall, I

3 could not even conjecture with any

4 reasonable accuracy as to how long it is.

5 Q. And do you have any

6 understanding as to why it would be unduly

7 burdensome to have someone copy and have

8 that master lease and amendments produced?

9 MR. STEWART T. KUSPER: I am

10 going to object to the form of the

11 question. It is totally improper to ask

12 opinions of someone who is here as a fact

13 witness. I am attorney of record. If you

14 want to take up a discovery issue with me,

15 you can do it in court with the Illinois

16 Supreme Court rules and 201(k), in

17 particular. You don't get to harass a

18 witness and ask him about the legal bases

19 and factual bases for objections I have

20 made. If you want to persist in this, I am

21 instructing him not to answer.

22 He is not here as an attorney.

23 He is here as a fact witness only.

24 MR. WALDON: A fact witness can

page 21

1 testify as to how lengthy or not the

2 document is that's at issue.

3 MR. STEWART T. KUSPER: And he

4 gave you that. You are now asking him to

5 opine on the bases of the objections that

6 have been leveled. That's proper only for

7 a Rule 201(k), not in a fact witness

8 deposition. I am happy to have that with

9 you if you ever request it, but you have

10 not.

11 MR. WALDON: Do you stand by

12 your attorney's comments?

13 THE WITNESS: I do.

14 BY MR. WALDON:

15 Q. At the current time, how many

16 sub-tenants are in Suite 3400?

17 A. Approximately 14.

18 MR. WALDON: Let's mark this,

19 if you would, please, as Plaintiff's

20 Exhibit 13.


22 was marked for

23 identification.)

24

page 22

1 BY MR. WALDON:

2 Q. I have some premarked exhibits.

3 Let me show you what's been marked

4 Plaintiff's Exhibit 13, a letter from your

5 counsel from a little bit ago today sending

6 over some supplemental production of

7 documents. I would ask you if you would

8 turn to the last page, please, which is

9 marked at the lower right "1208." And do

10 you know what this document indicates?

11 MR. STEWART T. KUSPER: For the

12 record, before he answers, my

13 secretary/assistant did not mark,

14 obviously, what's been redacted here, which

15 is the rental terms pertaining to the other

16 ten apartments, sub-tenants on here, so it

17 should have been so marked. I apologize.

18 MR. WALDON: I presumed

19 that that's what that was.


21 sorry. You can answer the question if you

22 remember what it was.

23 THE WITNESS: He wanted to know

24 how many subtenants there are.

page 23

1 MR. WALDON: Why don't you just

2 read back the question, please?

3 (Question read back by the

4 reporter, as requested.)

5 THE WITNESS: Well, it's titled,

6 "Leases 2008/2013." And I think it

7 indicates 21 sub-tenants.

8 BY MR. WALDON:

9 Q. It says "leases," but these are

10 subleases?


12 Q. And are they in, roughly,

13 chronological order?

14 A. I have no idea.

15 Q. Toward the bottom on the left,

16 I see "490-591." Do you know if there is

17 another one beyond that? It's sort of cut

18 off. Or do you know, counsel?

19 MR. STEWART T. KUSPER: I don't.

20 You should have called me. I would have

21 checked. But I will check on a break.

22 BY MR. WALDON:

23 Q. Okay. Are sub-tenants of Suite

24 3400 with, I presume, lease terms beginning

page 24

1 from 2008 and to some extent -- and the

2 later ones running to 2013?


4 to the form of the question. It's vague.

5 If you understand and you know, you can

6 answer.

7 THE WITNESS: I do not know, but

8 I know what the caption says, "leases

9 2008/2001." I don't have individual

10 knowledge about individual leases.

11 MR. WALDON: Mark this, please,

12 as Plaintiff's Group Exhibit 2.

13 (Plaintiff's Group Exhibit

14 No. 2 was marked for

15 identification.)

16 BY MR. WALDON:

17 Q. Please take a look at Group

18 Exhibit 2, which bears the defendant's

19 document production number 169 through 200

20 and appears to be four subleases with

21 regard to Suite 3400 with Kevin Mix, Robert

22 Karr, John Martin and David Stringer.

23 Please take a quick look. And do these

24 look to be those subleases?

page 25


2 going to caution the witness, you don't

3 have to take a quick look. You can take as

4 long a look as you need to to familiarize

5 yourself with the documents. Be confident

6 in your testimony.

7 THE WITNESS: There is a lease

8 with Kevin Mix.

9 MR. STEWART T. KUSPER:

10 Sublease.

11 THE WITNESS: Sublease, I should

12 say. There is a sublease with David N.

13 Stringer, sublease with Robert W. Karr and

14 a sublease with John C. Martin LLC.

15 BY MR. WALDON:

16 Q. Okay. Just one point. The

17 second one, which appears with David N.

18 Stringer --

19 MR. STEWART T. KUSPER: I think

20 that's page 177.

21 MR. WALDON: That's right, yes,

22 177. A quick look, I don't see Stringer's

23 name on Document 1208 on PX 13. Would that

24 be identified under some other name, do you

page 26

1 know?

2 MR. STEWART T. KUSPER: Well,

3 look. For the record, I am going to note,

4 some of these are noted by first names.

5 THE WITNESS: 490-49 at the end

6 of the first column has "David." That

7 could be David.

8 BY MR. WALDON:

9 Q. That could be Stringer?

10 A. It could be Stringer. The one

11 above it, for instance 490-47, that's Gail.

12 That's Weiss. So there are mixtures of

13 first and last names here.

14 Q. With regard to -- and your

15 Document Production Request says that

16 "Sample subleases have been produced."

17 With regard to Document 1208 in Plaintiff's

18 Exhibit 13, do you know if all of those

19 subleases were in the same form as the four

20 subleases that constitute Group Exhibit 2?

21 A. I do not know.

22 Q. With regard to the sublease

23 forms that are in Plaintiff's Group

24 Exhibit 2, who drafted that sublease?

page 27


2 sorry. Which one?

3 THE WITNESS: These four. I

4 think the form was put together by Stanley

5 Kusper, III.

6 BY MR. WALDON:

7 Q. And I am not sure I asked. How

8 long has he been with KRC?

9 A. I'd have to conjecture. It's

10 about 9, 10 years.

11 Q. Now, you have got Group

12 Exhibit 2? Just look at the first page.

13 The paragraph 2 refers to "KRC's master

14 lease," correct?

15 A. Yes.

16 Q. And KRC is, in fact, the tenant

17 for Suite 3400 on the master lease?


19 Q. And Suite 3400 is described as

20 "the Premises," capital "P" in quote, is

21 that correct, at the end of paragraph 2?

22 A. Yes.

23 Q. And in paragraph 3 of the first

24 page of this sublease, paragraph 3 states

page 28

1 that what's being subleased are "the

2 Premises," capital "P," is that correct?

3 A. Yes.

4 Q. So if the premises are the

5 subject of the master lease and it's

6 mentioned in the same term as the paragraph

7 3, how is it that the master lease is not

8 relevant to the issues in this case?


10 to the form of the question. I am going to

11 go back to the same thing that we talked

12 about before. If you would like to discuss

13 the objections that were made to your

14 document request, you need to take it up

15 pursuant to the Illinois Supreme Court

16 rules, which is not doing it in the context

17 of questioning a witness who is here as a

18 fact witness, but rather talking to me as

19 counsel of record.

20 If you want to persist in this,

21 I will make the objection. I will instruct

22 him not to answer. And I am happy to make

23 myself available for the same 201(k) that I

24 invited you to have earlier when you did

page 29

1 the same thing with this witness.

2 BY MR. WALDON:

3 Q. Prior to this case for which

4 you are here today, has KRC been in any

5 litigation involving this form of the

6 sublease?

7 A. No.


9 as Plaintiff's Exhibit 3.


11 was marked for

12 identification.)

13 BY MR. WALDON:

14 Q. Take a look at Plaintiff's

15 Exhibit 3, please. The first question is,

16 this is the sublease with Edward X.

17 Clinton, P.C., is that correct?

18 A. Yes.

19 Q. And this is the same form as

20 the four samples that were in Group

21 Exhibit 2, is that correct?

22 A. Yes.

23 Q. Do you think it was reasonable

24 for the Clinton firm to rely upon the terms

page 30

1 of the lease that you drafted?

2 A. I can't answer that.

3 MR. STEWART T. KUSPER: I object

4 to the form of the question.

5 BY MR. WALDON:

6 Q. In connection with Plaintiff's

7 Exhibit 3, the Clinton firm's sublease,

8 what was your involvement, if any, in

9 negotiation and/or signing or discussion of

10 this sublease?


12 to the form the of the question. It's

13 vague and ambiguous. If you understand,

14 you can answer.

15 THE WITNESS: I understand the

16 signing portion of it. I signed it.

17 BY MR. WALDON:

18 Q. Were you involved at all in any

19 discussions about the sublease prior to

20 your signing it?

21 A. With whom?

22 Q. Okay. Did you have any

23 discussions with Mr. Clinton, Jr. or

24 Mr. Clinton, Sr. before you signed the

page 31

1 sublease?

2 A. No.

3 Q. Did you have any discussions

4 with Mary Winch of the Clinton firm before

5 signing the sublease?

6 A. No.

7 Q. It's dated February 20, 2009.

8 And please turn to page 6. Is that your

9 signature as the president of KRC?

10 A. Yes.

11 Q. And you believe you signed it

12 on or about February 20, 2009?

13 A. That's the date it bears.

14 Q. Do you recall what time of day

15 you may have signed it?

16 A. No, sir.

17 Q. Prior to your signing this

18 lease, did you have any discussion about

19 the sublease with Stanley Kusper, III?

20 A. I don't believe so.

21 Q. And Stewart Kusper was not

22 there in 2009, correct?


24 Q. Prior to your signing this

page 32

1 sublease, Plaintiff's Exhibit 3, did you

2 have any discussion about it with Donna

3 Carlson?

4 A. Yes.

5 Q. And when and what was

6 discussed?

7 A. When? It was prior to the

8 execution of the lease. It was during the

9 time that she was having discussions, I

10 believe, with Mary Winch, who was

11 negotiating on behalf of the Clintons. I

12 remember being involved to the extent that

13 the Clintons were seeking two offices,

14 larger, as large as they could be. They

15 were looking for larger space, and we only

16 had one that was available.

17 And I undertook discussions

18 with one of our other sub-tenants who was

19 having some difficulty with the practice

20 and finances and persuaded that person to

21 vacate her office and move to another

22 office in the suite, which was smaller and

23 less expensive in rent, so that we could

24 have the availability of a second office;

page 33

1 and that is the office which Mr. Clinton,

2 Sr. now occupies.

3 Q. And with regard to any

4 discussions with Donna Carlson, anything

5 else, terms, rent, anything about the

6 sublease that you recall?

7 A. She just indicated to me what

8 the terms were that they had agreed to.

9 Q. Do you recall anything else

10 about any other discussions with Donna

11 Carlson about this sublease prior to it

12 being signed?

13 A. I can't recall at this time.

14 Q. For example, one detail? Did

15 she tell you anything that anyone from the

16 Clinton firm said to her about what they

17 were looking for, other than the two

18 offices that you have testified to?

19 A. I don't recall. I really

20 don't.

21 Q. Besides Donna Carlson, did you

22 have any discussions with anyone else,

23 staff or attorneys, at KRC about this

24 sublease, other than what you have just

1 testified to?

2 A. I don't recall.

3 Q. Has the Clinton firm made all

4 of its rent payments under the sublease,

5 Plaintiff's Exhibit 3?

6 A. I believe they have.

7 Q. Are you aware of anything that

8 the Clinton firm has not done pursuant to

9 the terms of the sublease Plaintiff's

10 Exhibit 3?

11 A. Yes.

12 Q. What is that?

13 A. They haven't furnished us with

14 Workers Compensation insurance coverage.

15 That was provided for in the lease. I

16 don't believe they have given us the

17 certificate.

18 Q. And that's pursuant to

19 paragraph 12? Is that what you are

20 referring to?

21 A. Yes, sir, that is correct.

22 Q. 12(2)?

23 A. That is correct. And I am not

24 sure whether or not they are current on

page 35

1 their liability coverage.

2 Q. So your testimony is that the

3 certificate of insurance hasn't been

4 supplied, and you don't know whether or not

5 the insurance is actually in place, or do

6 you?

7 MR. STEWART T. KUSPER: I object

8 to the form of the question. You are

9 mischaracterizing what he just testified

10 to.

11 MR. WALDON: Well, I am trying

12 to clarify it.

13 THE WITNESS: I do know that

14 they have not furnished us with the

15 certificate of insurance for Workers

16 Compensation. I do not know whether or not

17 they are current on their liability

18 insurance certification.

19 MR. WALDON: Would you mark

20 this, please, as Plaintiff's Exhibit 4?


22 was marked for

23 identification.)

24

page 36

1 BY MR. WALDON:

2 Q. Please take a look at what has

3 been marked Plaintiff's Exhibit 4, the

4 Defendant's Answer, Affirmative Defenses

5 and Counterclaim in this case. Have you

6 seen this document before?

7 A. Yes.

8 Q. If you would turn, please, to

9 page 8, and direct your attention to the

10 allegation and answer with regard to

11 paragraph 19, allegation that, "The Clinton

12 firm has performed all material obligations

13 required of it under the lease." And after

14 the objection at the end, it states, "K &

15 R," which is KRC, "denies the allegations."

16 Do you know the basis for the denial of

17 paragraph 19?

18 A. Well, I just indicated to you

19 that there is a question concerning the

20 insurance coverage, and I imagine that

21 might be the answer. But I didn't certify

22 this, so I don't know.

23 Q. To your knowledge, do you know

24 of anything else besides the insurance

page 37

1 issue you just mentioned?

2 A. At this time, I can't think of

3 anything.

4 Q. Going back to -- just keep it

5 handy -- the sublease, Exhibit 3.

6 A. Yes.

7 Q. So to your knowledge, what did

8 KRC intend to sublet to the Clinton firm in

9 Suite 3400?

10 A. Two offices and one work

11 station.

12 Q. In addition to those spaces,

13 did KRC intend that the Clinton firm would

14 have access to and use of the hallways in

15 the Suite 3400?

16 A. The sublease doesn't say that

17 it does.

18 Q. Well, I am not asking. My

19 question is with regard to KRC's intent or

20 understanding. Did you understand that the

21 Clinton firm personnel would have access to

22 and use of the hallways in Suite 3400?

23 A. They would have permission to

24 use the hallways in Suite 3400, yes.

page 38

1 Q. And same thing with closets,

2 closet space?


4 do that, too.

5 Q. And the reception area, same

6 thing?


8 utilize that service, also.

9 Q. And the copy room?

10 A. The answer is same.

11 Q. Same. And the kitchen?


13 use the kitchen, yes.

14 Q. And at the time the lease was

15 filed -- sublease was signed, I am sorry --

16 access to and use of two internal bathrooms

17 in Suite 3400?

18 A. That is not included in the

19 lease. They would have permission to use

20 that.

21 Q. You say they would have

22 permission to use that?

23 A. It is not part of the lease,

24 but we would grant them permission to do

page 39

1 so.

2 Q. And the same with conference

3 rooms in Suite 3400, have access to and use

4 of the conference rooms?

5 A. They and all the other

6 sub-tenants would have our permission to

7 utilize those, yes, according to the rules

8 and procedure we have for that.

9 Q. And after the Clinton firm

10 moved into Suite 3400, and certainly for a

11 number of months thereafter, Clinton firm

12 personnel did have access to and use of

13 those common areas that we were just

14 talking about, is that correct?

15 A. They had permission to use

16 them, yes.

17 Q. With regard to this type of

18 arrangement in Suite 3400 and your other

19 sub-tenants, would you call that a shared

20 office arrangement?


22 to the form of the question. It's not a

23 legal term. It's not a term in the

24 sublease, and it's not a term in the law.

page 40

1 Subject to that, if you understand, you can

2 answer.

3 THE WITNESS: I don't understand

4 the question. I don't know what you mean

5 by that.

6 BY MR. WALDON:

7 Q. Have you ever heard the term

8 "shared office arrangement"?

9 A. No.

10 Q. Have you ever heard of other

11 lawyers subleasing space where a number of

12 law firms occupy the same suite and use the

13 same common areas?


15 to the form of the question. If you

16 understand, you can answer.

17 THE WITNESS: I don't understand

18 the question.

19 BY MR. WALDON:

20 Q. Have you ever been in a law

21 firm where there is more than one firm or

22 more than one counsel occupying the same

23 suite?

24 A. Except for Kusper and Raucci?

page 41

1 No.

2 Q. In July of 2009, do you recall

3 correspondence between KRC and the Clinton

4 firm with regard to an issue of food in the

5 work area?

6 A. Yes.




10 was marked for

11 identification.)

12 BY MR. WALDON:

13 Q. Take a look at that, please,

14 for a second, or whatever you need to read

15 it.

16 A. Yes.

17 Q. Do you recognize this letter?

18 A. Yes.

19 Q. Do you have any personal

20 knowledge of the incident to which it

21 refers with regard to food and the

22 secretarial area?



page 42

1 MR. WALDON: Would you repeat

2 that question, please?

3 (Question read back by the

4 reporter, as requested.)

5 BY MR. WALDON:

6 Q. Do you have any personal

7 knowledge of what happened that's the

8 subject of this letter?

9 A. Yes.

10 Q. And what do you recall

11 happening?

12 A. It was an incident where a

13 birthday cake was placed on the countertop

14 of the work station that the Clintons rent.

15 And people were partaking of the birthday

16 cake and, quite frankly, making a mess on

17 the floor around it.

18 Q. And do you know if Donna

19 Carlson or anyone else of KRC talked to

20 anyone at the Clinton firm before sending

21 this letter?


23 MR. WALDON: Let's mark the

24 next exhibit, please, Plaintiff's

page 43

1 Exhibit 6.


3 was marked for

4 identification.)

5 BY MR. WALDON:

6 Q. Please take a look at

7 Plaintiff's Exhibit 6 and tell me if you

8 recognize that document.

9 A. Yes, I do.

10 Q. And was the letter being

11 returned Plaintiff's Exhibit 5, if you

12 recall?

13 A. I assume, but I can't say for

14 certain because it doesn't reference in the

15 writing here what letter it is; but I

16 assume that that's what it is.

17 Q. And is that -- is the

18 handwriting yours?

19 A. Yes, sir.

20 Q. Oh, above your handwriting, who

21 is Stephanie Capps, if you recall?


23 Q. In the first line under

24 "Gentlemen," does it say -- and it's fairly

page 44

1 legible writing -- "Your hostility is

2 troubling and certainly not warranted"? Is

3 that what it says?

4 A. That's what it says.

5 Q. What, quote/unquote,

6 "hostility" were you referring to?

7 A. What's missing between the last

8 two exhibits that you handed me is the

9 letter that was sent out, or memorandum --

10 I don't know what it is -- by Mr. Clinton,

11 Sr. to all of the sub-tenants and to K & R,

12 dealing with the item of correspondence

13 that we addressed in the cake incident.

14 Q. And to the best of your

15 recollection, what did that memo say?

16 A. Without having it in front of

17 me, I couldn't describe it; but it was, I

18 think, accurately reflected in my first

19 sentence of this Exhibit 6, "hostility."

20 Q. Do you recall, generally, what

21 the memo said or points made or anything?

22 A. Generally speaking, it blasted

23 K & R for enforcing the rules.

24 Q. Did you have any discussion --

page 45

1 well, this handwritten note on the memo to

2 Donna Carlson, I presume, was given to the

3 Clinton firm, is that correct?

4 A. Yes, sir.

5 Q. And after it was given to the

6 Clinton firm, did you have any discussion

7 about your note with anyone at the Clinton

8 firm?

9 A. No, not that I recall.

10 Q. And why is that?



13 THE WITNESS: The letter speaks

14 for itself. There was no reply.

15 MR. WALDON: Please mark this

16 one as Plaintiff's Exhibit 7.


18 was marked for

19 identification.)

20 BY MR. WALDON:


22 Plaintiff's Exhibit 7.

23 A. Yes.

24 Q. Is this a memo you received

page 46

1 from Mr. Clinton, Jr. on or about the date

2 it bears, August 5, 2009?

3 A. Yes.

4 Q. On page 2, they are not

5 numbered but the one, two, three, four,

6 fifth paragraph down, it states that you

7 personally visited Mary and apologized for

8 the letter that your office manager sent.

9 Is that accurate?

10 A. No.

11 Q. Did you talk with Mary? So are

12 you saying it's not accurate because you

13 didn't apologize, or are you saying you

14 didn't talk to Mary at all?

15 A. I answered your question. You

16 asked was that accurate? I said, "No, it's

17 not."

18 Q. What is inaccurate about it?

19 A. It's not correct.

20 Q. So, did you talk to Mary Winch

21 about the birthday cake incident?

22 A. Yes.

23 Q. And do you recall approximately

24 when after it occurred or vis-a-vis these

1 other letters?

2 A. No. But this letter indicates

3 that it was after the letter was sent by

4 the office manager, so it was sometime

5 after that.

6 Q. And so you didn't apologize, is

7 that your recollection, for Donna's letter?

8 A. I didn't apologize for the

9 letter, no.

10 Q. What did you say to Mary?

11 A. I said I was sorry that the

12 incident was causing her any difficulty

13 because she was only following the

14 instructions of her superiors. I happen to

15 like Mary Winch.

16 Q. With regard to that discussion

17 that you just testified about with regard

18 to Mary Winch, have you had any other such

19 discussions with any other subtenant or its

20 personnel with regard to any conduct or

21 action that Donna Carlson has taken, if you

22 can recall?


24 to the form of the question. Incredibly

page 48

1 vague an overbroad. I think it's

2 impossible to answer, but if you can

3 understand it, you may answer.

4 THE WITNESS: Would you rephrase

5 that and, kind of, get to the point that

6 you are trying to make? I don't

7 understand, and I can't give you a blanket

8 answer to that question, not in the form in

9 which it's phrased. Have I talked to

10 sub-tenants about Donna Carlson? In

11 relation to what? I don't know what you

12 are after. I will be happy to answer

13 whatever question you have.

14 BY MR. WALDON:

15 Q. I am interested in any action

16 that Donna has taken that any sub-tenant

17 had a problem with and you talked to the

18 sub-tenant to say you were sorry about what

19 Donna had done or was sorry about the

20 impact of it, something like that, anything

21 similar.

22 A. Not that I recall, no, sir.

23 Q. At some point in 2009, KRC

24 denied its sub-tenants access to the two

page 49

1 internal bathrooms, is that correct?



4 MR. WALDON: What's the

5 objection?

6 MR. STEWART T. KUSPER: Because

7 you are characterizing with argumentative

8 terms. "Denied" is not an appropriate term

9 in my estimation.

10 BY MR. WALDON:

11 Q. Can you answer the question?

12 A. No.

13 Q. You don't recall that?

14 A. I can't answer the question the

15 way it's phrased.

16 MR. WALDON: Mark this as

17 Plaintiff's Exhibit 8, please.


19 was marked for

20 identification.)

21 BY MR. WALDON:

22 Q. Take a look, please, at what's

23 been marked Plaintiff's Exhibit 8, and tell

24 me if you are familiar with that document.

page 50

1 A. Yes.

2 Q. And in the second to third line

3 of the first paragraph -- well, this is a

4 memo from you, correct?


6 Q. To all of the sub-tenants?


8 Q. Dated August 25, 2009, is that

9 correct?

10 A. That's the date it bears.

11 Q. And in the first paragraph,

12 second and third sentence, your memo

13 states, "It has been necessary to return

14 the bathroom facilities to their original

15 intended purpose, usage by KRC employees

16 and associates," is that correct?


18 Q. So by virtue of this memo,

19 weren't you denying access to the other

20 sub-tenants to the internal bathrooms?

21 A. No.

22 Q. How could they use the internal

23 bathrooms when you said it's only for the

24 usage for KRC personnel?

page 51

1 A. They used it by our permission.

2 It wasn't a denial. It was a reassertion

3 of no permission.

4 Q. First of all, there are two

5 internal bathrooms, correct, in Suite 3400?


7 Q. And one right as you are going

8 into or coming out of the den conference

9 room, correct?

10 A. Yes.

11 Q. And the other one close by?

12 A. Yes.

13 Q. And the internal conference

14 rooms, the larger one, everyone calls it

15 "the den," is that correct?


17 Q. And then there is a smaller

18 conference room?

19 A. That is correct.

20 Q. You have referred several times

21 to KRC giving permission to use things,

22 such as internal bathrooms. Was that in

23 writing at any time to any sub-tenant,

24 giving them permission to use any of the

page 52

1 common areas?

2 A. No.

3 Q. So what, if anything, gave

4 sub-tenants permission to use these common

5 areas?

6 A. They were informed that they

7 could use them by our permission, yes.

8 Q. By Donna?

9 A. Probably.

10 Q. All right. Referring back to

11 Plaintiff's Exhibit 8, the memo refers to

12 "a series of most unfortunate, uncorrected

13 and repeated events." Do you see that?

14 A. Yes, sir.

15 Q. What does that refer to?

16 A. The discovery on a number of

17 occasions of urination which ended up on

18 the floors of the bathrooms, which created

19 an unsanitary, unhealthy and unsafe

20 condition.

21 Q. Both internal bathrooms that

22 this was discovered?

23 A. I believe that's correct.

24 Q. So who discovered the

page 53

1 conditions that you have just described?

2 A. It was reported to me by Donna

3 Carlson, and I believe I also had a

4 discussion concerning it with Pam G., as

5 you referred to her. And also, I do

6 believe that our receptionist at that time

7 also reported it to, I believe, Donna

8 Carlson indicating that she slipped and

9 almost fell and hurt herself.

10 Q. And what is that receptionist

11 -- former receptionist, you say?

12 A. Yes. It was a couple of

13 receptionists ago.

14 Q. What was her name?

15 A. I can't remember right now.

16 Q. And what, if anything, do you

17 recall about the details of her slipping

18 and almost hurting herself?

19 A. I didn't get the details of it.

20 I just got the report that it happened.

21 Q. And what steps, if any, did you

22 take after that, after hearing that report?

23 A. In an effort to not stigmatize

24 anybody, my view of -- my observation that

page 54

1 it occurred only after the Clintons had

2 begun their tenancy, sub-tenancy, with our

3 firm, that it might be logical to assume

4 that because of the physical condition of

5 Mr. Clinton, Sr., his difficulty in

6 walking, stability issues possibly, and

7 whatever, that it could be that he was the

8 individual who may have had a directional

9 challenge from time to time using the

10 bathrooms.

11 So as not to embarrass

12 Mr. Clinton, Jr. by discussing the matter

13 about his father, I went to Curtis Ross,

14 who is a good friend of the Clintons, and

15 came over approximately the same time from

16 this other suite where they were all at,

17 and sat with him and asked him if he could

18 discretely and gently discuss the matter

19 with Mr. Clinton, Jr., since I didn't know

20 Mr. Clinton, Jr. that well, and possibly

21 see if that was what had been occurring.

22 No one ever got back to me

23 about that. And it continued. And we

24 eventually rescinded the permission to

page 55

1 utilize the bathrooms.

2 Q. Did you ever go back to

3 Mr. Ross to follow up?

4 A. No. I didn't find it was

5 incumbent upon me to do so.

6 Q. Do any documents exist with

7 regard -- besides Plaintiff's Exhibit 8 --

8 with regard to the decision, and was it

9 your decision to take the steps outlined in

10 Plaintiff's Exhibit 8?

11 A. Absolutely.

12 Q. And are there any other

13 documents relating to that incident or any

14 inspection or anything with regard to the

15 condition of the bathrooms as you have

16 described them?

17 A. When? At what time?

18 Q. Prior to sending out the memo

19 on August 25, 2009.

20 A. I do believe there had been

21 another incident, and that's what prompted

22 us to do what we did.

23 Q. No. I am asking about

24 documents.

page 56

1 A. Documents.

2 Q. Notes of an inspection or

3 anything?

4 A. No, I don't -- I am not aware

5 of any.

6 Q. Let's go back for one second to

7 Plaintiff's Exhibit 13, another document

8 that was produced this afternoon, the first

9 one after the letter bearing number 1202,

10 an e-mail from May 29, 2009 talking about

11 cleaning inspections. Take a look at that.

12 My question will be if you know to what

13 this refers.

14 A. We had --

15 Q. What cleaning?

16 A. -- an outbreak, if you will, of

17 fruit flies and other forms of vermin

18 because of careless use of food in the work

19 stations. We had to have the exterminators

20 come in and do their thing, as you will, to

21 help rid us of the problem. And they did,

22 and they came back on a couple of other

23 occasions to do inspections to be sure that

24 that occurrence was still not taking place.

page 57

1 And this is right around the same time

2 where the cake incident took place, roughly

3 speaking. I am not sure exactly when.

4 Q. So this has nothing to do with

5 the internal bathroom issue that we were

6 just discussing?

7 A. No.

8 Q. Any similar documents that you

9 know of with regard to the bathroom

10 incidents we were just talking about, about

11 clean up or redoing or anything with regard

12 to that?

13 A. No documents. The only thing

14 is, in my conversations with Pam G., that

15 she went in and cleaned up a couple of

16 times to get rid of the spill.

17 Q. All right. We have been at it

18 about an hour. Why don't we take a break

19 and let's you and I talk for a second.

20 MR. STEWART T. KUSPER: It's

21 been more than an hour because I have got a

22 stop watch.

23

24

page 58

1 (After a short break, the

2 deposition resumed as

3 follows:)

4 BY MR. WALDON:

5 Q. Let's go back for a second to

6 Plaintiff's Exhibit 4, the Answer to the

7 Complaint, and go to page 39 -- I am sorry

8 -- page 22, paragraph 39. I am going to

9 have a question about the first sentence,

10 but go ahead and read it to the extent you

11 wish.

12 A. Number 39?

13 Q. Number 39. And this is in the

14 beginning of your Affirmative Defenses,

15 just to give you a context.

16 A. Okay.

17 Q. My question with regard to the

18 first sentence which refers to one or more

19 persons slipping -- time out for a second.

20 (There was a brief

21 interruption.)

22 BY MR. WALDON:

23 Q. Paragraph 39 in the Affirmative

24 Defense refers to "one or more persons

page 59

1 slipping on urine on the floor in one of

2 the bathrooms and almost falling and

3 injuring themselves." You had testified

4 about the former receptionist, correct?

5 A. Um-hum.

6 Q. Does this allegation, this

7 sentence in paragraph 39, refer to that

8 person?

9 A. I don't know. I didn't attest

10 to this. I do know that we had that one

11 incident that I was aware of, and I heard

12 there was another incident, but I am not

13 sure.

14 Q. Okay. Do you remember any

15 details with regard to the potential second

16 incident?

17 A. No. I think I just told you, I

18 am not sure.

19 Q. Okay. We will put that back

20 then. With regard to your August 25th

21 memo, Plaintiff's Exhibit 8, did the

22 Clinton firm object?

23 A. I do believe so.




3 was marked for

4 identification.)

5 BY MR. WALDON:


7 Plaintiff's Exhibit 9. And the first

8 question would be, did you receive it?

9 A. Yes.

10 Q. And do you see in the first

11 paragraph -- and this is from Mr. Clinton,

12 Jr., correct?

13 A. It's not signed, but it is --

14 it bears his name.

15 Q. And in the first paragraph, the

16 letter states that, "The Clinton firm

17 disagrees with the August 25th memo with

18 regard to the internal bathrooms and

19 believes it to be a breach of the

20 sublease." Do you see that?


22 Q. Did you ever talk with

23 Mr. Clinton, Jr. after receipt of this

24 letter about the statement that the Clinton

page 61

1 firm thought it to be a breach of the

2 sublease?

3 A. No.

4 Q. In the second paragraph, it

5 states that, "For many years prior to

6 August 25th, the interior bathrooms were

7 open and available to all tenants, guests

8 and Kusper personnel."

9 A. Yes. We granted permission for

10 all of our sub-tenants all of those years

11 to utilize them, as well as their guests

12 and our personnel, because we never had

13 incidents of urination on the floors, which

14 would cause a hazard. So yes, they had

15 permission to do so.

16 Q. In the third paragraph, it

17 states that, "Prior to signing the lease,

18 the office manager informed the Clinton

19 firm that they would be able to use the

20 interior bathrooms." Is that accurate, so

21 far as you know?

22 A. That's what the letter says.

23 Q. Do you know if that, one way or

24 the other, if that's an accurate statement?

page 62

1 A. I was not present during that

2 discussion, but I would imagine that she

3 probably, if she did say that, indicated

4 that there would be permission for them to

5 use it, yes.

6 Q. With regard to the -- they are

7 not numbered, but one, two, three, four,

8 fifth paragraph down, it states that,

9 "Members of this firm and everyone

10 associated with us were very careful to

11 clean and maintain the bathrooms." Do you

12 know if that is an accurate statement or

13 not?


15 Q. The next paragraph states that,

16 "In March of '09, toilet in the small

17 bathroom had a plunger next to it." Do you

18 recall seeing that, or do you know if

19 that's an accurate statement?

20 A. That's accurate.

21 Q. And the paragraph after that,

22 refers to a substantial burden on a

23 Ms. Bryant. Is that Andre Bryant?

24 A. I believe that's to who he

page 63

1 refers, yes.

2 Q. And is it your recollection or

3 memory that she was handicapped in some

4 way?


6 to the form of the question. If you

7 understand, you can answer.

8 THE WITNESS: If you observe

9 Miss Bryant, you see that she walks with a

10 cane.

11 BY MR. WALDON:

12 Q. Did you ever talk to Miss

13 Bryant after the August 25th memo about use

14 of the internal bathrooms or not?

15 A. No. She never approached me.

16 I never approached her.

17 Q. So given -- so, with regard to

18 this Plaintiff's Exhibit 9, this letter, do

19 you state you did not respond to

20 Mr. Clinton, Jr., is that correct?

21 A. The letter is dated September

22 the 4th, 2009. I have not responded to

23 this letter because there was no need to.

24 Q. So is it correct to say that

page 64

1 then, after receiving this letter, you

2 didn't inform anyone at the Clinton firm

3 that you thought there was some sort of

4 mutual mistake in the lease -- the

5 sublease?

6 A. The letter didn't address any

7 legal rights that they attained under the

8 sublease; and no, there was no conversation

9 about anything at all.

10 Q. Well, but just directing your

11 attention for one second back to the first

12 paragraph, they talk about legally, it

13 says, "the firm believes it's a breach of

14 our sublease." So that is stated

15 correctly?

16 A. That is stated in the letter

17 back in September of '09, and this is

18 almost July of 2011.



21 (Plaintiff's Exhibit No.

22 10 was marked for

23 identification.)

24

page 65

1 BY MR. WALDON:


3 Exhibit 10 dated September 18, 2009. Did

4 you receive a copy of this memo from

5 Mr. Clinton, Sr.?

6 A. Well, it's addressed to me, but

7 I don't know if I received it. I can't

8 recall.

9 Q. So I guess if you don't recall

10 receiving it, you wouldn't know whether or

11 not you responded to it, is that correct?

12 Just no recollection?

13 A. I just have absolutely no

14 recollection of that at all. I am sorry.

15 Q. Okay. Did any other sub-tenant

16 object to you, either orally or in writing,

17 to the August 25, 2009, memo --

18 A. No.

19 Q. -- Plaintiff's Exhibit 8?

20 A. No.

21 Q. Have you had any conversations

22 with any sub-tenants in Suite 3400 stating

23 your position that you think their sublease

24 has a mutual mistake?

page 66



3 THE WITNESS: The issue has

4 never been raised.

5 BY MR. WALDON:

6 Q. Since this current lawsuit was

7 filed, have you or anyone at KRC

8 communicated with any other sub-tenants

9 with regard to their subleases or any of

10 the terms thereof?

11 A. I can't speak for anybody else

12 but myself. I have not.

13 Q. At some point, KRC restricted

14 the use of the den, the large conference

15 room, isn't that correct?

16 A. That usage has always been

17 restricted.

18 Q. In what way?

19 A. People would have to register

20 in a book to be able to set out the time

21 that they were going to use it so there

22 wouldn't be chaos among all the sub-tenants

23 with regard to the use of the rooms.


page 67



3 11 was marked for

4 identification.)

5 THE WITNESS: I read it.

6 BY MR. WALDON:

7 Q. Is this a memo you sent on or

8 about April 5, 2011?

9 A. Yes.

10 Q. Did you make the decision that

11 is reflected in this memo with regard to

12 the den?

13 A. Yes.

14 Q. Please describe -- well, take

15 that back. Withdrawn. Did you see or find

16 the serious scratch and 10-inch gouge on

17 the table that's referred to here?

18 A. Yes.

19 Q. Who is the first person who saw

20 it, if you know?

21 A. I have no idea who was the

22 first person who saw it, but I saw it.

23 Q. And do you recall when that

24 was, approximately?

page 68

1 A. Shortly before this memo was

2 sent.

3 Q. Do you have any facts with

4 regard to how this scratch and gouge may

5 have happened?

6 A. The memo itself refers to the

7 anonymity of whoever did it. We don't

8 know.

9 Q. Did you talk to Donna Carlson

10 about the scratch and the gouge?

11 A. Yes.

12 Q. And what were the contents of

13 that discussion?

14 A. I was not a happy camper.

15 Q. What, if anything, did she have

16 to say?

17 A. She understood it and came up

18 with a suggestion that, in addition to the

19 registration of the time that you wanted in

20 the books that we had available for usage

21 of the room, that we take steps to insure

22 that the room was used only at the times

23 that are requested by the sub-tenants and

24 by our firm.

page 69

1 Q. The den had not been locked

2 permanently prior to this time, is that

3 correct?

4 A. No it had not.

5 Q. Do you recall who reported the

6 scratch and the gouge to you?

7 A. I think it was either --

8 MR. STEWART T. KUSPER: Excuse

9 me. I am going to object to the form of

10 the question. To him personally, or to

11 Kusper and Raucci?

12 MR. WALDON: To him personally.

13 THE WITNESS: I think I heard

14 about it from Donna. I am not sure. It

15 could have been Stanley, III.

16 BY MR. WALDON:

17 Q. Do you recall what time of day

18 it was reported to you?

19 A. No, I do not.

20 Q. Do you, Stanley Kusper, Jr.,

21 think someone at the Clinton firm did the

22 damage to the table?

23 A. I have absolutely no way of

24 knowing.

page 70

1 Q. Are there any documents, notes,

2 memos or other documents relating to the

3 incident that resulted in Plaintiff's

4 Exhibit 11?

5 A. If there are, I don't know

6 about them.




10 12 was marked for

11 identification.)

12 BY MR. WALDON:


14 Exhibit 12, and tell me if you received

15 this letter on or about the date it bears.

16 A. Yes, I did.

17 Q. Was that from a lawyer named

18 Dennis Waldon?

19 A. I think so, Dennis C. Waldon.

20 Q. And did you respond to

21 Mr. Waldon?

22 A. I believe we had a telephone

23 conversation when you called me, and you

24 said to me that I hadn't responded; and I

page 71

1 said, "Well, we will, in due course. I

2 think it deserves a response."

3 Q. And do you recall when that

4 occurred?

5 A. No.

6 Q. Is that the only time you

7 recall you and I speaking about this

8 letter?

9 A. I believe that's correct.

10 MR. STEWART T. KUSPER: Don't

11 forget you already marked 13.

12 BY MR. WALDON:

13 Q. With regard, generally, to your

14 interaction with other sub-tenants in Suite

15 3400 over the last couple of years, do you

16 consider yourself to be aloof from them?


18 to the form of the question. It's also

19 argumentative. If you understand, you can

20 answer.

21 THE WITNESS: How can I answer

22 that question when everybody is different

23 and interactions between people are

24 different based upon the differences

page 72

1 between the people and the attitudes of

2 those people? I do not consider myself to

3 be aloof. On the contrary. I consider

4 myself to be quite friendly.

5 BY MR. WALDON:

6 Q. On matters relating to

7 interaction and communications with the

8 sub-tenants on issues that might arise, do

9 you prefer that Donna Carlson deals with

10 them rather than yourself?

11 A. That's why she is there. She

12 is the office manager. I, too, have an

13 active practice of law.

14 Q. In the Defendant's Responses to

15 Plaintiff's Rule 213(f) Interrogatories,

16 Steven Adatto, A-d-a-t-t-o -- is that how

17 you pronounce his name?


19 Q. -- is identified as a witness

20 who may testify about matters in the

21 Complaint in K & R's Affirmative Defenses

22 and Counterclaim. Do you know what

23 information he has knowledge about with

24 regard to those issues?

page 73

1 A. He oftentimes advises Donna

2 with regard to leasehold matters and

3 issues. I don't know whether or not any of

4 them involve the Clinton -- I will call it

5 a controversy. But I do know that he was

6 the subject of -- I will try to be polite

7 about this -- a complaint filed with the

8 Attorney Registration and Disciplinary

9 Commission by Mr. Clinton, Jr. with regard

10 to alleged, and I stress the word

11 "alleged," conduct in a matter before the

12 Department of Employment Security of

13 Illinois.

14 Q. What is Mr. Adatto's area of

15 practice? Does it include real estate?

16 A. Yes.

17 Q. Anything else?

18 A. He practices in all phases of

19 our practice. He does employment work. He

20 does work before the Department of

21 Employment Security. He does personal

22 injury work. He does insurance work. He

23 does whatever. Again, he is one of our

24 general functionaries.

page 74

1 Q. But some real estate?

2 A. Yes.

3 Q. It includes real estate?

4 A. Yes, he has handled real estate

5 transactions on behalf of the office and

6 his clients.

7 Q. Let's go back, please, for a

8 second to Plaintiff's Exhibit 4, the

9 Answer. And if you would turn, please, to

10 page 28. The fifth affirmative defense

11 there is "unclean hands." And take a look

12 at the allegations in paragraph 69. I have

13 a few questions about 69.

14 A. Okay. I have read it.

15 Q. Are you aware of any facts with

16 regard to the allegation that the Clinton

17 firm engaged in unfair, inequitable,

18 unconscionable and/or fraudulent actions in

19 connection with the sublease?


21 to the form of the question. This is an

22 allegation in a pleading that has legal

23 concepts in it that are set forth in order

24 to establish the defense. The witness may

page 75

1 not know exactly how to characterize

2 certain facts to fit within or without any

3 of those particular allegations and legal

4 concepts. That is for argument of counsel

5 after the facts are into evidence and for

6 decision by the judge. So to the extent

7 that you are asking him, also, for a legal

8 conclusion is improper. If you understand

9 the question, you can answer.

10 THE WITNESS: Well, I think it's

11 unfair and unconscionable for people to

12 come to you and lease two offices and a

13 work station and, with an obvious mistake

14 in the lease, not seize upon it for all of

15 the time that they were there, some two

16 years plus, and attempt to assert that they

17 have sublet the entire office, including

18 all of the sub-tenants, including all of

19 the Kusper and Raucci space. I think

20 that's unfair. I think it's

21 unconscionable, as a matter of fact.

22 It's inequitable to assert

23 these things after about, what, a

24 year-and-a-half delay, after asserting

page 76

1 their first alleged breach. And I do

2 believe that there are, from what I have

3 been told, statements --

4 MR. STEWART T. KUSPER: Excuse

5 me. I need to make sure that you are not

6 about to testify to something that may have

7 come from a conversation between you and I.

8 If so, that's privileged.

9 THE WITNESS: Yes. I can't do

10 that.

11 MR. STEWART T. KUSPER: Thank

12 you. I object and instruct him not to

13 answer on privilege grounds.

14 THE WITNESS: I'd like to, but I

15 can't.

16 BY MR. WALDON:

17 Q. Turn to the next page, please,

18 if you would, in Plaintiff's Exhibit 4.

19 The seventh affirmative defense alleges an

20 illegality. And I direct your attention

21 for a moment to paragraph 77. I have a

22 question there.

23 A. Go ahead.

24 Q. Do you know of any facts, which

page 77

1 is what I am asking you about, that would

2 indicate that plaintiff's firms are barred

3 by the principles of illegality?

4 MR. STEWART T. KUSPER: Again, I

5 am going to interpose my objection to the

6 form of the question, as well as asking

7 this witness to testify to legal

8 conclusions. Although you ask him for

9 facts, you are asking for him to fit those

10 facts and categorize them within the

11 construct of an affirmative defense of

12 legal concepts. That is not for this

13 witness to testify to or to make those

14 judgments, but rather it is for the judge

15 and only the judge after the facts to which

16 this witness may have personal knowledge

17 are into evidence.

18 Subject to those objections, if

19 you understand, and I stress that if you

20 understand, you may answer.

21 MR. WALDON: Object to the

22 improper coaching, but go ahead if you can.

23 We are talking about facts.

24 MR. STEWART T. KUSPER: Same

page 78

1 objection.

2 THE WITNESS: I don't know what

3 facts the pleader of this affirmative

4 defense relied upon in making that defense;

5 and, accordingly, I can't answer the

6 question.

7 BY MR. WALDON:

8 Q. Let's go back to paragraph 13

9 for a moment.

10 A. You don't mean paragraph 13.

11 You mean Exhibit 13.

12 Q. Exhibit 13, right. Okay. If

13 you look past the transmittal letter, we

14 talked about 1202. The documents 1203

15 marked in the lower right-hand corner

16 through 1207, which is at the top, do you

17 know what these documents relate to?

18 A. This is -- the first one on 03

19 is an invoice from Simone D'Amore, who was

20 the woodworker who refinished the table

21 that was scratched and gouged.

22 Q. The table in the den?

23 A. In the den, yes, sir.

24 MR. STEWART T. KUSPER: Just if

page 79

1 I can for the record, each of the memos or

2 invoices are dated the same in the text

3 area, but if you look at the fax legends,

4 you will see the differences in when they

5 were actually transmitted and when they

6 came in.

7 BY MR. WALDON:

8 Q. And the one that starts at

9 1206, that's another invoice to that

10 gentleman for additional work on the table,

11 I presume?

12 A. No. That is an invoice that

13 reflects the entire total of $2,200.

14 MR. STEWART T. KUSPER: They are

15 in reverse.

16 MR. WALDON: They are both dated

17 February 28.

18 MR. STEWART T. KUSPER: And they

19 are in reverse order. If you look at the

20 fax legends on the top or bottom of the

21 document, you will see when they were

22 actually sent in and what the differences

23 are in the timing of them.

24 MR. WALDON: Yes, I see. All

1 right. Even though they are dated the

2 same.

3 MR. STEWART T. KUSPER: Exactly.

4 That was the biller's mistake.

5 BY MR. WALDON:

6 Q. I am going to ask a question

7 without marking as an exhibit because it's

8 hundreds of pages long. But I will

9 represent to you that these are some of the

10 documents that we received today,

11 indicating they are calendars. And if you

12 know, just to identify generally, are these

13 calendars that KRC uses for reserving and

14 using the conference rooms in the suite?

15 A. That's what they appear to be,

16 yes.

17 Q. You don't maintain these

18 documents, is that correct?

19 A. No, I do not. That's why I

20 have an office manager and a receptionist.

21 Q. And one other question. Do you

22 know -- which you may or may not know. For

23 example, here's a page for January 5th. It

24 refers to the den, small conference room,

page 81

1 and what's the third column, do you know,

2 library?

3 A. That looks like library.

4 Q. Library, okay. And on this

5 page under January 5th under the den, there

6 is, like, a file stamp for December 29th.

7 Do you see that?

8 A. I see that.

9 Q. Do you know what that means?

10 A. Absolutely not.

11 Q. Okay. Would Donna Carlson

12 know?

13 A. You would have to ask her, sir.

14 Q. Why don't we take a short

15 break? That may be it. I am sorry. With

16 regard to the calendar, you may or may not

17 know this. Are there back-up documents?

18 For example, if someone e-mails or sends a

19 memo to reserve a conference room and after

20 it's put down in the book, is that back-up

21 documentation kept, if you know?

22 A. I have no idea. That would

23 probably be out of the ordinary because

24 everybody's in the suite, generally

page 82

1 speaking.

2 MR. WALDON: Okay, short break.

3 (After a short break, the

4 deposition resumed as

5 follows:)

6 MR. WALDON: No more questions.

7 MR. STEWART T. KUSPER: We will

8 reserve signature. I have no questions.

9 (Whereupon the deposition

10 concluded.)

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page 83

1 STATE OF ILLINOIS ) ) SS 2 COUNTY OF COOK )

3

4 I,______________________________________,

5 do hereby certify that I have read the

6 foregoing transcript of my deposition

7 consisting of pages ____ through ___,

8 inclusive; and I find it is a true and

9 correct transcript of my deposition so

10 given as aforesaid.

11

12

13 ________________________________________

14

15

16 Subscribed and sworn to

17 before me this ____ day

18 of _____________, 2011.

19

20 ___________________________

21 Notary Public

22

23

24

page 84

1 STATE OF ILLINOIS ) ) SS: 2 COUNTY OF C O O K )

3

4

5 I, Cathleen M. Baker, CSR,

6 Certified Shorthand Reporter, and a notary

7 public in and for the County of Cook and

8 State of Illinois, do hereby certify that

9 STANLEY T. KUSPER, JR., on June 30, 2011,

10 was by me first duly sworn to testify to

11 the truth, the whole truth, and nothing but

12 the truth, and that the above deposition

13 was recorded stenographically by me and

14 transcribed by me.

15 I FURTHER CERTIFY that the

16 foregoing transcript of said deposition is

17 a true, correct, and complete transcript of

18 the testimony given by the said witness at

19 the time and place specified.

20 I FURTHER CERTIFY that I am not

21 a relative or employee or attorney or

22 employee of such attorney or counsel, or

23 financially interested directly or

24 indirectly in this action.

page 85

1 IN WITNESS WHEREOF, I have set

2 my hand.

3

4

5

6 ________________________________ 7 Cathleen M. Baker Certified Shorthand Reporter 8 Certificate No. 84-002130

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